§16-22A-3. Definitions.

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.

(Act 99-361, p. 566, §3; Act 2000-274, p. 433, §1; Act 2002-457, p. 1171, §1.)