N.Y. Education Law § 3001-d: Criminal history record checks and conditional appointments; nonpublic and private schools

§ 3001-d. Criminal history record checks and conditional appointments;

nonpublic and private schools. 1. a. "Employee" shall mean any

prospective employee of a nonpublic or private elementary or secondary

school which requires the fingerprinting of prospective employees

pursuant to this section, or employee of a contracted service provider

or worker placed within such school under a public assistance employment

program, pursuant to title nine-B of article five of the social services

law, and consistent with the provisions of such title for the provision

of services to such school, its students or employees, directly or

through contract, whereby such services performed by such person involve

direct student contact. Any nonpublic or private elementary or secondary

school which elects to submit for review criminal history information

concerning prospective employees must do so with respect to each such

prospective employee, as defined in this paragraph, in accordance with

this section.

b. "Volunteer" shall mean any person, other than an employee, who

provides services to a nonpublic or private elementary or secondary

school which elects to require the fingerprinting of prospective

employees pursuant to this section, which involve direct student

contact.

2. Any nonpublic or private elementary or secondary school may

require, for the purposes of a criminal history record check, the

fingerprinting of all prospective employees pursuant to section three

thousand thirty-five of this article, who do not hold valid clearance

pursuant to such section or pursuant to section three thousand four-b of

this article or section five hundred nine-cc or twelve hundred

twenty-nine-d of the vehicle and traffic law. Prior to initiating the

fingerprinting process, the prospective employer shall furnish the

applicant with the form described in paragraph (c) of subdivision thirty

of section three hundred five of this chapter and shall obtain the

applicant's consent to the criminal history record search. Every set of

fingerprints taken pursuant to this section shall be promptly submitted

to the commissioner for the purposes of clearance for employment.

3. (a) Any nonpublic or private elementary or secondary school may

conditionally appoint a prospective employee. A request for conditional

clearance may be forwarded to the commissioner along with the

prospective employee's fingerprints. Such appointment may be delayed

until notification by the commissioner that the prospective employee has

been conditionally cleared for employment and shall terminate when the

prospective employer is notified of a determination by the commissioner

to grant or deny clearance, provided that if clearance is granted, the

appointment shall continue and the conditional status shall be removed.

Prior to commencement of such conditional appointment, the prospective

employer shall obtain a signed statement for conditional appointment

from the prospective employee, indicating whether, to the best of his or

her knowledge, he or she has a pending criminal charge or criminal

conviction in any jurisdiction outside the state.

(b) Any nonpublic or private elementary or secondary school may make

an emergency conditional appointment when an unforeseen emergency

vacancy has occurred. When such appointment is made, the process for

conditional appointment pursuant to paragraph (a) of this subdivision

may also be initiated. Emergency conditional appointment may commence

prior to notification from the commissioner on conditional clearance and

shall terminate when the prospective employer is notified by the

commissioner regarding conditional clearance, provided that if

conditional clearance is granted, the appointment may continue as a

conditional appointment. Prior to the commencement of such appointment,

the prospective employer must obtain a signed statement for emergency

conditional appointment from the prospective employee, indicating

whether, to the best of his or her knowledge, he or she has a pending

criminal charge or criminal conviction in any jurisdiction. An

"unforeseen emergency vacancy" shall be defined as: (i) a vacancy that

occurred less than ten business days before the start of any school

session, including summer school, or during any school session,

including summer school, without sufficient notice to allow for

clearance or conditional clearance; (ii) when no other qualified person

is available to fill the vacancy temporarily; and (iii) when emergency

conditional appointment is necessary to maintain services which the

school is legally required to provide or services necessary to protect

the health, education or safety of students or staff.

(c) Each nonpublic or private elementary or secondary school, which

elects to fingerprint prospective employees pursuant to subdivision two

of this section, shall develop a policy for the safety of the children

who have contact with an employee holding conditional appointment or

emergency conditional appointment.

4. Fees. Notwithstanding any other provision of law to the contrary,

the commissioner is authorized to charge additional fees to applicants

for certificates pursuant to this section in an amount equal to the fees

established pursuant to law by the division of criminal justice services

and the federal bureau of investigation for the searches authorized by

this section.