Citations Affected: IC 5-2; IC 20-5; IC 20-6.1; IC 20-8.1; IC 34-13; IC 34-30; IC 35-42.
Synopsis: School employees and children. Allows supervised group
living facilities and community mental retardation and other
developmental disabilities centers that have been in existence for at
least 10 years to obtain limited criminal history records without charge.
Enables the professional standards board to suspend a teacher's license
for certain noncriminal behaviors. Requires certain officials to report
when a teacher is convicted of certain crimes. Provides uniformity in
the grounds for which licenses may be revoked and the contracts of
permanent and semipermanent teachers may be canceled concerning
sexual misconduct with a minor. Requires governmental entities to pay
civil judgments on behalf of employees who are sued because of
actions taken within the scope of their employment.
Effective: July 1, 2002.
January 7, 2002, read first time and referred to Committee on Corrections, Criminal and
January 24, 2002, amended, reported favorably _ Do Pass.
February 1, 2002, read second time, amended, ordered engrossed.
February 4, 2002, engrossed.
February 5, 2002, read third time, passed. Yeas 48, nays 0.
A BILL FOR AN ACT to amend the Indiana Code concerning
education and criminal history information.
SECTION 1. IC 5-2-5-5, AS AMENDED BY P.L.272-2001,
SECTION 2, AND AS AMENDED BY P.L.228-2001, SECTION 2, IS
AMENDED AND CORRECTED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2002]: 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;
following noncriminal justice organizations:
(1) Federally chartered or insured banking institutions.
(2) Officials of state and local government for any of the
of following purposes:
and with a state or local governmental
(3) Segments of the securities industry identified under 15 U.S.C. 78q(f)(2).
(c) Any person who uses limited criminal history for any purpose not specified under this section commits a Class A misdemeanor.
SECTION 2. IC 5-2-5-7 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 7. (a) Except as provided in subsection (c), on request for release or inspection of a limited criminal history, law enforcement agencies may and the department shall do the following:
(1) Require a form, provided by them, to be completed. This
information shall be maintained for a period of two (2) years and
shall be available to the record subject upon request.
(2) Collect a three dollar ($3) fee to defray the cost of processing a request for inspection.
(3) Collect a seven dollar ($7) fee to defray the cost of processing a request for release. However, law enforcement agencies and the department may not charge the fee for requests received from the parent locator service of the child support bureau of the division of family and children.
(b) Law enforcement agencies and the department shall edit information so that the only information released or inspected is information which:
(1) has been requested; and
(2) is limited criminal history information.
(c) The fee required under subsection (a) shall be waived if the request is from the institute for conviction information that will be used to establish or update the sex and violent offender registry under IC 5-2-12.
SECTION 3. IC 5-2-5-13, AS AMENDED BY P.L.272-2001, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 13. (a) The department may not charge a fee for responding to a request for the release of a limited criminal history record if the request is made by a nonprofit organization:
(1) that has been in existence for at least ten (10) years; and
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 the individual before or not later than three (3) months after the individual'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.
(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.
(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 employee's employment.
(6) Each individual that:
(A) seeks to enter into a contract to provide services to a school corporation; or
(B) is employed by an entity that seeks to enter into a contract with a school corporation;
may be required at the time the contract is formed to comply with the procedures described in
subdivision (4)(A) and (4)(B). The
school corporation either may require that the individual or the
contractor comply with the procedures described in subdivision
(4)(C) or (5). subdivisions (2), (4), and (5). An individual who
is employed by an entity that seeks to enter into a contract
with a school corporation may be required to provide the
consent described in subdivision (2) or the information
described in subdivisions (4) and (5) to either the individual's
employer or the school corporation. Failure to comply with
subdivisions (2), (4), and (5), as required by the school
corporation, is grounds for termination of the contract.
(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 or IC 5-2-5-15.
SECTION 5. IC 20-6.1-3-7, AS AMENDED BY P.L.37-2000, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 7. (a) On the written recommendation of the state superintendent, the board may revoke or suspend a license for:
(2) misconduct in office;
(3) incompetency; or
(4) willful neglect of duty.
However, for each revocation or suspension, the board shall comply with IC 4-21.5-3.
(b) This subsection applies when a prosecuting attorney knows that a licensed employee of a public school (as defined in IC 20-10.1-1-2) or an accredited nonpublic school has been convicted of an offense listed in subsection (d). The prosecuting attorney shall immediately give written notice of the conviction to the following:
(1) The state superintendent.
(2) Except as provided in subdivision (3), the superintendent of the school corporation that employs the licensed employee or the equivalent authority for an accredited nonpublic school.
(3) The presiding officer of the governing body of the school corporation that employs the licensed employee, if the convicted licensed employee is the superintendent of the school corporation.
(c) The superintendent of a school corporation, presiding officer of the governing body, or equivalent authority for an accredited nonpublic school shall immediately notify the state superintendent when the person knows that a current or former licensed employee of
the public school
corporation or accredited nonpublic school has been
convicted of an offense listed in subsection (c). (d).
(c) (d) The board, after holding a hearing on the matter, shall
permanently revoke the license of a person who is known by the board
to have been convicted of any of the following offenses:
(1) Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age.
(2) Criminal confinement (IC 35-42-3-3), if the victim is less than eighteen (18) years of age.
(3) Rape (IC 35-42-4-1), if the victim is less than eighteen (18) years of age.
(2) (4) Criminal deviate conduct (IC 35-42-4-2), if the victim is
less than eighteen (18) years of age.
(3) (5) Child molesting (IC 35-42-4-3).
(4) (6) Child exploitation (IC 35-42-4-4(b)).
(5) (7) Vicarious sexual gratification (IC 35-42-4-5).
(6) (8) Child solicitation (IC 35-42-4-6).
(7) (9) Child seduction (IC 35-42-4-7).
(8) (10) Sexual misconduct with a minor (IC 35-42-4-9).
(9) (11) Incest (IC 35-46-1-3), if the victim is less than eighteen
(18) years of age.
(12) Dealing in a controlled substance (IC 35-48-4-1 through IC 35-48-4-5).
(d) (e) A license may be suspended by the state superintendent as
specified in IC 20-6.1-4-13.
SECTION 6. IC 20-6.1-4-10, AS AMENDED BY P.L.228-2001, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 10. (a) An indefinite contract with a permanent teacher may be canceled in the manner specified in section 11 of this chapter
for only for one (1) or more of the following grounds:
(2) Insubordination, which means a willful refusal to obey the state school laws or reasonable rules prescribed for the government of the school corporation.
(3) Neglect of duty.
(5) Justifiable decrease in the number of teaching positions.
(6) A conviction for one (1) of the following:
(A) Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age.
(B) Criminal confinement (IC 35-42-3-3), if the victim is less than eighteen (18) years of age.
student, before the person may take disciplinary action under this
section, the person must consult the following:
(1) A teacher, if any, who is involved in the matter giving rise to possible disciplinary action against the student.
(2) A classroom teacher of the student.
(c) Disciplinary action under this section may include the following:
(1) Counseling with a student or group of students.
(2) Conferences with a parent or group of parents.
(3) Assigning additional work.
(4) Rearranging class schedules.
(5) Requiring a student to remain in school after regular school hours to do additional school work or for counseling.
(6) Restricting extracurricular activities.
(7) Removal of a student by a teacher from that teacher's class for a period not to exceed:
(A) five (5) class periods for middle, junior high, or high school students; or
(B) one (1) school day for elementary school students;
if the student is assigned regular or additional school work to complete in another school setting.
(8) Assignment by the principal of:
(A) a special course of study;
(B) an alternative educational program; or
(C) an alternative school.
(9) Assignment by the principal of the school where the recipient of the disciplinary action is enrolled of not more than one hundred twenty (120) hours of service with a nonprofit organization operating in or near the community where the school is located or where the student resides. The following apply to service assigned under this subdivision:
(A) A principal may not assign a student under this subdivision unless the student's parent or guardian approves:
(i) the nonprofit organization where the student is assigned; and
(ii) the plan described in clause (B)(i).
A student's parent or guardian may request or suggest that the principal assign the student under this subdivision.
(B) The principal shall make arrangements for the student's service with the nonprofit organization. Arrangements must include the following:
(i) A plan for the service that the student is expected to perform.
governmental entity answers that the employee acted outside the scope
of the employee's employment, the plaintiff may amend the complaint
and sue the employee personally. An amendment to the complaint by
the plaintiff under this subsection must be filed not later than one
hundred eighty (180) days from the date the answer was filed and may
be filed notwithstanding the fact that the statute of limitations has run.
(c) A lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is:
(2) clearly outside the scope of the employee's employment;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the allegations.
(d) Subject to the provisions of sections 4, 14, 15, and 16 of this chapter, the governmental entity shall pay any judgment, compromise, or settlement of a claim or suit against an employee when
(1) the act or omission causing the loss is within the scope of the
employee's employment, regardless of whether the employee can
or cannot be held personally liable for the loss. and
(A) governor in the case of a claim or suit against a state
(B) governing body of the political subdivision, in the case of
a claim or suit against an employee of a political subdivision;
determines that paying the judgment, compromise, or settlement
is in the best interest of the governmental entity.
(e) The governmental entity shall provide counsel for and pay all costs and fees incurred by or on behalf of an employee in defense of a claim or suit for a loss occurring because of acts or omissions within the scope of the employee's employment, regardless of whether the employee can or cannot be held personally liable for the loss.
(f) This chapter shall not be construed as:
(1) a waiver of the eleventh amendment to the Constitution of the United States;
(2) consent by the state of Indiana or its employees to be sued in any federal court; or
(3) consent to be sued in any state court beyond the boundaries of Indiana.
SECTION 12. IC 34-30-2-84.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2002]: Sec. 84.5. IC 20-6.1-3-7 (Concerning
a person who makes a report concerning a teacher).
SECTION 13. IC 35-42-4-7, AS AMENDED BY P.L.228-2001, SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 7. (a) As used in this section, "adoptive parent" has the meaning set forth in IC 31-9-2-6.
(b) As used in this section, "adoptive grandparent" means the parent of an adoptive parent.
(c) As used in this section, "child care worker" means a person who:
(1) provides care, supervision, or instruction to a child within the scope of the person's employment in a
public or private school or
shelter care facility; or
(2) is employed by a:
(A) school corporation; or
(B) nonpublic school;
attended by a child who is the victim of a crime under this chapter.
(d) As used in this section, "custodian" means any person who resides with a child and is responsible for the child's welfare.
(e) As used in this section, "nonpublic school" has the meaning set forth in IC 20-10.1-1-3.
(f) As used in this section, "school corporation" has the meaning set forth in IC 20-10.1-1-1.
(g) As used in this section, "stepparent" means an individual who is married to a child's custodial or noncustodial parent and is not the child's adoptive parent.
(f) (h) If a person who is:
(1) at least eighteen (18) years of age; and
(A) guardian, adoptive parent, adoptive grandparent, custodian, or stepparent of; or
(B) child care worker for;
a child at least sixteen (16) years of age but less than eighteen (18) years of age;
engages with the child in sexual intercourse,
or deviate sexual conduct
(as defined in IC 35-41-1-9), with the child, or any fondling or
touching with the intent to arouse or satisfy the sexual desires of
either the child or the adult, the person commits child seduction, a
Class D felony.