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This entry was published on 2021-04-23
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SECTION 3035
Duties of commissioner; submission of fingerprints
Education (EDN) CHAPTER 16, TITLE 4, ARTICLE 61
§ 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and regulations, and shall not be published or in any way disclosed to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.

* NB Effective until July 1, 2022

* 3. 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 subdivision 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.

* NB Effective July 1, 2022

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.