Policy and Procedures Regarding Fingerprinting and Other Background Checks for Employees, Clergy and Volunteers Who Work with Children or Youth

INTRODUCTION #

Over the years the Chancery office has kept pastors, principals, and agency heads up-to-date on the various laws which relate to both mandated and non-mandated-but-authorized fingerprinting of employees, clergy, and volunteers. However, in order to provide a single reference concerning the overall subject of fingerprinting, as well as other types of employee/volunteer background checks pertaining to those who work with children or youth, this comprehensive document has been prepared. This policy and related procedures shall apply to those parishes, schools, and agencies owned and operated by the Archdiocese. While a copy of this document may be provided to private institutions as a courtesy, it will be necessary for them to adopt and implement their own policy and procedures.

Please retain this document for future reference and disseminate copies of the same to those within your parish, agency, and/or school whom you deem appropriate.

I. PRIVATE SCHOOLS – STATE-MANDATED FINGERPRINTING OF EMPLOYEES #

Section 33191 of the California Education Code requires corporations offering or conducting private school instruction on the elementary or high school level to file with the Superintendent of Public Instruction a statement, under penalty of perjury, setting forth, among other things, that criminal record summary information has been obtained pursuant to Section 44237 of the Education Code. Section 44237 requires private schools on the elementary or high school level to require each applicant for employment in a position requiring contact with minor pupils who does not possess a valid California teaching credential, or is not currently licensed by another state agency, that requires a criminal record summary, to submit two sets of fingerprints to the Department of Justice for the purpose of obtaining a criminal record summary from the Department of Justice and the Federal Bureau of Investigation.

The purpose of Section 44237 is to protect minor pupils. In its original form, the law was known as the “Bates Act”, and now, since its amendment in September of 1997, is commonly known as the “Michelle Montoya School Safety Act”.

The Montoya Act modifies the former Bates Act provisions in a number of significant ways:

1. The school SHALL NOT employ a person UNTIL the Department of Justice completes its criminal records search and makes its report to the employer. (Formerly, an employer could hire an employee subject to terminating him/her, at the school’s discretion, if the report from the Department of Justice contained information which would warrant termination.)
2. The school SHALL NOT employ any person who has been convicted of a “violent OR serious felony”. (While it would not have been prudent to hire someone with a violent or serious felony background anyway, nevertheless the new law takes away any employer discretion in such cases.) For purposes of this law, a violent felony is any felony listed in subdivision (c) of Section 667.5 of the Penal Code, and a serious felony is any felony listed in subdivision (c) of Section 1192.7 of the Penal Code. These felonies include such things as actual or attempted murder, manslaughter, rape, sexual abuse of a child, lewd acts with minors, residential burglary, kidnapping, robbery, selling/giving hard drugs to minors, armed theft, arson, etc.
3. The Department of Justice shall ascertain whether the applicant has been arrested or convicted of ANY CRIME, insofar as that can be ascertained from information available to the Department, and forward the information to the employer designated by the applicant submitting the fingerprints. (Formerly, the Department of Justice reports only included information as to whether or not an employee had a conviction record or an arrest pending final adjudication for any sex offense, controlled substance office, or crime of violence.) The Department of Justice will not forward records of criminal proceedings that did not result in a conviction, but it will forward information on arrests that are still pending adjudication.
4. This law applies to EACH APPLICANT (including lay persons, religious, and priests) for PAID employment IN A SCHOOL POSITION REQUIRING CONTACT WITH MINOR PUPILS who does not possess a California Teaching Credential or is not currently licensed by another state agency that requires a criminal record summary. (Formerly, the law only applied to regular full-time and part-time employees, but now ALL proposed new hires, INCLUDING SHORT-TERM SUBS AND TEMPS who have contact with minor pupils, must be fingerprinted and have a criminal record check.)
   The information from the Department of Justice to the employer is to be provided through the Department’s electronic fingerprinting system (i.e., Livescan) within three working days. LIVESCAN REPORTS COVERING SCHOOL PERSONNEL ARE CENTRALLY CHANNELED THROUGH THE ARCHDIOCESAN DEPARTMENT OF CATHOLIC SCHOOLS. If the Department of Justice cannot ascertain the information required within the above-described time frame, the Department must notify the employer that it cannot do so within that time frame. A notification shall be made by telephone and shall be confirmed in writing and delivered to the employer. IN NO EVENT, HOWEVER, MAY THE SCHOOL EMPLOY A PERSON UNTIL THE DEPARTMENT OF JUSTICE COMPLETES ITS WORK.
5. As for INDEPENDENT CONTRACTORS, the Montoya Act does not specifically address the subject of independent contractors who work in PRIVATE schools. However, this may simply have been an oversight since a related section of the Education Code, which was revised at the same time as the one pertaining to private schools, provides that if an entity has a contract with a public school whereby its employees may have other than limited contact with pupils, and the entity is engaged to provide janitorial, administrative, landscaping, transportation, or food-related services or similar services, then the entity’s employees must be fingerprinted.
   Because of this fact, and since, under the former Bates law, officials from the Department of Justice have indicated that it would consider employees of independent contractors who work in the school and have other than limited contact with minors to be included in the provisions of the Act, it is recommended that any contractual arrangement with an independent contractor be negotiated so as to provide that workers made available to the school must first be fingerprinted and subject to appropriate clearance. Contractual arrangements with the independent contractor should specifically state that the contractor will make available to the school only emplo