MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Education

By: Senator(s) Chaney, King

AN ACT TO AMEND SECTIONS 37-9-17 AND 37-9-59, MISSISSIPPI CODE OF 1972, TO REQUIRE FINGERPRINTING AND CRIMINAL RECORDS BACKGROUND CHECKS FOR NEW PUBLIC SCHOOL LICENSED AND NONLICENSED EMPLOYMENT APPLICANTS AND FOR CURRENT EMPLOYEES ON A PHASED-IN BASIS, TO PROHIBIT THE EMPLOYMENT OR CONTINUED EMPLOYMENT OF PERSONS DETERMINED THROUGH SUCH FINGERPRINTING OR BACKGROUND CHECKS TO BE GUILTY OF CERTAIN FELONIES, TO AUTHORIZE WAIVERS FOR MITIGATING CIRCUMSTANCES AND TO PROVIDE IMMUNITY TO SCHOOL DISTRICTS AND SCHOOL DISTRICT EMPLOYEES REGARDING CERTAIN EMPLOYMENT DECISIONS; TO AMEND SECTION 45-31-3, MISSISSIPPI CODE OF 1972, TO DELETE THE STATE DEPARTMENT OF EDUCATION AS THE EMPLOYER OF SCHOOL DISTRICT PERSONNEL FOR PURPOSES OF THE CRIMINAL BACKGROUND CHECK LAW; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 37-9-17, Mississippi Code of 1972, is amended as follows:

37-9-17. (1) On or before April 1 of each year, the principal of each school shall recommend to the superintendent of the school district the licensed employees or noninstructional employees to be employed for the school involved except those licensed employees or noninstructional employees who have been previously employed and who have a contract valid for the ensuing scholastic year. If such recommendations meet with the approval of the superintendent, the superintendent shall recommend the employment of such licensed employees or noninstructional employees to the school board, and, unless good reason to the contrary exists, the board shall elect the employees so recommended. If, for any reason, the school board shall decline to elect any employee so recommended, additional recommendations for the places to be filled shall be made by the principal to the superintendent and then by the superintendent to the school board as provided above. The school board of any school district shall be authorized to designate a personnel supervisor or another principal employed by the school district to recommend to the superintendent licensed employees; however, this authorization shall be restricted to no more than two (2) positions for each employment period for each school in the school district. The school board of any school district shall be authorized to designate a personnel supervisor or another principal employed by the school district to accept the recommendations of principals or their designees for licensed employees and to transmit approved recommendations to the board; however, this authorization shall be restricted to no more than two (2) positions for each employment period for each school in the school district.

When the licensed employees have been elected as provided in the preceding paragraph, the superintendent of the district shall enter into a contract with such persons in the manner provided in this chapter.

If, at the commencement of the scholastic year, any licensed employee shall present to the superintendent a license of a higher grade than that specified in such individual's contract, such individual may, if funds are available from minimum education program funds of the district, or from district funds, be paid from such funds the amount to which such higher grade license would have entitled the individual, had the license been held at the time the contract was executed.

(2) The superintendent of the school district shall require that current criminal records background checks and current child abuse registry checks are obtained, and that such criminal record information and registry checks are on file for any applicant applying for employment as a licensed or nonlicensed employee at a school in such school district after July 1, 2000. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check. The fee for such fingerprinting and criminal history record check shall be paid by the applicant.

(3) The superintendent of the school district shall require that current criminal records background checks and current child abuse registry checks are obtained, and that such criminal record information and registry checks are on file for all currently employed licensed and nonlicensed school employees, to be performed on a phased-in basis resulting in all such employees obtaining such checks every five (5) years. In order to determine the current employee's suitability for employment, the employee shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check. The fee for such fingerprinting and criminal history record check for current employees shall be paid by the employee.

(4) If such fingerprinting or criminal record checks disclose a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sex offense listed in Section 45-31-3(I), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault which has not been reversed on appeal or for which a pardon has not been granted, the new applicant or current employee shall not be eligible to be employed at such school and shall not be recommended by the superintendent for employment. However, the school board may, in its discretion, allow any applicant aggrieved by the superintendent's decision under this section to appear before the board, or before a hearing officer designated for such purpose, to show mitigating circumstances which may exist and allow the applicant or employee to be employed or continue his employment at the school. The school board may grant waivers for such mitigating circumstances, which shall include but not be limited to: (a) age at which the crime was committed; (b) circumstances surrounding the crime; (c) length of time since the conviction and criminal history since the conviction; (d) work history; (e) current employment and character references; (f) other evidence demonstrating the ability of the person to perform the employment responsibilities competently and that the person does not pose a threat to the health or safety of the children at the school.

(5) No school district or school district employee shall be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this Section 37-9-17.

SECTION 2. Section 37-9-59, Mississippi Code of 1972, is amended as follows:

37-9-59. For incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause the superintendent of schools may dismiss or suspend any licensed employee in any school district. The superintendent of schools may use fingerprinting or the criminal records background check procedure provided under Section 37-9-17 in investigating and taking employment action against licensed or nonlicensed employees under this section. Before being so dismissed or suspended any licensed employee shall be notified of the charges against him and he shall be advised that he is entitled to a public hearing upon said charges. In the event the continued presence of said employee on school premises poses a potential threat or danger to the health, safety or general welfare of the students, or, in the discretion of the superintendent, may interfere with or cause a disruption of normal school operations, the superintendent may immediately release said employee of all duties pending a hearing if one is requested by the employee. In the event a licensed employee is arrested, indicted or otherwise charged with a felony by a recognized law enforcement official, the continued presence of the licensed employee on school premises shall be deemed to constitute a disruption of normal school operations. The school board, upon a request for a hearing by the person so suspended or removed shall set a date, time and place for such hearing which shall be not sooner than five (5) days nor later than thirty (30) days from the date of the request. The procedure for such hearing shall be as prescribed for hearings before the board or hearing officer in Section 37-9-111. From the decision made at said hearing, any licensed employee shall be allowed an appeal to the chancery court in the same manner as appeals are authorized in Section 37-9-113. Any party aggrieved by action of the chancery court may appeal to the Mississippi Supreme Court as provided by law. In the event that a licensed employee is immediately relieved of duties pending a hearing, as provided in this section, said employee shall be entitled to compensation for a period up to and including the date that the initial hearing is set by the school board, in the event that there is a request for such a hearing by the employee. In the event that an employee does not request a hearing within five (5) calendar days of the date of the notice of discharge or suspension, it shall constitute a waiver of all rights by said employee and such discharge or suspension shall be effective on the date set out in the notice to the employee.

The school board of every school district in this state is hereby prohibited from denying employment or reemployment to any person as a superintendent, principal or licensed employee, as defined in Section 37-19-1, or as a noninstructional personnel, as defined in Section 37-9-1, for the single reason that any eligible child of such person does not attend the school system in which such superintendent, principal, licensed employee or noninstructional personnel is employed.

SECTION 3. Section 45-31-3, Mississippi Code of 1972, is amended as follows:

45-31-3. As used in this chapter, the following words and phrases shall have the meanings indicated unless the context clearly indicates otherwise:

(a) "Authorized employer representative" shall mean the chief executive officer or chief staff member of an employer, as defined in paragraph (g) of this section, who has been authorized by the authorizing agency to receive on behalf of the employer sex offense criminal history record information about present and prospective employees of the employer.

(b) "Authorizing agency" shall mean the Office of the Attorney General which reviews, approves or disapproves applications from employer representatives for authorization to receive sex offense criminal history record information.

(c) "Responding agency" shall mean the Mississippi Highway Safety Patrol and local law enforcement agencies, which respond to requests from authorized employer representatives for sex offense criminal history record information.

(d) "Child" shall mean any person under eighteen (18) years of age.

(e) "Disposition" shall mean an official determination indefinitely postponing or terminating further action in a criminal proceeding or an official outcome of a criminal proceeding, including but not limited to acquittal, dismissal of the charge, finding of not guilty or acquittal by reason of insanity, nolle prosequi decision, pretrial diversion decision, appeal, or a determination of guilt based on a conviction, guilty plea, or plea of nolo contendere; any sentence imposed in connection with such determination; and any grant of executive clemency or pardon.

(f) "Employee" shall mean a person who renders time and services to an employer, and whose regular course of duties places that person in a position:

(i) To exercise supervisory or disciplinary control over children; or

(ii) To have direct access to or contact with children served by the employer; or

(iii) To have access to information and records maintained by the employer relating to identifiable children served by the employer.

For the purposes of this chapter, "employee" includes any volunteer, any prospective employee, and any prospective volunteer.

(g) "Employer" shall mean a business, nonprofit or volunteer organization, a unit of such business or organization, or a unit of government not responsible for law enforcement whose employees regularly render services to children, including but not limited to care, treatment, transportation, instruction, companionship, entertainment or custody. * * *

(h) "Employer representative" shall mean the chief executive officer or chief staff member of an employer, as defined in paragraph (g) of this section, who applies to the authorizing agency for authorization to receive on behalf of the employer sex offense criminal history record information about present and prospective employees of the employer.

(i) "Sex offense" shall mean any of the following offenses:

Section 97-3-65, Mississippi Code of 1972, relating to the carnal knowledge of a child under fourteen (14) years of age;

Section 97-3-95, Mississippi Code of 1972, relating to sexual battery;

Section 97-5-21, Mississippi Code of 1972, relating to seduction of a child under age eighteen (18);

Section 97-5-23, Mississippi Code of 1972, relating to the touching of a child for lustful purposes;

Section 97-5-27, Mississippi Code of 1972, relating to the dissemination of sexually oriented material to children;

Section 97-5-33, Mississippi Code of 1972, relating to the exploitation of children;

Section 97-5-41, Mississippi Code of 1972, relating to the carnal knowledge of a stepchild, adopted child, or child of a cohabitating partner;

Section 97-29-59, Mississippi Code of 1972, relating to unnatural intercourse; or

Any other offense committed in another jurisdiction which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere.

(j) "Sex offense criminal history record information" shall mean information relating to any sex offense enumerated in paragraph (i) of this section which is specifically identifiable to an individual, consisting of descriptions and notations of arrests, charges, and all dispositions, if any.

SECTION 4. This act shall take effect and be in force from and after July 1, 2000.