ADDA
ADDA: BACKGROUND CHECKS
It shall be the policy of the school district 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 Criminal Offender Record Information (CORI) checks.
The fee charged by the provider to the employee and educator for national fingerprint background checks will be $55.00 for school employees subject to licensure by DESE and
$35.00 for other employees, which fee 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. Where such checks are allowable by law, the following practices and procedures will be followed.
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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.
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. Federal law and regulations 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. 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.
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ADDA
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 in the office of the superintendent. 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.
CHRI Training
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.
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.
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ADDA
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.
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ADDA
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.
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: Subject Name;
Subject Date of Birth;
Date and Time of the dissemination;
Name of the individual to whom the information was provided; Name of the agency for which the requestor works;
Contact information for the requestor; and The specific reason for the request.
Reporting to Commissioner of Elementary and Secondary Education
Pursuant to state law and regulation, 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 superintendent shall notify the employee or applicant that it has made a report pursuant to the regulations to the Commissioner.
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ADDA
Pursuant to state law and regulation, 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 regulations, the Superintendent
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 regulations to the Commissioner and shall also send a copy of the criminal record check results to the employee or applicant.
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
SOURCE: MASC October 2014
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