Legislature(2003 - 2004)
05/03/2004 03:23 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 179 - CRIMINAL BACKGROUND CHECKS/TEACHERS Number 2153 CHAIR McGUIRE announced that the final order of business would be CS FOR SENATE BILL NO. 179(FIN), "An Act relating to criminal history records and background checks; allowing persons to teach in the public schools for up to five months without a teaching certificate if the person has applied for a certificate and the application has not been acted upon by the Department of Education and Early Development due to a delay in receiving criminal history records; allowing teacher certification for certain persons based on a criminal history background check without fingerprints; and providing for an effective date." Number 2163 ZACH WARWICK, Staff to Senator Gene Therriault, Alaska State Legislature, sponsor, presented SB 179 on behalf of Senator Therriault. He relayed that the concept of SB 179 was brought forth by a constituent who was a retired teacher that had decided to start teaching again and was required to go through the process of getting another teaching certificate. In order to obtain a teaching certificate, a criminal history background check, through both state and federal government agencies, is required . The problem this constituent faced, however, is that over the course of teaching for many years, she has worn away her fingerprints. Currently, there are approximately 30 individuals attempting to get teaching certificates who face this same problem - their fingerprints are worn out to the point where they can no longer be used to obtain a criminal history background check. MR. WARWICK said that the goal of SB 179 is to create a process by which school administrators and the state will be assured that such a person has received some form of criminal history background check. He elaborated: What it would do is, if you rolled two subsequent sets of prints and they were determined to be ... illegible due to ... poor quality [of fingerprint ridges], that they would give them a social-security- and a name- based background check so [as] to give us some kind of assurance. MR. WARWICK relayed that because results of background checks are commonly delayed and not available within the current three- month statutory timeframe, the Senate Health, Education and Social Services Standing Committee changed the period of time in which a person may teach without a teaching certificate from three months to five months if the delay is due solely to the fact that the U.S. Department of Justice (DOJ) has not provided the results within the initial three months. So currently, under the bill, if such a delay occurs, the Department of Education and Early Development (DEED) can grant a 60-day extension of the original three-month period. Number 2257 MR. WARWICK explained that currently, without this extension, should the DOJ delay in returning the results of a criminal background check, the teacher automatically looses his/her teaching certificate. To get around this problem, a majority of schools simply hire such persons as substitute teachers for an additional three months while waiting for the results of the background check. The provisions of CSSB 179(FIN), in effect, shorten the total time to five months in those circumstances. He mentioned that the DEED has informed him that it doesn't intend to make excessive use of the extension, and was, in fact, hesitant at first to have it included in the bill. MR. WARWICK relayed that the language in all but Sections 8 and 10 of the bill were suggested by the Department of Public Safety (DPS) and the Department of Law (DOL). One of the problems that SB 179 is intended to address is the fact that Alaska statutes pertaining to criminal history background checks are not in compliance with federal law. For example, federal law requires that state statute list all occupations for which the state allows criminal history background checks. Section 7 now includes that language. Additionally, the bill's drafters went through the other sections of the bill to ensure that it includes all necessary conforming language, for example, language regarding the fees that are required to be paid by the department in order to get a criminal history background check. CHAIR McGUIRE asked what kind of liability the department would face should the person who is granted an extension under Section 8 commit a crime against a child during that extension and the criminal background check ultimately came back showing that the person had a known record of such behavior. MR. WARWICK declined to answer that question, and reiterated what currently happens when there is a delay in getting the results of a criminal history background check from the DOJ. TAPE 04-73, SIDE B Number 2397 CHAIR McGUIRE suggested that instead of providing for a two- month extension, the bill could just allow a person's preexisting fingerprint sample to be used if the results are not back from the DOJ within the initial three-month time period. MR. WARWICK indicated that the person would then have to go through the application process all over again, adding that currently under the bill, "it's at the discretion of the commissioner of [the DEED] to decide whether this person should be getting this extension. CHAIR McGUIRE said she doesn't have a problem with requiring a person to go through the application process again and just use a preexisting fingerprint sample. She relayed that her concern centers on the fact that under the bill as currently written, a person would remain in the classroom for another two months without the department knowing the results of the background check. She suggested that they narrow the bill down by giving the department the discretion to allow use of preexisting fingerprint samples and paperwork in the reapplication process. MR. WARWICK relayed that he is not that familiar with the nuts and bolts of the application process and didn't have a specific answer as to why such a suggestion might or might not be feasible. He suggested that the DEED's application experts could better address this issue. REPRESENTATIVE OGG pointed out, however, that Mr. Warwick has mentioned that many school districts are simply hiring people as substitute teachers in order to get around the problem engendered by the current three-month deadline. If such is the case, those people are already being allowed to remain in the schools and so why not grant the extension. CHAIR McGUIRE reminded members that in legislation which recently passed the House, there is a provision that requires a person to have submitted fingerprints to the department for use in a criminal history background check and to have been found by the department to be suitable for employment in order to be eligible for a limited teaching certificate. She asked whether a limited teaching certificate is what a substitute teacher must have. Number 2203 MR. WARWICK suggested that the DEED could best answer that question. Regarding his earlier comment that schools hire those waiting for the results of background checks as substitute teachers, he added that some schools reclassify such people so as to allow them to work temporarily in a capacity that doesn't require a background check. He opined, however, that the current practices surrounding this issue are disruptive to the classroom. CHAIR McGUIRE noted that a few years ago, she'd been approached by a constituent of hers whose daughter had been sexually abused by a volunteer athletic coach and her constituent felt very strongly that all volunteers who have close and continuing contact with children ought to have criminal history background checks. A task force was convened over the following interim for the purpose of addressing that issue, and she relayed that she'd heard compelling arguments for requiring background checks on such people, and said she has grave concerns about allowing a teacher to stay in the classroom for another two months without knowing what the results of a criminal history background check will be. "Putting them into a clerical position seems absolutely appropriate to me because [then] they are not in close and personal contact, with that power, if you will, over the young people that they're in close proximity to," she added. Section 8 concerns her a great deal, she concluded. MR. WARWICK noted that the Matanuska-Susitna Borough School District has relayed to him that over the past 12 years, it has never had an applicant's criminal history background check come back with an indication that the applicant should not be hired. He offered his belief that it is much easier to find out something about a person by checking his/her employment history than it is via doing a criminal history background check. Number 2101 REPRESENTATIVE GARA asked for clarification: There's the background check that says whether you have a prior conviction, right? And ... you don't need fingerprints for that, is my understanding - you ... deal with the FBI [Federal Bureau of Investigation], you deal with [the Alaska State Troopers], we do [what's known as] an [Alaska Public Safety Information Network (APSIN)] check, right? And that should come pretty immediately; that should say whether you have any convictions for anything. ... Am I right that we require that before we hire anybody? Am I right about that? MR. WARWICK indicated that he didn't know. REPRESENTATIVE GARA continued: So at a minimum we need to make sure we're doing that, right? You can't start until we have the results from your criminal history check. The fingerprinting check, my understanding is, that helps us determine whether your fingerprints match any sort of open criminal investigation: there's been a spree of child molestations somewhere, you've given your fingerprint check, and that helps us determine whether you are actually a suspect in a pending, open case. ... So I'm looking at this letter from the [Young Men's Christian Association (YMCA)], and this one talks about somebody who was [almost] hired who had a significant criminal conviction history. And I think that gets resolved as long as we have the [APSIN] and out-of-state criminal background check before we hire somebody, and I think a fingerprint check might be a different issue. I just wanted to bring that [to] everybody's attention as we ask questions; they're both important, but that's where my confusion lies. Number 2014 KEVIN SWEENEY, Special Assistant, Office of the Commissioner, Department of Education and Early Development (DEED), with regard to Chair McGuire's concern about the two-month extension, said that the DEED had the same concern about a bill that was [introduced] last year. He went on to say: The way the procedure is now, someone applies for their certificate and they're given a conditional [teaching] certificate once we get their application in and everything's in order, and we send out their fingerprints to the FBI and the [DPS] here for the background check. There was backlog in the past, particularly from ... our [DPS], in getting them back in time, and so we did have a considerable amount of teachers out there ..., where the three months would come up, and the way the law is written, they're technically not allowed in a classroom. I think what the department then did was reissue them another conditional certificate, so they were given another three months extension anyway. I'm fairly certain that's the case. ... We had a concern with just ... changing that three months to five months; what we wanted to do is see them be more efficient. ... Rather than say there's a problem out there so let's change it to five months, let's address the problem and get the results back quicker so that we know we don't have teachers in classrooms that have criminal ... history. And at some point last year, our [DPS] went to a more automated system, and the case now [is that] we are getting our history back in, I think, about six to eight weeks from [the DPS] and even less time from the FBI. I know we are getting them back now in an efficient manner, so that I don't really see us, at least in the present case, using this [two-month] extension very often because of the fact that we're getting those records back. And the way that that's written, we did have a concern that we wanted to make sure that it was up to the discretion of the department because of a backlog at [the DOJ or the DPS], not just an automatic [two-months] because perhaps somebody waited until the last minute: they'd been in a classroom for two and a half months and waited to the last minute to apply. So, as long as it's up to the department to be able to determine that ... there is actually some sort of backlog, we didn't have a major concern with a [two- month] extension. Number 1903 MR. SWEENEY continued: As far as [Representative Gara's] question [regarding whether] ... there's a background check ..., I know ... I have had sort of the same concern because, the way it's happening now is, ... teachers are getting another conditional certificate, another conditional certificate, and sometimes they've resubmitted their fingerprints seven or eight times. Which is why this bill originally came, [so] that we could go to that name-based check instead of the fingerprints. What we wanted to see was maybe the second they submit their fingerprints, if they come back as being non-readable, that they instantly institute that name-based check, rather than wait for a second go-around. But I think that the way ... the rules are written by the FBI, ... you can't do that. ... And [with regard to] Section 10, which deals with the non-legible fingerprints and the people with the physical disability, we have a regulation on the books now that accomplishes basically the same thing; our language is a bit different in that [when compared with] Section 10 [subsection (j)(1) and (2)], we require that the teacher have written documentation from a physician. And in doing that, we wanted to [ensure] that there was some sort of check to make sure that there was, in fact, a skin condition. And I guess [we've] found out since then that the [DPS] and the FBI actually do have the people that are the experts in being able to look at a fingerprint itself ... to determine ... [whether] the person has skin condition or ... [whether] it's just smudged. MR. SWEENEY concluded: So I think we ... will change our regulations if this law passes, to reflect the changes here, and remove, at least from [the regulation similar to paragraph 2], the requirement from the physician. I think in ... the first instance, where it's somebody with a physical disability, meaning they don't have fingerprints, ... since the [DPS] would have to be making that determination from afar, they obviously can't see the person, ... we would ... still leave in our regulation ... [requiring] a physician's note that says ... the person doesn't have ... fingerprints. But I think that's a rare case. Number 1799 CHAIR McGUIRE asked Mr. Sweeney, then, whether he even sees a need for those sections of the bill. Is there something the DEED can't accomplish via regulations? MR. SWEENEY opined that all Section 10 would do would be to match statute up somewhat with current regulations; the DEED would then make appropriate conforming changes to its regulations. In response to further questions, he said that a wide variety of organizations and entities do fingerprinting; that it would be nice if all fingerprints were taken with electronic fingerprint scanners; and that the DEED wanted assurance that when fingerprints are illegible it isn't just because they are smudged. REPRESENTATIVE GARA asked whether criminal history checks are done before someone is hired, offering his belief that such checks should only take a few days. MR. SWEENEY offered that different school districts have different policies regarding that issue. Some districts don't allow a person to be in a classroom until the criminal history background check is completed even if it takes the entire three months. Some districts do their own, separate, criminal history background check, and some districts rely on the state's background check. REPRESENTATIVE GARA said he hopes that criminal history background checks are not delayed until the results of fingerprint tests are returned. MR. SWEENEY suggested that the DPS ought to be able to confirm that point. What the DEED wants from SB 179 is the ability to institute a name-based search immediately upon finding out that a person's fingerprints are illegible. He offered his belief, however, that the FBI won't do a name-based check until certain requirements are met. REPRESENTATIVE GARA reiterating his belief that conviction and arrest records are available very quickly, and therefore he does not see any reason to delay doing a check for those. CHAIR McGUIRE said that according to her understanding of [current statute], a person can be in the classroom for as long as three months without the results of a criminal history background check being known. Additionally, Section 8 provides for a two-month extension to that time period. She remarked, "I wonder if what we're doing is saying that we're relying on the [DOJ] for everything, including just that basic criminal history." The committee took an at-ease from 4:30 p.m. to 4:40 p.m. CHAIR McGUIRE noted that members have in their packet a position statement from the Anchorage School District (ASD) which reads in part: "The Anchorage School District does a local background check, but the national check may take 3-4 months." She mentioned the possibility of altering the bill such that the proposed two-month extension would be limited to just national criminal history background checks. Number 1464 CYNDY CURRAN, Teacher Education & Certification, Teaching and Learning Support, Department of Education and Early Development (DEED), offered to answer questions. REPRESENTATIVE GARA asked whether state law requires that at least the criminal conviction and arrest record are known before hiring a teacher. MS. CURRAN replied, "When a teacher applies for certification and we send the fingerprint card to the [DPS], we get the results of the background check when it's completed - there's no preliminary anything that's done with that." REPRESENTATIVE GARA surmised, then, that in cases where fingerprints cannot be read, the DEED is not getting the remaining results of the background check "in advance of that." Instead, all the results are arriving at the same time later on. MS. CURRAN concurred, and clarified that if the fingerprints cannot be read, the DEED is notified by the DPS or FBI and in turn notifies the applicant that he/she needs to resubmit the fingerprint card. She said that if there are no problems or a huge backlog at the agency performing the check, the process can take about three months. If an applicant has to redo his/her fingerprints, the DEED issues a conditional certificate as long as another set of fingerprints have been submitted. In response to further questions, she reiterated that the DEED does not get anything back from the FBI or the DPS in advance of a complete criminal history background check, which includes the results of the fingerprint check; explained that the DEED only deals with the teaching certification process, which enables a person to be considered for employment; and mentioned that individual school districts have there own policies regarding the actual hiring of teachers, and may institute their own criminal history background checks. REPRESENTATIVE GARA asked, "And one of the things that they need to prove to you before they get a certificate is that they have no serious prior convictions of serious felonies, right?" MS. CURRAN said that is correct. Number 1217 DIANE SCHENKER, Criminal Justice Planner, Division of Statewide Services, Department of Public Safety (DPS), in response to questions, said that state law allows anyone who's hiring someone that will be working with children to do a name-based check for criminal history in Alaska through APSIN. Such cannot be done for a national criminal history check, however, because federal law requires [fingerprints] before a record can be checked for employment licensing purposes. She relayed that a check via APSIN for employment licensing purposes wouldn't provide any out-of-state information, but that APSIN could provide a record regarding a person's criminal history in Alaska within a matter of days. She noted that any deviation from the current process of checking a person's criminal history through the federal system for employment licensing purposes would require a change in federal rules. MS. SCHENKER, in response to further questions, explained that when the DEED sends the DPS the fingerprint card - and not before - the DPS starts the process of obtaining a person's state and federal criminal history records; once that information is gathered, it is forwarded onto the DEED so that the DEED may complete the certification process. She relayed that the turnaround time for criminal history records has been reduced to about 3 weeks. REPRESENTATIVE HOLM said he is disturbed by the concept that while the DEED is waiting for the results of a fingerprint-based criminal history check, a person could be working in the classroom without even a cursory, name-based background check being performed. MS. SCHENKER pointed out, however, that a person's court records are available to the public via the Internet, and that [school districts] can get a name-based check done through APSIN for a $20 fee. She mentioned that she would follow up on the issue of possibly seeking a change to the federal rules. CHAIR McGUIRE asked what terminology should be used if an amendment were made to institute a name-based check. MS. SCHENKER said, "We refer to it as just a check of the record that is based on identification other than fingerprints." The committee took an at-ease from 4:59 p.m. to 5:04 p.m. Number 0453 LARRY WIGET, Executive Director, Public Affairs, Anchorage School District (ASD), offered the following: The Anchorage School District does do [a] state background check on teachers before ... they are placed in the classroom. And it has been our experience [that] a national background check may take longer than ... three months, so we support the extension of [an additional two months] beyond the three months. That's based on some very strict criteria I see written in the law under Section 8 and that's with ... written permission of the [DEED]. I don't know the specifics of the exact time lately, I know [that] in the last couple of years ..., background checks have been taking longer than ... three months to get to us, and we just want to make sure that we have options available to us [for the teacher], having cleared [a] local background check, to remain in the classroom while we're looking [indisc. - background noise]. ... The Anchorage School District ... supports the additional time for a national check to be completed, and that's only ... with the written extension granted by the [DEED]. We do our own local/state background check ... before we put people into the classroom, and while we're waiting for those records to come back, sometimes it's been taking longer than the three months, and that what's precipitated cause for this section to be added to the law - it has been taking longer, in cases, to get [a fingerprint] ... check back from the FBI. CHAIR McGUIRE indicated that the committee would be holding the bill over, and asked Mr. Warwick to relay to the sponsor the issues raised and find out which changes the sponsor would be amenable to. Number 0071 REPRESENTATIVE CARL GATTO, Alaska State Legislature, opined that the goal [of SB 179] is to keep child molesters out of the classroom. He relayed that the school districts he has been in contact with do "an individual check" while waiting for the results of the fingerprint-based check. TAPE 04-74, SIDE A Number 0001 REPRESENTATIVE GATTO said that according to a conversation he'd had with the human resource manager of the Matanuska-Susitna School District, not once in eight years has a person who's been approved to work in the classroom while waiting for the results of a fingerprint-based background check had those results come back indicating that he/she should not be in the classroom. He offered his belief that the current time constraints create situations that are disruptive to the classroom; that the bill will make for better education; and that the main problem stems from delays at the federal level. He suggested that purchasing electronic fingerprint scanners could be another step towards protecting children, but until such is done, the bill provides an intermediate solution. REPRESENTATIVE GARA asked how often state background checks are conducted. REPRESENTATIVE GATTO said he did not know. REPRESENTATIVE GARA indicated that he would be willing to consider making a statutory requirement that a person show that he/she has had a statewide criminal history background check conducted within the preceding five years. Number 0472 REPRESENTATIVE GATTO pointed out, however, that a person can change, and thus requiring evidence that a background check was conducted within the past five years will not ensure that the person hasn't done something recently. He offered his belief that SB 179 will be helpful. REPRESENTATIVE HOLM offered his belief that a teacher must be recertified every five years, and that this involves conducting a criminal history background check. [SB 179 was held over.]
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