A3379

An Act concerning home instructors, and amending P.L.1986, c.116 and P.L.1999, c.358.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.1986, c.116 (C.18A:6-7.1) is amended to read as follows:

1. A facility, center, school, or school system under the supervision of the Department of Education and board of education which cares for, or is involved in the education of children under the age of 18 shall not employ for pay , or contract for the paid services of , any teaching staff member or substitute teacher, teacher aide, child study team member, school physician, school nurse, custodian, school maintenance worker, cafeteria worker, school law enforcement officer, school secretary or clerical worker or any other person serving in a position which involves regular contact with pupils unless the employer has first determined, consistent with the requirements and standards of [this act] P.L.1986, c.116 (C.18A:6-7.1 et seq.), that no criminal history record information exists on file in the Federal Bureau of Investigation, [Identification Division,] or in the State Bureau of Identification in the Division of State Police, which would disqualify that individual from being employed or utilized in such capacity or position. An individual who is employed, in the capacity of a school bus driver, by a board of education, or by a school bus contractor holding a contract with a board of education, [in the capacity of a school bus driver,] shall be required to meet the criminal history record requirements established pursuant to section 6 of P.L.1989, c.104 (C.18A:39-19.1). A facility, center, school, or school system under the supervision of the Department of Education and board of education which cares for, or is involved in the education of children under the age of 18 may require criminal history record background checks for individuals who, on an unpaid voluntary basis, provide services that involve regular contact with pupils. In the case of school districts involved in a sending-receiving relationship, the decision to require criminal history record background checks for volunteers shall be made jointly by the boards of education of the sending and receiving districts.

An individual, except as provided in subsection g. of this section, shall be permanently disqualified from employment or service under [this act] P.L.1986, c.116 (C.18A:6-7.1 et seq.) if the individual's criminal history record background check reveals a record of conviction for any offense that constitutes a crime of the first or second degree; or for any of the following offenses:

a. An offense against the family, children, or incompetents, as set forth in [chapter 14 of Title 2C of the New Jersey Statutes, or as set forth in N.J.S.2C:24-4 and 2C:24-7, or as set forth in] N.J.S.2C:24-1 et seq., or R.S.9:6-1 et seq.[, or as set forth in N.J.S.2C:29-2] , or a crime of the fourth degree involving a victim who is a minor child ; [or]

b. An offense involving the manufacture, transportation, sale, possession, distribution, or habitual use of a ["]controlled dangerous substance["] , as [defined] set forth in the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al., or ["] an offense involving drug paraphernalia["] , as [defined pursuant to] set forth in N.J.S.2C:36-1 et seq.; [or]

c. (1) [A crime involving the use of force or the threat of force to or upon] An offense against a person [or property including, but not limited to, robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder] , as set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq., or N.J.S.2C:15-1 et seq.; [or]

(2) [A crime] One of the following offenses against property:

(a) Arson, as set forth in N.J.S.2C:17-1;

(b) Causing or risking widespread injury or damage, as set forth in N.J.S.2C:17-2;

(d) Burglary, as set forth in N.J.S.2C:18-2; or

(e) Theft constituting a crime of the third degree, as set forth in N.J.S.2C:20-1 et seq.;

(3) A weapons offense, as set forth in [chapter 39 of Title 2C of the New Jersey Statutes, a third degree crime as set forth in chapter 20 of Title 2C of the New Jersey Statutes, or a crime as listed below:

Recklessly endangering another person N.J.S.2C:12-2

Terroristic threats N.J.S.2C:12-3

Criminal restraint N.J.S.2C:13-2

Luring, enticing child into motor

vehicle, structure or isolated area P.L.1993, c.291 (C.2C:13-6)

Causing or risking widespread injury

or damage N.J.S.2C:17-2

Criminal mischief N.J.S.2C:17-3

Burglary N.J.S.2C:18-2

Usury] N.J.S.2C:39-1 et seq.;

(4) A usury offense, as set forth in N.J.S.2C:21-19 ;

[Threats] (5) An offense involving threats and other improper influence , as set forth in N.J.S.2C:27-3 ;

[Perjury and] (6) An offense involving perjury, as set forth in N.J.S.2C:28-1, or false swearing [N.J.S.2C:28-3], as set forth in N.J.S.2C:28-2;

[Resisting] (7) An offense involving resisting arrest or eluding an officer, as set forth in N.J.S.2C:29-2

[Escape], or escape from official detention, as set forth in N.J.S.2C:29-5 ;

[Bias] (8) An offense involving bias intimidation , as set forth in N.J.S.2C:16-1; or

[(3) Any crime of the fourth degree involving a victim who is a minor; or

(4) Conspiracy] (9) A conspiracy or attempt to commit [or an attempt to commit] any of the [crimes] offenses described in this [act] section.

d. For the purposes of this section, a conviction exists if the individual [has] , at any time , has been convicted under the laws of this State , or has been convicted under [any similar statutes] the laws of the United States or any other state [for a substantially equivalent crime or other offense] or jurisdiction for conduct which, if committed in New Jersey, would constitute any of the offenses described in this section.

e. Notwithstanding the provisions of this section to the contrary, an individual shall not be disqualified from employment or service under [this act] P.L.1986, c.116 (C.18A:6-7.1 et seq.) on the basis of any conviction disclosed by a criminal record check performed pursuant to this [act without] section, unless the individual has first been provided with an opportunity to challenge the accuracy of the disqualifying criminal history record.

f. When charges are pending for [a crime or any other] an offense enumerated in this section, the employing board of education shall be notified that the candidate shall not be eligible for employment until the commissioner has made a determination regarding the candidate’s qualification or disqualification upon adjudication of the pending charges.

g. This section shall [first] apply to criminal history record background checks conducted on or after the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.); except that [in the case of] , if an individual is employed by a board of education or a contracted service provider [who is] as of the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.), and the individual is thereafter required to undergo a criminal history record background check upon employment with another board of education or contracted service provider, the individual shall be disqualified only for the following offenses:

(1) any offense enumerated in this section prior to the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.); and

(2) any offense enumerated in this section which had not been enumerated in this section prior to the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.), if the person was convicted of that offense on or after the effective date of that act.

h. If a prospective employee refuses to consent to, or cooperate in, the securing of a criminal history record background check pursuant to this section, the person shall not be considered for employment.

i. If a current employee refuses to consent to, or cooperate in, the securing of a criminal history record background check pursuant to this section, the person shall be immediately removed from his position and the person's employment shall be terminated.

(cf: P.L.2011, c.72, s.9)

2. Section 2 of P.L.1999, c.358 (C.30:6D-64) is amended to read as follows:

2. a. The department shall not contract with any community agency for the provision of services unless it has first been determined, consistent with the requirement and standards of [this act] P.L.1999, c.358 (C.30:6D-63 et seq.), that no criminal history record information exists on file in the Federal Bureau of Investigation, [Identification Division,] or in the State Bureau of Identification in the Division of State Police, which would disqualify the community agency head or the community agency employees from such employment. The determination shall be made by the community agency board with regard to the agency head and the determination shall be made by the agency head with regard to all agency employees.

A criminal history record background check shall be conducted at least once every two years for a community agency head and community agency employees; except that the department, in lieu of conducting criminal history record background checks every two years, may determine whether an individual has been convicted of [a crime or disorderly persons] an offense which would disqualify that person from employment by an alternative means, including, but not limited to, a match of a person's Social Security number or other identifying information with records of criminal proceedings in this and other states. If the department elects to implement an alternative means of determining whether an individual has been convicted of [a crime or disorderly persons] an offense which would disqualify that individual from employment, the department shall report to the Governor and the Legislature, prior to its implementation, on the projected costs and procedures to be followed with respect to its implementation and [setting forth] the rationale therefor.

b. An individual shall be disqualified from employment under [this act] P.L.1999, c.358 (C.30:6D-63 et seq.) if [that] the individual's criminal history record background check reveals a record of conviction of any of the following [crimes and] offenses:

(1) [In New Jersey, any crime or disorderly persons offense:

(a) Involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq. or N.J.S.2C:15-1 et seq.] An offense that constitutes a crime of the first or second degree; [or

(b) Against] (2) An offense against the family, children , or incompetents, [meaning those crimes and disorderly persons offenses] as set forth in N.J.S.2C:24-1 et seq. or R.S.9:6-1 et seq., or a crime of the fourth degree involving a victim who is a minor child; [or

(c) A crime or] (3) An offense involving the manufacture, transportation, sale, possession, or habitual use of a controlled dangerous substance , as [defined] set forth in the ["New Jersey Controlled Dangerous Substances Act," P.L.1970, c.226 (C.24:21-1 et seq.).] “Comprehensive Drug Reform Act of 1987,” N.J.S.2C:35-1 et al., or an offense involving drug paraphernalia, as set forth in N.J.S.2C:36-1 et seq.;

[(2) In] (4) An offense against a person, as set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq., or N.J.S.2C:15-1 et seq.;

(5) One of the following offenses against property:

(a) Arson, as set forth in N.J.S.2C:17-1;

(b) Causing or risking widespread injury or damage, as set forth in N.J.S.2C:17-2;

(d) Burglary, as set forth in N.J.S.2C:18-2; or

(e) Theft constituting a crime of the third degree, as set forth in N.J.S.2C:20-1 et seq.;

(6) A weapons offense, as set forth in N.J.S.2C:39-1 et seq.;

(7) A usury offense, as set forth in N.J.S.2C:21-19;

(8) An offense involving threats and other improper influence, as set forth in N.J.S.2C:27-3;

(9) An offense involving perjury, as set forth in N.J.S.2C:28-1, or false swearing, as set forth in N.J.S.2C:28-2;

(10) An offense involving resisting arrest or eluding an officer, as set forth in N.J.S.2C:29-2, or escape from official detention, as set forth in N.J.S.2C:29-5;

(11) An offense involving bias intimidation, as set forth in N.J.S.2C:16-1; or

(12) A conspiracy or attempt to commit any of the offenses described in this subsection.

For the purposes of this subsection, a conviction exists if the individual, at any time, has been convicted under the laws of this State, or has been convicted under the laws of the United States or any other state or jurisdiction [, of] for conduct which, if committed in New Jersey, would constitute any of the [crimes or disorderly persons] offenses described in [paragraph (1) of] this subsection.

c. If a prospective employee refuses to consent to, or cooperate in, the securing of a criminal history record background check pursuant to this section, the person shall not be considered for employment.

d. If a current employee refuses to consent to, or cooperate in, the securing of a criminal history record background check pursuant to this section, the person shall be immediately removed from his position and the person's employment shall be terminated.

e. Notwithstanding the provisions of [subsection b. of] this section to the contrary, provisional employment of an individual is authorized for a period not to exceed six months if the individual submits to the appointing authority a sworn statement attesting that the individual has not been convicted of any [crime or disorderly persons] offense [as] described in this [act] section, pending a determination that no criminal history record background information which would disqualify the individual exists on file in the State Bureau of Identification in the Division of State Police , or in the Federal Bureau of Investigation, Identification Division. An individual who is provisionally employed pursuant to this subsection shall perform [his] the person’s duties under the supervision of a superior who acts in a supervisory capacity over that individual until the federal and State criminal history determination [concerning the federal and State information] is complete, where possible.

f. Notwithstanding the provisions of [subsection b. of] this section to the contrary [, no],

(1) An individual shall not be disqualified from employment or service under P.L.1999, c.358 (C.30:6D-63 et seq.), on the basis of any conviction disclosed by a criminal history record background check performed pursuant to this section, unless the individual has first been provided with an opportunity to challenge the accuracy of the disqualifying criminal history record information.

(2) An individual shall not be disqualified from employment on the basis of any conviction disclosed by a criminal history record background check performed pursuant to [sections 2 through 7 of] P.L.1999, c.358 (C.30:6D-64 through 69)] this section if the individual has affirmatively demonstrated to the community agency head, or , if the individual is the community agency head, has affirmatively demonstrated to the community agency board [if the individual is the community agency head], clear and convincing evidence of the individual's rehabilitation. In determining whether an individual has affirmatively demonstrated rehabilitation, the following factors shall be considered:

[(1)] (a) the nature and responsibility of the position which the convicted individual would hold, has held or currently holds, as the case may be;

[(2)] (b) the nature and seriousness of the offense;

[(3)] (c) the circumstances under which the offense occurred;

[(4)] (d) the date of the offense;

[(5)] (e) the age of the individual when the offense was committed;

[(6)] (f) whether the offense was an isolated or repeated incident;

[(7)] (g) any social conditions which may have contributed to the offense; and

[(8)] (h) any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of those who have had the individual under their supervision.

g. [A conviction] Notwithstanding the provisions of subsection f. of this section to the contrary, an individual who has been convicted of [a crime or disorderly persons] an offense against [children] a child, as set forth in N.J.S.2C:24-4 or N.J.S.9:6-1 et seq., shall be deemed to have committed an offense that adversely relates to a position in a community agency that involves or would involve working directly with a person under 18 years of age [. Individuals convicted of such crimes or disorderly persons offenses are] , and the individual shall be permanently disqualified from such employment at a community agency, regardless of their rehabilitation status.

(cf: P.L.2009, c.254, s.2)

3. This act shall take effect immediately.

STATEMENT

This bill would reconcile and bring consistency to two separate, but interrelated, statutory provisions that provide criminal history background check requirements applicable to home instructors. One statutory provision (N.J.S.A.18A:6-7.1) deals with criminal history background checks that are undertaken by the Department of Education (DOE) for persons who will be employed by facilities, centers, schools, or school systems under DOE supervision, in positions that require regular contact with pupils (including home instructor positions). The other statutory provision (N.J.S.A.30:6D-64) deals with criminal history background checks that are undertaken by the Department of Human Services (DHS) for persons who will be employed by a DHS community agency for the purposes of providing direct contact services (including home instruction services) to DHS clients with developmental disabilities.

As these two statutes are currently written, the background check provisions that are applicable to individuals who are employed by DHS are less stringent and include a lesser number of disqualifying offenses than the provisions that are applicable to individuals who are employed under DOE supervision. Because of this, an individual may be authorized to act as a DHS home instructor even if that individual has a conviction that would disqualify them from employment as a home instructor under DOE authority.

This bill, therefore, would bring consistency to these two statutory provisions by ensuring that the same offenses are constituted as disqualifying offenses for home instructors employed either by DOE or by DHS.

In particular, the bill would consolidate the lists of disqualifying offenses that currently appear in the DOE and DHS statutes, in order to specify that a person will be disqualified from employment, under either statute, if they have been convicted of any of the following offenses:

– An offense that constitutes a crime of the first or second degree;

– An offense against the family, children, or incompetents, as set forth in N.J.S.2C:24-1 et seq. or R.S.9:6-1 et seq., or a crime of the fourth degree involving a victim who is a minor child;

– An offense involving the manufacture, transportation, sale, possession, or habitual use of a controlled dangerous substance, as set forth in the “Comprehensive Drug Reform Act of 1987,” N.J.S.2C:35-1 et al., or an offense involving drug paraphernalia, as set forth in N.J.S.2C:36-1 et seq.;

– An offense against a person, as set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq., or N.J.S.2C:15-1 et seq.;

– One of the following offenses against property:

– Arson, as set forth in N.J.S.2C:17-1;

– Causing or risking widespread injury or damage, as set forth in N.J.S.2C:17-2;

– Criminal mischief, as set forth in N.J.S.2C:17-3;

– Burglary, as set forth in N.J.S.2C:18-2; or

– Theft constituting a crime of the third degree, as set forth in N.J.S.2C:20-1 et seq.;

– A weapons offense, as set forth in N.J.S.2C:39-1 et seq.;

– A usury offense, as set forth in N.J.S.2C:21-19;

– An offense involving threats and other improper influence, as set forth in N.J.S.2C:27-3;

– An offense involving perjury, as set forth in N.J.S.2C:28-1, or false swearing, as set forth in N.J.S.2C:28-2;

– An offense involving resisting arrest or eluding an officer, as set forth in N.J.S.2C:29-2, or escape from official detention, as set forth in N.J.S.2C:29-5;

– An offense involving bias intimidation, as set forth in N.J.S.2C:16-1; or

– A conspiracy or attempt to commit any of the offenses described above.

The bill would also amend N.J.S.A.18A:6-7.1 to clarify (consistent with the provisions of N.J.S.A.30:6D-64, which are applicable to DHS employees) that whenever a current or prospective DOE employee refuses to consent to, or cooperate in, a criminal history record background check, such person will be denied consideration for employment, or will be immediately removed from their existing position of employment, as appropriate. The bill would further clarify (consistent with the rules of due process, and, in order to mirror the legal protection that is already provided under N.J.S.A.18A:6-7.1 to DOE employees) that a person may not be disqualified from DHS community agency employment on the basis of criminal history record information unless the person has first been given the opportunity to challenge the accuracy of that disqualifying criminal history record information.

The bill would additionally make technical and clarifying changes to ensure the proper and consistent use of other language appearing in the relevant statutory provisions.

The need for this bill was highlighted in a 2014 report on contracted home instruction services, which was issued by the Office of the State Auditor. That report indicated that differences in the statutory criminal history background check requirements applicable to DOE and DHS employees had resulted, in practice, in a situation where a person with prior convictions for burglary and drug offenses was employed as a DHS home instructor despite the fact that the same convictions would have disqualified the person from employment as home instructor under DOE authority. As evidenced by this example, therefore, this bill is needed to ensure that criminal history record background check requirements are uniformly applied, in practice, to all home instructors, and are not subject to circumvention through the use of agency shopping practices.