ADDA - Background Checks

DUDLEY-CHARLTON REGIONAL SCHOOL DISTRICT

POLICY - ADDA

Background Checks

It shall be the policy of the Dudley-Charlton Public Schools to obtain all available Criminal Offender Record Information (C.O.R.I) and Sex Offender Registry Information (S.O.R.I) from the Criminal History Systems Board of prospective employee(s) or volunteer(s) of the school department including any individual who regularly provides school related transportation to children, who may have direct and unmonitored contact with children, prior to hiring the employee(s) or to accepting any person as a volunteer. State law requires that school districts obtain C.O.R.I. data for employees of transportation vendors, e.g., yellow bus or specialized transportation, that have contracted with the schools to provide transportation to pupils. In addition, Dudley-Charlton Public Schools will also require S.O.R.I. data.

This policy is applicable to any fingerprint-based state and national criminal history record check made for non-criminal justice purposes and requested under applicable federal authority and/or state statute authorizing such checks for licensing or employment purposes. Where such checks are allowable by law, the following practices and procedures will be followed.

The Superintendent or her/his certified designees shall periodically, but not less than every three years, obtain all available Criminal Offender Record Information from the Criminal History Systems Board and Sex Offender Records Information from the Sex Offender Registry Board (SORB) on all employees. This includes individuals who regularly provide school related transportation to children, including transportation vendors, employees and volunteers who may have direct and unmonitored contact with children during their term of employment or volunteer service.

The Superintendent or his/her certified designees may also have access to Criminal History Record Information and Sex Offender Records Information for any subcontractor or laborer who performs work on school grounds, and who may have direct and unmonitored contact with children, and shall notify them of this requirement and comply with the appropriate provisions of this policy.

Requesting CHRI (Criminal History Record Information) checks

Fingerprint-based CHRI checks will only be conducted as authorized by state and federal law, in accordance with all applicable state and federal rules and regulations. If an applicant or employee is required to submit to a fingerprint-based state and national criminal history record check, they shall be informed of this requirement and instructed on how to comply with the law. Such instruction will include information on the procedure for submitting fingerprints. In addition, the applicant or employee will be provided with all information needed to successfully register for a fingerprinting appointment.

Pursuant to a Department of Education C.O.R.I. Law Advisory dated February 17, 2003, "Direct and unmonitored contact with children means contact with a child when no other C.O.R.I. or S.O.R.I. cleared employee of the school or district is present. A person having only the potential for incidental unsupervised contact with children in commonly used areas of the school grounds, such as hallways, shall not be considered to have the potential for direct and unmonitored contact with children. These excluded areas do not include bathrooms and other isolated areas (not commonly utilized and separated by sight or sound from other staff) that are accessible to students."

In accordance with state law, all current and prospective employees, volunteers, and persons regularly providing school related transportation to children of the school district shall sign a request form authorizing receipt by the district of all available C.O.R.I. and S.O.R.I. data from the Criminal History Systems Board. In the event that a current employee has questions concerning the signing of the request form, he/she may meet with the Superintendent. However, failure to sign the C.O.R.I. or S.O.R.I request form may result in a referral to local counsel for appropriate action. Completed request forms must be kept in secure files. The School Committee, Superintendent or her/his designees certified to obtain information under this policy, shall prohibit the dissemination of school information for any purpose other than to further the protection of school children.

C.O.R.I. / S.O.R.I. is not subject to the public records law and must be kept in a secure location, separate from personnel files and may be retained for not more than three years. C.O.R.I. / S.O.R.I. may be shared with the individual to whom it pertains, upon his or her request, and in the event of an inaccurate report the individual should contact the Criminal History Systems Board or the Sex Offender Registry Board.

Access to C.O.R.I. / S.O.R.I. material must be restricted to those individuals certified to receive such information. In the case of prospective employees or volunteers, C.O.R.I / S.O.R.I. material should be obtained only where the Superintendent has determined that the applicant is qualified and may forthwith be recommended for employment or volunteer duties.

The hiring authority, subject to applicable law, reserves the exclusive right concerning any employment decision made pursuant to Chapter 385 of the Acts of 2002. The employer may consider the following factors when reviewing C.O.R.I.: the type and nature of the offense, the date of the offense, and whether the individual has been subsequently arrested, as well as any other factors the employer deems relevant.

Unless otherwise provided by law, a criminal record will not automatically disqualify an applicant. Rather, determinations of suitability based on C.O.R.I. checks will be made consistent with this policy and any applicable law or regulations.

If a criminal record is received from the Criminal History Systems Board (CHSB), the Superintendent will closely compare the record provided by CHSB with the information on the C.O.R.I. request form and any other identifying information provided by the applicant, to ensure the record relates to the applicant.

If the district is inclined to make an adverse decision based on the results of the C.O.R.I. check, the applicant will be notified immediately. The applicant shall be provided with a copy of the criminal record and the district's C.O.R.I. policy, advised of the part(s) of the record that make the individual unsuitable for the position or license, and given an opportunity to dispute the accuracy and relevance of the C.O.R.I. record.

The Superintendent shall ensure that on the application for employment and/or volunteer form there shall be a statement that as a condition of employment or volunteer service the school district is required by law to obtain Criminal Offender Record Information or Sex Offender Registry Information for any employee, individual who regularly provides school related transportation, or volunteer who may have direct and unmonitored contact with children. Current employees, persons regularly providing school related transportation, and volunteers shall also be informed in writing by the Superintendent prior to the periodic obtaining of their Criminal Offender Record Information or Sex Offender Registry Information.

The Superintendent shall amend employment applications to include questions concerning criminal records which the Massachusetts Commission Against Discrimination has determined may be legally asked of prospective employees. Any employment application which seeks information concerning prior arrests or convictions of the applicant shall include the following statement: "An applicant for employment with a sealed record on file with the commissioner of probation may answer 'no record' with respect to an inquiry herein relative to prior arrests, criminal court appearances, or convictions. An applicant for employment with a sealed record on file with the commissioner of probation may answer 'no record' to an inquiry herein relative to prior arrests or criminal court appearances. In addition, any applicant for employment may answer 'no record' with respect to any inquiry relative to prior arrests, court appearances, and adjudications in all cases of delinquency or as a child in need of service which did not result in a complaint transferred to the superior court for criminal prosecution."

Records sealed pursuant to law shall not operate to disqualify a person in any examination, appointment, or application for public service on behalf of the Commonwealth or any political subdivision thereof.

The Superintendent shall revise contracts with special education schools and other providers to require a signed statement that the provider has met all the legal requirements of the state where it is located relative to criminal background checks for employees and others having direct and unmonitored contact with children.

Determining Suitability

In determining an individual's suitability, the following factors will be considered: these factors may include, but not necessarily be limited to: the nature and gravity of the crime and the underlying conduct, the time that has passed since the offense, conviction and/or completion of the sentence, nature of the position held or sought, age of the individual at the time of the offense, number of offenses, any relevant evidence of rehabilitation or lack thereof and any other factors deemed relevant by the district. 

A record of the suitability determination will be retained. The following information will be included in the determination:

• The name and date of birth of the employee or applicant;
• The date on which the school employer received the national criminal history check results; and,
• The suitability determination (either "suitable" or "unsuitable").

A copy of an individual's suitability determination documentation must be provided to another school employer, or to the individual, upon request of the individual for whom the school employer conducted a suitability determination.

Relying on Previous Suitability Determination

The school employer may obtain and may rely on a favorable suitability determination from a prior employer, if the following criteria are met:

• The suitability determination was made within the last seven years; and
• The individual has not resided outside of Massachusetts for any period longer than three years since the suitability determination was made; and either
• The individual has been employed continuously for one or more school employers or has gaps totaling no more than two years in his or her employment for school employers; or
• If the individual works as a substitute employee, the individual is still deemed suitable for employment by the school employer who made a favorable suitability determination.

Upon request of another school employer, the initial school employer shall provide documentation that the individual is still deemed suitable for employment by the initial school employer.

Adverse Decisions Based on CHRI

• If inclined to make an adverse decision based on an individual's CHRI, the district will take the following steps prior to making a final adverse determination:
• Provide the individual with a copy of their CHRI used in making the adverse decision;
• Provide the individual with a copy of this CHRI Policy;
• Provide the individual the opportunity to complete or challenge the accuracy of their CHRI; and
• Provide the individual with information on the process for updating, changing, or correcting CHRI.

A final adverse decision based on an individual's CHRI will not be made until the individual has been afforded a reasonable time depending on the particular circumstances not to exceed thirty days to correct or complete the CHRI.

If a school employer receives criminal record information from the state or national fingerprint-based background checks that includes no disposition or is otherwise incomplete, the school employer may request that an individual, after providing him a copy of said background check, provide additional information regarding the results of the criminal background checks to assist the school employer in determining the applicant's suitability for direct and unmonitored contact with children, notwithstanding the terms of General Laws chapter 151B, S. 4,( 9,9 ½). Furthermore, in exigent circumstances, a school employer may, pursuant to the terms of DESE regulations (see specific regulations in legal references), hire an employee on a conditional basis without first receiving the results of a national criminal background check. After exhausting several preliminary steps as contained in the above referenced regulation the district may require an individual to provide information regarding the individual's history of criminal convictions; however, the individual cannot be asked to provide information about juvenile adjudications or sealed convictions. The superintendent is advised to confer with legal counsel whenever they solicit information from an individual concerning their history of criminal convictions.

LEGAL REF:

• M.G.L. 6:167-178, 15D:7-8; 71:38R, 151B, 276, §.100A, St. 2002, c.385, 276:100A
• P.L. 92-544; Title 28 U.S.C. § 534; Title 28 C.F.R. 20.33(b)
• 42 U.S.C. § 16962
• 603 CMR 51.00 MCAD Regulations and D.O.E. Advisory on C.O.R.I. Law (Feb 17, 2003)
• 803 CMR 2.00, 3.05 (Chapter 14 of the Acts of 2004)