Superintendent’s Memo #314-12

State seal, Commonwealth of Virginia

COMMONWEALTH of VIRGINIA
Department of Education

November 16, 2012

TO:  Division Superintendents

FROM:  Patricia I. Wright, Superintendent of Public Instruction

SUBJECT:  Investigation and Reporting Requirements

The purpose of this memorandum is to review selected investigation and reporting requirements established by statutes and regulations promulgated to help school divisions provide a safe and healthy learning environment for all students.  Topics addressed include fingerprinting, criminal history checks, searches of the Central Registry, and investigation and reporting requirements in cases involving alleged misconduct or criminal behavior.

Fingerprinting and Criminal Record Check

Under §22.1-296.2 of the Code of Virginia, school boards must require any applicant who is offered or accepts employment to submit to fingerprinting and provide information needed to obtain a criminal history record.

§22.1-296.2. Fingerprinting required; reciprocity permitted.

  1. As a condition of employment, the school boards of the Commonwealth shall require any applicant who is offered or accepts employment after July 1, 1989, whether full-time or part-time, permanent, or temporary, to submit to fingerprinting and to provide personal descriptive information to be forwarded along with the applicant’s fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant. The school board may (i) pay for all or a portion of the cost of the fingerprinting or criminal records check or (ii) in its discretion, require the applicant to pay for all or a portion of the cost of such fingerprinting or criminal records check.

    The Central Criminal Records Exchange, upon receipt of an applicant’s record or notification that no record exists, shall report to the school board whether or not the applicant has ever been convicted of a felony or a Class 1 misdemeanor or an equivalent offense in another state.

    To conserve the costs of conducting criminal history record checks to applicants and school boards, upon the written request and permission of the applicant, a school board shall inform another school board with which reciprocity has been established, and to which the applicant also has applied for employment, of the results of the criminal history record information conducted within the previous ninety days that it obtained concerning the applicant. Criminal history record information pertaining to an applicant for employment by a school board shall be exchanged only between school boards in the Commonwealth in which a current agreement of reciprocity for the exchange of such information has been established and is in effect. Reciprocity agreements between school boards shall provide for the apportionment of the costs of the fingerprinting or criminal records check between the applicant and the school board, as prescribed in this section. However, school boards that enter into reciprocity agreements shall not each levy the costs of the fingerprinting or criminal records check on the applicant.

  2. The division superintendent shall inform the relevant school board of any notification of arrest of a school board employee received pursuant to § 19.2-83.1. The school board shall require such employee, whether full-time or part-time, permanent, or temporary, to submit to fingerprinting and to provide personal descriptive information to be forwarded along with the employee’s fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such employee. The school board may (i) pay for all or a portion of the cost of the fingerprinting or criminal records check or (ii) in its discretion, require the applicant to pay for all or a portion of the cost of such fingerprinting or criminal records check.

    The Central Criminal Records Exchange, upon receipt of an employee’s record or notification that no record exists, shall report to the school board whether or not the employee has been convicted of any of the offenses listed in subsection A of this section. The contents of the employee’s record shall be used by the school board solely to implement the provisions of §§ 22.1-307 and 22.1-315.

  3. The Central Criminal Records Exchange shall not disclose information to the school board regarding charges or convictions of any crimes not specified in this section. If an applicant is denied employment or a current employee is suspended or dismissed because of information appearing on his criminal history record, the school board shall provide a copy of the information obtained from the Central Criminal Records Exchange to the applicant or employee. The information provided to the school board shall not be disseminated except as provided in this section.

Child Abuse and Neglect Data (Central Registry Search)

Section 22.1-296.4 of the Code of Virginia addresses child abuse and neglect data obtained through a search of the Central Registry.  Under the statute, the Department of Social Services is required to maintain a database of central child abuse and neglect registries in other states that provide access to out-of-state school boards, for use by local school boards.

School divisions may access this database online at:

http://www.dss.virginia.gov/files/division/licensing/background_index_childrens_facilities/founded_cps_complaints/directory.pdf

§ 22.1-296.4. Child abuse and neglect data required.

  1. On and after July 1, 1997, every school board shall require, as a condition of employment, that any applicant who is offered or accepts employment requiring direct contact with students, whether full-time or part-time, permanent or temporary, provide written consent and the necessary personal information for the school board to obtain a search of the registry of founded complaints of child abuse and neglect maintained by the Department of Social Services pursuant to § 63.2-1515. The school board shall ensure that all such searches are requested in conformance with the regulations of the Board of Social Services. In addition, where the applicant has resided in another state within the last five years, the school board shall require as a condition of employment that such applicant provide written consent and the necessary personal information for the school board to obtain information from each relevant state as to whether the applicant was the subject of a founded complaint of child abuse and neglect in such state. The school board shall take reasonable steps to determine whether the applicant was the subject of a founded complaint of child abuse and neglect in the relevant state. The Department of Social Services shall maintain a database of central child abuse and neglect registries in other states that provide access to out-of-state school boards, for use by local school boards. The applicant may be required to pay the cost of any search conducted pursuant to this subsection at the discretion of the school board. From such funds as may be available for this purpose, however, the school board may pay for the search.

    The Department of Social Services shall respond to such request by the school board in cases where there is no match within the central registry regarding applicants for employment within ten business days of receipt of such request. In cases where there is a match within the central registry regarding applicants for employment, the Department of Social Services shall respond to such request by the school board within thirty business days of receipt of such request. The response may be by first-class mail or facsimile transmission.

  2. If the response obtained pursuant to subsection A indicates that the applicant is the subject of a founded case of child abuse and neglect, such applicant shall be denied employment, or the employment shall be rescinded.

  3. If an applicant is denied employment because of information appearing on his record in the registry, the school board shall provide a copy of the information obtained from the registry to the applicant. The information provided to the school board by the Department of Social Services shall be confidential and shall not be disseminated by the school board.

Other Data

Section 22.1-296.1 describes other data that school boards shall require on their employment application.

§ 22.1-296.1. Data on convictions for certain crimes and child abuse and neglect required; penalty.

  1. As a condition of employment for all of its public school employees, whether full-time or part-time, permanent, or temporary, every school board shall require on its application for employment certification (i) that the applicant has not been convicted of a felony or any offense involving the sexual molestation, physical or sexual abuse or rape of a child; and (ii) whether the applicant has been convicted of a crime of moral turpitude. Any person making a materially false statement regarding any such offense shall be guilty of a Class 1 misdemeanor and upon conviction, the fact of said conviction shall be grounds for the Board of Education to revoke such person’s license to teach.

  2. Every school board shall also require on its application for employment, as a condition of employment requiring direct contact with students, whether full-time or part-time, permanent, or temporary, certification that the applicant has not been the subject of a founded case of child abuse and neglect. Any person making a materially false statement regarding a finding of child abuse and neglect shall be guilty of a Class 1 misdemeanor and upon conviction, the fact of said conviction shall be grounds for the Board of Education to revoke such person’s license to teach.

  3. As a condition of awarding a contract for the provision of services that require the contractor or his employees to have direct contact with students on school property during regular school hours or during school-sponsored activities, the school board shall require the contractor to provide certification that all persons who will provide such services have not been convicted of a felony or any offense involving the sexual molestation or physical or sexual abuse or rape of a child.

    Any person making a materially false statement regarding any such offense shall be guilty of a Class 1 misdemeanor and, upon conviction, the fact of such conviction shall be grounds for the revocation of the contract to provide such services and, when relevant, the revocation of any license required to provide such services. School boards shall not be liable for materially false statements regarding the certifications required by this subsection.

    This subsection shall not apply to a contractor or his employees providing services to a school division in an emergency or exceptional situation, such as when student health or safety is endangered or when repairs are needed on an urgent basis to ensure that school facilities are safe and habitable, when it is reasonably anticipated that the contractor or his employees will have no direct contact with students.

Regulations Governing Revocation and Suspension of  License

The Licensure Regulations for School Personnel (8VAC20-22-690 and 8VAC20-22-710) outline the procedures for revocation or suspension of a license issued by the Board of Education.  You may access the full text of these regulations online at:

             http://www.doe.virginia.gov/teaching/licensure/licensure_regs.pdf

Duty to File a Complaint

The licensure regulations state that a complaint may be filed by anyone, but it is “the duty of a division superintendent, principal or other responsible school employee” to file a complaint in any case in which he has knowledge that a license holder is guilty of any offense set forth in subsection A of 8VAC20-22-690 or has committed any offense listed in subsection A of 8VAC20-22-710.

Duty to Investigate

Upon receipt of a complaint, a “division superintendent or his duly authorized representative shall investigate the charge” (emphasis added).  If the complaint is found to be without merit, the superintendent or his representative must notify the complaining party and close the file.  If the division superintendent or school board determines there is reasonable cause to believe the complaint is well founded, the teacher is notified by written petition for revocation or suspension (covered in subsection C of 8VAC20-22-690.B and 8VAC20-22-710). 

Duty to Forward Recommendation and Investigative File/Supporting Evidence
(within 14 days for revocation, and promptly for suspension)

Under 8VAC20-22-690 and 8VAC20-22-710, if a license holder files a written answer admitting the charges, refuses to accept the copy of the petition, fails to file a written answer within 14 days after service of the petition, or submits a written answer denying the charges in the petition, the school board proceeds to a hearing.  After the hearing, the local school board receives the recommendation of the division superintendent and then either dismisses the charges or recommends license revocation or suspension.  If the charges are dismissed, such decision is final and the investigative file “shall be closed and maintained as a separate file.  Any record or material relating to the charges in any other file shall be placed in the investigative file.”

However, if the school board recommends the revocation of a license, subsection F of 8VAC20-22-690 requires that, “the division superintendent shall forward the recommendation and the investigative file to the Superintendent of Public Instruction within 14 days” (emphasis added).

If the school board recommends the suspension of a license, subsection F of 8VAC20-22-710 requires that such “recommendation, along with supporting evidence, shall promptly be forwarded by the division superintendent to the Superintendent of Public Instruction” (emphasis added). 

Other Reporting and Notification Responsibilities

Duty to Notify the Board of Education of Teacher Dismissal or Resignation in Certain Cases (within 10 days)

Section 22.1-313 of the Code of Virginia deals generally with school board decisions.  Although the section focuses largely on administrative requirements for school board proceedings, subsection F imposes a duty on school boards to report certain cases of misconduct to the Board of Education.  School boards should provide such notification in writing.

Section 22.1-313. Decision of school board; generally.
 
F.  In those instances when licensed personnel are dismissed or resign due to a conviction of any felony, any offense involving the sexual molestation, physical or sexual abuse or rape of a child, any offense involving drugs, or due to having become the subject of a founded case of child abuse or neglect, the local school board shall notify the Board of Education within 10 business days of such dismissal or the acceptance of such resignation.

Duty to Forward Request to Cancel License to the Superintendent of Public Instruction (within 14 days)

Under the Licensure Regulations for School Personnel (refer to 8VAC20-22-690.F(1),
8VAC20-22-700.B, and 8VAC20-22-710.F(1)), if a teacher does not wish to contest charges set forth in a petition for suspension or revocation, he may cancel the license by returning it to the division superintendent with a signed statement.  In such cases, the superintendent must forward the request for cancellation, along with the petition, to the Superintendent of Public Instruction within 14 days of receipt.  Excerpts of the applicable regulations follow.

You may access the full text of the regulations online at:

http://www.doe.virginia.gov/teaching/licensure/licensure_regs.pdf

8VAC20-22-690 Revocation.
 
F.  Response to petition.  The license holder shall present his written answer to the petition, if any, within 14 days after the date of service of the petition as certified by the United States Postal Service.

1.  If the teacher does not wish to contest the charges, he may cancel the license by returning the license to the division superintendent with a written, signed statement requesting cancellation.  The division superintendent shall forward the request for cancellation along with the petition for revocation to the Superintendent of Public Instruction within 14 days of receipt….

8VAC20-22-700 Cancellation.

B.  Procedures.  ….However, if the request for cancellation is in response to a petition for revocation, the individual shall acknowledge that he understands that the notice of cancellation will include the statement:  “The license holder voluntarily returned the license in response to a petition for revocation.”  The individual also shall acknowledge that he understands that the cancellation of the license will be reported to division superintendents in Virginia and to chief state school officers of the other states and territories of the United States.  When applicable, the division superintendent shall forward the request for cancellation along with the petition for revocation to the Superintendent of Public Instruction within 14 days of receipt. 

8VAC20-22-710 Suspension.
 
F.  Response to petition.  The license holder shall present his written answer to the petition, if any, within 14 days after the date of service of the petition as certified by the United States Postal Service.

1.  If the teacher does not wish to contest the charges, he may cancel the license by returning the license to the division superintendent with a written, signed statement requesting cancellation.  The division superintendent shall forward the request for cancellation along with the petition for suspension to the Superintendent of Public Instruction within 14 days of receipt….

If you have questions or need additional information regarding the statutory provisions or regulations discussed in this memorandum, please contact Nancy Walsh, professional practices specialist, at (804) 371-2522 or nancy.walsh@doe.virginia.gov.

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