Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                            H.B. 121
Approved for Filing: R. Bailey 6                              1st Sub. (Buff)
          6 01-31-24 4:23 PM 6
                   Representative Karianne Lisonbee proposes the following substitute bill:
                EDUCATOR BACKGROUND CHECK AMENDMENTS
                                     2024 GENERAL SESSION
                                          STATE OF UTAH
                                  Chief Sponsor: Trevor Lee
                                Senate Sponsor: ____________
 6
 LONG TITLE
 General Description:
        This bill prohibits a Local Education Agency from collecting background check fees
 from licensed employees and non-licensed substitute teachers.
 Highlighted Provisions:
        This bill:
        < defines terms;
        < requires school districts to prioritize hiring licensed substitutes as teachers when
 available;
        < prohibits a Local Education Agency (LEA) from collecting background check fees
 from licensed employees and non-licensed substitute teachers;
        < requires an LEA or qualified private school to enter into an agreement to duplicate
 criminal background check data to another LEA or qualified private school;
        < requires the Bureau of Criminal Identification to create a process to allow LEAs to    1st Sub. H.B. 121
 access concealed carry permit information to satisfy certain employee background
 check requirements; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
     *HB0121S01*
       1st Sub. (Buff) H.B. 121                                                    01-31-24 4:23 PM
 Other Special Clauses:
         None
 Utah Code Sections Affected:
 AMENDS:
         53-5-702, as last amended by Laws of Utah 2023, Chapter 387
         53E-6-901, as renumbered and amended by Laws of Utah 2018, Chapter 1
         53G-5-408, as last amended by Laws of Utah 2019, Chapter 293
         53G-11-401, as last amended by Laws of Utah 2019, Chapter 293
         53G-11-402, as last amended by Laws of Utah 2023, Chapter 527
         53G-11-403, as last amended by Laws of Utah 2019, Chapter 293
         53G-11-404, as last amended by Laws of Utah 2019, Chapter 293
         63I-1-276, as last amended by Laws of Utah 2023, Chapter 398
         76-10-526.1, as enacted by Laws of Utah 2023, Chapter 398
39
 Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 53-5-702 is amended to read:
         53-5-702. Definitions.
         In addition to the definitions in Section 76-10-501, as used in this part:
         (1) "Active duty service member" means a person on active military duty with the
 United States military and includes full time military active duty, military reserve active duty,
 and national guard military active duty service members stationed in Utah.
         (2) "Active duty service member spouse" means a person recognized by the military as
 the spouse of an active duty service member and who resides with the active duty service
 member in Utah.
         (3) "Board" means the Concealed Firearm Review Board created in Section 53-5-703.
         (4) "Bureau" means the Bureau of Criminal Identification created in Section 53-10-201
 within the Department of Public Safety.
         (5) "Commissioner" means the commissioner of the Department of Public Safety.
         (6) "Conviction" means criminal conduct where the filing of a criminal charge has
 resulted in:
         (a) a finding of guilt based on evidence presented to a judge or jury;
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       01-31-24 4:23 PM                                                   1st Sub. (Buff) H.B. 121
        (b) a guilty plea;
        (c) a plea of nolo contendere;
        (d) a plea of guilty or nolo contendere which is held in abeyance pending the successful
 completion of probation;
        (e) a pending diversion agreement; or
        (f) a conviction which has been reduced [pursuant to] in accordance with Section
 76-3-402.
        (7) (a) "School employee" means an employee of a public school district, charter
 school, or private school whose duties, responsibilities, or assignments require the employee to
 be physically present on a school's campus at least half of the days on which school is held
 during a school year.
        (b) "School employee" includes a substitute teacher, as defined in Section 53E-6-901.
        (8) "School year" means the period of time designated by a local school board, charter
 school governing board, or private school as the school year for high school, middle school, or
 elementary school students.
        Section 2. Section 53E-6-901 is amended to read:
        53E-6-901. Substitute teachers.
        (1) As used in this section, "substitute teacher" means a licensed or non-licensed
 individual who is employed by a school district to fill in for a regular classroom teacher during
 the teacher's temporary absence from the classroom.
        (2) [A substitute teacher need not hold a license to teach, but] When hiring substitute
 teachers, school districts are encouraged to hire licensed [personnel] educators as substitutes
 when available.
        [(2)] (3) [A person must] An individual shall submit to a background check [under] in
 accordance with Section 53G-11-402 prior to employment as a substitute teacher.
        [(3)] (4) A teacher's position in the classroom may not be filled by [an unlicensed] a
 non-licensed substitute teacher for more than a total of 20 days during any school year unless a
 licensed [personnel are] educator is not available.
        [(4)] (5) [A person] An individual who is ineligible to hold a license [for any reason
 other than professional preparation] for reasons described in Title 53E, Chapter 6, Part 6,
 License Denial and Discipline, may not serve as a substitute teacher.
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       1st Sub. (Buff) H.B. 121                                                  01-31-24 4:23 PM
        Section 3. Section 53G-5-408 is amended to read:
        53G-5-408. Criminal background checks on school personnel.
        The following individuals are required to submit to a criminal background check and
 ongoing monitoring as provided in [Section] Sections 53G-11-402 and 53G-11-403:
        (1) an employee of a charter school who does not hold a current Utah educator license
 issued by the state board under Title 53E, Chapter 6, Education Professional Licensure;
        (2) a volunteer for a charter school who is given significant unsupervised access to a
 student in connection with the volunteer's assignment;
        (3) a contract employee, as defined in Section 53G-11-401, who works at a charter
 school; and
        (4) a charter school governing board member.
        Section 4. Section 53G-11-401 is amended to read:
        53G-11-401. Definitions.
        As used in this part:
        (1) "Authorized entity" means an LEA, qualifying private school, or the state board that
 is authorized to request a background check and ongoing monitoring under this part.
        (2) "Bureau" means the Bureau of Criminal Identification within the Department of
 Public Safety created in Section 53-10-201.
        (3) "Contract employee" means an employee of a staffing service or other entity who
 works at a public or private school under a contract.
        (4) "FBI" means the Federal Bureau of Investigation.
        (5) (a) "License applicant" means an applicant for a license issued by the state board
 under Title 53E, Chapter 6, Education Professional Licensure.
        (b) "License applicant" includes an applicant for reinstatement of an expired, lapsed,
 suspended, or revoked license.
        (6) "Non-licensed employee" means an employee of an LEA or qualifying private
 school that does not hold a current Utah educator license issued by the state board under Title
 53E, Chapter 6, Education Professional Licensure.
        (7) "Personal identifying information" means:
        (a) current name, former names, nicknames, and aliases;
        (b) date of birth;
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        01-31-24 4:23 PM                                                    1st Sub. (Buff) H.B. 121
        (c) address;
        (d) telephone number;
        (e) driver license number or other government-issued identification number;
        (f) social security number; and
        (g) fingerprints.
        (8) "Qualifying private school" means a private school that:
        (a) enrolls students under Title 53F, Chapter 4, Part 3, Carson Smith Scholarship
 Program; and
        (b) is authorized to conduct fingerprint-based background checks of national crime
 information databases under the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
 No. 109-248.
        (9) "Rap back system" means a system that enables authorized entities to receive
 ongoing status notifications of any criminal history reported on individuals whose fingerprints
 are registered in the system.
        (10) "Substitute teacher" means the same as that term is defined in Section 53E-6-901.
        [(10)] (11) "WIN Database" means the Western Identification Network Database that
 consists of eight western states sharing one electronic fingerprint database.
        Section 5. Section 53G-11-402 is amended to read:
        53G-11-402. Background checks for non-licensed employees, contract employees,
 volunteers, and charter school governing board members.
        (1) An LEA or qualifying private school shall:.
        (a) require the following individuals who are 18 years old or older to submit to a
 nationwide criminal background check and ongoing monitoring as a condition of employment
 or appointment:
        (i) a non-licensed employee;
        (ii) a contract employee;
        (iii) except for an officer or employee of a cooperating employer under an internship
 safety agreement under Section 53G-7-904, a volunteer who will be given significant
 unsupervised access to a student in connection with the volunteer's assignment; and
        (iv) a charter school governing board member;
        (b) collect the following from an individual required to submit to a background check
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        1st Sub. (Buff) H.B. 121                                                  01-31-24 4:23 PM
 under Subsection (1)(a):
        (i) personal identifying information;
        (ii) subject to Subsection (2), a fee described in Subsection 53-10-108(15); and
        (iii) consent, on a form specified by the LEA or qualifying private school, for:
        (A) an initial fingerprint-based background check by the FBI and the bureau upon
 submission of the application; and
        (B) retention of personal identifying information for ongoing monitoring through
 registration with the systems described in Section 53G-11-404;
        (c) submit the individual's personal identifying information to the bureau for:
        (i) an initial fingerprint-based background check by the FBI and the bureau; and
        (ii) ongoing monitoring through registration with the systems described in Section
 53G-11-404 if the results of the initial background check do not contain disqualifying criminal
 history information as determined by the LEA or qualifying private school in accordance with
 Section 53G-11-405; and
        (d) [identify the appropriate privacy risk mitigation strategy to be used to ensure the
 LEA or qualifying private school only receives] only receive notifications for individuals with
 whom the LEA or qualifying private school maintains an authorizing relationship under this
 section.
        (2) An LEA or qualifying private school may not require an individual to pay the fee
 described in Subsection (1)(b)(ii) unless the individual:
        (a) has passed an initial review; and
        (b) is one of a pool of no more than five candidates for the position.
        [(3) An LEA or qualifying private school that receives criminal history information
 about a licensed educator under Subsection 53G-11-403(5) shall assess the employment status
 of the licensed educator as provided in Section 53G-11-405.]
        (3) An LEA may not require the following individuals to pay the fee described in
 Subsection (1)(b)(ii):
        (a) a substitute teacher; or
        (b) a volunteer described in Subsection (1)(a)(iii).
        [(4) An LEA or qualifying private school may establish a policy to exempt an
 individual described in Subsections (1)(a)(i) through (iv) from ongoing monitoring under
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       01-31-24 4:23 PM                                                     1st Sub. (Buff) H.B. 121
 Subsection (1) if the individual is being temporarily employed or appointed.]
        (4) An LEA or qualifying private school shall enter into an agreement with another
 LEA or qualifying private school to clone the subscription or data from the FBI Rap Back
 System, as those terms are defined in Section 53-10-108, for employees or volunteers who are
 relocating, providing temporary volunteer services, or under contract in accordance with
 Section 53-10-108.
        Section 6. Section 53G-11-403 is amended to read:
        53G-11-403. Background checks for licensed educators.
        (1) The state board shall:
        [(1)] (a) require a license applicant to submit to a nationwide criminal background
 check and ongoing monitoring as a condition for licensing;
        [(2)] (b) collect the following from an applicant:
        [(a)] (i) personal identifying information; and
        [(b) a fee described in Subsection 53-10-108(15); and]
        [(c)] (ii) consent, on a form specified by the state board, for:
        [(i)] (A) an initial fingerprint-based background check by the FBI and bureau upon
 submission of the application;
        [(ii)] (B) retention of personal identifying information for ongoing monitoring through
 registration with the systems described in Section 53G-11-404; and
        [(iii)] (C) disclosure of any criminal history information to the individual's employing
 LEA or qualifying private school;
        [(3)] (c) submit an applicant's personal identifying information to the bureau for:
        [(a)] (i) an initial fingerprint-based background check by the FBI and bureau; and
        [(b)] (ii) ongoing monitoring through registration with the systems described in Section
 53G-11-404 if the results of the initial background check do not contain disqualifying criminal
 history information as determined by the state board in accordance with Section 53G-11-405;
        [(4)] (d) [identify the appropriate privacy risk mitigation strategy that will be used to
 ensure that the state board only receives] only receive notifications for individuals with whom
 the state board maintains an authorizing relationship under this section;
        [(5)] (e) notify the employing LEA or qualifying private school upon receipt of any
 criminal history information reported on a licensed educator employed by the LEA or
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        1st Sub. (Buff) H.B. 121                                                    01-31-24 4:23 PM
 qualifying private school; and
        [(6)] (f) [(a)] (i) collect the information described in Subsection (2) from individuals
 who were licensed prior to July 1, 2015, by the individual's next license renewal date; and
        [(b)] (ii) submit the information to the bureau for ongoing monitoring through
 registration with the systems described in Section 53G-11-404.
        (2) An LEA or qualifying private school that receives criminal history information
 about a licensed educator under Subsection 53G-11-403(5) shall assess the employment status
 of the licensed educator as provided in Section 53G-11-405.
        (3) An LEA or qualifying private school shall enter into an agreement with another
 LEA or qualifying private school to clone the subscription or data from the FBI Rap Back
 System, as those terms are defined in Section 53-10-108, for employees or volunteers who are
 relocating, providing temporary volunteer services, or under contract in accordance with
 Section 53-10-108.
        Section 7. Section 53G-11-404 is amended to read:
        53G-11-404. Bureau responsibilities.
        The bureau shall:
        (1) upon request from an authorized entity, register the fingerprints submitted by the
 authorized entity as part of a background check with:
        (a) the WIN Database rap back system, or any successor system; and
        (b) the rap back system maintained by the Federal Bureau of Investigation;
        (2) notify an authorized entity when a new entry is made against an individual whose
 fingerprints are registered with the rap back systems described in Subsection (1) regarding:
        (a) an alleged offense; or
        (b) a conviction, including a plea in abeyance;
        (3) assist authorized entities to [identify the appropriate privacy risk mitigation strategy
 that is to be used to] ensure that the authorized entity only receives notifications for individuals
 with whom the authorized entity mai