DAR File No. 39492

Education, Administration

Rule R277-516

Education Employee Required Reports of Arrests and Required Background Check Policies for Non-licensed Employees

Notice of Proposed Rule

(Amendment)

DAR File No.: 39492
Filed: 07/01/2015 11:38:37 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Rule R277-516 is amended in response to H.B. 124 from the 2015 General Session.

Summary of the rule or change:

The amendments to this rule: 1) add and update definitions; 2) provide that local education agencies (LEAs) require employees, volunteers, and charter school governing board members to submit to a background check and ongoing monitoring; 3) provide that LEAs complete a background check and submit for ongoing monitoring all individuals appointed or hired prior to 07/01/2015 by 09/01/2018; 4) provide that the Utah State Board of Education (Board) notify the employing LEA or qualifying private school of a licensed educator of any criminal history information reported to the Board; and 5) provide technical changes as necessary.

State statutory or constitutional authorization for this rule:

• Article X, Section 3
• Subsection 53A-1-301(3)(d)(x)
• Title 53A, Chapter 15, Part 15
• Subsection 53A-1-301(3)(a)
• Subsection 53A-1-402(1)(a)(i)

Anticipated cost or savings to:

the state budget:

The amendments provide for additional processes for background checks and reporting which will likely not result in a cost or savings to the state budget.

local governments:

There may be some costs to LEAs resulting from the additional background check processes required in this rule. Costs are speculative at this time.

small businesses:

The amendments provide for additional processes for background checks and reporting which likely will not result in a cost or savings to small businesses.

persons other than small businesses, businesses, or local governmental entities:

There may be some costs to individuals resulting from the additional background check processes required in this rule. Costs are speculative at this time.

Compliance costs for affected persons:

The amendments provide for additional processes for background checks and reporting which may result in compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

I have reviewed this rule and I believe that there is likely no fiscal impact on businesses.

Brad C. Smith, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/14/2015

This rule may become effective on:

08/21/2015

Authorized by:

Angela Stallings, Associate Superintendent, Policy and Communication

R277. Education, Administration.

R277-516. Education Employee Required Reports of Arrests and Required Background Check Policies for Non-licensed Employees.

R277-516-1. Definitions.

A. "Board" means the Utah State Board of Education.

B. "Charter school governing board" means a board designated by a charter school to make decisions for the operation of the charter school.

C. "Charter school board member" means a current member of a charter school governing board.

[B]D. "Comprehensive Administration of Credentials for Teachers in Utah Schools (CACTUS)" means the database maintained on all licensed Utah educators[. The database], which includes information such as:

(1) personal directory information;

(2) educational background;

(3) endorsements;

(4) employment history;

(5) professional development information;

(6) completion of employee background checks; and

(7) a record of disciplinary action taken against the educator.

E. "Contract employee" means an employee of a staffing service who works at a public school under a contract between the staffing service and the public school.

[C]F. "DPS" means the Department of Public Safety.

G. "LEA" or "local education agency" means a school district, a charter school, or, for purposes of this rule, the Utah Schools for the Deaf and the Blind.

[D.]H.(1) "Licensed educator" means an individual who holds a valid Utah educator license and has satisfied all requirements to be a licensed educator in the Utah public school system (examples are traditional public school teachers, charter school teachers, school administrators, USOE and school district specialists).

(2) A licensed educator may or may not be employed in a position that requires an educator license.

(3) A [L]licensed educator[s] includes an individual[s] who :

(a) [are]is student teaching[,];

(b) [who are]is in an alternative route[s] to licensing program[s] or position[s]; [and]or

(c) an individual[s] who holds an [district- or charter school]LEA-specific competency-based license[s].

I. "Non-licensed public education employee" means an employee of a an LEA who:

(1) does not hold a current Utah educator license issued by the Board under Title 53A, Chapter 6, Educator Licensing and Professional Practices; or

(2) a contract employee.

[E]J. "Public education employer" means the education entity that hires and employs an individual, including public school districts, the Utah State Office of Education, Regional Service Centers, and charter schools.

K. "Superintendent" means the State Superintendent of Public Instruction or the Superintendent's designee.

[F]L. "USOE" means the Utah State Office of Education.

M. "Volunteer" means a volunteer who may be given significant unsupervised access to children in connection with the volunteer's assignment.

 

R277-516-2. Authority and Purpose.

A. This rule is authorized by Utah Constitution Article X, Section 3 , which vests the general control and supervision of the public schools in the Board, by Subsections 53A-1-301(3)(a) and 53A-1-301(3)(d)(x) , which instruct[s] the [State ]Superintendent[of Public Instruction (Superintendent) ]to perform duties assigned by the Board that include presenting to the Governor and the Legislature each December a report of the public school system for the preceding year that includes investigation of all matters pertaining to the public schools, and statistical and financial information about the school system which the Superintendent considers pertinent;[and] by Subsections 53A-1-402(1)(a)(i) and (iii) , which direct the Board to establish rules and minimum standards for the public schools regarding the qualification and certification of educators and ancillary personnel who provide direct student services, and the evaluation of instructional personnel[.]; and by Title 53A, Chapter 15, Part 15, Background Checks, which directs the Board to require educator license applicants to submit to background checks and provide ongoing monitoring of licensed educators.

B. The purpose of this rule is ensure that all students who are compelled by law to attend public schools, subject to release from school attendance consistent with Section 53A-11-102, are instructed and served by public school teachers and employees who have not violated laws that would endanger students in any way.

 

R277-516-3. Licensed Public Education Employee Personal Reporting of Arrests.

A. A licensed educator who is arrested, cited or charged with the following alleged offenses shall report the arrest, citation, or charge within 48 hours or as soon as possible to the licensed educator's district superintendent, charter school director or designee:

(1) any matters involving an alleged sex offense;

(2) any matters involving an alleged drug-related offense;

(3) any matters involving an alleged alcohol-related offense;

(4) any matters involving an alleged offense against the person under Title 76, Chapter 5, Offenses Against the Person;

(5) any matters involving an alleged felony offense under Title 76, Chapter 6, Offenses Against Property;

(6) any matters involving an alleged crime of domestic violence under Title 77, Chapter 36, Cohabitant Abuse Procedures Act; and

(7) any matters involving an alleged crime under federal law or the laws of another state comparable to the violations listed in R277-516-3A(1)-(6).

B. A licensed educator shall report convictions, including pleas in abeyance and diversion agreements within 48 hours or as soon as possible upon receipt of notice of the conviction, plea in abeyance or diversion agreement.

C. [The district]An LEA superintendent, [charter school]director, or designee shall report conviction, arrest or offense information received from a licensed educator[s] to the [USOE]Superintendent within 48 hours of receipt of information from a licensed educator[s].

D. The [USOE]Superintendent shall develop an electronic reporting process on the USOE website.

[D]E. [The]A licensed educator shall report for work following [the]an arrest and provide notice to the licensed educator's employer unless directed not to report for work by the employer, consistent with school district or charter school policy.

 

R277-516-4. Non-licensed Public Education Employee, Volunteer, and Charter School Board Member Background Check Policies.

A. [School districts and charter schools]An LEA shall adopt a polic[ies]y for non-licensed public education employee, volunteer, and charter school board member background checks that include at least the following components:

(1) [periodic background checks of non-licensed employees]a requirement that the individual submit to a background check and ongoing monitoring through registration with the systems described in Section 53A-15-1505 as a condition of employment or appointment; and

(2) [non-licensed employees shall submit to criminal background checks at least every six years;]identification of the appropriate privacy risk mitigation strategy that will be used to ensure that the LEA only receives notifications for individuals with whom the LEA maintains an authorizing relationship.

B. [School district and charter school]An LEA polic[ies]y shall [determine]describe the background check process necessary based on the [non-licensed employee's assignment]individual's duties.

[C. School districts and charter schools shall submit to the Utah Department of Public Safety a complete list of non-licensed employees including names, dates of birth, and social security numbers.

]

R277-516-5. Non-licensed Public Education Employee or Charter School Board Member Arrest Reporting Policy Required from [School Districts and Charter Schools]LEAs.

A. An [School districts/charter schools]LEA shall have a policy requiring [reporting of designated offenses by ] non-licensed public employees, charter school board members, and all employees who drive motor vehicles as an employment responsibility to report offenses specified in R277-516-5C.

B. [School districts/charter schools shall have an employee reporting policy for non-licensed employees adopted in an open board meeting no later than September 15, 2009. ]An LEA shall post [T]the policy described in R277-516-5A [shall be available ]on the [school district/charter school]LEA's website[ or provided to the USOE or both].

C. [The]An LEA's policy described in R277-516-5A shall include the following minimum components:

(1) reporting of the following:

(a) convictions, including pleas in abeyance and diversion agreements;

(b) any matters involving arrests for alleged sex offenses;

(c) any matters involving arrests for alleged drug-related offenses;

(d) any matters involving arrests for alleged alcohol-related offenses; and

(e) any matters involving arrests for alleged offenses against the person under Title 76, Chapter 5, Offenses Against the Person.

(2) a timeline for receiving reports from non-licensed public education employees;

(3) immediate suspension from student supervision responsibilities for alleged sex offenses and other alleged offenses which may endanger students during the period of investigation;

(4) immediate suspension from transporting students or public education vehicle operation or maintenance for alleged offenses involving alcohol or drugs during the period of investigation;

(5) adequate due process for the accused employee consistent with Subsection 53A-3-410(10);

(6) a process to review arrest information and make employment or appointment decisions that protect both the safety of students and the confidentiality and due process rights of employees and charter school board members; and

(7) timelines and procedures for maintaining records of arrests and convictions of non-licensed public education employees and charter school board members.

D. An LEA shall ensure that the [R]records described in R277-516-5C(7)[shall]:

(a) include final administrative determinations and actions following investigation; and

(b) [be]are maintained :

(i) only as necessary to protect the safety of students; and

(ii) with strict requirements for the protection of confidential employment information.

 

R277-516-6. Public Education Employer Responsibilities Upon Receipt of Arrest Information[ from Employees].

A. A public education employer that receives arrest information about a licensed public education employee shall review the arrest information and assess the employment status consistent with Section 53A-6-501, Rule R277-515, and the [school district/charter school's]LEA's policy.

B. A public education employer that receives arrest information about a non-licensed public education employee, volunteer, or charter school board member shall review the arrest information and assess the [employee's]individual's employment or appointment status:

(1) considering the [non-licensed public education employee's ]individual's assignment and duties; and

(2) consistent with a local board-approved policy for ethical behavior of non-licensed employees, volunteers, and charter school board members.

C. A local board shall provide appropriate training to non-licensed public education employees, volunteers, and charter school board members about the provisions of the local board's policy for self-reporting and ethical behavior of non-licensed public education employees, volunteers, and charter school board members.

D. A public education employer shall cooperate with the [USOE]Superintendent in investigations of licensed educators.

 

[R277-516-7. USOE Responsibility for Review of Arrest/Conviction Information Regarding Current or Prospective Licensees.

A. The USOE shall review self-disclosure reports received from public education employers who received the information from licensed educators pursuant to this rule, or reports from DPS regarding arrests/convictions of current or prospective licensees in a timely manner.

B. The USOE shall:

(1) require the current or prospective licensee to immediately submit his fingerprints to DPS for a background check;

(2) place a flag on the licensee's CACTUS file indicating a background check issue;

(3) evaluate, after consultation with the public education employer and consistent with procedures under Section 53A-6-401 and R686-100, for potential licensing action.

 

]KEY: school employees, self reporting

Date of Enactment or Last Substantive Amendments: [June 8, ]2015

Notice of Continuation: June 10, 2014

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-1-301(3)(a); 53A-1-301(3)(d)(x); 53A-1-402(1)(a)(i); 53A-1-402(1)(a)(iii)