WSR 04-18-110

PROPOSED RULES

STATE BOARD OF EDUCATION


[ Filed September 1, 2004, 9:36 a.m. ]

     Supplemental Notice to WSR 04-15-111.

     Preproposal statement of inquiry was filed as WSR 04-09-064.

     Title of Rule and Other Identifying Information: Chapter 180-88 WAC, Definitions of sexual misconduct, verbal abuse, and physical abuse -- Mandatory disclosure -- Prohibited agreements.

     Hearing Location(s): Northwest Educational Service District 189, 1601 R Avenue, Anacortes, WA 98221, on October 20, 2004, at 8:30 a.m.

     Date of Intended Adoption: October 22, 2004.

     Submit Written Comments to: Larry Davis, Executive Director, P.O. Box 47206, Olympia, WA 98504-7206, e-mail ldavis@ospi.wednet.edu, fax (360) 586-2357, by October 6, 2004.

     Assistance for Persons with Disabilities: Contact Laura Moore, Executive Assistant, by October 6, 2004, TTY (360) 664-3631 or (360) 725-6025.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Adoption of a proposed new chapter to State Board of Education policies: Chapter 180-88 WAC, Definitions of sexual misconduct, verbal abuse, and physical abuse -- Mandatory disclosure -- Prohibited agreements, as presented herein. RCW 28A.400.301 requires adoption by September 1, 2004.

     Reasons Supporting Proposal: This makes permanent a rule adopted on an emergency basis at the August 25-27, 2004, state board meeting in response to legislation passed by the 2004 legislature.

     Statutory Authority for Adoption: RCW 28A.400.301.

     Rule is not necessitated by federal law, federal or state court decision.

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: See Purpose above.

     Name of Proponent: State Board of Education, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Larry Davis, State Board of Education, Olympia, Washington, (360) 725-6025.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Not applicable.

     A cost-benefit analysis is not required under RCW 34.05.328. Not applicable.

August 31, 2004

Larry Davis

Executive Director

OTS-7401.2

Chapter 180-88 WAC

DEFINITIONS OF SEXUAL MISCONDUCT, VERBAL ABUSE AND PHYSICAL ABUSE -- MANDATORY DISCLOSURE -- PROHIBITED AGREEMENTS


NEW SECTION
WAC 180-88-010   Purpose and authority.   (1) The purpose of this chapter is to provide the safest educational environment for children and staff and to implement legislative direction by:

     (a) Defining the term "sexual misconduct" for purposes of requiring school districts to forward known information about employee sexual misconduct to prospective school district employers; and

     (b) Defining "sexual misconduct," "verbal abuse," and "physical abuse" for purposes of prohibiting school districts from entering into any contract or agreement that has the effect of suppressing information about verbal or physical abuse or sexual misconduct by a present or former employee, or has the effect of expunging such information from employer files.

     (2) The authority for this chapter is RCW 28A.400.301.

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NEW SECTION
WAC 180-88-020   Employee -- Definition.   As used in this chapter, the term "employee" means any employee or former employee of a school district, including all classified employees, all certificated employees, and all substitute employees.

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NEW SECTION
WAC 180-88-030   Student -- Definition.   For purposes of this chapter, "student" shall have the same meaning as defined in WAC 180-87-040.

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NEW SECTION
WAC 180-88-040   Verbal abuse -- Definition.   "Verbal abuse" means the use of malicious or hostile language by an employee that results in harm to another if the school district has determined that there is sufficient evidence to conclude that an employee engaged in the conduct and that it resulted in the employee leaving a position with the school district. Under RCW 28A.400.301, a district is prohibited from entering into any contract or agreement that has the effect of suppressing information about the abuse by a present or former employee or has the effect of expunging such information from employer files.

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NEW SECTION
WAC 180-88-050   Physical abuse -- Definition.   (1) "Physical abuse" means the willful action by an employee of inflicting or attempting to inflict bodily injury against another, or using physical force in excess of what is necessary to restrain a person from harming self or others. To constitute physical abuse, a school district must possess sufficient information to conclude that the employee engaged in the conduct and that it resulted in the employee leaving a position with the school district. Under RCW 28A.400.301, a district is prohibited from entering into any contract or agreement that has the effect of suppressing information about the abuse by a present or former employee or has the effect of expunging such information from employer files.

     (2) Authorized use of physical restraints or of aversive interventions consistent with chapter 392-172 WAC shall not constitute physical abuse.

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NEW SECTION
WAC 180-88-060   Sexual misconduct -- Definition.   "Sexual misconduct" means:

     (1) Any sexually exploitive act with or to a student. Sexually exploitive acts include, but are not limited to, the following:

     (a) Any sexual advance, verbal, written or physical.

     (b) Sexual intercourse, as defined in RCW 9A.44.010.

     (c) Sexual contact, i.e., the intentional touching of the sexual or other intimate parts of a student except to the extent necessary and appropriate to attend to the hygienic or health needs of the student.

     (d) Any activities determined to be grooming behavior for purposes of establishing a sexual relationship.

     (e) The provisions of (a) through (d) of this subsection shall not apply if at the time of the sexual conduct the participants are married to each other.

     (2) Indecent exposure, as defined in RCW 9A.88.010.

     (3) Sexual harassment of another as defined under local employer policy.

     (4) Commission of a criminal sex offense as defined under chapter 9A.44 RCW.

     (5) Sexual abuse or sexual exploitation of any minor as found in any dependency action under chapter 13.34 RCW or in any domestic relations proceeding under Title 26 RCW.

     (6) For purposes of this section, sexual misconduct occurs only when a school district determines it has sufficient information to conclude that an employee engaged in the sexual misconduct and it resulted in the employee leaving a position with the school district. Under RCW 28A.400.301, a district is prohibited from entering into any contract or agreement that has the effect of suppressing information about the misconduct of a present or former employee or has the effect of expunging such information from employer files, and a district must forward information regarding sexual misconduct to prospective employing districts.

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