§ 115C-238.29K. Criminal history checks. - North Carolina Statutes

§ 115C‑238.29K. Criminal history checks.

(a)        As used in this section:

(1)        "Criminal history" means a county, state, orfederal criminal history of conviction of a crime, whether a misdemeanor or afelony, that indicates an individual (i) poses a threat to the physical safetyof students or personnel, or (ii) has demonstrated that he or she does not havethe integrity or honesty to fulfill his or her duties as school personnel.These crimes include the following North Carolina crimes contained in any of thefollowing Articles of Chapter 14 of the General Statutes: Article 5A,Endangering Executive and Legislative Officers; Article 6, Homicide; Article7A, Rape and Kindred Offenses; Article 8, Assaults; Article 10, Kidnapping andAbduction; Article 13, Malicious Injury or Damage by Use of Explosive orIncendiary Device or Material; Article 14, Burglary and Other Housebreakings;Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery;Article 18, Embezzlement; Article 19, False Pretense and Cheats; Article 19A,Obtaining Property or Services by False or Fraudulent Use of Credit Device orOther Means; Article 20, Frauds; Article 21, Forgery; Article 26, OffensesAgainst Public Morality and Decency; Article 26A, Adult Establishments; Article27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31,Misconduct in Public Office; Article 35, Offenses Against the Public Peace;Article 36A, Riots and Civil Disorders; Article 39, Protection of Minors; andArticle 60, Computer‑Related Crime. These crimes also include possessionor sale of drugs in violation of the North Carolina Controlled Substances Act,Article 5 of Chapter 90 of the General Statutes, and alcohol‑relatedoffenses such as sale to underage persons in violation of G.S. 18B‑302 ordriving while impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5.In addition to the North Carolina crimes listed in this subdivision, suchcrimes also include similar crimes under federal law or under the laws of otherstates.

(2)        "School personnel" means any:

a.         Member of the board of directors of a charter school,

b.         Employee of a charter school, or

c.         Independent contractor or employee of an independentcontractor of a charter school if the independent contractor carries out dutiescustomarily performed by school personnel,

whether paid with federal, State, local, or otherfunds, who has significant access to students or who has responsibility for thefiscal management of a charter school.

(b)        The State Board of Education shall adopt a policy on whetherand under what circumstances school personnel shall be required to be checkedfor a criminal history. The policy shall not require school personnel to bechecked for a criminal history check before preliminary approval is grantedunder G.S. 115C‑238.29B. The Board shall apply its policy uniformly inrequiring school personnel to be checked for a criminal history. The Board maygrant conditional approval of an application while the Board is checking aperson's criminal history and making a decision based on the results of thecheck.

The State Board shall not require members of boards of directors ofcharter schools or employees of charter schools to pay for the criminal historycheck authorized under this section.

(c)        The Board of Education shall require the person to bechecked by the Department of Justice to (i) be fingerprinted and to provide anyadditional information required by the Department of Justice to a persondesignated by the State Board, or to the local sheriff or the municipal police,whichever is more convenient for the person, and (ii) sign a form consenting tothe check of the criminal record and to the use of fingerprints and otheridentifying information required by the repositories. The State Board shallconsider refusal to consent when deciding whether to grant final approval of anapplication under G.S. 115C‑238.29D and when making an employmentrecommendation. The fingerprints of the individual shall be forwarded to theState Bureau of Investigation for a search of the State criminal history recordfile, and the State Bureau of Investigation shall forward a set of fingerprintsto the Federal Bureau of Investigation for a national criminal history recordcheck. The Department of Justice shall provide to the State Board of Educationthe criminal history from the State and National Repositories of CriminalHistories of any school personnel for which the Board requires a criminalhistory check.

The State Board shall not require members of boards of directors ofcharter schools or employees of charter schools to pay for the fingerprintsauthorized under this section.

(d)        The State Board shall review the criminal history itreceives on an individual. The State Board shall determine whether the resultsof the review indicate that the individual (i) poses a threat to the physicalsafety of students or personnel, or (ii) has demonstrated that he or she doesnot have the integrity or honesty to fulfill his or her duties as schoolpersonnel and shall use the information when deciding whether to grant finalapproval of an application for a charter school under G.S. 115C‑238.29Dand for making an employment recommendation to the board of directors of acharter school. The State Board shall make written findings with regard to howit used the information when deciding whether to grant final approval underG.S. 115C‑238.29D and when making an employment recommendation.

(e)        The State Board shall notify in writing the board ofdirectors of the charter school of the determination by the State Board as towhether the school personnel is qualified to operate or be employed by acharter school based on the school personnel's criminal history. At the sametime, the State Board shall provide to the charter school's board of directorsthe written findings the Board makes in subsection (d) of this section and itsemployment recommendation. If the State Board recommends dismissal ornonemployment of any person, the board of directors of the charter school shalldismiss or refuse to employ that person. In accordance with the law regulatingthe dissemination of the contents of the criminal history file furnished by theFederal Bureau of Investigation, the State Board shall not release nor discloseany portion of the school personnel's criminal history to the charter school'sboard of directors or employees. The State Board also shall notify the schoolpersonnel of the procedure for completing or challenging the accuracy of thecriminal history and the personnel's right to contest the State Board's determinationin court.

(f)         All the information received by the State Board ofEducation or the charter school in accordance with subsection (e) of thissection through the checking of the criminal history is privileged informationand is not a public record but is for the exclusive use of the State Board ofEducation or the board of directors of the charter school. The State Board ofEducation or the board of directors of the charter school may destroy theinformation after it is used for the purposes authorized by this section afterone calendar year.

(g)        There shall be no liability for negligence on the part ofthe State Board of Education or the board of directors of the charter school,or their employees, arising from any act taken or omission by any of them incarrying out the provisions of this section. The immunity established by thissubsection shall not extend to gross negligence, wanton conduct, or intentionalwrongdoing that would otherwise be actionable. The immunity established by thissubsection shall be deemed to have been waived to the extent of indemnificationby insurance, indemnification under Articles 31A and 31B of Chapter 143 of theGeneral Statutes, and to the extent sovereign immunity is waived under the TortClaims Act, as set forth in Article 31 of Chapter 143 of the General Statutes. (1997‑430, s. 2.)