§16-22A-9. Collection and transfer of fingerprints, fees, and information.

(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.

(Act 99-361, p. 566, §9; Act 2002-457, p. 1171, §1.)