REPLACES CURRENT POLICY File: ADDA
It shall be the policy of the Gardner Public Schools that, as required by law, a state and national fingerprint criminal background check will be conducted to determine the suitability of full or part time current and prospective school employees, who may have direct and unmonitored contact with children. School employees shall include, but not be limited to any apprentice, intern, or student teacher or individuals in similar positions, who may have direct and unmonitored contact with children. The school committee shall only obtain a fingerprint background check for current and prospective employees for whom the school committee has direct hiring authority. In the case of an individual directly hired by a school committee, the chair of the school committee shall review the results of the national criminal history check. The superintendent shall also obtain a state and national fingerprint background check for any individual, who regularly provides school related transportation to children. The school committee, superintendent or principal as appropriate may obtain a state and national fingerprint criminal background check for any volunteer, subcontractor or laborer commissioned by the school committee, school or employed by the city or town to perform work on school grounds, who may have direct and unmonitored contact with children. School volunteers and subcontractors/laborers who may have direct and unmonitored contact with children must continue to submit state CORI checks.
A fee will be charged by the provider to the employee and educator for national fingerprint background checks which may from time to time be adjusted by the appropriate agency. The employer shall continue to obtain periodically, but not less than every 3 years, from the department of criminal justice information services all available criminal offender record information (CORI) for any current and prospective employee or volunteer within the school district who may have direct and unmonitored contact with children.
Direct and unmonitored contact with children is defined in DESE regulations as contact with a student when no other employee who has received a suitability determination by the school or district is present. “Contact” refers to any contact with a student that provides the individual with opportunity for physical touch or personal communication.
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.
Requesting CHRI checks
Fingerprint-based CHRI checks will only be conducted as authorized by M.G.L c. 71, §38R and 42 U.S.C. § 16962, in accordance with all applicable state and federal rules and regulations and in compliance with M.G.L c. 6, §§ 167-178 and 803 CMR §§ 2.00, et seq. If an applicant or employee is required to submit to a fingerprint-based state and national criminal history record check, he/she shall be informed of this requirement and instructed on how to comply with the law.
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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 (e.g., Authorized fingerprint vendor, vendor’s website address, and district provider identification number).
Access to CHRI
All CHRI is subject to strict state and federal rules and regulations in addition to Massachusetts CORI laws and regulations. CHRI cannot be shared with any unauthorized entity for any purpose, including subsequent hiring determinations. All receiving entities are subject to audit by the Massachusetts Department of Criminal Justice Information Services (DCJIS) and the FBI, and failure to comply with such rules and regulations could lead to sanctions. Title 28, U.S.C. § 534, Pub. L. 92-544 and Title 28 C.F.R. 20.33(b) provide that the exchange of records and information is subject to cancellation if dissemination is made outside of the receiving entity or related entities. Furthermore, an entity can be charged criminally for the unauthorized disclosure of CHRI.
Storage of CHRI
CHRI shall only be stored for extended periods of time when needed for the integrity and/or utility of an individual's personnel file. Administrative, technical, and physical safeguards, which are in compliance with the most recent CJIS Security Policy have been implemented to ensure the security and confidentiality of CHRI. The CJIS Security Policy can be found at http://www.mass.gov/eopss/law-enforce-and-cj/cjis/fbi-cjis-security-policy.html. Each individual involved in the handling of CHRI is to familiarize himself/herself with these safeguards.
In addition to the above, each individual involved in the handling of CHRI will strictly adhere to the policy on the storage, retention and destruction of CHRI.
Retention and Destruction of CHRI
Federal law prohibits the repurposing or dissemination of CHRI beyond its initial requested purpose. Once an individual's CHRI is received, it will be securely retained in internal agency documents for the following purposes only:
Historical reference and/or comparison with future CHRI requests,
Dispute of the accuracy of the record
Evidence for any subsequent proceedings based on information contained in the CHRI.
CHRI will be kept for the above purposes in a secure location within the department of Human Resources at City Hall.
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When no longer needed, CHRI and any summary of CHRI data must be destroyed by shredding paper copies and/or by deleting all electronic copies from the electronic storage location, including any backup copies or files. The shredding of paper copies of CHRI by an outside vendor must be supervised by an employee of the district.
An informed review of a criminal record requires training. Accordingly, all personnel authorized to receive and/or review CHRI at the district will review and become familiar with the educational and relevant training materials regarding SAFIS and CHRI laws and regulations made available by the appropriate agencies, including the DCJIS.
In determining an individual's suitability, the Gardner Public Schools will consider but not be limited by the following factors:
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
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
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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.
Documentation of Reliance on a Previous Favorable Suitability Determination. In any instance where a school employer relies on a suitability determination made by another school employer or by the Department of Elementary and Secondary Education, the relying school employer shall retain the following documentation:
A copy of the documentation received from the school employer or agency that made the relied-upon suitability determination, and;
Documentation establishing that the individual met the criteria of 603 CMR 51.06(3)(a), (b), and either (c) or (d) as defined above, and;
Gardner Public Schools may choose to perform a new national criminal history check on an individual rather than rely on a previous favorable suitability determination. Gardner Public Schools shall bear the cost of such a new check.
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 his/her 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 his/her CHRI
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.
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Secondary Dissemination of CHRI
If an individual's CHRI is released to another authorized entity, a record of that dissemination must be made in the secondary dissemination log. The secondary dissemination log is subject to audit by the DCJIS and the FBI.
The following information will be recorded in the log:
1) Subject Name
2) Subject Date of Birth
3) Date and Time of the dissemination
4) Name of the individual to whom the information was provided
5) Name of the agency for which the requestor works
6) Contact information for the requestor
7) The specific reason for the request
Reporting to Commissioner of Elementary and Secondary Education
Pursuant to M.G.L c. 71, §71R and 603 CMR 51.07, if the District dismisses, declines to renew the employment of, obtains the resignation of, or declines to hire a licensed educator or an applicant for a Massachusetts educator license because of information discovered through a state or national criminal record check, the District shall report such decision or action to the Commissioner of Elementary and Secondary Education in writing within 30 days of the employer action or educator resignation. The report shall be in a form requested by the Department and shall include the reason for the action or resignation as well as a copy of the criminal record checks results. The District shall notify the employee or applicant that it has made a report pursuant to 603 CMR 51.07(1) to the Commissioner.
Pursuant to M.G.L c. 71, §71R and 603 CMR 51.07, if the District discovers information from a state or national criminal record check about a licensed educator or an applicant for a Massachusetts educator license that implicates grounds for license action pursuant to 603 CMR 7.15(8)(a), the District shall report to the Commissioner in writing within 30 days of the discovery, regardless of whether the district retains or hires the educator as an employee. The report must include a copy of the criminal record check results. The school employer shall notify the employee or applicant that it has made a report pursuant to 603 CMR 51.07(2) to the Commissioner and shall also send a copy of the criminal record check results to the employee or applicant.
Legal References: M.G.L c. 6, §§ 167-178; M.G.L c. 71, §38R; M.G.L c. 71, §71R; Title 28 C.F.R. 20.33(b); Title 28, U.S.C. § 534; 42 U.S.C. § 16962; Pub. L. 92-544; 603 CMR 7.15(8)(a); 603 CMR 51.06(3); 603 CMR 51.07; 603 CMR 51.07(1); 603 CMR 51.07(2); 803 CMR §§ 2.00
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It shall be the policy of the District to obtain all available Criminal Offender Record Information (CORI) from the department of criminal justice information services 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 CORI data for employees of taxicab companies that have contracted with the schools to provide transportation to pupils.
The Superintendent, Principal, or their certified designees shall periodically, but not less than every three years, obtain all available Criminal Offender Record Information from the department of criminal justice informational services on all employees, individuals who regularly provide school related transportation to children, including taxicab company employees, and volunteers who may have direct and unmonitored contact with children, during their term of employment or volunteer service.
The Superintendent, Principal, or their certified designees may also have access to Criminal Offender Record 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.
Pursuant to a Department of Education regulation, “‘Direct and unmonitored contact with children’ means contact with students when no other employee, for whom the employer has made a suitability determination of the school or district, is present. “ Contact” refers to any contact with a student that provides the individual with opportunity for physical touch or personal communication. The school employer may determine when there is potential for direct and unmonitored contact with children by assessing the circumstances and specific factors including but not limited to, whether the individual will be working in proximity with students, the amount of time the individual will spend on school grounds, and whether the individual will be working independently or with others. An individual shall not be considered to have the potential for direct and unmonitored contact with children if he or she has only the potential for incidental unsupervised contact in commonly used areas of the school grounds.”
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 an acknowledgement form authorizing receipt by the district of all available CORI data from the department of criminal justice information services. In the event that a current employee has a question concerning the signing of the acknowledgement form, he/she may meet with the Principal or Superintendent; however, failure to sign the CORI acknowledgement form may result in a referral to local counsel for appropriate action. Completed acknowledgement forms must be kept in secure files. The School Committee, Superintendent, Principals or their designees certified to obtain information under the policy, shall prohibit the dissemination of school information for any purpose other than to further the protection of school children.
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CORI 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. CORI shall be shared with the individual to whom it pertains, pursuant to law, regulation and the following model policy, and in the event of an inaccurate report the individual should contact the department of criminal justice informational services.
Access to CORI material must be restricted to those individuals certified to receive such information. In the case of prospective employees or volunteers, CORI material should be obtained only where the Superintendent had determined that the applicant is qualified and may forthwith be recommended for employment or volunteer duties.
The hiring authority, subject to applicable law and the model policy, reserves the exclusive right concerning any employment decision.
The Superintendent shall ensure that on the application for employment and/or volunteer form there shall be a statement that as a condition of the employment or volunteer service the school district is required by law to obtain Criminal Offender Record Information for any employee, individual who regularly provides 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.
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 commission of probation may answer ‘no record’ with respect 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 compliant 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 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.
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LEGAL REFS.: M.G.L.6:167-178; 15D:7-8; 71:38R, 151B, 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
803 CMR 2.00
803 CMR 3.05 (Chapter 149 of the Acts of 2004)
FBI Criminal Justice Information Services Security Policy
Procedure for correcting a criminal record
FAQ – Background Checks
[Adopted: April 2003]
[Revised: December 2005]
[Reviewed: March 2011]
[Revised: December 2014]
SOURCE: MASC 2014
NOTE: The Department of Criminal Justice Information Services (DCJIS) has adopted regulations requiring that it maintain a model CORI policy and that any written policy must meet the minimum standards as found in the model. Therefore, MASC recommends that school districts retain both the school district specific policy incorporated here and the DCJIS model policy attached as ADDA-R.
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