85R814 GCB-F

By: Bettencourt S.B. No. 1891

A BILL TO BE ENTITLED

AN ACT

relating to a general employment review of persons who apply to school districts, open-enrollment charter schools, and certain independent contractors for employment involving direct contact with students or children; providing a civil penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter B, Chapter 21, Education Code, is amended by adding Section 21.0605 to read as follows:

Sec. 21.0605. ELIGIBILITY OF PERSONS FOUND IN VIOLATION OF EMPLOYMENT REVIEW REQUIREMENTS. The board may suspend or revoke the certificate or permit held by a person under this subchapter, impose other sanctions against the person, or refuse to issue a certificate or permit to a person under this subchapter if the person has been assessed a civil penalty under Section 22.074.

SECTION 2. Chapter 22, Education Code, is amended by adding Subchapter B-1 to read as follows:

SUBCHAPTER B-1. GENERAL EMPLOYMENT REVIEW

Sec. 22.061. DEFINITIONS. In this subchapter:

(1) "Independent contractor" means any entity that contracts with a school district, open-enrollment charter school, or shared services arrangement to provide services.

(2) "Sexual misconduct involving a student or child" includes:

(A) any verbal, nonverbal, written, or electronic communication that is designed to establish a romantic or sexual relationship with a student or child;

(B) dating a student or child or soliciting dates with a student or child;

(C) engaging in sexualized or romantic dialogue with a student or child;

(D) making sexually suggestive comments to a student or child;

(E) self-disclosure to a student or child or physical exposure to a student or child of a sexual, romantic, or erotic nature; and

(F) any other sexual, indecent, romantic, or erotic contact with a student or child.

Sec. 22.062. APPLICABILITY. This subchapter applies only to an applicant who applies for a position with a school district, open-enrollment charter school, or independent contractor that involves direct contact with students.

Sec. 22.063. APPLICANT REVIEW REQUIRED. (a) Except as provided by Section 22.067, a school district, open-enrollment charter school, or independent contractor may not hire an applicant unless:

(1) the applicant provides to the district, charter school, or contractor a completed employment history review application as required under Section 22.064; and

(2) the district, charter school, or contractor conducts a review of the applicant as required under Section 22.066.

(b) The requirement under this section for a school district, open-enrollment charter school, and independent contractor to obtain and review employment history information is in addition to complying with the applicable requirements of Subchapter C relating to obtaining and reviewing criminal history record information.

Sec. 22.064. EMPLOYMENT HISTORY REVIEW APPLICATION REQUIRED. A school district, open-enrollment charter school, or independent contractor shall require an applicant subject to this subchapter to provide to the district, charter school, or contractor a completed employment history review application on a form prescribed by the agency that includes:

(1) a list that includes the name of and the address, telephone number, and other relevant contact information for:

(A) any current employer of the applicant;

(B) any former employer of the applicant that is a school district, open-enrollment charter school, or independent contractor; and

(C) any former employer of the applicant not included under Paragraph (B) at which the applicant was employed in a position that involved direct contact with children;

(2) a statement signed by the applicant disclosing information regarding:

(A) whether the applicant has been the subject of an investigation by an employer listed under Subdivision (1), state licensing agency, law enforcement agency, or child protective services agency involving an allegation that the applicant engaged in conduct that constitutes child abuse or sexual misconduct involving a student or child, unless the results of the investigation resulted in a finding that the allegation was false;

(B) whether the applicant has been disciplined, discharged, or denied a renewal of an employment contract or has resigned or otherwise discontinued employment with the employer:

(i) during the period an allegation described by Paragraph (A) is pending or under investigation; or

(ii) on the basis of a finding or adjudication that the applicant did engage in child abuse or sexual misconduct with a student or child; and

(C) whether the applicant has ever had a license, certificate, or permit suspended or revoked or has surrendered a license, certificate, or permit:

(i) during the period an allegation described by Paragraph (A) is pending or under investigation; or

(ii) on the basis of a finding or adjudication that the applicant did engage in child abuse or sexual misconduct with a student or child; and

(3) an authorization signed by the applicant consenting to the disclosure of the information described by Subdivision (2) and the release of related records by each employer listed under Subdivision (1).

Sec. 22.065. REQUEST FOR EMPLOYER INFORMATION. (a) A school district, open-enrollment charter school, or independent contractor shall submit to each employer listed on an applicant's employee history review application under Section 22.064:

(1) a copy of the information the applicant is required to disclose in the statement under Section 22.064(2);

(2) a copy of the authorization provided by the applicant under Section 22.064(3); and

(3) a request that the employer provide to the district, charter school, or contractor, on a form prescribed by the agency:

(A) the dates of the applicant's employment with the employer; and

(B) any information the employer possesses regarding the applicant that the applicant is required to disclose in the statement under Section 22.064(2).

(b) Notwithstanding any other law, an employer that receives a request for information under Subsection (a) shall provide the information, including confidential information, requested on the form prescribed by the agency not later than the 20th day after the date the employer receives the request.

Sec. 22.066. REVIEW OF APPLICANT. (a) A school district, open-enrollment charter school, or independent contractor shall, for each applicant subject to this subchapter, conduct a review of:

(1) all materials obtained under Sections 22.064 and 22.065; and

(2) if the applicant is an educator:

(A) the status of the applicant's certificate or permit; and

(B) any notice of alleged misconduct placed on the educator's public certification records under Section 21.007.

(b) In addition to conducting the review under Subsection (a), a school district, open-enrollment charter school, or independent contractor shall inquire whether the agency has received notice of any pending criminal charges against the applicant.

(c) If a school district, open-enrollment charter school, or independent contractor receives information from an applicant or employer of an applicant that indicates an affirmative response to information required to be disclosed in the statement under Section 22.064(2) and the district, charter school, or contractor continues to consider offering employment to the applicant, the district, charter school, or contractor shall contact the applicable employer and request additional information and any related records concerning the affirmative response.

(d) Notwithstanding any other law, an employer that receives a request for additional information and related records under Subsection (c) shall provide the additional information or related records, including confidential information, not later than the 60th day after the date the employer receives the request.

(e) If an applicant is hired by a school district, open-enrollment charter school, or independent contractor, the review conducted under this section is sufficient provided that the person remains continuously employed by the district, charter school, or contractor.

Sec. 22.067. PROVISIONAL EMPLOYMENT. (a) A school district, open-enrollment charter school, or independent contractor may hire an applicant on a provisional basis for a period not to exceed 90 days pending the review of the applicant conducted under Section 22.066 if:

(1) the applicant has provided a completed employment history review application, as required under Section 22.064;

(2) the applicant swears or affirms that the applicant is not disqualified from employment for the position sought; and

(3) the district, charter school, or contractor:

(A) has no knowledge of information regarding the applicant that would disqualify the applicant from employment for the position sought; and

(B) requires the applicant to work in the immediate vicinity of a permanent employee of the district, charter school, or contractor when in direct contact with students.

Sec. 22.068. SUBSTITUTE EMPLOYEE. (a) In this section, "substitute employee" does not include a bus driver.

(b) A school district or open-enrollment charter school is required to conduct a review under Section 22.066 for an applicant seeking employment as a substitute employee only before the applicant is initially hired by the district or charter school or before the applicant is initially placed on the list of approved substitute employees of the district or charter school. The initial review under this subsection is sufficient provided that the substitute employee continues employment with the district or charter school or remains on the list of approved substitute employees of the district or charter school.

(c) Each school district or open-enrollment charter school must independently conduct the review required under Section 22.066 before offering employment to an applicant or before placing an applicant on the district's or charter school's list of approved substitute employees. A school district or open-enrollment charter school may not rely on a review conducted by another school district or open-enrollment charter school.

(d) An independent contractor that provides staffing of substitute employees is responsible for conducting the review required under Section 22.066. A school district or open-enrollment charter school that contracts for staffing of substitute employees is not responsible for conducting the review of a substitute employee employed by an independent contractor.

Sec. 22.069. SPECIFIC REQUIREMENTS REGARDING INDEPENDENT CONTRACTORS. (a) If an independent contractor intends to assign an existing employee to a position at a school district or open-enrollment charter school that involves direct contact with students, the contractor shall conduct the review required under Section 22.066 before assigning the employee to the position, and the employee is considered an applicant subject to this subchapter.

(b) A review conducted by an independent contractor of an applicant or existing employee is sufficient provided that the person remains continuously employed by the contractor and regardless of whether the person is assigned to a position at more than one school district or open-enrollment charter school.

(c) An independent contractor must maintain a record of each review conducted under Section 22.066.

(d) At the request of a school district or open-enrollment charter school receiving services from an independent contractor, the contractor shall provide the record of the review of any employee who provides services at the district or charter school.

(e) If an independent contractor employs a person whose review indicated an affirmative response to information required to be disclosed in the statement under Section 22.064(2), the contractor must provide the record of that review to a school district or open-enrollment charter school before assigning that person to a position that involves direct contact with students at the district or charter school.

(f) An independent contractor may not assign an employee to a school district or open-enrollment charter school if the board of trustees of the district or governing body of the charter school objects to the assignment based on the record of the review of the employee provided under this section.

Sec. 22.070. SUPPRESSION OF INFORMATION PROHIBITED. (a) A school district, open-enrollment charter school, or independent contractor may not, after September 1, 2017, enter into an agreement or contract or take any action regarding information concerning an allegation, finding, or adjudication of conduct by a current or former employee that constitutes child abuse or sexual misconduct involving a student or child that would:

(1) have the effect of suppressing the information;

(2) require the district, charter school, or contractor to expunge the information from employment records unless after investigation the information is found to be false; or

(3) prevent the district, charter school, or contractor from complying with a provision of this subchapter that requires the disclosure of the information.

(b) A provision in a contract or agreement that violates this section is void.

Sec. 22.071. EXEMPTION FROM PUBLIC INFORMATION LAW; AUTHORITY TO REPORT. (a) Information obtained under Section 22.064, 22.065, or 22.066 regarding an applicant subject to this subchapter is confidential and not subject to disclosure under Chapter 552, Government Code.

(b) A school district, open-enrollment charter school, or independent contractor may report information obtained under Section 22.064, 22.065, or 22.066 regarding an applicant subject to this subchapter to:

(1) the agency;

(2) the State Board for Educator Certification or another applicable state licensing or certifying agency or board;

(3) a law enforcement agency;

(4) a child protective services agency; and

(5) another school district, open-enrollment charter school, or independent contractor.

Sec. 22.072. IMMUNITY FROM PROSECUTION. A person may not be prosecuted for obtaining or disclosing information regarding an applicant subject to this subchapter in a manner authorized or required under this subchapter.

Sec. 22.073. IMMUNITY FROM CIVIL LIABILITY. (a) A person who obtains or discloses information regarding an applicant subject to this subchapter in a manner authorized or required under this subchapter is immune from civil liability for obtaining or disclosing the information.

(b) This section does not apply to a person who knowingly provides false information or records.

Sec. 22.074. CIVIL PENALTY; CONTRACTS WITH VIOLATORS PROHIBITED. (a) A person who wilfully violates this subchapter is liable for a civil penalty of not less than $500 or more than $10,000 for each violation. Each day a violation occurs or continues may be considered a separate violation for purposes of a civil penalty assessment.

(b) The attorney general shall, on request of the agency, or may, on the attorney general's own initiative, file suit to collect the penalty.

(c) A civil penalty collected under this section shall be deposited in the state treasury to the credit of the general revenue fund.

(d) The attorney general shall maintain and make publicly available on the attorney general's Internet website a list of each independent contractor assessed a civil penalty under this section. A school district or open-enrollment charter school may not contract for services with an independent contractor included on the list under this section.

Sec. 22.075. RULES. The commissioner shall adopt rules as necessary to administer this subchapter.

Sec. 22.076. EFFECT ON CONDUCTING ADDITIONAL INVESTIGATION OR DUTY TO REPORT. This subchapter may not be construed to:

(1) prevent a school district, open-enrollment charter school, or independent contractor from:

(A) conducting any authorized investigation of an applicant in addition to the review required under Section 22.066; or

(B) requiring an applicant to provide any additional information or authorizations in connection with a review required under Section 22.066;

(2) prevent an employer from disclosing information in addition to information required to be disclosed under Sections 22.065 and 22.066; or

(3) relieve a school district or open-enrollment charter school, a school administrator of a district or charter school, or an independent contractor of the legal responsibility to report:

(A) any suspected incidents of child abuse as provided by law; or

(B) any suspected incidents of professional misconduct as provided by law.

SECTION 3. As soon as practicable after the effective date of this Act:

(1) the Texas Education Agency shall prescribe standardized forms for applicants to use under Section 22.064, Education Code, as added by this Act, and for employers to use under Section 22.065, Education Code, as added by this Act; and

(2) school districts, open-enrollment charter schools, and independent contractors shall begin conducting employment reviews as required by Subchapter B-1, Education Code, as added by this Act.

SECTION 4. This Act takes effect September 1, 2017.