Over the years the Chancery office has kept pastors, principals, and agency heads up-to-date on the various laws which relate to both mandated and non-mandated-but-authorized fingerprinting of employees, clergy, and volunteers. However, in order to provide a single reference concerning the overall subject of fingerprinting, as well as other types of employee/volunteer background checks pertaining to those who work with children or youth, this comprehensive document has been prepared. This policy and related procedures shall apply to those parishes, schools, and agencies owned and operated by the Archdiocese. While a copy of this document may be provided to private institutions as a courtesy, it will be necessary for them to adopt and implement their own policy and procedures.
Please retain this document for future reference and disseminate copies of the same to those within your parish, agency, and/or school whom you deem appropriate.
PRIVATE SCHOOLS – STATE-MANDATED FINGERPRINTING OF EMPLOYEES #
Section 33191 of the California Education Code requires corporations offering or conducting private school instruction on the elementary or high school level to file with the Superintendent of Public Instruction a statement, under penalty of perjury, setting forth, among other things, that criminal record summary information has been obtained pursuant to Section 44237 of the Education Code. Section 44237 requires private schools on the elementary or high school level to require each applicant for employment in a position requiring contact with minor pupils who does not possess a valid California teaching credential, or is not currently licensed by another state agency that requires a criminal record summary, to submit two sets of _fingerprints to the Department of Justice for the purpose of obtaining a criminal record summary from the Department of Justice and the Federal Bureau of Investigation.
The purpose of Section 44237 is to protect minor pupils. In its original form, the law was known as the “Bates Act”, and now, since its amendment in September of 1997, is commonly known as the “Michelle Montoya School Safety Act”.
The Montoya Act modifies the former Bates Act provisions in a number of significant ways:
- The school SHALL NOT employ a person UNTIL the Department of Justice completes its criminal records search and makes its report to the employer. (Formerly, an employer could hire an employee subject to terminating him/her, at the school’s discretion, if the report from the Department of Justice contained information which would warrant termination.)
- The school SHALL NOT employ any person who has been convicted of a “violent OR serious felony”. (While it would not have been prudent to hire someone with a violent or serious felony background anyway, nevertheless the new law takes away any employer discretion in such cases.) For purposes of this law, a violent felony is any felony listed in subdivision (c) of Section 667.5 of the Penal Code, and a serious felony is any felony listed in subdivision (c) of Section 1192.7 of the Penal Code. These felonies include such things as actual or attempted murder, manslaughter, rape, sexual abuse of a child, lewd acts with minors, residential burglary, kidnapping, robbery, selling/giving hard drugs to minors, armed theft, arson, etc.
- The Department of Justice shall ascertain whether the applicant has been arrested or convicted of ANY CRIME, insofar as that can be ascertained from information available to the Department, and forward the information to the employer designated by the applicant submitting the fingerprints. (Formerly, the Department of Justice reports only included information as to whether or not an employee had a conviction record or an arrest pending final adjudication for any sex offense, controlled substance office, or crime of violence.) The Department of Justice will not forward records of criminal proceedings that did not result in a conviction, but it will forward information on arrests that are still pending adjudication.
- This law applies to EACH APPLICANT (including lay persons, religious, and priests) for PAID employment IN A SCHOOL POSITION REQUIRING CONTACT WITH MINOR PUPILS who does not possess a California Teaching Credential or is not currently licensed by another state agency that requires a criminal record summary. (Formerly, the law only applied to regular full-time and part-time employees, but now ALL proposed new hires, INCLUDING SHORT-TERM SUBS AND TEMPS who have contact with minor pupils, must be fingerprinted and have a criminal record check.)
The information from the Department of Justice to the employer is to be provided through the Department’s electronic fingerprinting system (i.e., Livescan) within three working days. LIVESCAN REPORTS COVERING SCHOOL PERSONNEL ARE CENTRALLY CHANNELED THROUGH THE ARCHDIOCESAN DEPARTMENT OF CATHOLIC SCHOOLS. If the Department of Justice cannot ascertain the information required within the above-described time frame, the Department must notify the employer that it cannot do so within that time frame. A notification shall be made by telephone and shall be confirmed in writing and delivered to the employer. IN NO EVENT, HOWEVER, MAY THE SCHOOL EMPLOY A PERSON UNTIL THE DEPARTMENT OF JUSTICE COMPLETES ITS WORK.
- As for INDEPENDENT CONTRACTORS, the Montoya Act does not specifically address the subject of independent contractors who work in PRIVATE schools. However, this may simply have been an oversight since a related section of the Education Code, which was revised at the same time as the one pertaining to private schools, provides that if an entity has a contract with a public school whereby its employees may have other than limited contact with pupils, and the entity is engaged to provide janitorial, administrative, landscaping, transportation, or food-related services or similar services, then the entity’s employees must be fingerprinted.
Because of this fact, and since, under the former Bates law, officials from the Department of Justice have indicated that it would consider employees of independent contractors who work in the school and have other than limited contact with minors to be included in the provisions of the Act, it is recommended that any contractual arrangement with an independent contractor be negotiated so as to provide that workers made available to the school must first be fingerprinted and subject to appropriate clearance. Contractual arrangements with the independent contractor should specifically state that the contractor will make available to the school only employees who have followed the procedures outlined in Section 44237 of the California Education Code which pertains to the submission of fingerprints to the Department of Justice for the purpose of obtaining a criminal record summary from the Department of Justice and the Federal Bureau of Investigation. And, on the fingerprint application card, the contractor should be required to list the Archdiocese of San Francisco as the “employer” to whom the criminal record shall be furnished.
FINGERPRINTING OF CLERGY #
Effective January 1, 1999, Section 44237 was further amended such that any person who “owns or operates” a private school cannot have been convicted of a violent or serious felony or be prohibited from employment by a public school district pursuant to any provision of the Education Code.
After a considered legal analysis of the revised law by the lawyer for the California Catholic Conference, which was reviewed and approved by the California Diocesan Attorneys, THE CALIFORNIA BISHOPS CONFERENCE ENDORSED THE PRINCIPLE THAT ALL PASTORS AND PAROCHIAL VICARS ASSIGNED TO PARISHES WITH SCHOOLS MUST BE FINGERPRINTED. While technically speaking, both pastors and parochial vicars are “employed” by the Corporation Sole, the pastor is the de facto operator of the school under canon law, and the parochial vicars have sufficient contacts with school children such that, for purposes of this law, they can be considered to be engaged in providing services to the school.
IN ADDITION, BECAUSE CLERGY ALSO TEND TO HAVE REGULAR CONTACT WITH CHILDREN OUTSIDE THE SCHOOL CONTEXT, ARCHBISHOP LEVADA HAS DETERMINED, AS A MATTER OF ARCHDIOCESAN POLICY, THAT ALL CLERGY (INCLUDING DEACONS) IN RESIDENCE AND/OR ASSIGNED TO WORK AT ANY NON-SCHOOL FACILITY OF THE ARCHDIOCESE MUST ALSO BE FINGERPRINTED. (THE PROCEDURES APPLICABLE TO THE GRANTING OF ARCHDIOCESAN FACULTIES TO VISITING PRIESTS WILL INCLUDE COMPLIANCE WITH THIS FINGERPRINTING POLICY.)
Though being fingerprinted is an inconvenience, the Bishops have concluded that it is justified by the policy interests involved. The Archdiocese fully supports the relatively unobtrusive fingerprint requirement in the interest of our children. Fortunately, the fingerprinting process has been simplified in recent years with the development of the Livescan system. OBTAINING THE FINGERPRINTS IS DONE AT THREE COUNTY LOCATIONS, AND THE DEPARTMENT OF JUSTICE AND FBI REPORTS ARE CHANNELED VIA COMPUTER DIRECTLY TO THE ARCHDIOCESAN VICAR FOR CLERGY.
For further details, clergy can contact the Archdiocesan Vicar for Clergy’s Office. Once fingerprints have been obtained, re-fingerprinting is not necessary in the event of a new Archdiocesan assignment.
STATE-AUTHORIZED FINGERPRINTING OF SCHOOL VOLUNTEERS, AND BOTH VOLUNTEERS AND EMPLOYEES OF PARISHES AND AGENCIES #
Section 11105.3 of the California Penal Code provides that notwithstanding any other law, a non-profit corporation employer MAY request from the Department of Justice records of all convictions or any arrest pending adjudication involving specified offenses of a person who applies for an EMPLOYMENT OR VOLUNTEER position in which he or she would have SUPERVISORY OR DISCIPLINARY POWER over any person under his/her care. It is the POLICY OF THE ARCHDIOCESE OF SAN FRANCISCO that the following categories of parish, school and agency VOLUNTEERS, as well as PAID parish and agency employees (paid school employees are already covered by the mandatory provisions of the Montoya Act) SHALL be fingerprinted in view of the fact that they have substantial supervisory/disciplinary power over, and/or contact with, minors — sometimes on a singular adult basis:
- Directors/Coordinators of Religious Education and paid Catechists
- Directors/Coordinators of Youth Ministry (Programs)
- Directors of Children’s Choir
- Regularly assigned School Yard Duty Workers and Teachers Aides
- Directors of Youth Athletics/Head Coaches
LIVESCAN REPORTS PERTAINING TO NON-SCHOOL PARISH EMPLOYEES AND VOLUNTEERS ARE CENTRALLY CHANNELED THROUGH THE ARCHDIOCESAN HUMAN RESOURCES OFFICE.
CITY OF SAN MATEO FINGERPRINTING/TRAINING ORDINANCE #
On November 4, 1996, the Mayor of San Mateo signed a City Council Ordinance adding Chapter 10.65 to the Municipal Code, which deals with FINGERPRINTING AND/OR TRAINING of certain EMPLOYEES and/or ADULT VOLUNTEERS of non-profit organizations. Both public and PRIVATE SCHOOLS are expressly EXEMPT from the entire ordinance. RELIGIOUS CORPORATIONS (e.g., the parishes) also are EXEMPT EXCEPT with respect to programs that are PREDOMINANTLY SPORTS OR RECREATION PROGRAMS.
If a parish’s sports programs are under the auspices of the school, then the sports program provision does not apply. The parish would then need to focus only on whether any of its ministries, programs, etc., predominantly involve a recreation. component.
If the Ordinance does apply with respect to a particular parish program, the parish may already be in compliance if it fingerprints its employees and volunteers pursuant to Section III above and if the parish follows the Archdiocesan Policies and Procedures Regarding Child Abuse and Harassment (which requires employees and regular volunteers to receive a copy of the written policy and to view the training video tape). With regard to child abuse training (the Ordinance requires two hours of annual child abuse training for all employees and volunteers who work with or supervise children), a relatively simple procedure could be adopted whereby the parish/school could show the Archdiocesan video and distribute and discuss the Archdiocesan written policy as part of a single “orientation night” for all regular volunteers and employees.
The fingerprinting component of the ordinance only applies (if at all) to EMPLOYEES (i.e., paid persons) who have “SUPERVISORY OR DISCIPLINARY CONTROL” over children, AND to ADULT VOLUNTEERS who, in the ordinary course of their volunteer duties, would be “ALONE” with minor children. “Alone” is defined as when there is no other adult person present in the same room with the child or children or, if the activity is out of doors, present within a 30-yard radius of the child or children.
PROCEDURES FOR PROCESSING FINGERPRINTS #
- School employees and volunteers – Contact the Archdiocesan Department of Catholic Schools
- Parish employees and volunteers – Contact the Archdiocesan Human Resources Office.
- Clergy – Contact the Archdiocesan Vicar for Clergy Office.
EMPLOYEE AND VOLUNTEER BACKGROUND CHECKS BY WAY OF FORMAL APPLICATION FORMS #
ALL EMPLOYEES and VOLUNTEERS who have REGULAR CONTACT WITH CHILDREN OR YOUTH should be required to complete a formal application form, irrespective of whether they are mandated by law or Archdiocesan policy to be fingerprinted. This should be maintained in a locked file at the local site. A sample application form is attached.
The following checklist is provided to assist you in determining which individuals should be required to complete an application form.
Q. With regard to employees and volunteers having “regular contact” with. children, what does “regular” mean?
A.There is no precise litmus test that can be used.Therefore, it is necessary for parishes, schools, and agencies to evaluate each position on an ad hoc, reasonableness basis. The following checklist, the answers to which should be considered as a whole, might be helpful in this regard:
- How many times per year is the volunteer or employee expected to engage in work that involves contact with children?
- Will other adults be present or in the immediate vicinity? If not, how long will the employee or volunteer be alone with children?
- How many children will be present?
- Where will the activity take place (inside or outside)?
- Will the activity be in open view to the public or closed?
- Is the employee or volunteer well-known to the school, parish, or agency community?