N.Y. Education Law § 3035: Duties of commissioner; submission of fingerprints

§ 3035. Duties of commissioner; submission of fingerprints. 1. The

commissioner shall submit to the division of criminal justice services

two sets of fingerprints of prospective employees as defined in

subdivision three of section eleven hundred twenty-five of this chapter

received from a school district, charter school or board of cooperative

educational services and of prospective employees received from

nonpublic and private elementary and secondary schools pursuant to title

two of this chapter, and the division of criminal justice services

processing fee imposed pursuant to subdivision eight-a of section eight

hundred thirty-seven of the executive law and any fee imposed by the

federal bureau of investigation. The division of criminal justice

services and the federal bureau of investigation shall forward such

criminal history record to the commissioner in a timely manner. For the

purposes of this section, the term "criminal history record" shall mean

a record of all convictions of crimes and any pending criminal charges

maintained on an individual by the division of criminal justice services

and the federal bureau of investigation. All such criminal history

records sent to the commissioner pursuant to this subdivision shall be

confidential pursuant to the applicable federal and state laws, rules

and regulations, and shall not be published or in any way disclosed to

persons other than the commissioner, unless otherwise authorized by law.

2. No cause of action against the commissioner, the department or the

division of criminal justice services for damages related to the

dissemination of criminal history records pursuant to this section shall

exist when the commissioner, department or division of criminal justice

services has reasonably and in good faith relied upon the accuracy and

completeness of criminal history information furnished to it by

qualified agencies. The provision of such information by the division of

criminal justice services shall be subject to the provisions of

subdivision sixteen of section two hundred ninety-six of the executive

law. The consideration of such criminal history record by the

commissioner shall be subject to article twenty-three-A of the

correction law.

3. (a) Clearance. After receipt of a criminal history record from the

division of criminal justice services and the federal bureau of

investigation the commissioner shall promptly notify the appropriate

school district, charter school, board of cooperative educational

services, or nonpublic or private elementary or secondary school whether

the prospective employee to which such report relates is cleared for

employment based upon his or her criminal history. All determinations to

grant or deny clearance for employment pursuant to this paragraph shall

be performed in accordance with subdivision sixteen of section two

hundred ninety-six of the executive law and article twenty-three-A of

the correction law. When the commissioner denies a prospective employee

clearance for employment, such prospective employee shall be afforded

notice and the right to be heard and offer proof in opposition to such

determination in accordance with the regulations of the commissioner.

(b) Conditional clearance. When the commissioner receives a request

for a determination on the conditional clearance of a prospective

employee, the commissioner, after receipt of a criminal history record

from the division of criminal justice services, shall promptly notify

the prospective employee and the appropriate school district, charter

school, board of cooperative educational services, or nonpublic or

private elementary or secondary school that the prospective employee to

which such report relates is conditionally cleared for employment based

upon his or her criminal history or that more time is needed to make the

determination. If the commissioner determines that more time is needed,

the notification shall include a good faith estimate of the amount of

additional time needed. Such notification shall be made within fifteen

business days after the commissioner receives the prospective employee's

fingerprints. All determinations to grant or deny conditional clearance

for employment pursuant to this paragraph shall be performed in

accordance with subdivision sixteen of section two hundred ninety-six of

the executive law and article twenty-three-A of the correction law.

3-a. Upon request from a prospective employee who has been cleared by

the commissioner for employment and/or certification, the commissioner

shall have the authority to forward a copy of such criminal history

record to the city school district of the city of New York by the most

expeditious means available. Furthermore, upon notification that such

prospective employee is employed by the city school district of the city

of New York, the division of criminal justice services shall have the

authority to provide subsequent criminal history notifications directly

to the city school district of the city of New York. Upon request from a

prospective employee who has been cleared for licensure and/or

employment by the city school district of the city of New York, such

school district shall have the authority to forward a copy of the

prospective employee's criminal history record to the commissioner, by

the most expeditious means available, for the purposes of this section.

Furthermore, upon notification that such prospective employee is

employed by a school district outside the city of New York, the division

of criminal justice services shall have the authority to provide

subsequent criminal history notifications directly to the commissioner.

4. The fee provisions of subdivision two of section three thousand

four-b of this chapter shall apply to criminal history records searches

conducted pursuant to this section; provided however that,

notwithstanding the provisions of any other law: (a) the fees associated

with an employee participating in a public assistance employment

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

law, or receiving employment services through the federal temporary

assistance for needy families block grant pursuant to appropriations to

the office of temporary disability assistance, shall be paid by the

social services district making such employment placement or assignment

and the cost of such fees, if not subject to full reimbursement under

such federal block grant, shall be deemed to be an employment services

administrative expense. In no event shall such a participant described

herein be required to personally pay any fee imposed by the division of

criminal justice services or the federal bureau of investigation or any

other fee for the purpose of conducting a criminal history records

search; and (b) any prospective employee, including, notwithstanding any

provision of law to the contrary, a prospective employee applying for a

position in a school district within a city with a population of one

million or more, may submit a request to a governing body of a school

district, on a form prescribed by the commissioner, that the fees

imposed for conducting a criminal history records check be waived. Such

governing body may grant such a request if such governing body

determines that payment of such a fee would impose an unreasonable

financial hardship on the applicant or his or her family and, upon such

determination, the governing body shall pay such fee on behalf of the

prospective employee to the appropriate authority.

5. The commissioner and the division of criminal justice services

shall enter into an agreement for the purposes of implementing the

provisions of this section.

6. Nothing in this section shall be construed or interpreted to alter

or in any way diminish the integrity of collective bargaining agreements

negotiated between an employer and any certified or authorized

collective bargaining agent, with respect to payment of fees for

criminal history records searches, nor to diminish any rights pursuant

to such agreements.