Citations Affected: IC 5-2; IC 11-10; IC 12-24; IC 16-33; IC 20-5;
IC 20-12; IC 20-15; IC 20-16; IC 20-17.
Effective: September 10, 1999 (retroactive); upon passage; July 1,
2001.
January 18, 2001, read first time and referred to Committee on Corrections, Criminal and
Civil Procedures.
March 1, 2001, amended, reported favorably _ Do Pass.
March 5, 2001, read second time, ordered engrossed. Engrossed.
March 6, 2001, read third time, passed. Yeas 50, nays 0.
not more than three months; or (2) seek s to volunteer with an entity or who has volunteered for not more than three months. Provides that all victims of the same violent crime who file a claim for compensation from the violent crime victims compensation fund must receive an amount of money that is equal to the highest award received by any of the victims, and allows for a claimant to file an application for additional funds. Specifies that educational programs at state institutions may be provided by a public or private entity and must be: (1) consistent with the state's academic standards; (2) offered in a manner that allows the student to qualify for a high school diploma; and (3) provided by licensed teachers. Adds a chapter to the Indiana education law concerning classification, representation, and discipline of educational employees, including a hearing procedure. Makes related changes.
A BILL FOR AN ACT to amend the Indiana Code concerning
education.
SECTION 1. IC 5-2-5-1, AS AMENDED BY P.L.24-2000,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 1. The following definitions apply throughout
this chapter:
(1) "Limited criminal history" means information with respect to
any arrest, indictment, information, or other formal criminal
charge, which must include a disposition. However, information
about any arrest, indictment, information, or other formal criminal
charge which occurred less than one (1) year before the date of a
request shall be considered a limited criminal history even if no
disposition has been entered.
(2) "Bias crime" means an offense in which the person who
committed the offense knowingly or intentionally:
(A) selected the person who was injured; or
(B) damaged or otherwise affected property;
by the offense because of the color, creed, disability, national
origin, race, religion, or sexual orientation of the injured person
or of the owner or occupant of the affected property or because
the injured person or owner or occupant of the affected property
was associated with any other recognizable group or affiliation.
(3) "Care" means the provision of care, treatment, education,
training, instruction, supervision, or recreation to children
less than eighteen (18) years of age.
(4) "Council" means the security and privacy council created
under section 11 of this chapter.
(4) (5) "Criminal history data" means information collected by
criminal justice agencies, the United States Department of Justice
for the department's information system, or individuals. The term
consists of the following:
(A) Identifiable descriptions and notations of arrests,
indictments, informations, or other formal criminal charges.
(B) Information regarding an offender (as defined in
IC 5-2-12-4) obtained through sex offender registration under
IC 5-2-12.
(C) Any disposition, including sentencing, and correctional
system intake, transfer, and release.
(6) "Certificated employee" has the meaning set forth in
IC 20-7.5-1-2.
(5) (7) "Criminal justice agency" means any agency or department
of any level of government whose principal function is the
apprehension, prosecution, adjudication, incarceration, probation,
rehabilitation, or representation of criminal offenders, the location
of parents with child support obligations under 42 U.S.C. 653, the
licensing and regulating of riverboat gambling operations, or the
licensing and regulating of pari-mutuel horse racing operations.
The term includes the Medicaid fraud control unit for the purpose
of investigating offenses involving Medicaid. The term includes
a nongovernmental entity that performs as its principal function
the:
(A) apprehension, prosecution, adjudication, incarceration, or
rehabilitation of criminal offenders;
(B) location of parents with child support obligations under 42
U.S.C. 653;
(C) licensing and regulating of riverboat gambling operations;
or
(D) licensing and regulating of pari-mutuel horse racing
operations;
under a contract with an agency or department of any level of
government.
UPON PASSAGE]: Sec. 5. (a) Except as provided in subsection (b), on
request, law enforcement agencies shall release or allow inspection of
a limited criminal history to noncriminal justice organizations or
individuals only if the subject of the request:
(1) has applied for employment with a noncriminal justice
organization or individual;
(2) has applied for a license and criminal history data as required
by law to be provided in connection with the license;
(3) is a candidate for public office or a public official;
(4) is in the process of being apprehended by a law enforcement
agency;
(5) is placed under arrest for the alleged commission of a crime;
(6) has charged that his rights have been abused repeatedly by
criminal justice agencies;
(7) is the subject of judicial decision or determination with
respect to the setting of bond, plea bargaining, sentencing, or
probation;
(8) has volunteered services that involve contact with, care of, or
supervision over a child who is being placed, matched, or
monitored by a social services agency or a nonprofit corporation;
(9) has volunteered services at a public school (as defined in
IC 20-10.1-1-2) or non-public school (as defined in
IC 20-10.1-1-3) that involve contact with, care of, or supervision
over a student enrolled in the school;
(10) is being investigated for welfare fraud by an investigator of
the division of family and children or a county office of family
and children;
(11) is being sought by the parent locator service of the child
support bureau of the division of family and children; or
(12) has been convicted of any of the following:
(A) Rape (IC 35-42-4-1), if the victim is less than eighteen
(18) years of age.
(B) Criminal deviate conduct (IC 35-42-4-2), if the victim is
less than eighteen (18) years of age.
(C) Child molesting (IC 35-42-4-3).
(D) Child exploitation (IC 35-42-4-4(b)).
(E) Possession of child pornography (IC 35-42-4-4(c)).
(F) Vicarious sexual gratification (IC 35-42-4-5).
(G) Child solicitation (IC 35-42-4-6).
(H) Child seduction (IC 35-42-4-7).
(I) Incest (IC 35-46-1-3), if the victim is less than eighteen
(18) years of age.
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 15. (a) The department is designated as the
authorized agency to receive requests for, process, and disseminate
the results of national criminal history background checks that
comply with this section and 42 U.S.C. 5119a.
(b) A qualified entity may contact the department to request a
national criminal history background check on any of the following
persons:
(1) A person who seeks to be or is employed with the qualified
entity. A request under this subdivision must be made not
later than three (3) months after the person is initially
employed by the qualified entity.
(2) A person who seeks to volunteer or is a volunteer with the
qualified entity. A request under this subdivision must be
made not later than three (3) months after the person initially
volunteers with the qualified entity.
(c) A qualified entity must submit a request under subsection (b)
in the form required by the department and provide a set of the
person's fingerprints and any required fees with the request.
(d) If a qualified entity makes a request in conformity with
subsection (b), the department shall submit the set of fingerprints
provided with the request to the Federal Bureau of Investigation
for a national criminal history background check for convictions
described in IC 20-5-2-8. The department shall respond to the
request in conformity with:
(1) the requirements of 42 U.S.C. 5119a; and
(2) the regulations prescribed by the United States attorney
general under 42 U.S.C. 5119a.
(e) This subsection applies to a qualified entity that:
(1) is not a school corporation or a special education
cooperative; or
(2) is a school corporation or a special education cooperative
and seeks a national criminal history background check for a
volunteer.
After receiving the results of a national criminal history
background check from the Federal Bureau of Investigation, the
department shall make a determination whether the applicant has
been convicted of an offense described in IC 20-5-2-8 and convey
the determination to the requesting qualified entity.
(f) This subsection applies to a qualified entity that:
(1) is a school corporation or a special education cooperative;
and
(2) seeks a national criminal history background check for the
purposes determining whether to employ or continue the
employment of a certificated employee or a noncertificated
employee of a school corporation or an equivalent position
with a special education cooperative.
After receiving the results of a national criminal history
background check from the Federal Bureau of Investigation, the
department may exchange identification records concerning
convictions for offenses described in IC 20-5-2-8 with the school
corporation or special education cooperative solely for purposes of
making an employment determination. The exchange may be made
only for the official use of the officials with authority to make the
employment determination. The exchange is subject to the
restrictions on dissemination imposed under P.L.92-544, (86 Stat.
1115) (1972).
SECTION 5. IC 5-2-6.1-35.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE SEPTEMBER 10, 1999 (RETROACTIVE)]: Sec. 35.5.
(a) If:
(1) at least two (2) claimants suffer injuries or damages based
on the same violent crime;
(2) the injuries and damages suffered and the rationale for
awarding money to the claimants under this chapter are
substantially similar for all the claimants; and
(3) at least one (1) of the claimants receives a greater award
from the division under this chapter than any of the other
claimants;
all of the claimants are eligible to receive an amount of money
under this chapter that is equal to the highest award received by
any of the claimants under this chapter.
(b) If a claimant believes the claimant is eligible to receive
additional money from the fund as described in subsection (a), the
claimant may file an application under this section with the
division to receive the additional money for which the claimant is
eligible.
SECTION 6. IC 11-10-5-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 1. (a) The department
shall, after consulting with the state superintendent of public
instruction and the Indiana commission on vocational and technical
education of the department of workforce development, implement
academic and vocational education curricula and programs for
confined offenders, by utilizing qualified personnel employed by the
department or by arranging for instruction to be given by public or
private educational agencies in Indiana. A private entity that
provides educational services under this section is subject to laws
that apply to the facility including laws concerning criminal history
checks of employees of the facility.
(b) The department shall include special education programs, which
shall be governed under IC 20-1-6-2.1.
(c) The academic and vocational education curricula and
programs implemented under this chapter must be:
(1) consistent with the state's academic standards under
IC 20-10.1-16 and IC 20-10.1-17;
(2) offered in a manner that allows an offender to qualify for
a diploma upon successful completion of the state's
requirements for high school graduation or for a general
educational development diploma under IC 20-10.1-12.1; and
(3) provided by teachers who meet the requirements specified
under IC 20-6.1-3.
The department shall encourage an offender to pursue a high
school diploma.
(d) To provide funding for development and implementation of
academic and vocational education curricula and programs, the
department may accept gifts and apply for and receive grants from any
source.
SECTION 7. IC 12-24-1-10 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2001]: Sec. 10. (a) Any academic and vocational education
curricula or program that is provided to patients of a state
institution must be:
(1) consistent with the state's academic standards under
IC 20-10.1-16 and IC 20-10.1-17;
(2) offered in a manner that allows patients of the state
institution to qualify for diplomas upon successful completion
of the state's requirements for high school graduation; and
(3) provided by teachers who meet the requirements specified
under IC 20-6.1-3.
(b) The superintendent of a state institution may contract with
a private or public entity to provide educational services in
academic and vocational education programs provided to patients
of the state institution. A private entity that provides educational
services under this section is subject to the laws that apply to a
state institution, including laws concerning criminal history checks
of employees of the state institution.
individuals to whom the policy applies. A policy adopted under this
section may require any of the following:
(1) The school corporation , including a school township, may
request limited criminal history information concerning each
applicant for noncertificated employment or certificated
employment from a local or state law enforcement agency before
or not later than three (3) months after the applicant's employment
by the school corporation.
(2) Each individual hired for noncertificated employment or
certificated employment may be required to provide a written
consent for the school corporation to request under IC 5-2-5
limited criminal history information or a national criminal
history background check concerning an applicant before or
not later than three (3) months after the applicant's
employment by the school corporation. The school
corporation may require the individual to provide a set of
fingerprints and pay any fees required for a national criminal
history background check.
(3) Each individual hired for noncertificated employment may be
required at the time the individual is hired to submit a certified
copy of the individual's limited criminal history (as defined in
IC 5-2-5-1(1)) to the school corporation.
(3) (4) Each individual hired for noncertificated employment may
be required at the time the individual is hired to:
(A) submit a request to the Indiana central repository for
limited criminal history information under IC 5-2-5;
(B) obtain a copy of the individual's limited criminal history;
and
(C) submit to the school corporation the individual's limited
criminal history and a document verifying a disposition (as
defined in IC 5-2-5-1(6)) that does not appear on the limited
criminal history.
(4) (5) Each applicant for noncertificated employment or
certificated employment may be required at the time the
individual applies to answer questions concerning the individual's
limited criminal history. The failure to answer honestly questions
asked under this subdivision is grounds for termination of the
noncertificated employee's employment.
(c) If an individual is required to obtain a limited criminal history
under this section, the individual is responsible for all costs associated
with obtaining the limited criminal history.
(d) Information obtained under this section must be used in
accordance with IC 5-2-5-6.
SECTION 12. IC 20-12-0.5-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 8. The commission
shall have the following powers and duties:
(1) To develop, continually keep current, and implement a long
range plan for postsecondary education. In developing this plan,
the commission shall take into account the plans and interests of
the state private institutions, anticipated enrollments in state
postsecondary institutions, financial needs of students and other
factors pertinent to the quality of educational opportunity
available to the citizens of Indiana. The plan shall define the
educational missions and the projected enrollments of the various
state educational institutions.
(2) To consult with and make recommendations to the
commission on vocational and technical education within the
department of workforce development on all postsecondary
vocational education programs. The commission shall biennially
prepare a plan for implementing postsecondary vocational
education programming after considering the long range state
plan developed under IC 20-1-18.3-10. The commission shall
submit this plan to the commission on vocational and technical
education within the department of workforce development for its
review and recommendations, and shall specifically report on how
the plan addresses preparation for employment.
(3) To make recommendations to the general assembly and the
governor concerning the long range plan, and prepare to submit
drafts and proposed legislation needed to implement the plan. The
commission may also make recommendations to the general
assembly concerning the plan for postsecondary vocational
education under subdivision (2).
(4) To review the legislative request budgets of all state
educational institutions preceding each session of the general
assembly and to make recommendations concerning
appropriations and bonding authorizations to state educational
institutions including public funds for financial aid to students by
any state agency. The commission may review all programs of any
state educational institution, regardless of the source of funding,
and may make recommendations to the governing board of the
institution, the governor, and the general assembly concerning the
funding and the disposition of the programs. In making this
review, the commission may request and shall receive, in such
form as may reasonably be required, from all state educational
institutions, complete information concerning all receipts and all
expenditures.
(5) To submit to the commission on vocational and technical
education within the department of workforce development for its
review under IC 20-1-18.3-15 the legislative budget requests
prepared by state educational institutions for state and federal
funds for vocational education. These budget requests shall be
prepared upon request of the budget director, shall cover the
period determined by the budget director, and shall be made
available to the commission within the department of workforce
development before review by the budget committee.
(6) To make, or cause to be made, studies of the needs for various
types of postsecondary education and to make recommendations
to the general assembly and the governor concerning the
organization of these programs. The commission shall make or
cause to be made studies of the needs for various types of
postsecondary vocational education and shall submit to the
commission on vocational and technical education within the
department of workforce development its findings in this regard.
(7) To approve or disapprove the establishment of any new
branches, regional or other campuses, or extension centers or of
any new college or school, or the offering on any campus of any
additional associate, baccalaureate, or graduate degree, or of any
additional program of two (2) semesters, or their equivalent in
duration, leading to a certificate or other indication of
accomplishment. After March 29, 1971, no state educational
institution shall establish any new branch, regional campus, or
extension center or any new or additional academic college, or
school, or offer any new degree or certificate as defined in this
subdivision without the approval of the commission or without
specific authorization by the general assembly. Any state
educational institution may enter into contractual agreements with
governmental units or with business and industry for specific
programs to be wholly supported by the governmental unit or
business and industry without the approval of the commission.
(8) If so designated by the governor or the general assembly, to
serve as the agency for the purposes of receiving or administering
funds available for postsecondary education programs, projects,
and facilities for any of the acts of the United States Congress
where the acts of Congress require the state to designate such an
agency or commission. However, this subdivision does not
provide for the designation of the commission by the governor as
the recipient of funds which may be provided by acts of the
United States Congress, received by an agency, a board, or a
commission designated by the general assembly.
(9) To designate and employ an executive officer and necessary
employees, to designate their titles, and to fix the compensation
in terms of the employment.
(10) To appoint appropriate advisory committees composed of
representatives of state educational institutions, representatives of
private colleges and universities, students, faculty, and other
qualified persons.
(11) To employ all powers properly incident to or connected with
any of the foregoing purposes, powers, or duties, including the
power to adopt rules.
(12) To develop a definition for and report biennially to the:
(A) general assembly;
(B) governor; and
(C) commission on vocational and technical education within
the department of workforce development;
on attrition and persistence rates by students enrolled in state
vocational education.
(13) To ensure that if a state educational institution provides
an academic or vocational education program to students in
kindergarten through grade 12 the program is consistent with
the state's academic standards under IC 20-10.1-16 and
IC 20-10.1-17.
SECTION 13. IC 20-15-2-14 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2001]: Sec. 14. (a) Any academic and
vocational education curricula or program that is provided under
this chapter must be:
(1) consistent with the state's academic standards under
IC 20-10.1-16 and IC 20-10.1-17;
(2) offered in a manner that allows students to qualify for
diplomas upon successful completion of the state's
requirements for high school graduation; and
(3) provided by teachers who meet the requirements specified
under IC 20-6.1-3.
(b) The superintendent may contract with a private or public
entity to provide educational services in academic and vocational
education programs established under this chapter. A private
entity that provides educational services under this section is
subject to the laws that apply to the school, including laws
concerning criminal history checks of employees of the school.
SECTION 14. IC 20-16-2-14 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2001]: Sec. 14. (a) Any academic and
vocational education curricula or program that is provided under
this chapter must be:
(1) consistent with the state's academic standards under
IC 20-10.1-16 and IC 20-10.1-17;
(2) offered in a manner that allows students to qualify for
diplomas upon successful completion of the state's
requirements for high school graduation; and
(3) provided by teachers who meet the requirements specified
under IC 20-6.1-3.
(b) The superintendent may contract with a private or public
entity to provide educational services in academic and vocational
education programs established under this chapter. A private
entity that provides educational services under this section is
subject to the laws that apply to the school, including laws
concerning criminal history checks of employees of the school.
SECTION 15. IC 20-17 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2001]:
ARTICLE 17. EMPLOYMENT PROTECTION FOR
EDUCATIONAL EMPLOYEES
Chapter 1. Definitions
Sec. 1. The definitions in this chapter apply throughout this
article.
Sec. 2. "Board" refers to the Indiana education employment
relations board established by IC 20-7.5-1-9.
Sec. 3. "Classification seniority" means the length of the most
recent continuous service in an employee's classification with a
single employer.
Sec. 4. "Employee" refers to a noncertificated employee (as
defined in IC 20-7.5-1-2(g)) of a school corporation.
Sec. 5. "Employer" means a school employer, as defined in
IC 20-7.5-1-2(c).
Sec. 6. "Just cause", as the term pertains to the discipline of
employees, includes any of the following:
(1) Falsification of an employment application to obtain
employment through subterfuge.
(2) Knowing violation of a reasonable and uniformly enforced
rule of an employer.
(3) Unsatisfactory attendance, if the employee is unable to
show cause for the employee's absences or tardiness.
(4) Damaging the employer's property through willful
negligence.
(5) Refusing to obey lawful instructions.
(6) Reporting to work under the influence of alcohol in a state
of intoxication or a controlled substance (as set forth in
IC 35-48-2), consuming alcohol or a controlled substance on
the employer's premises or while operating the employer's
vehicles, or while driving a commercial motor vehicle
committing a disqualifying offense under IC 9-24-6-8.
(7) Conduct endangering the safety of the employee or any
other employees.
(8) Conduct endangering the safety of students.
(9) Any breach of a duty in connection with the employee's
employment that is reasonably owed the employer by an
employee.
(10) Commission of child molesting (IC 35-42-4-3), child
exploitation (IC 35-42-4-4), vicarious sexual gratification
(IC 35-42-4-5), child solicitation (IC 35-42-4-6), child
seduction (IC 35-42-4-7), or sexual misconduct with a minor
(IC 35-42-4-9).
Sec. 7. "School corporation" has the meaning set forth in
IC 20-7.5-1-2(a).
Chapter 2. Classification
Sec. 1. An employee may not attain classification seniority until
completion of a probationary period of thirty (30) days, at which
time classification seniority relates back to the employee's date of
hire.
Sec. 2. If a permanent or prolonged reduction within any
classification of employees is determined necessary by an
employer, classification seniority shall be the determining factor in
making the reduction and any subsequent recall from reduction.
Chapter 3. Representation
Sec. 1. An employee is entitled to representation by an employee
organization or legal counsel, or both, during any proceeding
under this article.
Chapter 4. Discipline and Discharge of Employees
Sec. 1. An employee may be disciplined before suspension or
discharge only for just cause as enumerated in IC 20-17-1-6(1)
through IC 20-17-1-6(7), IC 20-17-1-6(9), and must be:
(1) informed in writing of all details of any offense or
violation:
(A) with which the employee is charged; and
(B) that would constitute just cause for discipline; and
(2) given a reasonable time to correct the behavior
constituting the identified offense or violation described in
clause (A).
Sec. 2. A discharge may not take effect unless, at least ten (10)
days before the effective date of the discharge, the employer:
(1) provides the employee with written notice of all offenses or
violations for which the employee is being discharged; and
(2) affords the employee an opportunity to request, in writing,
a hearing before an impartial hearing examiner under
IC 20-17-5.
Sec. 3. A request for a hearing under IC 20-17-5 must be made
by an employee before the effective date of the discharge. If the
employee fails to request the hearing, the employee is considered
discharged on the effective date of the employer's written notice.
Sec. 4. If an employee requests a hearing under IC 20-17-5, the
employer may suspend the employee with pay upon the effective
date of discharge, pending the determination of the hearing
examiner.
Sec. 5. The employer may, without notice, suspend with pay an
employee pending discharge if:
(1) the employer reasonably believes the nature of the
employee's misconduct warrants immediate suspension; or
(2) the suspension is for just cause as enumerated in
IC 20-17-1-6(8) and IC 20-17-1-6(10).
In this case, the employer shall afford to the employee, after the
suspension, the formal procedures described in section 1(1) of this
chapter.
Chapter 5. Hearings
Sec. 1. Upon receipt of a written request by an employee subject
to discharge as described in IC 20-17-4-2, the employer shall
request the board to appoint a hearing examiner to preside over
the hearing.
Sec. 2. A hearing examiner has the following duties:
(1) To give the notice provided in section 3 of this chapter.
(2) To schedule the hearing at a specified date, time, and
place, with the authority to postpone the date and time or
change the place for any good cause.
(3) To take full charge of the hearing in accordance with
IC 4-21.5-3-25 and IC 4-21.5-3-26, subject to this chapter.
of law, and final order in the matter.
(5) A party to the board's final decision may seek judicial
review under IC 4-21.5-5.
Sec. 5. The board is authorized to enforce the board's orders
and to take other appropriate action, including reinstating an
employee with back pay.
Chapter 6. Construction
Sec. 1. This article may not be construed to limit the application
of an agreement negotiated between an employer and the
recognized representative of employees with a particular employer.
SECTION 16. An emergency is declared for this act.