MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Public Health and Human Services; Judiciary B
By: Representative Moore, Barnett, Chism, Ellington, Fillingane, Formby, Gunn, Janus, Martinson, Nicholson, Rotenberry, Snowden, Staples, Turner, Zuber
AN ACT TO CREATE NEW SECTIONS TO BE CODIFIED AS SECTIONS 43-15-301 THROUGH 43-15-313, MISSISSIPPI CODE OF 1972, TO REQUIRE APPLICANTS FOR EMPLOYMENT OR VOLUNTEER SERVICE WITH ANY EMPLOYER THAT CONDUCTS A CHILD CARE SERVICE TO SUBMIT FINGERPRINTS, WHICH THE EMPLOYER SHALL SUBMIT TO THE ATTORNEY GENERAL'S OFFICE TO CHECK THE APPLICANT'S CRIMINAL HISTORY RECORDS; TO PROHIBIT EMPLOYERS THAT CONDUCT A CHILD CARE SERVICE FROM EMPLOYING OR PERMITTING TO VOLUNTEER ANY APPLICANT WHO HAS BEEN CONVICTED OF CERTAIN FELONIES OR MISDEMEANORS; TO ALLOW EMPLOYERS THAT CONDUCT A CHILD CARE SERVICE TO EMPLOY OR PERMIT TO VOLUNTEER APPLICANTS WHO HAVE BEEN CONVICTED OF CERTAIN MISDEMEANORS IF A MINIMUM TIME HAS EXPIRED FROM THE TIME OF DISCHARGE FROM THE SENTENCE; TO PROVIDE THAT ANY PERSON WHO WOULD BE PROHIBITED FROM EMPLOYMENT OR VOLUNTEER SERVICE BY A CHILD CARE SERVICE PROVIDER MAY NOT OWN OR OPERATE A CHILD CARE SERVICE; TO PROVIDE THAT IT IS A FELONY FOR ANY APPLICANT WHO HAS BEEN CONVICTED OF ANY OF THE PROHIBITED OFFENSES TO KNOWINGLY UNDERTAKE EMPLOYMENT OR VOLUNTEER SERVICE OF ANY TYPE INVOLVING THE CARE, INSTRUCTION OR GUIDANCE OF MINORS; TO PROVIDE THAT IT IS A FELONY FOR ANY APPLICANT WHO HAS BEEN CONVICTED OF ANY OF THE PROHIBITED OFFENSES TO KNOWINGLY PROVIDE INFORMATION OF THE CONVICTION WHEN APPLYING FOR EMPLOYMENT OR VOLUNTEER SERVICE OF ANY TYPE INVOLVING THE CARE, INSTRUCTION OR GUIDANCE OF MINORS; TO AMEND SECTIONS 43-15-6 AND 43-20-8, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 43-15-301, Mississippi Code of 1972:
43-15-301. As used in this article:
(a) "Child care service" means any employment or volunteer service involving the care, instruction or guidance of minor children, including, but not limited to, service as a teacher, a coach, or a worker of any type in child athletics, a day care worker, a Boy or Girl Scout leader or master or worker, a summer camp counselor or worker, a guidance counselor, or a school administrator.
(b) "Employer" means every person, firm, association, partnership, or corporation offering or conducting a child care service.
(c) "Applicant" means any person who is being considered for employment or volunteer service by an employer.
(d) "Convicted" means any adjudicated finding of guilt, any adjudicated finding that the applicant is physically or mentally incompetent, any adjudicated finding that the applicant is not guilty by reason of insanity, or any plea of nolo contendere.
SECTION 2. The following shall be codified as Section 43-15-303, Mississippi Code of 1972:
43-15-303. (1) Every employer offering or conducting a child care service shall require each applicant for employment or volunteer service to submit two (2) sets of fingerprints prepared for submittal by the employer to the Attorney General's Office for the purpose of obtaining criminal record summary information from the Attorney General's Office and the Federal Bureau of Investigation.
(2) Upon receiving the fingerprints of the applicant, the Attorney General's Office shall ascertain whether the applicant has been arrested or convicted of any crime insofar as the fact can be determined from the information available to the office, and shall forward the information to the employer submitting the fingerprints not more than twenty (20) working days after receiving the fingerprints.
(3) An employer shall not employ an applicant or permit an applicant to volunteer until the Attorney General's Office completes its check of the applicant's criminal history file, both in this jurisdiction and other jurisdictions, as set forth in this section.
SECTION 3. The following shall be codified as Section 43-15-305, Mississippi Code of 1972:
43-15-305. (1) An employer offering or conducting a child care service shall not employ or permit to volunteer any applicant who has been convicted of any felony prohibited under any of the following provisions of the Mississippi Code of 1972, or under any similar statute of another jurisdiction:
(a) All felonious crimes contained in Chapter 3 of Title 97, Mississippi Code of 1972, relating to crimes against the person.
(b) All felonious crimes contained in Chapter 5 of Title 97, Mississippi Code of 1972, relating to offenses affecting children.
(c) All felonious crimes contained in Chapter 29 of Title 97, Mississippi Code of 1972, relating to crimes against public morals and decency.
(d) All felonious crimes contained in Chapter 35 of Title 97, Mississippi Code of 1972, relating to crimes against public peace and safety.
(e) All felonious crimes contained in Chapter 37 of Title 97, Mississippi Code of 1972, relating to weapons and explosives.
(f) All felonious crimes contained in Chapter 41 of Title 97, Mississippi Code of 1972, relating to cruelty to animals.
(2) An employer offering or conducting a child care service shall not employ or permit to volunteer any applicant who has been convicted of any misdemeanor prohibited under any of the following provisions of the Mississippi Code of 1972, or under any similar state of another jurisdiction:
(a) Section 97-5-39(1), relating to the contribution to the neglect or delinquency of any child.
(b) Section 97-27-31, relating to the sale of poisons to minors.
(c) Section 97-29-31, relating to indecent exposure.
(d) Section 97-29-43, relating to the teaching of polygamy.
(e) Section 97-29-45, relating to obscene telephone communications.
(f) Section 97-29-101, relating to the distribution of obscene materials.
(g) Section 97-29-105, relating to the distribution of unlawful sexual devices.
(h) Section 97-35-11, relating to the disturbance of another by abusive language or indecent exposure.
SECTION 4. The following shall be codified as Section 43-15-307, Mississippi Code of 1972:
43-15-307. (1) An employer offering or conducting a child care service may employ or permit to volunteer an applicant who was convicted of a misdemeanor prohibited under any of the following provisions of the Mississippi Code of 1972 or under any similar state of another jurisdiction, if at least two (2) years have expired from the time of discharge from any sentence:
(a) Section 97-29-19, relating to the disinterment of dead bodies.
(b) Section 97-29-23, relating to the opening of graves.
(c) Section 97-29-25, relating to the desecration of cemeteries.
(d) Section 97-29-47, relating to public profanity or drunkenness.
(e) Section 97-35-1, relating to disorderly conduct, intoxication or drinking intoxicating liquors on buses.
(2) An employer offering or conducting a child care service may employ or permit to volunteer an applicant who was convicted of a misdemeanor prohibited under any of the following provisions of the Mississippi Code of 1972, or under any similar state of another jurisdiction, if at least eight (8) years have expired from the time of discharge from any sentence:
(a) Section 97-37-13, relating to providing weapons to minors or intoxicated persons.
(b) Section 97-37-15, relating to parental duty to prevent children from carrying certain weapons.
(c) Section 97-41-1, relating to cruelty to animals.
(d) Section 97-41-5, relating to carrying an animal in a cruel manner.
(e) Section 97-41-7, relating to confinement and depriving a creature of food or water.
(f) Section 97-41-9, relating to the failure to feed or sustain an animal.
(g) Section 97-41-11, relating to the fighting of animals.
(h) Section 97-41-16, relating to maliciously injuring dogs.
(i) Section 97-41-17, relating to the poisoning of animals.
(j) Section 97-41-21, relating to the harassment of guide dogs.
SECTION 5. The following shall be codified as Section 43-15-309, Mississippi Code of 1972:
43-15-309. An employer offering or conducting a child care service may not knowingly employ or permit to volunteer any applicant who is suffering from habitual drunkenness or from narcotic addiction or dependence.
SECTION 6. The following shall be codified as Section 43-15-311, Mississippi Code of 1972:
43-15-311. A person who would be prohibited from employment or volunteer service by a child care service provider under Section 43-15-305, 43-15-307 or 43-15-309 may not own or operate a child care service after June 30, 2004.
SECTION 7. The following shall be codified as Section 43-15-313, Mississippi Code of 1972:
43-15-313. (1) (a) An applicant is guilty of a felony if, having been convicted of one or more of the offenses listed in Section 43-15-305 or 43-15-307, he knowingly undertakes employment or volunteer service of any type involving the care, instruction, or guidance of minor children, including, but not limited to, the types of services set forth in the definition of "child care service" in Section 43-15-301.
(b) Upon conviction under subsection (1) of this section, a person shall be imprisoned in the State Penitentiary for not less than five (5) years nor more than fifteen (15) years.
(2) (a) An applicant is guilty of a felony if, having been convicted of one or more of the offenses listed in Section 43-15-305 or 43-15-307, he knowingly fails to provide information of the conviction when applying for employment or volunteer service of any type involving the care, instruction, or guidance of minor children, including, but not limited to, the types of services set forth in the definition of "child care service" in Section 43-15-301.
(b) Upon conviction under subsection (2) of this section, a person shall be imprisoned in the State Penitentiary for not less than one (1) year nor more than five (5) years.
SECTION 8. Section 43-15-6, Mississippi Code of 1972, is amended as follows:
43-15-6. (1) Any person, institution, facility, clinic, organization or other entity that provides services to children in a residential setting where care, lodging, maintenance, and counseling or therapy for alcohol or controlled substance abuse or for any other emotional disorder or mental illness is provided for children, whether for compensation or not, that holds himself, herself, or itself out to the public as providing those services, and that is entrusted with the care of the children to whom he, she, or it provides services, because of the nature of the services and the setting in which the services are provided shall be subject to the provisions of this section.
(2) Each entity to which this section applies shall complete, through the appropriate governmental authority, a national criminal history record information check and a child abuse registry check for each owner, operator, employee, prospective employee, volunteer or prospective volunteer of the entity and/or any other that has or may have unsupervised access to a child served by the entity. In order to determine the applicant's suitability for employment, the entity shall ensure that the applicant be fingerprinted by local law enforcement, and the results forwarded to the Department of Public Safety. 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.
(3) An owner, operator, employee, prospective employee, volunteer or prospective volunteer of the entity and/or any other that has or may have unsupervised access to a child who has a criminal history of conviction or pending indictment of a crime, whether a misdemeanor or a felony, that bears upon an individual's fitness to have responsibility for the safety and well-being of children as set forth in this chapter may not provide child care or operate, or be licensed as, a residential child care program, foster parent, or foster home.
(4) All fees incurred in compliance with this section shall be borne by the individual or entity to which subsection (1) applies.
(5) The Department of Human Services shall have the authority to set fees, to exclude a particular crime or crimes or a substantiated finding of child abuse and/or neglect as disqualifying individuals or entities from providing foster care or residential child care, and adopt such other rules and regulations as may be required to carry out the provisions of this section.
(6) Any entity that violates the provisions of this section by failure to complete sex offense criminal history record information and felony conviction record information checks, as required under subsection (3) of this section, shall be subject to a penalty of up to Ten Thousand Dollars ($10,000.00) for each such violation and may be enjoined from further operation until it complies with this section in actions maintained by the Attorney General.
(7) The Department of Human Services and/or its officers, employees, attorneys, agents and representatives shall not be held civilly liable for any findings, recommendations or actions taken under this section.
(8) Any entity to which this section applies shall be subject to and shall comply with the provisions of Sections 43-15-301 through 43-15-313.
SECTION 9. Section 43-20-8, Mississippi Code of 1972, is amended as follows:
43-20-8. (1) The licensing agency shall have powers and duties as set forth below in addition to other duties prescribed under this chapter:
(a) Promulgate rules and regulations concerning the licensing and regulation of child-care facilities as defined herein;
(b) Have the authority to issue, deny, suspend, revoke, restrict or otherwise take disciplinary action against licensees as provided for in this chapter;
(c) Set and collect fees and penalties as provided for in this chapter; and
(d) Have such other powers as may be required to carry out the provisions of this chapter.
(2) Child-care facilities shall assure that parents have welcome access to the child-care facility at all times.
(3) Child-care facilities shall require that, for any current or prospective caregiver, current criminal records background checks and current child abuse registry checks are obtained. 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.
(4) The licensing agency shall require to be performed a criminal records background check and a child abuse registry check for all operators of a child-care facility and any person living in a residence used for child care. The Department of Human Services shall have the authority to disclose to the State Department of Health any potential applicant whose name is listed on the Child Abuse Central Registry or has a pending administrative review. The information shall remain confidential by all parties. 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.
(5) The licensing agency shall have the authority to exclude a particular crime or crimes or a substantiated finding of child abuse and/or neglect as disqualifying individuals or entities for prospective or current employment or licensure.
(6) The licensing agency and its agents, officers, employees, attorneys and representatives shall not be held civilly liable for any findings, recommendations or actions taken pursuant to this section.
(7) All fees incurred in compliance with this section shall be borne by the child-care facility. The licensing agency is authorized to charge a fee that shall include the amount required by the Federal Bureau of Investigation for the national criminal history record check in compliance with the Child Protection Act of 1993, as amended and any necessary costs incurred by the licensing agency for the handling and administration of the criminal history background checks.
(8) Child-care facilities shall be subject to and shall comply with the provisions of Sections 43-15-301 through 43-15-313.
SECTION 10. This act shall take effect and be in force from and after July 1, 2004.