Criminal History Review of Contractors—Help on the Way?

By now, most administrators who deal with business matters are familiar with the requirements of Texas Education Code § 22.0834.[1]  Essentially, certain employees of entities that contract with school districts must submit to a review of their criminal history before they may provide services to a district.  The law, while admirable in its goals, left much to be desired in terms of specificity and clarity.  Those concerns were left to the Commissioner for further (and probably more effective) treatment by way of a grant of authority to adopt rules for the implementation of the law.  Thus, many school districts eagerly await Commissioner’s rules to help them overcome the lack of precision in the law.  Luckily for those districts (and the contractors that are subject to the law), the Commissioner appears to be close to formally adopting rules addressing the issue.

The Law

The basic requirement of section 22.0834 is that some employees of entities that contract with school districts submit to a criminal-history review as a condition of (and prior to) providing the services that are the subject of the contract.  The most important question that arises from this requirement is this:  Who exactly is subject to the required criminal-history review?  For this discussion, we’ll use the term “Covered Contractor Employee” to refer to persons that are subject to the requirements.  Covered Contractor Employees under the statute are those that (1) will have “continuing duties” related to the contracted services and (2) will have “direct contact” with students.[2]  The law does not provide any guidance as to the meaning of “continuing duties” or “direct contact.”  Thus, school districts are left to figure out for themselves whether a person is, in fact, a Covered Contractor Employee.

It is this issue that has proved the most troublesome for districts in terms of application of the law.  Does an independent contractor whose service to the district consists of several one-time speaking engagements at district campuses have “direct contact” with students?  Well, the speaker will be addressing a roomful of students—how can this be anything but “direct contact?”  Do the speaking engagements constitute “continuing duties?”  What if it was just one speaking engagement?  Or two?  What about the vendor-employee who comes onto campus to re-fill vending machines and walks among students in order to carry out his/her duties?  These are the types of situations to which districts have to apply the law.  Clearly, help is needed to address these problems.

The next issue that must be addressed is the type of criminal history review that must be obtained for a Covered Contractor Employee.  The statute provides for two levels of review.  The first is a review of a person’s “national criminal history record information” (“NCHRI”).  NCHRI is made up of two components:  (1) criminal history information obtained from the Texas Department of Public Safety and (2) criminal history information obtained from the Federal Bureau of Investigation.[3]  The second level of review is that of a person’s “criminal history record information” (“CHRI”).  The statute does not define CHRI, but allows for the inference that it is a less inclusive review that does not require fingerprinting.  CHRI may be obtained from any law enforcement or criminal justice agency or a private entity that is a consumer reporting agency governed by the Fair Credit Reporting Act.[4]  The level of review (NCHRI or CHRI) to which a person is subject depends on the person’s status as an employee of the contractor.  Persons who were offered employment with the contractor on or after January 1, 2008, are subject to the NCHRI review.[5]  Persons who were employed by the contractor prior to that date are subject to the CHRI review.[6]

One question that has arisen regarding the necessary type of criminal-history review involves out-of-state contractors who provide criminal-history reviews conducted by an entity in their home state.  Is this sufficient to comply with the statutory requirement for Covered Contractor Employees?  In this respect, the law does allow for a clear answer.  If the Covered Contractor Employee is subject to an NCHRI review, then the answer is “no.”  As explained above, NCHRI involves the review of criminal history information obtained from the Texas Department of Public Safety and from the FBI.  But what if the Covered Contractor Employee is subject to a CHRI review?  The answer to this question is “probably yes.”  The sources from which CHRI may be obtained (listed above) are not limited to Texas-based sources.

Thus, we know (well, sort of) who is subject to the criminal-history-review requirements and what type of criminal-history check they must undergo.  The question now becomes, what exactly is a school district required to do?  Section 22.0834 does not itself impose any requirements on school districts.  Rather, the statutory duties are imposed on the contracting entities and Covered Contractor Employees.  With respect to persons subject to NCHRI review, the contracting entity is subject to the following duties:

1. Sending or ensuring that the employee sends to the Texas DPS the information that is required for obtaining NCHRI before or immediately after employing or securing the person’s services.[7]
2. Obtaining all criminal history record information through the DPS clearinghouse.[8]
3. Certifying to the school district that the contracting entity has received that information.[9]

Likewise, with regard to Covered Contractor Employees who are not subject to NCHRI review, the contracting entity is responsible for the following:

1. Obtaining CHRI from an appropriate source (listed above).[10]
2. Certifying that it has received all such information.[11]

But the fact that section 22.0834 does not in itself impose any requirements on a school district does not mean that a district can consider itself unaffected by the requirements.  Texas Education Code § 22.085 requires that school districts ensure that contracting entities obtain the required criminal history information.  Further, that same statute provides that a school district may not allow a person who is an employee of or applicant for employment by a contracting entity to serve at a school if the district obtains information that the person has been convicted of a disqualifying offense whose victim was under 18 years of age or enrolled in public school.[12]  Section 22.0834 does provide an emergency exception which allows a school district to allow a Covered Contractor Employee to enter school district property if the person will be accompanied by a District employee.  Please note that this is an exception to the requirements of section 22.0834 (requiring criminal history review) and not to section 22.085 (prohibiting those with disqualifying offenses from serving at a school).

Also important to note is that section 22.0834 authorizes school districts to obtain either NCHRI or CHRI relating to Covered Contractor Employees.[13]  This provision may be useful to school districts that find it beneficial to obtain the information for themselves.  Finally, although this requirement is not part of section 22.0834, it is of utmost importance to remember that if a superintendent receives information that an applicant for or a holder of a certificate issued by SBEC has a criminal history, the superintendent must file a report with TEA within seven days of the date he/she first obtains this knowledge.[14]

The Proposed Rules

Help might be on the way for school districts.  In May 2008, the Commissioner published proposed rules for implementation of section 22.0834.  These rules are not yet effective though, so the following discussion should be viewed with some caution given the possibility that the proposed rules might be modified.

Arguably, the most important part of these proposed rules are the proposed definitions of the phrases “direct contact” and “continuing duties.”  The phrase “direct contact with students” is proposed to be defined as follows:

The contact that results from activities that provide substantial opportunity for verbal or physical interaction with students that is not supervised by a certified educator or other professional district employee. Contact with students that results from services that do not provide the opportunity for unsupervised interaction with an individual student, such as addressing an assembly, officiating a sports contest, or judging an extracurricular event, is not, by itself, direct contact with students. However, direct contact with students does result from any activity that provides the opportunity for unsupervised contact with students, such as, without limitation, the provision of individualized coaching, tutoring, or other services.[15]

The phrase “continuing duties related to contracted services” would be defined as “work duties that are performed pursuant to a contract to provide services to a school entity on a regular, repeated basis rather than infrequently or one-time only.”[16]

Looking at these proposed definitions, a few things become clear.  A person would not be subject to the requirements of section 22.0834 if the person would be under the supervision of a professional district employee.  Also, a person would not be subject to the requirements of section 22.0834 if the contracted services require only a one-time act.   These certainly are helpful provisions.  Of course, the proposed language still allows substantial room for debate.  With respect to “direct contact,” what constitutes “physical interaction?”  A literal definition of that phrase would probably include walking and standing among students.  So what about the vending-machine filler who comes onto campus to fill vending machines?  Depending on that person’s exposure to students, he/she might have substantial opportunity to physically (and verbally) interact with them.  Many districts would probably have an employee escort the vendor-employee while on campus—but it is unlikely that the escort would be professional employee.

The proposed rules also help answer the question what to do when the contracting entity is a single person.  Importantly, when the contracting entity is a single person (e.g., a physical therapist), the proposed rules provide that the date of employment (for purposes of determining whether the person is subject to NCHRI review or CHRI review) will be the date of the contract to provide services to the District.  This means that any time the district enters into a contract with an individual independent contractor, the contractor will be subject to NCHRI (fingerprint) review.  For persons who are employees of a contracting entity (i.e., anyone who is not an individual independent contractor), the date of employment is the date that the employee began providing services to the contractor.

The proposed rules set forth an additional requirement for contractors.  If a contractor determines that an employee is not a Covered Contractor Employee, the contractor must make reasonable efforts to ensure that the conditions that resulted in that determination (i.e., the factors that placed that employee outside the purview of the statute) continue to exist throughout the time that the contracted services are provided.  A contracting entity must also certify to a district that the contractor is complying with this requirement.  Contracting entities are also required to provide all criminal-history information received to a school district upon the district’s request.

It bears repeating that the proposed rules discussed here are not yet effective.  It is expected that they will be made effective in the near future.  Until then, while they may not be relied upon as authority, the proposed rules can be used as an objective framework through which questions regarding interpretation of the law can be addressed.

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