This chapter shall be known and cited as the Alabama Child Protection Act of 1999. Article 1 provides the procedure for conducting criminal history background information checks on all applicants for certification, public and nonpublic applicants for employment, nonpublic current employees, and current employees under review. Article 2 provides the procedure for conducting criminal history background information checks on current public certified and noncertified employees.

(a)(1) Any criminal history background information reports received by the State Department of Education from the Department of Public Safety shall be confidential, conspicuously marked as confidential, and not further disclosed or made available for public inspection.

(2) Any criminal history background information report received by a local employing board from the State Department of Education shall be confidential, conspicuously marked as confidential, and not further disclosed or made available for public inspection.

(b) All criminal history background information reports are specifically excluded from any requirement of public disclosure as a public record as the Legislature finds these documents to be sensitive personnel records.

(c) Transmittal of any criminal history background information at any time shall be accomplished in a nontransparent package, sealed, and marked confidential with instructions to be opened only by the person named on the package and authorized to receive the information pursuant to this chapter.

(d) Without additional public disclosure, the following actions shall not be construed to violate this section:

(1) Showing the report of criminal history background information to the applicant for certification, applicant for employment, current employee, or current employee under review to give him or her the opportunity to challenge the report.

(2) Releasing the report to a court of competent jurisdiction in the event of litigation brought by the applicant for certification, applicant for employment, current employee, or current employee under review.

(3) Use of the information in preparation, investigation, and presentation during administrative proceedings involving revocation of certification or suitability determination brought by the State Superintendent of Education, termination by the employer, or restriction on unsupervised access to a child in an educational setting.

(e) Any person having access to criminal history background information check reports and releasing same as provided herein, shall be required to maintain a register consistent with the National Child Protection Act of 1993, Public Law 103-209, 42 U.S.C. 5119, et seq.

(f) Nothing in this chapter shall be construed to prohibit the distribution of employment or certification status through the National Association of State Directors of Teacher Education and Certification Educator Identification Clearinghouse.

The State Department of Education and the Department of Public Safety may adopt rules and regulations to implement the procedures and requirements of this chapter.

(a) Violations. Any person convicted of any of the following actions under this chapter shall be guilty of a Class A misdemeanor:

(1) Violating the confidentiality of records provisions.

(2) Violating lawfully adopted policies which are provided for in this chapter.

(3) Knowingly, willfully, and intentionally making or transmitting a false report or complaint against any current employee, current employee under review, or applicant without reason to believe the accuracy of such report or complaint.

(b) False information or failure to disclose. Any person who knowingly submits false information concerning past convictions on an application for employment may be subject to loss of employment under provisions for termination according to applicable existing statutes and to the loss of any certificate issued by the State Superintendent of Education under this chapter.

An authorized employer shall not be liable in any action for damages solely for failure to conduct a criminal history background information check on an educational employee pursuant to this chapter if such failure is due to reasonable time constraints of background check backlogs, nor shall the state or political subdivision thereof, nor any agency, officer, or employee thereof, be liable in any action for damages for the failure of a qualified entity to take action adverse to an individual who was the subject of a criminal history background information check. Neither the State Superintendent of Education, the State Department of Education, nor any agent thereof shall be liable in civil court in an action for damages arising out of any suitability determination. Nothing herein shall be construed as a waiver of any sovereign or qualified immunity.

If a nonpublic school wishes not to do the fingerprinting procedure of their applicants, current employees, or current employees under review, they shall not be required to do so, then the applicant for nonpublic employment, nonpublic current employee, or nonpublic current employee under review shall request a criminal history background information check through the local employing board in the city or county in which the nonpublic school is located.

The provisions of this chapter shall not apply to any pastor, priest, rabbi, clergyman, or other church official except when acting in the capacity of a full-time regular classroom teacher.

Except as expressly specified in this chapter pertaining to criminal history background information checks of applicants for nonpublic employment, nonpublic current employees, and nonpublic current employees under review, nothing in this chapter shall be construed to establish state control over curriculum or the selection of personnel in private or parochial/church schools, nor is this chapter intended to establish additional regulatory authority over private or parochial/church schools.

All fees received by the Department of Public Safety for criminal history background information checks and fingerprint training courses conducted pursuant to this chapter shall be deposited to the Public Safety Automated Fingerprint Identification System Fund, to be appropriated to and expended by the Department of Public Safety in accordance with Section 32-2-61.

This chapter is supplementary to and shall be construed in pari materia with other laws. To the extent that this chapter specifically conflicts with other laws pertaining to criminal history background information checks, this chapter shall take precedence. Nothing contained within this chapter shall be construed to diminish, reduce, or conflict with the authority of the State Superintendent of Education to interpret and apply federal and state education law for the State of Alabama. Those portions of Sections 26-20-1 through 26-20-6 relating to criminal background checks of public, private, parochial, and home school employees are repealed.

Under the National Child Protection Act of 1993, Public Law 103-209, 42 U.S.C. 5119, et seq., the states are required to implement a computerized information system to provide child abuse crime information through the Federal Bureau of Investigation National Criminal History Record Information System and may conduct a nationwide criminal history background information check for the purpose of determining whether an individual who will have unsupervised access to children is suitable for employment or has been convicted of a crime that bears upon the fitness of the individual to teach or have responsibility for the safety and well-being of children as defined in this chapter.

The Legislature finds that there is a compelling state interest and it is in the best interest of the children of Alabama to protect them from those persons who may inflict physical or mental injury or abuse, sexual abuse or exploitation, or maltreatment or other mistreatment upon children. Therefore, in establishing the Alabama Child Protection Act of 1999, it is the intent of the Legislature to provide for the implementation of a system that allows the State Superintendent of Education, local boards of education, and other nonpublic schools to ensure that prospective employees and current employees are suitable for employment and have not been convicted of a crime that bears upon their fitness to teach or to have responsibility for the safety and well-being of children as defined in this chapter.

When used in this chapter only, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:

(1) APPLICANT. A certified or noncertified individual who submits an application for employment to a local employing board or any nonpublic school, to act in any capacity in which the individual will have unsupervised access to children in an educational environment.

(2) APPLICANT FOR CERTIFICATION. An individual who submits an application for certification issued by the State Superintendent of Education.

(3) AUTHORIZED EMPLOYER. Any educational entity authorized to obtain criminal history background information, including the State Department of Education, local employing boards, and nonpublic schools which are responsible for hiring employees or contracting with private employers to provide personnel who have unsupervised access to children in an educational setting.

(4) CERTIFIED APPLICANT FOR EMPLOYMENT. A certified individual who submits an application for employment to a local employing board or any nonpublic school to act in any capacity in which the individual will have unsupervised access to children in an educational environment.

(5) CHIEF EXECUTIVE OFFICER. The State Superintendent of Education; the superintendent of any public county or city school system; the President of the Alabama Institute for Deaf and Blind; the Executive Director of the Alabama School of Fine Arts; the Superintendent of the Department of Youth Services School District; the Executive Director of the Alabama High School of Mathematics and Science; the superintendent of any nonpublic school, or in the absence of a superintendent, the headmaster of any nonpublic school; and the head of any department or employer covered by this chapter but not specifically enumerated herein.

(6) CHILD or CHILDREN. Any person under the age of 19 years, or any youth who suffers from a disability thereby rendering the youth a child for the purpose of receiving elementary and secondary education at public expense, notwithstanding their chronological age.

(7) CRIMINAL HISTORY BACKGROUND INFORMATION CHECK. The review of any and all records containing any information collected and stored in the criminal record repository of the Federal Bureau of Investigation, the Alabama Department of Public Safety, or any other repository of criminal history records, involving a pending arrest or conviction by a criminal justice agency, including, but not limited to, child abuse crime information as defined by 42 U.S.C. 5119, the National Child Protection Act of 1993, conviction record information, fingerprint cards, correctional induction and release information, identifiable descriptions and notations of convictions; provided, however, dissemination of such information is not forbidden by order of any court of competent jurisdiction or by federal law. Criminal history background information shall not include any analytical records or investigative reports that contain criminal intelligence information or criminal investigation information.

(8) CURRENT EMPLOYEE.

a. Any person who is employed by a local employing board or nonpublic school who has or seeks to have unsupervised access to a child or children in an educational setting.

b. Any person employed to serve an authorized employer as defined in this chapter, including those individuals that provide services to local employing boards or nonpublic schools, when the person so employed has unsupervised access to children in an educational environment.

(9) CURRENT EMPLOYEE UNDER REVIEW. Any current employee whose professional certificate or employment status is under review based upon reasonable suspicion.

(10) CURRENT PUBLIC CERTIFIED EMPLOYEE.

a. Any person certified by the State Superintendent of Education who is employed by a local employing board and who has or seeks to have unsupervised access to a child or children in an educational setting.

b. Any person certified by the State Superintendent of Education who is employed to serve a local employing board, including those individuals that provide services to local employing boards, when the person so employed has unsupervised access to children in an educational environment.

c. Any person certified by the State Superintendent of Education who is employed by the State Department of Education and whose responsibilities include work in the public schools of the state, as determined by the State Superintendent of Education.

(11) CURRENT PUBLIC NONCERTIFIED EMPLOYEE.

a. Any person not certified by the State Superintendent of Education who is employed by a local employing board and who has or seeks to have unsupervised access to a child or children in an educational setting.

b. Any person not certified by the State Superintendent of Education who is employed to serve a local employing board, including those individuals that provide services to local employing boards, when the person so employed has unsupervised access to children in an educational environment.

c. Any person not certified by the State Superintendent of Education who is employed by the State Department of Education and whose responsibilities include work in the public schools of the state, as determined by the State Superintendent of Education.

(12) EDUCATIONAL ENVIRONMENT OR SETTING. Any building, structure, or location whether public or private property, or vehicle, utilized to or involved in the providing of education, training, instruction, or supervision to children or transportation in connection with such activity provided by a local employing board or nonpublic school.

(13) LOCAL EMPLOYING BOARD. Any public county or city school system which falls under the jurisdiction of the State Board of Education and the State Superintendent of Education, the Alabama Institute for Deaf and Blind, the Alabama School of Fine Arts, the Department of Youth Services School District, the Alabama High School of Mathematics and Science, and any public educational employer covered by this chapter but not specifically enumerated herein.

(14) NONCERTIFIED APPLICANT FOR EMPLOYMENT. Any person not certified by the state who submits an application for employment to a local employing board or any nonpublic school, to act in any capacity in which the individual will have unsupervised access to children in an educational environment.

(15) NONPUBLIC SCHOOL. Any nonpublic or private school, including parochial schools, not under the jurisdiction of the State Superintendent of Education and the State Board of Education, yet providing educational services to children. Parents engaged in the home schooling of their own children are specifically excluded from this chapter.

(16) REASONABLE SUSPICION. Belief by a prudent person that reasonable articulable grounds exist to suspect that the past or present behavior of an employee should be reviewed to determine if such behavior or conduct bears upon the fitness of the employee to teach or have responsibility for the safety and well-being of children, or both, as defined in this chapter.

(17) SUITABILITY CRITERIA.

a. Suitability Criteria for Nonpublic Employment. Pertains to an applicant for employment, nonpublic current employee, or a current employee under review in a nonpublic school. An individual who has not been convicted of a child abuse crime, as defined herein as a crime committed under the law of the state that involves the physical or mental injury, sexual abuse or exploitation, or maltreatment of a child, shall be deemed suitable for employment.

b. Suitability Criteria for Public Employment. Pertains to an applicant for certification, certified applicant for employment, current public certified employee, current public noncertified employee, and current employee under review in a public school. An individual who has not been convicted of a child abuse crime, as defined herein as a crime committed under the law of the state that involves the physical or mental injury, sexual abuse or exploitation, or maltreatment of a child, or who has not been convicted of a crime which would bear upon the fitness of the employee to teach or have responsibility for the safety or well-being of children, or both, shall be deemed suitable for employment. Factors considered in determining whether a conviction bears a reasonable relationship to the fitness of a current employee or applicant include:

1. The likelihood that the conduct may adversely affect children or fellow employees.

2. The degree of such adversity anticipated.

3. The proximity or remoteness in time of the conduct.

4. The type of certificate held by the individual, if applicable.

5. Any extenuating or aggravating circumstances surrounding the conduct.

6. The praiseworthiness or blameworthiness of the motives resulting in the conduct.

7. The likelihood of the recurrence of the questioned conduct.

8. The extent to which disciplinary or employment action may inflict an adverse impact or chilling effect upon the constitutional rights of the individual or other employees.

9. Any other factor that is relevant to determining whether the individual is fit to have unsupervised access to a child or children.

(18) UNSUPERVISED ACCESS TO A CHILD OR CHILDREN. During the providing of education, training, instruction, supervision to children, or other employment related activities or responsibilities, a person would have unaccompanied control, governance, or contact with a child or children.

(19) WRITTEN CONSENT. A signed statement by the applicant, a current employee, or a current employee under review containing all of the following:

a. The name, address, date of birth, race, gender, and social security number appearing on a valid identification document as defined in subsection (d) of 18 U.S.C. 1028.

b. A statement that the applicant or current employee under review has not been convicted of a crime that bears upon the fitness of the applicant or employee to teach or to have responsibility for the safety and well-being of children as defined in this chapter, and if convicted of such a crime, a description of the crime and the particulars of the conviction.

c. Notice to the applicant or current employee under review, where reasonable suspicion exists regarding the current employee, that a background information check is going to be requested.

d. Notice to the applicant, current employee, or current employee under review who is the subject of the background information check of the right to obtain a copy of the background information check report, challenge the accuracy and completeness of any information contained in the report, and to obtain a prompt determination as to the validity of such challenge before a decision to retain or hire for employment is made by the employer.

e. Notice to the applicant or current employee under review that before a background information check is made, the applicant may be denied unsupervised access to children or the opportunity to serve based upon the information contained in the criminal history background information check or that employment or service or both may be restricted by the employing entity according to written policy.

f. Notice to the applicant that refusal to give written permission for a criminal history background information check will result in the applicant not being hired.

g. Notice to the applicant that failure to reveal a prior conviction that would bear upon the fitness of the individual to teach or to have responsibility for the safety and well-being of children, or any other convictions, may cause the applicant, if later employed, to face dismissal, in accordance with existing applicable statutes, for falsifying the employment application information.

h. Notice to the applicant, current employee, or current employee under review of his or her due process rights.

i. Notice to the applicant, current employee, or current employee under review, seeking employment or employed by a nonpublic school, that the State Superintendent of Education will provide a suitability determination based upon the Alabama Bureau of Investigation and Federal Bureau of Investigation criminal history background information reports and the suitability criteria for nonpublic employment defined herein to the chief executive officer of the nonpublic school.

(a) A criminal history background information check shall be conducted on all current public certified employees and all current public noncertified employees employed by a local employing board, and any State Department of Education personnel, as determined by the State Superintendent of Education, who have unsupervised access to and provide education, training, instruction, or supervision for children in an educational setting.

(b) Each current public certified employee and current public noncertified employee employed by a local employing board shall be notified by the State Department of Education that the State Superintendent of Education will provide a suitability determination, based upon convictions, pending criminal charges, and suitability criteria for public employment, to his or her local employing board. Each current public certified employee and current public noncertified employee shall also be notified by the State Department of Education of his or her right to obtain a copy of the criminal history background information reports, challenge the accuracy and completeness of any information contained in the reports, to supply additional information on his or her behalf to the State Department of Education, and obtain a prompt determination as to the validity of such challenge before a final suitability determination regarding the current public certified employee and current public noncertified employee is made by the State Department of Education. Any personnel action taken against a current public certified employee or current public noncertified employee shall be in accordance with all applicable state and federal laws as well as any adopted applicable local policies or procedures.

(c) Any fee required in conjunction with a criminal history background information check of a public current employee shall be paid by the State Department of Education, subject to Section 16-22A-34.

(a) The following persons shall obtain a signed and dated written consent to obtain criminal history background information checks for current public certified employees and current public noncertified employees who have or seek to have unsupervised access to children in an educational setting:

(1) Persons designated by the public local employing board.

(2) Persons designated by the State Department of Education.

(b) Refusal by a current public certified employee and current public noncertified employee to sign and date a consent to obtain a criminal history background information check and to provide two acceptable sets of fingerprints shall result in the preclusion of continued employment or certification of the employee in a position requiring unsupervised access to children, until such time as written permission has been given to the local employing board to conduct the criminal history background information check.

(c) If a current public certified employee or current public noncertified employee has completed a criminal history background information check pursuant to this chapter after July 1, 1999, he or she shall not be subject to an additional criminal history background information check pursuant to this chapter based only upon his or her status as a current public certified employee or current public noncertified employee. Such an employee may be subject to an additional criminal history background information check pursuant to this chapter if the employee has the status of current employee under review.

(a) Each local employing board and other public educational entity required to obtain criminal history background information checks of current public certified employees and current public noncertified employees pursuant to this article shall cooperate with the State Department of Education in obtaining two complete acceptable sets of fingerprints and written consent from each current employee who has or seeks to have unsupervised access to a child or children.

(b)(1) Each local employing board and other public educational entity shall, upon request, submit the following items to the State Department of Education for each current public certified employee and current public noncertified employee:

a. Two functional acceptable fingerprint cards, bearing the fingerprints of the individual, properly executed by an individual properly trained in fingerprinting techniques.

b. Written consent authorizing the release of any criminal history background information to the State Department of Education.

c. Acknowledgment that the current public certified employee or current public noncertified employee received notice that the State Superintendent of Education will provide a suitability determination, based upon criminal history information reports and suitability criteria for public employment, to the current public certified employee, current public noncertified employee, and local employing board.

(2) When a local employing board or other public authorized employer sends the items listed in subdivision (1) to the State Department of Education, the State Department of Education shall record receipt of the items and forward them to the Department of Public Safety to request a criminal history background information check.

(c) Fingerprints of individuals subject to this chapter may be obtained by the State Department of Education through the use of digital fingerprint machines, if available, or by any other appropriate means. Fingerprinting of current employees shall be conducted at locations that are convenient to current employees, during reasonable business hours, and at no charge to the current employee. For purposes of this section, convenient locations for fingerprinting current employees include, but are not limited to, central education offices and other education facilities. Mobile units may be utilized at these locations. Fingerprinting of current employees may not be conducted at a criminal justice agency or law enforcement or correctional office or facility.

Upon request of the State Superintendent of Education, the Department of Public Safety shall request and obtain nationwide criminal history background information reports from the Federal Bureau of Investigation and statewide criminal history background information reports from the Alabama Bureau of Investigation for each current public certified employee and current public noncertified employee within a reasonable time after receipt of the request. Within a reasonable time after receipt of the reports, the Department of Public Safety shall submit both the nationwide and statewide criminal history background information reports directly to the State Department of Education.

(1) If the criminal history background information reports pertain to a current public certified employee, the State Superintendent of Education shall review the criminal history record information reports and make a diligent effort to determine the final disposition of any arrests. The State Superintendent of Education shall review the convictions which would bear on the fitness of the employee to teach or to have responsibility for the safety and well-being of children, or both. Based only upon confirmed convictions contained in the report, the State Superintendent of Education shall determine whether the current public certified employee satisfies the suitability criteria for public employment pursuant to this chapter.

a. If the current public certified employee satisfies the suitability criteria for public employment, the State Superintendent of Education shall issue a suitability determination letter to both the current public certified employee and the local employing board.

b. If the current public certified employee does not satisfy the suitability criteria for public employment, the State Superintendent of Education shall send notice in writing of a proposed revocation of certification to the current public certified employee. The notice shall state the reasons in detail for the proposed revocation of certification and shall inform the public certified employee of his or her rights to challenge the proposed revocation of certification pursuant to an administrative hearing conducted by the State Department of Education in accordance with the Alabama Administrative Procedure Act. The hearing may be open or closed at the option of the current public certified employee, and the current public certified employee shall have the same rights as established in certificate revocation proceedings in accordance with the Alabama Administrative Procedure Act.

1. Pending final agency determination of the State Department of Education in accordance with the Alabama Administrative Procedure Act:

(i) The State Superintendent of Education may take no further action regarding the suitability determination.

(ii) The suitability determination regarding the current public certified employee is stayed.

(iii) The local employing board is prohibited from taking any adverse action against the current public certified employee that pertains to the pending proceeding of the State Department of Education.

2. Upon final determination of suitability by the State Department of Education in accordance with the Alabama Administrative Procedure Act, the State Department of Education shall send the results of any hearing, and any accompanying findings or order, and the final suitability determination to both the current public certified employee and the local employing board.

(2) If the criminal history background information reports pertain to a current public noncertified employee, the State Superintendent of Education shall review the criminal history record information reports and make a diligent effort to determine the final disposition of any arrests. The State Superintendent of Education shall review the convictions which would bear on the fitness of the employee to teach or to have responsibility for the safety and well-being of children, or both. Based only upon confirmed convictions contained in the report, the State Superintendent of Education shall determine whether the current public noncertified employee satisfies the suitability criteria for public employment pursuant to this chapter.

a. If the current public noncertified employee satisfies the suitability criteria for public employment, the State Superintendent of Education shall issue a suitability determination letter to both the current public noncertified employee and the local employing board.

b. If the current public noncertified employee does not satisfy the suitability criteria, the State Superintendent of Education shall send notice in writing of a proposed determination of unsuitability to the current public noncertified employee. The notice shall state the reasons in detail for the proposed determination of unsuitability and shall inform the public noncertified employee of his or her rights to challenge the determination of unsuitability pursuant to a due process administrative hearing conducted by an administrative law judge in accordance with the hearing procedures of the Alabama Administrative Procedure Act. The State Department of Education is responsible for the cost of providing the administrative hearing, and the current public noncertified employee may be represented by counsel at his or her own expense. The administrative law judge shall hear the case, make findings of fact, and enter a final determination as to suitability.

1. Pending final resolution of the administrative hearing:

(i) The State Superintendent of Education may take no further action regarding the suitability determination.

(ii) The suitability determination regarding the current public noncertified employee is stayed.

(iii) The local employing board is prohibited from taking any adverse action against the current public noncertified employee that pertains to the pending proceeding by the State Department of Education.

2. Upon final resolution of the administrative hearing conducted by the administrative law judge, the administrative law judge shall issue a written suitability determination with findings of fact. The decision of the administrative law judge is final and not subject to appeal. The State Department of Education shall send the final suitability determination of the administrative law judge to the current public noncertified employee and the local employing board by certified mail.

(a) The requirement to conduct a criminal history background information check on public and nonpublic current employees pursuant to this chapter is contingent upon the State Superintendent of Education determining that sufficient funds have been appropriated by the Legislature or made available from another source to fund such background checks and related procedures. The State Superintendent of Education shall certify to each local employing board, each nonpublic school, the State Finance Director, and the Code Commissioner when sufficient funds have been appropriated for use by the State Department of Education for purposes of conducting background checks and related procedures on public and nonpublic current employees.

(b) Upon the satisfaction of contingencies provided in subsection (a) and upon the State Superintendent of Education certifying in writing to the State Board of Education and each authorized employer that the procedures for implementing criminal history background information checks of public and nonpublic current employees have been finalized, criminal history background checks shall commence on current public certified employees, current public noncertified employees, and nonpublic current employees as provided by this chapter and subsection (c). Appropriate officials shall endeavor to complete the criminal history background information checks on all public and nonpublic current employees within two years from the date of certification by the State Superintendent of Education as provided in subsection (a). If this deadline date is not met, the State Board of Education, upon written request of the State Superintendent of Education, may extend the deadline date.

(c)(1) Procedures in conformity with this chapter for implementing criminal history background information checks for public and nonpublic current employees shall be established by the State Superintendent of Education. These procedures shall give initial and primary focus to the local employing boards employing the greatest number of current employees. These procedures shall be implemented as to each local employing board in descending order based upon the number of current employees employed.

(2) Within each local employing board, first priority for conducting criminal history background information checks of public and nonpublic current employees shall be given to those schools with the greatest student populations.

Any person who wishes to initiate a request for a criminal history background check of a current employee shall be required to provide a written signed statement to the designated chief executive officer of an authorized employer containing the reasonable articulable grounds supporting a request and initiation of review.

(a) A criminal history background information check shall be conducted on all applicants seeking positions with, and on all current employees under review employed by any local employing board, and any State Department of Education personnel as determined by the State Superintendent of Education, who have unsupervised access to and provide education, training, instruction, or supervision for children in an educational setting.

(b) A criminal history background information check shall be conducted on all applicants seeking positions with, and on all current employees and current employees under review employed by any nonpublic school, who have unsupervised access to or who provide education, training, instruction, or supervision for children in an educational setting.

(c) No institution listed in subsection (a) or subsection (b) shall hire an individual who may have unsupervised access to a child without first obtaining a criminal history background information check, except on a temporary emergency basis. In the event that this exception is used and a position is filled by the employer due to exigent circumstances, the applicant so employed may be placed on payroll until such time as a criminal history background information check on the employee is completed.

(d) Nationwide criminal history background information reports for applicants for certification, certified applicants for public employment, noncertified applicants for public employment, and public current employees under review shall be sent directly from the Department of Public Safety to the State Department of Education within a reasonable time from the receipt of the report from the Alabama Bureau of Investigation.

(e) Nationwide criminal history background information reports for nonpublic school applicants for employment, current employees, and current employees under review shall be sent directly from the Department of Public Safety to the State Department of Education within a reasonable time from the receipt of the report from the Alabama Bureau of Investigation. Thereafter, the State Superintendent of Education shall review the criminal history background information report and determine whether the applicant for employment, current employee, or current employee under review satisfies the suitability criteria for nonpublic employment. The State Superintendent of Education shall issue a suitability determination to the chief executive officer of the nonpublic school requesting the determination.

(f) Mandatory criminal history background information checks shall be performed by the Department of Public Safety upon request by any public entity authorized to make a request and shall be forwarded to the State Department of Education. The Department of Public Safety shall provide an Alabama Bureau of Investigation criminal history background information check within a reasonable time of the receipt of such request. Criminal history background information checks shall be requested by the Department of Public Safety from the Federal Bureau of Investigation within a reasonable time of receipt of such request.

(g) The Department of Public Safety, upon receipt of the criminal history background information report from the Federal Bureau of Investigation, shall forward such report to the State Department of Education within a reasonable time of the receipt of the report by certified mail. The fee charged for mandatory criminal history background information checks shall not exceed the statutory and regulatory amounts set under existing guidelines nor shall additional administrative fees of any kind, except for the cost of mailings, be charged which would increase the cost of the criminal history background information check. An applicant for employment and an applicant for certification are responsible for the cost of their criminal history background information check. The employer is responsible for the cost of the criminal history background information check on a current employee under review. The State Department of Education is responsible for the cost of the criminal history background information check on a nonpublic current employee, unless a court of competent jurisdiction determines that public funds may not be used for this purpose, then the employer or employee shall pay the cost. If a noncertified applicant for employment is determined by the chief executive officer of the prospective employer to be financially unable to pay the costs of a criminal history background information check, the prospective employer may pay the fee associated with the criminal history background information check.

(h) The following persons shall obtain a signed and dated written consent to obtain criminal history background information checks for applicants, nonpublic current employees, and current employees under review who have or seek to have unsupervised access to children in an educational setting as provided in subsections (a) and (b):

(1) Persons designated by the public local employing board.

(2) Persons designated by the State Department of Education.

(3) Persons designated by any other nonpublic school.

(i) Refusal by an applicant for certification, applicant for employment, nonpublic current employee, or current employee under review to sign and date a consent to obtain a criminal history background information check and to provide two acceptable sets of fingerprints shall result in the preclusion of employment or certification of the applicant for certification or applicant for employment, or the continued employment or certification in a position requiring unsupervised access to children of the nonpublic current employee or current employee under review, until such time as written permission has been given to the local employing board, State Department of Education, or other appropriate chief executive officer to conduct the criminal history background information check.

(j)(1) No current employee under review shall be subjected to a criminal history background information check for political or personal reasons. A review of a current employee under review, which may be conducted at any time, irrespective of whether a prior criminal history background information check has been conducted on the employee, shall be based upon reasonable suspicion.

(2) A current employee under review shall be apprised in writing of the reasons supporting a request for a criminal history background information check, including the grounds supporting reasonable suspicion, and shall be provided the opportunity to supply additional information on his or her behalf to the employer. Any personnel action taken against the current employee under review shall be in accordance with all applicable state and federal laws as well as any adopted applicable local policies or procedures.

(a) The State Department of Education, or other public authorized employer responsible for hiring employees who will have unsupervised access to children in an educational setting, shall request through the State Department of Education, that the Department of Public Safety secure from both the Alabama Bureau of Investigation and Federal Bureau of Investigation a criminal history background information check on each applicant for certification, certified applicant for public employment, noncertified applicant for public employment, and public current employee under review.

(b) Any nonpublic school in which an individual may have unsupervised access to children in an educational setting, shall through its duly authorized representative under guidelines established by the nonpublic school employer, request that the Department of Public Safety secure a state criminal history background information check from the Alabama Bureau of Investigation and a nationwide criminal history background information check from the Federal Bureau of Investigation, on each applicant for nonpublic employment, nonpublic current employee, and nonpublic current employee under review.

(c) A request to the Department of Public Safety for a criminal history background information check on an applicant for certification, applicant for employment, nonpublic current employee, and current employee under review shall be accompanied by the following:

(1) Two complete functional sets of fingerprints, properly executed by a criminal justice agency or an individual properly trained in fingerprinting techniques.

(2) In the case of public education employment, written consent from the applicant for certification, certified applicant for public employment, noncertified applicant for public employment, or public current employee under review for the release of criminal history background information to the State Superintendent of Education and a specifically designated representative of the State Department of Education authorized to make the request.

(3) In the case of nonpublic school employment, written consent from the applicant for employment, nonpublic current employee, or current employee under review for the release of criminal history background information to the State Superintendent of Education.

(4) A nonrefundable fee to be paid by the applicant or educational entity requesting the criminal history background information check which shall conform to the guidelines promulgated pursuant to 42 U.S.C. 5119, the National Child Protection Act of 1993, and state law. An applicant for employment shall not be required to pay the fee until the authorized employer is prepared to employ the applicant and request the criminal history background information check. An applicant for certification shall be required to submit two complete acceptable sets of fingerprints and the fee for the criminal history background information check at the time his or her application for certification is submitted to the State Department of Education. If two sets of acceptable fingerprints and the appropriate fee are submitted to the State Department of Education and a criminal history background information check is not performed, the fee shall be refunded to the applicant or educational entity that paid the fee for the criminal history background information check.

(a) An applicant for certification, applicant for public employment, or public current employee under review with the State Department of Education or local employing board, who has or will have unsupervised access to a child or children in an educational setting, shall, upon request, submit the following items to the State Department of Education:

(1) Two functional acceptable fingerprint cards, bearing the fingerprints of the individual, properly executed by a criminal justice agency or other individual properly trained in fingerprinting techniques.

(2) Written consent authorizing the release of any criminal history background information to the State Department of Education.

(3) Acknowledgment that the applicant for certification, applicant for public employment, or public current employee under review received notice that the State Superintendent of Education will provide a suitability determination, based upon criminal history information reports and suitability criteria for public employment, to the applicant, current employee under review, and local employing board.

(4) A nonrefundable fee in the amount and manner specified by the Department of Public Safety. Any fee required in conjunction with a criminal history background information check of a public current employee under review shall be paid by the requesting employing entity.

(b) An applicant for nonpublic employment, nonpublic current employee, or nonpublic current employee under review, who has or will have unsupervised access to a child or children in an educational setting, shall, upon request, submit the following items to the chief executive officer of the nonpublic school who shall forward such information to the Department of Public Safety:

(1) Two functional acceptable fingerprint cards, bearing the fingerprints of the individual, properly executed by a criminal justice agency or other individual properly trained in fingerprinting techniques.

(2) Written consent authorizing the release of any criminal history background information to the State Superintendent of Education.

(3) Acknowledgment that the applicant for nonpublic employment, nonpublic current employee, or nonpublic current employee under review received notice that the State Superintendent of Education will provide a suitability determination based upon the Alabama Bureau of Investigation and Federal Bureau of Investigation criminal history information reports and the suitability criteria for nonpublic employment defined herein to the chief executive officer of the nonpublic school.

(4) A nonrefundable fee in the amount and manner specified by the Department of Public Safety. Any fee required in conjunction with a criminal history background information check of a nonpublic current employee under review shall be paid by the requesting employing entity. Any fee required in conjunction with a criminal history background information check of a nonpublic current employee shall be paid by the State Department of Education, unless a court of competent jurisdiction determines that public funds may not be used for this purpose, then the fee shall be paid by the employer or the employee.

(c) The State Department of Education, local employing board, or other authorized public educational employer, may only request a criminal history background information check on a current employee or a current employee under review, who has unsupervised access to a child or children in an educational setting, through the chief executive officer.

(d) A nonpublic school employer may only request a criminal history background information check on a current employee or a current employee under review, who has unsupervised access to a child or children in an educational setting, through the chief executive officer of the nonpublic school employer.

(a) The Department of Public Safety and the State Department of Education shall cooperatively schedule sufficient training throughout the state to train all local superintendents of education, or their duly appointed representatives, in proper fingerprinting techniques.

(b) The chief executive officers of nonpublic schools shall arrange with the Department of Public Safety for sufficient training in proper fingerprinting techniques of their superintendent, headmaster, or other duly appointed representatives.

(c) The Department of Public Safety shall notify the State Superintendent of Education regarding the dates and times of scheduled training sessions. The State Superintendent of Education shall then notify all local superintendents of education.

(d) Nonpublic schools required or desiring to participate in fingerprint training sessions shall contact the Department of Public Safety for information concerning dates, times, and cost of training.

(e) The State Superintendent of Education and the Department of Public Safety shall train sufficient personnel to ensure implementation of this chapter.

(f) Nonpublic school employers required to submit fingerprint cards pursuant to this article shall properly train their own representatives to ensure the implementation of this article.

(g) The Department of Public Safety may charge a reasonable fee for the training on proper fingerprinting techniques, provided that the fee is standard and equal for all participants in the program, regardless of whether the participant represents a public or nonpublic entity.

(h) The Department of Public Safety shall furnish standard fingerprint cards to the State Department of Education, local employing boards, and, upon request, to nonpublic schools to be used only by those personnel who have been trained in proper fingerprinting techniques.

(a) Local employing boards and other public authorized employers required to obtain criminal history background information checks under this chapter shall collect and forward to the State Department of Education, two complete acceptable sets of fingerprints, written consent, and nonrefundable fee, when applicable, from applicants for certification, applicants for public employment, or public current employees under review, who have or seek to have unsupervised access to a child or children.

(b) Nonpublic school employers shall voluntarily collect and forward two complete acceptable sets of fingerprints, written consent, and nonrefundable fee, when applicable, from applicants for nonpublic employment, nonpublic current employees, or nonpublic current employees under review, who have or seek to have unsupervised access to a child or children, to the Department of Public Safety to request a criminal history background information check.

(c) When a local employing board or other public authorized employer sends the items listed in subsection (a) to the State Department of Education, the State Department of Education shall record receipt of the items and forward them to the Department of Public Safety to request a criminal history background information check.

(d) When a nonpublic school collects the items listed in subsection (b) to forward to the Department of Public Safety, the superintendent, headmaster, or other designated representative of the nonpublic school shall be responsible for recording receipt of the items and forwarding them to the Department of Public Safety to request a criminal history background information check.

(e) The Department of Public Safety shall forward criminal history background information reports for applicants for certification, certified applicants for public employment, noncertified applicants for public employment, and public current employees under review to the office of the State Superintendent of Education.

(f) Upon receipt of any criminal history background information reports requested by a local employing board or other public authorized employer, the State Department of Education shall review the information in the reports as follows:

(1) If the reports pertain to an applicant for certification, the State Superintendent of Education shall review the criminal history record information reports and make a diligent effort to determine the final disposition of any arrests. Based only upon confirmed convictions and pending criminal charges, the State Superintendent of Education shall determine whether the applicant for certification satisfies the suitability criteria for public employment pursuant to this article. If the applicant satisfies this suitability criteria, the State Department of Education shall issue a suitability determination and, if other requirements for certification are met, appropriate certification to the applicant for certification. If the applicant for certification does not satisfy the applicable suitability criteria, the State Superintendent of Education shall send a notice of proposed nonissuance of certification to the applicant and the applicant shall be informed of his or her rights to due process pursuant to the Alabama Administrative Procedure Act.

(2) If the reports pertain to a certified applicant for employment by a local employing board or other public authorized employer, the State Superintendent of Education shall review the criminal history record information reports and make a diligent effort to determine the final disposition of any arrests. Based only upon confirmed convictions and pending criminal charges contained in the reports, the State Superintendent of Education shall determine whether the applicant satisfies the suitability criteria for public employment pursuant to this article. If the certified applicant for employment satisfies this suitability criteria for public employment, the State Department of Education shall issue a suitability determination to the applicant and the local employing board requesting the determination. If the applicant does not satisfy the suitability criteria, the State Superintendent of Education shall send notice in writing of a proposed determination of unsuitability to the certified applicant for employment. The notice shall state the reasons in detail for the proposed determination of unsuitability and shall inform the certified applicant for employment of his or her rights to challenge the determination of unsuitability pursuant to an administrative hearing conducted by the State Department of Education in accordance with the Alabama Administrative Procedure Act. The hearing may be open or closed at the option of the certified applicant for employment, and the certified applicant for employment shall have the same rights as established in certificate revocation proceedings in accordance with the Alabama Administrative Procedure Act.

a. Pending final resolution of the State Department of Education hearing:

1. The State Superintendent of Education may take no further action regarding the suitability determination.

2. The suitability determination regarding the certified applicant for employment is stayed.

3. The requesting local employing board is prohibited from taking any adverse action against the certified applicant for employment that pertains to the pending proceeding of the State Department of Education.

b. Upon final resolution of the State Department of Education administrative determination in accordance with the Alabama Administrative Procedure Act, the results of the hearing, and any accompanying findings or order, shall be sent to both the certified applicant for employment and the requesting local employing board.

c. Any personnel action taken against the certified applicant for employment shall be in accordance with all applicable state and federal laws as well as any adopted applicable local policies or procedures.

(3) If the reports pertain to a noncertified applicant for employment by a local employing board or other public authorized employer, the State Superintendent of Education shall review the criminal history record information reports and make a diligent effort to determine the final disposition of any arrests. The State Superintendent of Education shall provide a report on the noncertified applicant for employment consisting only of confirmed convictions and pending criminal charges. The State Superintendent of Education shall send a copy of the report to the noncertified applicant for employment and the local employing board requesting the information. Upon receipt of the report, the local employing board may take any personnel action deemed appropriate against the noncertified applicant for employment that is in accordance with all applicable state and federal laws as well as any adopted applicable local policies or procedures.

(4) If the reports pertain to a public current employee under review, the State Superintendent of Education shall review the criminal history record information reports and make a diligent effort to determine the final disposition of any arrests. Based only upon confirmed convictions and pending criminal charges, the State Superintendent of Education shall determine whether the public current employee under review satisfies the suitability criteria for public employment pursuant to this article. If the public current employee under review satisfies this suitability criteria for public employment, the State Department of Education shall issue a suitability determination to the employee and the local employing board requesting the determination. If the public current employee under review is certified and does not satisfy the suitability criteria for public employment, the State Superintendent of Education shall send notice in writing of a proposed revocation of certification to the certified public current employee under review. If the public current employee under review is not certified and does not satisfy the suitability criteria for public employment, the State Superintendent of Education shall send notice in writing of a proposed determination of unsuitability to the noncertified public current employee under review. The notice to the certified public current employee under review shall state the reasons in detail for the proposed revocation of certification and shall inform the certified employee of his or her rights to challenge the proposed revocation of certification. The notice to the noncertified public current employee under review shall state the reasons in detail for the proposed determination of unsuitability and shall inform the noncertified employee of his or her rights to challenge the determination of unsuitability. If the public current employee under review is certified, he or she may challenge the proposed determination of unsuitability pursuant to paragraph b. of subdivision (1) of Section 16-22A-33. If the public current employee under review is not certified, he or she may challenge the proposed determination of unsuitability pursuant to paragraph b. of subdivision (2) of Section 16-22A-33.

a. Pending final resolution of the State Department of Education hearing:

1. The State Superintendent of Education may take no further action regarding the suitability determination.

2. The suitability determination regarding the public current employee under review is stayed.

3. The requesting local employing board is prohibited from taking any adverse action against the public current employee under review that pertains to the pending hearing of the State Department of Education.

b. Upon final resolution of the State Department of Education hearing, the results of any hearing, and any accompanying findings or order, shall be sent to both the public current employee under review and the requesting local employing board.

c. Any personnel action taken against a public current employee under review shall be in accordance with all applicable state and federal laws as well as any adopted applicable local policies or procedures.

(g) The Department of Public Safety shall forward state criminal history background information reports for nonpublic applicants for employment, nonpublic current employees, and nonpublic current employees under review to the State Superintendent of Education.

(h) Upon receipt of the criminal history background information report from the Federal Bureau of Investigation, the State Superintendent of Education shall review the information in the report pursuant to subsection (e) of Section 16-22A-5, and determine whether the nonpublic applicant for employment, nonpublic current employee, or nonpublic current employee under review satisfies the suitability criteria for nonpublic employment. The State Superintendent of Education shall issue a suitability determination to the chief executive officer of the nonpublic school requesting the determination.