ADDA: BACKGROUND CHECKS

FILE: ADDA
 
This policy is applicable to any fingerprint-based state and national criminal history record check made for non-criminal justice purposes and requested under applicable federal authority and/or state statute authorizing such checks for licensing or employment purposes. Where such checks are allowable by law, the following practices and procedures will be followed.
 
I. Requesting Criminal History Record Information (“CHRI”) checks
Fingerprint-based CHRI checks will only be conducted as authorized by M.G.L. c. 71, §38R and 42 U.S.C. § 16962, in accordance with all applicable state and federal rules and regulations, and in compliance with M.G.L. c. 6, §§ 167-178 and 803 CMR §§ 2.00, et seq. If an applicant or employee is required to submit to a fingerprint-based state and national criminal history record check, he/she shall be informed of this requirement and instructed on how to comply with the law. Such instruction will include information on the procedure for submitting fingerprints. In addition, the applicant or employee will be provided with all information needed to successfully register for a fingerprinting appointment [e.g., IdentoGO web site address, Provider Identification Number (Provider ID)].
 
The Superintendent, Principal or their certified designees shall obtain all CHRI information from the Department of Criminal Justice Information Services ("DCJIS") on all current employees and prospective individuals who may have direct and unmonitored contact with students,1 which includes, but not limited to, the following:
  • employees and applicants for employment, including promotions;
  • volunteers and interns;
  • student teachers;
  • individuals who regularly provide school related transportation to children;
  • subcontractors or laborers commissioned by Lexington Public Schools or employed by the town
  • to perform work on school grounds or with students; or
  • any other individuals who may have direct and unmonitored contact with students.
All individuals listed above, except volunteers, subcontractors or laborers, are required by law to submitto fingerprint based state and national criminal history record check. Lexington Public Schools, in its discretion, may require volunteers, subcontractors or laborers to submit to fingerprint based state and national criminal history record checks.
 
II. Access to CHRI
All CHRI is subject to strict state and federal rules and regulations in addition to Massachusetts CORI laws and regulations. CHRI cannot be shared with any unauthorized entity for any purpose, including subsequent hiring determinations. All receiving entities are subject to audit by the Massachusetts Department of Criminal Justice Information Services (DCJIS) and the FBI, and failure to comply with such rules and regulations could lead to sanctions. Title 28, U.S.C, § 534, Pub. L. 92-544 and Title 28 C.F.R. 20.33(b)
 
  1. Direct and unmonitored contact with children is defined as contact with students when no other employee for whom the school/district has made a suitability determination is present. "Contact" refers to any contact with a student that provides the individual with opportunity for physical touch or personal communication. 
  2. Provide that the exchange of records and information is subject to cancellation if dissemination is made outside of the receiving entity or related entities. Furthermore, an entity can be charged criminally for the unauthorized disclosure of CHRI. 
III. Storage of CHRI
CHRI shall only be stored for extended periods of time when needed for the integrity and/or utility of an individual's personnel file. Administrative, technical, and physical safeguards, which are in compliance with the most recent CJIS Security Policy, have been implemented to ensure the security and confidentiality of CHRI. Each individual involved in the handling of CHRI is to familiarize himself/herself with these safeguards. In addition to the above, each individual involved in the handling of CHRI will strictly adhere to the policy on the storage, retention and destruction of CHRI.
 
IV. Retention and Destruction of CHRI
Federal law prohibits the repurposing or dissemination of CHRI beyond its initial requested purpose. Once an individual's CHRI is received, it will be securely retained in internal agency documents for the following purposes only:
• Historical reference and/or comparison with future CHRI requests,
• Dispute of the accuracy of the record
• Evidence for any subsequent proceedings based on information contained in the CHRI.
 
CHRI will be kept for the above purposes in separate, secured, locked locations in the Office of Human Resources.When no longer needed, CHRI and any summary of CHRI data must be destroyed by shredding paper copies and/or by deleting all electronic copies from the electronic storage location, including any backup copies or files. The shredding of paper copies of CHRI by an outside vendor must be supervised by an employee of the Lexington Public Schools.
 
V. CHRI Training
An informed review of a criminal record requires training. Accordingly, all personnel authorized to receive and/or review CHRI at the Lexington Public Schools will review and become familiar with the educational and relevant training materials regarding SAFIS and CHRI laws and regulations made available by the appropriate agencies, including the DCJIS.
 
VI. Determining Suitability
A. Use of Criminal History in Background Screening.
 
Information from CHRI records used for employment purposes shall only be accessed for applicants who are otherwise qualified for the position for which they have applied and for current employees during periodic criminal background checks.
 
Unless otherwise provided by law, a criminal record will not automatically disqualify an individual from employment, contract work, volunteering or interning. Rather, determinations of suitability based on background checks will be made consistent with this policy and any applicable law or regulations.
 
B. Verifying a Subject's Identity.
If a criminal record is received from DCJIS, the information must be closely compared with the information on the Acknowledgement Form and any other identifying information provided by the applicant to ensure the record belongs to the applicant.
 
If the information in the CHRI record provided does not exactly match the identification information provided by the applicant, a determination is to be made by an individual authorized to make such determinations based on a comparison of the CHRI record and documents provided by the applicant.
 
C. Inquiring About Criminal History.
In connection with any decision regarding employment, internships or volunteer ' opportunities within Lexington Public Schools, the individual shall be provided with a copy of his/her criminal history record, whether obtained from DCJIS or from any other sources, prior to questioning the individual about his/her criminal history. The source(s) of the criminal history record is also to be disclosed to the individual.
 
D. Determining Suitability.
If a determination is made, based on the information as provided in record, that the criminal record belongs to the individual under consideration, and the individual does not dispute the record's accuracy, then the determination of suitability for the position will be made. Unless otherwise provided by law, factors considered in determining suitability may include, but not be limited to the following:
 
Relevance of the record to the position sought;
  • The nature of the position or work to be performed;
  • Time that has passed since the [offense,] conviction and/or completion of the sentence;
  • Age of the applicant at the time of the offense;
  • Seriousness and specific circumstances of the offense;
  • The number of offenses;
  • Whether the applicant has pending charges;
  • Any relevant evidence of rehabilitation or lack thereof; and
  • Any other relevant information, including information submitted by the applicant or requested by the organization.
The applicant is to be notified of the decision and the basis for it in a timely manner.
 
A record of the suitability determination must be retained for the period of the employee's employment or for seven (7) years, whichever is longer. The following information will be included in the determination:
  • The name and date of birth of the employee or applicant;
  • The date on which the school received the national criminal history check results; and
  • The suitability determination (either "suitable" or "unsuitable").
A copy of an individual's suitability determination documentation must be provided to another school employer, or to the individual, upon request of the individual for whom Lexington Public Schools conducted a suitability determination.
 
VII. Relying on Previous Suitability Determination.
Under certain circumstances, consistent with 603 CMR 51.06, the Lexington Public Schools may rely on a suitability determination made by another school employer or DESE, if the following factors are met:
  • Suitability determination was made within the last seven (7) years; and
  • The applicant has not resided outside Massachusetts for any period longer than three (3) years since the suitability determination; and,
  • either (i) the individual has been continuously employed for one or more school employers or has gaps totaling no more than 2 years in his/her employment for school employers; or (ii) if the individual works as a substitute employee, the individual is still deemed suitable for employment by the school employer who made the favorable suitability determination.
 
Upon request of another school employer or the individual for whom the Lexington Public Schools conducted the suitability determination, Lexington Public Schools shall provide documentation of the suitability determination.
 
VIII. Adverse Decisions Based on CHRI
If inclined to make an adverse decision based on an individual's CHRI, the Lexington Public Schools will take the following steps prior to making a final adverse determination:
  • Provide the individual with a copy of his/her CHRI used in making the adverse decision;
  • Provide the individual with a copy of this CHRI Policy;
  • Provide the individual the opportunity to complete or challenge the accuracy of his/her CHRI; and
  • Provide the individual with information on the process for updating, changing, or correcting CHRI.
A final adverse decision based on an individual's CHRI will not be made until the individual has been afforded a reasonable time depending on the particular circumstances (up to thirty calendar days) to correct or complete the CHRI.
 
IX. Secondary Dissemination of CHRI
If an individual's CHRI is released to another authorized entity, a record of that dissemination must be made in the secondary dissemination log. The secondary dissemination log is subject to audit by the DCJIS and the FBI.
 
The following information will be recorded in the log:
1. Subject Name;
2. Subject Date of Birth;
3. Date and Time of the dissemination;
4. Name of the individual to whom the information was provided;
5. Name of the agency for which the requestor works;
6. Contact information for the requestor; and
7. The specific reason for the request.
 
X. Reporting to Commissioner of Elementary and Secondary Education
Pursuant to M.G.L. ch 71, § 71R and 603 CMR 51.07, if Lexington Public Schools dismisses, declines to renew the employment of, obtains the resignation of, or declines to hire a licensed educator or an applicant for a Massachusetts educator license because of information discovered through a state or national criminal record check, Lexington Public Schools shall report such decision or action to the Commissioner of Elementary and Secondary Education in writing within 30 days of the employer action or educator resignation. The report shall be in a form requested by the Department and shall include the reason for the action or resignation, as well as a copy of the criminal record check results. Lexington Public Schools shall notify the employee or applicant that it has made a report pursuant to 603 CMR 51.07(1) to the Commissioner.
 
Pursuant to M.G.L. ch. 71, § 71R and 603 CMR 51.07, if the Lexington Public Schools discovers information from a state or national criminal record check about a licensed educator or an applicant for a Massachusetts educator license that implicates grounds for license action pursuant to 603 CMR 7.15(8)(a), Lexington Public Schools shall report to the Commissioner in writing within 30 days of the discovery, regardless of whether Lexington Public Schools retains or hires the educator as an employee. The report must include a copy of the criminal record check results. The school employer shall notify the employee or applicant that it has made a report pursuant to 603 CMR 51.07(2) to the Commissioner and shall also send a copy of the criminal record check results to the employee or applicant.
 
LEGAL REFS.:
M.G.L.71:38R, 151B, 276, §.100A, St.2002, c.385
MCAD Regulations and D.O.E. Advisory on C.O.R.I. Law (Feb 17, 2003)
803 CMR 3.05 (Chapter 149 of the Acts of 2004)
 
CROSS REFS:
ADDA-E-1, Information Concerning the Process in Correcting a Criminal Record
ADDA-E-2, C.O.R.I. Requirements

Lexington Public Schools,  Lexington, MA
Adopted by Lexington School Committee:  July 2015