Section 16-22A-5

Agencies required to conduct criminal history background information checks.

(a) A criminal history background information check shall be conducted on all applicants seeking positions with, and on all current employees under review employed by any local employing board, and any State Department of Education personnel as determined by the State Superintendent of Education, who have unsupervised access to and provide education, training, instruction, or supervision for children in an educational setting.

(b) A criminal history background information check shall be conducted on all applicants seeking positions with, and on all current employees and current employees under review employed by any nonpublic school, who have unsupervised access to or who provide education, training, instruction, or supervision for children in an educational setting.

(c) No institution listed in subsection (a) or subsection (b) shall hire an individual who may have unsupervised access to a child without first obtaining a criminal history background information check, except on a temporary emergency basis. In the event that this exception is used and a position is filled by the employer due to exigent circumstances, the applicant so employed may be placed on payroll until such time as a criminal history background information check on the employee is completed.

(d) Nationwide criminal history background information reports for applicants for certification, certified applicants for public employment, noncertified applicants for public employment, and public current employees under review shall be sent directly from the Department of Public Safety to the State Department of Education within a reasonable time from the receipt of the report from the Alabama Bureau of Investigation.

(e) Nationwide criminal history background information reports for nonpublic school applicants for employment, current employees, and current employees under review shall be sent directly from the Department of Public Safety to the State Department of Education within a reasonable time from the receipt of the report from the Alabama Bureau of Investigation. Thereafter, the State Superintendent of Education shall review the criminal history background information report and determine whether the applicant for employment, current employee, or current employee under review satisfies the suitability criteria for nonpublic employment. The State Superintendent of Education shall issue a suitability determination to the chief executive officer of the nonpublic school requesting the determination.

(f) Mandatory criminal history background information checks shall be performed by the Department of Public Safety upon request by any public entity authorized to make a request and shall be forwarded to the State Department of Education. The Department of Public Safety shall provide an Alabama Bureau of Investigation criminal history background information check within a reasonable time of the receipt of such request. Criminal history background information checks shall be requested by the Department of Public Safety from the Federal Bureau of Investigation within a reasonable time of receipt of such request.

(g) The Department of Public Safety, upon receipt of the criminal history background information report from the Federal Bureau of Investigation, shall forward such report to the State Department of Education within a reasonable time of the receipt of the report by certified mail. The fee charged for mandatory criminal history background information checks shall not exceed the statutory and regulatory amounts set under existing guidelines nor shall additional administrative fees of any kind, except for the cost of mailings, be charged which would increase the cost of the criminal history background information check. An applicant for employment and an applicant for certification are responsible for the cost of their criminal history background information check. The employer is responsible for the cost of the criminal history background information check on a current employee under review. The State Department of Education is responsible for the cost of the criminal history background information check on a nonpublic current employee, unless a court of competent jurisdiction determines that public funds may not be used for this purpose, then the employer or employee shall pay the cost. If a noncertified applicant for employment is determined by the chief executive officer of the prospective employer to be financially unable to pay the costs of a criminal history background information check, the prospective employer may pay the fee associated with the criminal history background information check.

(h) The following persons shall obtain a signed and dated written consent to obtain criminal history background information checks for applicants, nonpublic current employees, and current employees under review who have or seek to have unsupervised access to children in an educational setting as provided in subsections (a) and (b):

(1) Persons designated by the public local employing board.

(2) Persons designated by the State Department of Education.

(3) Persons designated by any other nonpublic school.

(i) Refusal by an applicant for certification, applicant for employment, nonpublic current employee, or current employee under review to sign and date a consent to obtain a criminal history background information check and to provide two acceptable sets of fingerprints shall result in the preclusion of employment or certification of the applicant for certification or applicant for employment, or the continued employment or certification in a position requiring unsupervised access to children of the nonpublic current employee or current employee under review, until such time as written permission has been given to the local employing board, State Department of Education, or other appropriate chief executive officer to conduct the criminal history background information check.

(j)(1) No current employee under review shall be subjected to a criminal history background information check for political or personal reasons. A review of a current employee under review, which may be conducted at any time, irrespective of whether a prior criminal history background information check has been conducted on the employee, shall be based upon reasonable suspicion.

(2) A current employee under review shall be apprised in writing of the reasons supporting a request for a criminal history background information check, including the grounds supporting reasonable suspicion, and shall be provided the opportunity to supply additional information on his or her behalf to the employer. Any personnel action taken against the current employee under review shall be in accordance with all applicable state and federal laws as well as any adopted applicable local policies or procedures.

(Act 99-361, p. 566, §5; Act 2002-457, p. 1171, §1.)