Background checks more than we bargained for (June 2007)

A correction to this article has been reprinted and is included at the bottom of this page. The entire content is included below.

Well, we’ve been doing criminal background checks for certified and noncertified folks as a condition of initial employment for several years now, and we’re okay with that. Right? If we hire someone, we do the criminal background check and find out whether the new employee falls into one of the categories which render his employment verboten under the statute. If he’s okay, we keep him on. If not, we send him to the house. Simple, and it keeps convicted bad people out of our schools, at least in theory. (On the other hand, if they’re bad people and haven’t yet been convicted of anything on the list of bad things, we’re, unfortunately, none the wiser).

It’s worked out pretty well, so far. But now, along comes Act 823 of the 2007 legislative session that makes a change that might not have been intended. That change? It appears that every noncertified employee will have to have a background check, but not just at the time of initial employment. But everyone, every year. The old law, Section 6-17-414 of the Arkansas
Code, at subsection (a)(1)(A)(i), states in pertinent part:

“ . . the board of directors of a local school district or an educational service cooperative shall require as a condition of initial employment in a noncertified staff position any person making application to apply to the Identification Bureau of the Department of Arkansas State Police for statewide and nationwide criminal records checks, the latter to be conducted by the Federal Bureau of Investigation.” (Emphasis supplied).

Okey dokey. Now, let’s look at the new, improved law. Same statute number, just amended by Act 823. The equivalent subsection now reads as follows:

“No person, including without limitation noncertified persons who provide services as a substitute teacher, shall be eligible for employment, whether initial employment, re-employment, or continued employment, by a local school district or education service cooperative in a noncertified staff position if that person has pleaded guilty of any of the following offenses . . .” (Emphasis supplied).

As you recall, in the old law, you had to do background checks on substitute teachers only if they were going to work for 30 or more days within a school year. Under the new, improved, longer, lower and wider law, all substitutes will have to have a background check, regardless of how many – or few –days they might work.

That business about “including without limitation noncertified persons who provide services as a substitute teacher ...” is what make the statute so all-inclusive. The new law appears to use substitute teachers as an example of the application of the law, but the “without limitation” statement sucks in everyone like a tractor beam on Star Trek. “Without limitation” is pretty clear.

Of course, that means that all noncertified employees will need a background check, every year, both at the time of initial employment and at every renewal of their contracts. Can you say “time consuming and expensive?” That goes for subs, too (working anywhere from one day to all year), as well as all part-time and full-time noncertified employees. Of course,
the delay in getting results from background checks on your new hires can be substantial, as you well know. This probably will not streamline that process. Just a guess. Thankfully, there is no similar change in the law for certified personnel.

There might be room for an attorney general’s opinion to tell me that the law doesn’t really say what Kristen and I both think it says. If there’s any conflict in the language of the statute, the latest expression of the Legislature controls (that’s a basic rule of statutory construction), and the latest expression of the Legislature is Act 823 of 2007.

Happy background-checking!

CORRECTION

WE GOOFED: Yearly background checks not required for non-certified employees

The word “erratum,” loosely translated, is Latin for “oops!” In the June 2007 issue of the ASBA Reporter, both in an article
on the front page and in my column, we told you about one of the effects of Act 823 of 2007. Specifically, we warned you that a provision in the new law requires criminal background checks for all noncertified employees, both as a condition of their initial employment and every time they are re-employed. Unfortunately that was, well, wrong. Act 823 does, indeed, require that, but Act 1573 of 2007, section 24, undoes what Act 823 did.

That is, Act 1573 puts everything back as it was, pretty much. All new hires must have a criminal background check, and all those whose employment in your district is not continuous must be checked when they are re-hired. But – good news – not all
noncertified employees must have a criminal background check every year.

I was going to try to find a way to blame this on my favorite canine, Mary Margaret, but she’s having none of it. She reminded me that there is a term for when we mess up: “human error.” “But,” she pointed out, “you have never heard the term, ‘dog error.’ There’s a reason for that!”

So, with respect to our alerts about good ol’ Act 823 and criminal background checks, as Miss Emily Litella used to say, “Oh.
That’s quite different. Never mind!”

We apologize.

Previous Article (Winter 2007)- Of conferences and hearings

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