THE FLORIDA DEPARTMENT OF EDUCATION
Technical Assistance Paper
?
JESSICA LUNSFORD ACT
?
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
Background
The Jessica Lunsford Act was passed by the 2005 Florida Legislature and signed into law
by Governor Bush following the assault and murder of Jessica Lunsford in Homosassa
Springs, Florida. This crime was allegedly committed by an individual who had at one
time worked as a subcontracted mason at Jessica Lunsford’s school. The Act focused
primarily on increasing the measures used to monitor sexual offenders or predators.
However, part of the Act specifically related to individuals with access to school district
campuses. This Technical Assistance Paper (TAP) is to provide assistance to districts
and contractual personnel to implement s. 1012.465, Florida Statutes, as amended by the
2005 Legislature.
Section 1012.465, Florida Statutes, now states (amendments underlined):
(1) Noninstructional school district employees or contractual personnel who are
permitted access on school grounds when students are present, who have direct
contact with students or who have access to or control of school funds must meet
Level 2 screening requirements as described in s. 1012.32, F.S. Contractual
personnel shall include any vendor, individual, or entity under contract with the
school board.
The statute, as amended, applies to three categories of either noninstructional or
contractual personnel, all of whom must meet Level 2 background screening
requirements, including those:
1.
Who are permitted access on school grounds when students are present,
2.
Who have direct contact with students, or
3.
Who have access to or control of school funds.
The statute applies to such persons employed or contracted with any Florida public
school district in any Florida public school, including:
-
Traditional Public Schools
-
Charter Schools
-
Alternative Schools
District Responsibilities
1.
Background Screening:
School districts must conduct the fingerprinting/background screening of
noninstructional or contractual personnel at a location designated by the district
using the code (ORI - Originating Agency Identifier) issued to the district by the
Florida Department of Law Enforcement (FDLE), and determine whether the
individual has been convicted of a crime of moral turpitude.
2
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
2.
?
Costs:
According to the Lunsford Act, the costs associated with the background
screenings may be borne by the district, the contractor, or the individual. Each
district must establish payment procedures. The costs associated with the initial
screenings themselves may vary from district to district (approximately $60 to
$90). In addition, for each record, districts will be charged by FDLE for:
-
?
Annual Retention Fee: $6.00 (Note: Districts will not be charged the
retention fees until the full system is operational.)
-
?
Fifth Year National Background Check fee: $24.00 + $6.00 = $30.00
Districts may use their unrestricted operating funds to cover the cost of
background screenings.
Schools will be invoiced by the Florida Department of Law Enforcement for
these services.
3.
?
Verification of Personnel on School Campuses:
For affected persons, each district must establish policies and procedures to
ensure that only individuals who have undergone a background screening and
have been approved to come on campus are allowed access on school grounds
when students are present, or to have direct contact with students, or to have
access or control over school funds.
In addition, each district must establish communication policies and procedures to
ensure that all pertinent parties are notified when an individual terminates service
with the district.
4.
?
Sharing of Records:
Districts may share background screening results with other public school districts
and are encouraged to do so to reduce the time and fiscal impact on certain
service providers who may be providing contractual services in multiple districts.
Such persons may include:
-
?
Vendors, including soda/milk/snack vendors under contract with the
district
?
-
Sports officials
?
-
Construction contractors and subcontractors
?
-
Senior ring, photography, or yearbook vendors
?
3
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
?
Should districts choose to share records, it is recommended that the cooperating
districts execute a Memorandum of Understanding which clearly spells out the
role to be played by each district. Additionally, districts are required to keep a
record of each time results are shared. The record must include:
1)
The name of each individual whose records are being shared
2)
The date of the transmission of the record
3)
The type of transmission (Fax, USPS, secured electronic...)
4)
The recipient of the transmission
5)
Notification to the individual that the record was shared and to which
entity
Any employee provided access to criminal history records should be cautioned as
to the confidentiality of the information contained within the record, and should
not discuss such information outside of those also legally allowed access to such
record.
5.
Maintenance of Records:
After receiving the initial background check results from the FDLE, the original
submitting district will thereafter be electronically notified by FDLE, in
writing, of any new arrests. The original submitting district should forward the
arrest information to any districts with which they have shared the criminal
record. In addition, s. 1012.32(3), F.S., requires each school district to inform the
FDLE of any change in the affiliation, employment, or contractual status of an
individual previously fingerprinted.
The prints of an individual who terminates service with a district and is later re-
engaged to provide additional services must be re-submitted to the FDLE. Those
individuals who provide services on a periodic basis pursuant to an on-going
contract and who do not effectively break service should continue to have their
arrest record results transmitted to the district by the FDLE.
The requirements applicable to those entities receiving fingerprint background
check results are set forth in Rule 11C-6.010, promulgated by the FDLE pursuant
to authority in s. 1012.32(3), F.S.
Disqualification of Individuals
Section 1012.465, F.S., as amended, states that those required to be screened must
meet Level 2 screening requirements “as described in s. 1012.32, F.S.”
Some districts have questioned whether they may simply adopt the crimes
enumerated in s. 435.04, F.S., the general Level 2 screening statute, as the
disqualifiers. Such an interpretation would be incorrect, as s. 435.01, F.S., states:
4
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
“Whenever a background screening for employment or a background security check
is required by law for employment,
unless otherwise provided by law
, the provisions
of this chapter shall apply.” (Emphasis added.) In the case of background screenings
for employment at schools, the law, (s. 1012.465, F.S.)
otherwise provides
that
districts must apply the standards found in s. 1012.32, F.S. Thus districts must
look to the language in s. 1012.32, F.S., to determine the scope of disqualifying
offenses, using the “crimes of moral turpitude” standard, just as schools have been
previously doing for their own employees. Rule 6B-4.009(6), used by many school
districts for their own employees, defines moral turpitude as:
“Moral turpitude is a crime that is evidenced by an act of baseness,
vileness, or depravity in the private and social duties, which, according to
the accepted standards of the time a man owes to his or her fellow man or
to society in general, and the doing of the act itself and not its prohibition
by statute fixes the moral turpitude.”
Any of the offenses listed in s. 435.04, F.S., may certainly be a disqualifier for
employment at a district. However, each district must make its own case-by-case
determination of whether an act or acts revealed in a background check disqualifies
an individual from employment at the district.
See
, Palm Beach County Sch. Brd. v.
Ray Ano, DOAH Case No. 03-2497, (Amended Recommended Order, July 1, 2004).
In effect, the law now holds all contractual employees to the same standards as the
district’s own employees with regard to background screening.
Questions and Answers
1.
?
What is a Level 2 background check?
A Level 2 background check includes fingerprinting the individual and submitting
the prints to the Florida Department of Law Enforcement (FDLE) to compare
those records against the statewide criminal and juvenile records maintained by
the FDLE and federal criminal records maintained through the Federal Bureau of
Investigation. It may also include a local criminal records check through local law
enforcement agencies.
2.
?
Can the results of the background screening be shared among public school
districts?
Yes, since an individual or agency independently authorized to view the
background check information may receive such information from another
similarly authorized if shared for the same purpose. See 28 CFR §20.21.
3.
?
Are districts required to print individuals such as sports officials, musical event
judges/conductors, charter bus drivers, or supplemental service providers?
5
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
?
Yes, if the individual (or the association for whom the individual acts as an agent)
is contracted with the district to provide services, they must undergo a
background screening. If there is no contract with the district and the individual
is instead serving in a volunteer capacity, the individual is not required to undergo
background screening, but must have his/her name searched against the sexual
offender/predator database. Districts may wish to assist contracted vendors who
serve multiple counties with the implementation of a mechanism to share the
prints among the districts that utilize the same services.
4.
?
Does the Lunsford Act apply to school volunteers who serve as mentors or
chaperones?
No, since the Lunsford Act does not apply to volunteers, the background check
requirement would not apply to such persons, unless they had contracted with the
district for some other reason unrelated to their duties as a volunteer. However,
districts are advised that they have the discretion to establish standards applicable
to volunteers, and must search volunteers against the sexual offender/predator
database. See s. 943.04351, F.S.
5.
?
Can a district print an individual under the age of 18?
Yes. Section 1012.465, F.S., does not contain an age limitation for the
background check requirement.
6.
?
Does the Lunsford Act require all contractors and their subcontractors, including
any of their employees working at a public school, to be screened?
Yes. Contractual personnel are described as any vendor, individual, or entity
under contract with the school board. Subcontractors are considered to also be a
contractor with the district for purposes of the Act. Thus, any employee of an
entity under contract with a district would need to be screened. For example: If
“ACME Construction Company” is a subcontractor to “ABC Construction,” the
prime contractor, and both have personnel on-site at a public school, any
employee of either company who goes on-site at a public school while students
are present needs to first be fingerprinted.
7.
?
Are contractors who are building a new classroom on an existing campus,
separated by a fence and held to a “no fraternization” rule, required to be
screened?
Yes. The statute specifically states “contractual personnel who are permitted
access on school grounds when students are present.” There are no stipulations to
mitigate the requirement.
8.
?
Are school districts required to do the actual printing of contractual vendors?
6
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
?
Yes. The school district ORI must be utilized; however, it is up to the district to
determine what live scan device(s) to use. Pursuant to s. 1012.465(2), F.S., the
person must file a complete electronic set of fingerprints with the district school
superintendent of the employee or contracting school district.
9.
?
Are persons serving as a School Advisory Council (SAC) member required to be
screened?
No. If the SAC member is a parent volunteer, no printing is required. However,
districts are required to search volunteers against the sexual offender/predator
database. See s. 943.04351, F.S. Additionally, if the person is also contracted
with or employed by the school, a background screening would be required for
school-based activities conducted pursuant to the contract.
10. Will there be a statewide database available to assist school districts with vendor
printing so vendors will not be required to be printed in multiple districts?
Not at this time. Since each district reviews the records to make its own
determination of whether an act constitutes a “crime of moral turpitude,” unless
there is a decision among districts to agree on whether a specific act should
disqualify an individual, no statewide database would work. However, nothing
bars multiple districts, or all districts, from working together to agree on standards
and to share records of individuals working in multiple districts to avoid
duplication of efforts.
11. What funding sources may be available
?
to the districts to assist with
implementation of the Act?
The Act states that the cost of background screening may be borne by the district
school board, the contractor, or the person being fingerprinted; however, no
specific funds were allocated to pay for such costs. Districts may use their
unrestricted operating funds to cover the cost of background screenings.
12. Does a contractor/vendor or employee who fails to pass a Level 2 background
check have a right to a hearing to challenge the accuracy of the screening results?
Yes. Federal regulations provide that such persons may be entitled to request an
opportunity to obtain a copy of the relevant information for the purposes of
challenge and correction if he or she disputes its accuracy. The regulations also
provide that the state should provide procedures for an administrative appeal
should the state criminal justice agency refuse to correct challenged information
to the satisfaction of the individual to whom the information relates. See 28 CFR
§20.21(g). Those wanting to dispute the accuracy of the results of a criminal
history record should call the FDLE Quality Control Section at 850-410-7898, if
the concern is with the Florida record. If the concern is with the out-of-state
record, the call should go to the FBI at 304-625-2000.
7
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
13. May districts condition the award of contractual services on the prospective
vendor warranting that all employees coming onto school premises have been
fingerprinted?
Yes. Contracts should state that failure to do so will constitute a material breach
and subject the offending contractor to liquidated damages.
14. How should the districts monitor who has been printed and who should be
allowed on campus or not?
The key for any monitoring program is to ensure that, once printed, when an
individual returns to the district to work, the district can ensure that the person
returning today is the same person they printed last week. Districts should
establish methods such as issuance of photo ID badges, sign-in logs, check-in
points, or biometric technology to verify a positive match to the identification
presented. Ultimately, the responsibility to ensure that campuses are accessed by
properly screened and approved individuals remains with each district, and each
district must implement processes that are effective based on each school’s unique
situation.
15. Who makes the decision after the print has been taken as to whether or not the
vendor/subcontractor is allowed on campus (i.e., is possessed of “good moral
character”)?
The employing or contracting district makes the decision to allow the individual
to be “cleared” or not.
The results of the criminal history check may not be
released to the employer or the contractor. (See Question 17 for further
information.)
16. Will any statewide standard be implemented to define acts of moral turpitude
applicable in all districts?
No. It is the employing district that must determine whether the information
revealed in the background check renders an individual fit to serve in that district.
Pursuant to efforts to increase cooperation, districts may consult and agree on
disqualifying offenses.
17. What are the specific responsibilities of the school district once the prints have
been taken?
Background screening records conducted pursuant to s. 1012.465 or s. 1012.32,
F.S., may contain confidential information. The district may only share the
background screening results and the details of the record with the individual (or
his/her attorney in fact) that is being screened or with other public school districts.
For example, John Smith is subcontracted through Company A. John Smith may
8
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
?
review the results; however, other employees, including supervisory employees of
Company A, may not.
18. How are emergency situations handled?
?
For example, in a state of emergency
such as a hurricane, how would a district print and screen all of those workers?
For repair and maintenance matters, districts may wish to use the services of
individuals who have been screened and previously determined to be cleared.
Many times, those providing services in times of natural disaster or state of
emergency are volunteers; in such cases there is no requirement for background
screening. Additionally, those called to assist with natural disaster emergency
services are often from FEMA and/or the National Guard, and are not contracted
to provide services, but rather to assess the damage, assist with recovery, and
maintain problems associated with looting and vandalism. These individuals
(FEMA/National Guard) would not be required to undergo background screening.
19. Are the employees of Federal Express, UPS/Postal Service, or utility type
providers required to be screened prior to coming onto a public school campus?
No, since these individuals are not typically contracted with districts. However,
in the event a district executes a contract with a provider, for example to lock in a
certain rate for services, then such delivery personnel would need to be screened.
20. Are employees of food service vendors for items such as milk, sodas, and snacks
required to be screened if coming onto public school campuses?
Yes, if the individual is employed or contracted with a district, the requirement to
be background screened is applicable. Districts may choose to allow vendors to
access school grounds during hours when no students are present, which would
negate the background screening requirement.
21. Are persons who may be employed with a company that contracts with a district,
but who come onto school grounds for unrelated purposes such as to volunteer or
mentor, required by the Lunsford Act to undergo a Level 2 background
screening?
No. The act applies to “contractual personnel,” i.e., those coming onto a campus
for purposes specifically associated with the contract.
22. Should districts background screen individual recruiters for universities, the
military/ROTC, or college sports whose employers do not have a contract with
the district?
No, if a district has verified that no contractual relationship exists. If there is no
contract with the district, the individual is not required to undergo background
9
TECHNICAL ASSISTANCE PAPER – JESSICA LUNSFORD ACT – AUGUST 2005
?
screening, but should be treated as a volunteer and have their name searched
against the sexual offender/predator database.
23. Should districts background screen vendors for high school rings, caps, and
gowns?
Yes, if there is a contractual relationship, the individuals should be background
screened. Organizations that provide such services generally have contractual
relationships to provide the services and would, therefore, be required to undergo
background screening.
24. Must affected persons, who may have been previously fingerprinted for other
reasons in the past, again be fingerprinted prior to coming onto school grounds
when children are present?
Yes. The Act requires that the Level 2 background checks be of the current
records maintained in the FDLE/FBI databases for an individual, thus
necessitating a new background screening prior to going to work for the first time
on a public school campus.
25. Are vendors who provide goods or services to a district pursuant to a purchase
order issued against a State Term Contract between the vendor and the state of
Florida subject to a Level 2 background check?
No. Under the terms of the State Term Contract (Contract), the parties to the
Contract are the vendor and the Department of Management Services. The terms
also provide that the vendor and the district have no remedies as to one another
and that the school board, as a customer under the Contract, does not become a
party to the Contract. Thus, such vendors who are not under contract with the
school board are not subject to the Act.
10