6-17-414. Criminal records check as a condition for initial employment of nonlicensed personnel — Definitions.

6-17-414. Criminal records check as a condition for initial employment of nonlicensed personnel — Definitions. (a)(1)(A)(i) Except as provided in subdivision (a)(1)(C) of this section, the board of directors of an educational entity shall require as a condition for initial employment or noncontinuous reemployment in a nonlicensed staff position any person making application to apply to the Identification Bureau of the Division of Arkansas State Police for statewide and nationwide criminal records checks, the latter to be conducted by the Federal Bureau of Investigation. (ii) The checks shall conform to the applicable federal standards and shall include the taking of fingerprints as required under § 6-17-417. (iii) The Identification Bureau and the Federal Bureau of Investigation may maintain these fingerprints in the automated fingerprint identification system. (B)(i) The person shall sign a release of information to the Division of Elementary and Secondary Education. (ii) Unless the employing educational entity's board of directors has taken action to pay for the cost of criminal background checks required by this section, the employment applicant shall be responsible for the payment of any fee associated with the criminal records checks. (C)(i) The board of directors of a school district created by consolidation, annexation, or detachment may waive the requirements under subdivisions (a)(1)(A) and (B) of this section for personnel who were employed by an affected district immediately before the annexation, consolidation, or detachment and who had complete criminal background checks conducted as a condition of the person's most recent employment with the affected district as required under this section. (ii) As used in subdivision (a)(1)(C)(i) of this section, “affected district” means a school district that loses territory or students as a result of annexation, consolidation, or detachment. (2)(A) Upon completion of the criminal records check, the Identification Bureau shall forward all releasable information obtained concerning the person to the Division of Elementary and Secondary Education, which shall promptly inform the board of directors of the educational entity whether or not the applicant is eligible for employment as provided by subsection (b) of this section. (B) A sealed, expunged, or pardoned conviction shall not disqualify a person under this section if the conviction does not involve the physical or sexual injury, mistreatment, or abuse of another. (3)(A) The board of directors of an educational entity shall require as a condition for initial employment or noncontinuous reemployment of all nonlicensed personnel a Child Maltreatment Central Registry check by the Department of Human Services. (B) The applicant shall sign a release of information to the Division of Elementary and Secondary Education and shall be responsible for the payment of any fee associated with the Child Maltreatment Central Registry check. (C) The Department of Human Services shall forward all releasable information concerning the applicant to the Division of Elementary and Secondary Education upon completion of the Child Maltreatment Central Registry check. (b) A person, including without limitation nonlicensed persons who provide services as a substitute teacher, shall not be eligible for employment, whether initial employment, reemployment, or continued employment, by an educational entity in a nonlicensed staff position if the person has a true report in the Child Maltreatment Central Registry or has pled guilty or nolo contendere to or has been found guilty of any of the following offenses by a court in the State of Arkansas or of any similar offense by a court in another state or by a federal court: (1) Capital murder as prohibited in § 5-10-101; (2) Murder in the first degree as prohibited in § 5-10-102 and murder in the second degree as prohibited in § 5-10-103; (3) Manslaughter as prohibited in § 5-10-104; (4) Battery in the first degree as prohibited in § 5-13-201 and battery in the second degree as prohibited in § 5-13-202; (5) Aggravated assault as prohibited in § 5-13-204, and assault in the first degree as prohibited by § 5-13-205; (6) Terroristic threatening in the first degree as prohibited in § 5-13-301; (7) Kidnapping as prohibited in § 5-11-102; (8) Rape as prohibited in § 5-14-103; (9) Sexual assault in the first degree, second degree, third degree, and fourth degree as prohibited in §§ 5-14-124 — 5-14-127; (10) Incest as prohibited in § 5-26-202; (11) A violation of the Arkansas Protection of Children Against Exploitation Act of 1979, § 5-27-301 et seq., or the use of a child in a sexual performance as prohibited by §§ 5-27-402 and 5-27-403; (12) Distribution to minors as prohibited in § 5-64-406; (13) Any felony in violation of the Uniform Controlled Substances Act, § 5-64-101 et seq.; (14) Criminal attempt, criminal solicitation, or criminal conspiracy as prohibited in §§ 5-3-201, 5-3-202, 5-3-301, and 5-3-401, to commit any of the offenses listed in this subsection; (15) Sexual indecency with a child as prohibited in § 5-14-110; (16) Endangering the welfare of a minor in the first degree as prohibited in § 5-27-205, or endangering the welfare of a minor in the second degree as prohibited by § 5-27-206; (17) False imprisonment in the first degree as prohibited in § 5-11-103; (18) Permanent detention or restraint as prohibited in § 5-11-106; (19) Permitting abuse of a child as prohibited in § 5-27-221(a); (20) Negligent homicide as prohibited by § 5-10-105(a); (21) Coercion as prohibited by § 5-13-208; (22) Public sexual indecency as prohibited by § 5-14-111; (23) Indecent exposure as prohibited by § 5-14-112; (24) Computer child pornography as prohibited in § 5-27-603; (25) Computer exploitation of a child in the first degree as prohibited in § 5-27-605; (26) Felony theft as prohibited in §§ 5-36-103 — 5-36-106 and 5-36-202; (27) Robbery as prohibited by §§ 5-12-102 and 5-12-103; (28) Breaking or entering as prohibited by § 5-39-202; (29) Burglary as prohibited by § 5-39-201 and aggravated residential burglary as prohibited by § 5-39-204; (30) Forgery as prohibited by § 5-37-201; (31) Video voyeurism as prohibited by § 5-16-101, and voyeurism as prohibited under § 5-16-102; (32) Domestic battering in the first degree as prohibited by § 5-26-303; (33) Domestic battering in the second degree as prohibited by § 5-26-304; (34) Felony violation of an order of protection as prohibited by § 5-53-134; (35) Prostitution as prohibited by § 5-70-102; (36) Sexual solicitation as prohibited by § 5-70-103; (37) Promoting prostitution in the first degree as prohibited by § 5-70-104; (38) Promoting prostitution in the second degree as prohibited by § 5-70-105; (39) Stalking as prohibited by § 5-71-229; (40) Failure to notify by a mandated reporter in the first degree as prohibited by § 12-18-201; (41) Any felony not listed in this subsection and involving physical or sexual injury, mistreatment, or abuse against another person; (42) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony; (43) Sexual extortion, § 5-14-113; (44) Failure to comply with the registration and reporting requirements of § 12-12-904; (45) Trafficking of a person as prohibited by § 5-18-103; (46) Patronizing a victim of human trafficking as prohibited by § 5-18-104; (47) Aggravated assault on a family member or household member as prohibited member as prohibited by § 5-26-306; and (48) Computer crimes against a minor as prohibited by § 5-27-601 et seq. (c) However, the board of directors of an educational entity is authorized to offer provisional employment to an applicant pending notification of eligibility information from the Division of Elementary and Secondary Education, which may be provided in an electronic format. (d)(1) Any information received by the Division of Elementary and Secondary Education from the Identification Bureau or the department pursuant to this section shall not be available for examination except by the affected applicant for employment or his or her duly authorized representative, and no record, file, or document shall be removed from the custody of the Division of Elementary and Secondary Education. (2) Any information made available to the affected applicant for employment shall be information pertaining to that applicant only. (3) Rights of privilege and confidentiality established under this section shall not extend to any document created for purposes other than this background check. (e) The State Board of Education shall determine that an applicant for employment with an educational entity in a nonlicensed staff position is ineligible for employment if the applicant: (1) Is required to pass an examination as a requirement of his or her position and the applicant's completed examination test score was declared invalid because of the applicant's improper conduct; (2) Has a sealed, an expunged, or a pardoned conviction for any sexual or physical abuse offense committed against a child or any offense listed in subsection (b) of this section; (3) Is subject to the provisions of § 12-12-905; (4) Knowingly submits or provides false or misleading information or knowingly fails to submit or provide information requested or required by law to the Division of Elementary and Secondary Education, the state board, or Arkansas Legislative Audit; (5) Knowingly falsifies or directs another to falsify any grade given to a student, whether the grade was given for an individual assignment or examination or at the conclusion of a regular grading period; (6) Has a true report in the Child Maltreatment Central Registry; or (7) Has an involuntary commitment for a physical or mental illness that endangers the health, safety, welfare, or education of a student, as determined by a licensed health professional, until the person provides documentation from a licensed health professional of treatment of the physical or mental illness and the person's current fitness. (f)(1) The superintendent or director of an educational entity or a third party vendor shall report to the state board the name of any person currently employed by the educational entity who: (A) Has pleaded guilty or nolo contendere to or has been found guilty of a felony or any misdemeanor listed in subsection (b) of this section; (B) Has intentionally compromised the validity or security of any student test or testing program administered or required by the Division of Elementary and Secondary Education; (C) Has knowingly submitted falsified information or failed to submit information requested or required by law to the Division of Elementary and Secondary Education, the state board, or Arkansas Legislative Audit; or (D) Has a true report in the Child Maltreatment Central Registry. (2) The failure of a superintendent or director to report information as required by this subsection may result in sanctions imposed by the state board. (g)(1)(A) The board of directors of an educational entity shall provide a written notice to an applicant and shall afford the applicant the opportunity to request a waiver if the applicant for a nonlicensed staff position has been determined ineligible for employment because the applicant: (i) Has a true report in the Child Maltreatment Central Registry; or (ii) Has pled guilty or nolo contendere to, has been found guilty of, or has an expunged or a pardoned conviction for a sexual or physical abuse offense committed against a child or an offense listed in subsection (b) of this section. (B) If the applicant under this subsection is contracted through an outside vendor, the educational entity may afford the applicant the opportunity to request a waiver. (2) The waiver shall be requested no more than thirty (30) days after receipt of the notice of the denial of employment. (3) The waiver may be requested by: (A) The hiring official; (B) The affected applicant; or (C) The person subject to dismissal. (4) Circumstances for which a waiver may be granted shall include without limitation the following: (A) The age at which the incident was committed; (B) The circumstances surrounding the incident; (C) The length of time since the incident; (D) Subsequent work history; (E) Employment references; (F) Character references; and (G) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel. (5)(A) The board of directors of the educational entity may grant the waiver by adoption of a written resolution identifying the applicant by name and listing the specific facts and circumstances for which the waiver is being granted. (B) After adopting a resolution granting a waiver, the board of directors of an educational entity shall immediately provide a copy of the resolution and waiver request to the Division of Elementary and Secondary Education. (C) The resolution and waiver request are public records subject to the provisions of the Freedom of Information Act of 1967, § 25-19-101 et seq. (6) A waiver request may be discussed and acted upon by the board of directors of an educational entity only in an open public meeting and not in an executive session. (h) As used in this section: (1) “Educational entity” means: (A) The Division of Elementary and Secondary Education; or (B) An entity that is identified by the Division of Elementary and Secondary Education as a local education agency, except that for a public school operated by a school district the school district is the educational entity; and (2) “Nonlicensed staff position” includes a: (A) Parental monitor on a school bus as permitted under § 6-19-127; (B) Staff person for which the nonlicensed person is either paid directly by the educational entity or by an outside vendor under contract with the educational entity to staff the position; and (C) Designated employee position with the Division of Elementary and Secondary Education. (i) The state shall adopt the necessary rules to implement this section.