January 29, 2010





SENATE BILL No. 242

_____


DIGEST OF SB 242 (Updated January 28, 2010 9:47 am - DI 71)



Citations Affected: IC 20-26; IC 20-28.

Synopsis: School employee records; misconduct. Provides that certain employment records of licensed school employees, including substantiated reports of certain types of misconduct or offenses, must be provided to a school requesting the records as a part of the hiring process. Requires records of substantiated reports of misconduct or offenses be expunged if the subject of the report is formally exonerated. Provides that a school that enters into an agreement with a licensed school employee to suppress information concerning misconduct or ongoing disciplinary investigations or allowing the employee to resign must report the agreement to the state superintendent of public instruction. Requires the department of education to revoke the license of a licensed school employee if the employee is convicted: (1) in another state or under federal statutes of an offense; or (2) of a misdemeanor; that is comparable to the felonies for which the employee's license would be revoked if committed in Indiana. Allows a governing body to withhold salary and employment related benefits from a licensed school employee if there is a substantiated report of certain misconduct or offenses by the employee.

Effective: July 1, 2010.





Merritt , Head




    January 11, 2010, read first time and referred to Committee on Education and Career Development.
    January 28, 2010, reported favorably _ Do Pass.






January 29, 2010

Second Regular Session 116th General Assembly (2010)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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SENATE BILL No. 242



    A BILL FOR AN ACT to amend the Indiana Code concerning education.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 20-26-5.5; (10)SB0242.1.1. -->     SECTION 1. IC 20-26-5.5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]:
     Chapter 5.5. Employee Records
    Sec. 1. (a) As used in this chapter, "licensed school employee" means an individual employed by a school who is licensed for employment by the department.
    (b) As used in this chapter, "school" means:
        (1) a school corporation;
        (2) a charter school;
        (3) an accredited nonpublic school; and
        (4) a school or an educational program operated by:
            (A) the department of correction;
            (B) the Indiana School for the Blind and Visually Impaired; or
            (C) the Indiana School for the Deaf.
    (c) As used in this chapter, "substantiated report" means:
        (1) A report from the department of child services under IC 31-33-8 that substantiates abuse or neglect by a licensed school employee.
        (2) A report from an adult protective services unit under IC 12-10-3 that determines a student to be an endangered adult based on the conduct of a licensed school employee.
        (3) A formal disciplinary action documented in a licensed school employee's personnel file after the employee had an opportunity to challenge and either:
            (A) did not challenge; or
            (B) unsuccessfully challenged;
        the action.
        (4) Formal findings regarding the conduct of a licensed school employee resulting from a hearing or other judicial or administrative proceeding.
    Sec. 2. (a) In reviewing the employment history of an individual who is applying for a position as a licensed school employee with a school, the school may:
        (1) require the individual to provide:
            (A) the name of the school that currently employs the individual;
            (B) the names of all schools that have previously employed the individual; and
            (C) written consent for the current and former school employers to disclose the information requested under subdivision (2); and
        (2) request the following information from the individual's current and former school employers:
            (A) The dates of the individual's employment.
            (B) Whether the individual was the subject of any substantiated reports, including:
                (i) the date of the substantiated report; and
                (ii) the conduct identified in the substantiated report.
            (C) Whether, on the date the school employer receives the request for information, the individual is the subject of an investigation related to an offense set forth under IC 20-28-5-8(c) or IC 20-28-5-8(d).
    (b) A school shall disclose the information requested under subsection (a) to the requesting school in a timely manner.
    (c) A school:
        (1) may provide the information requested under subsection (a) in a standardized form; and
        (2) is not required to provide additional information concerning a substantiated report that is not set forth under subsection (a)(2)(B).
    (d) A school may not use any information received under subsection (a)(2) for any purpose other than the limited purpose of determining whether to employ an individual.
    (e) A school employee who discloses requested information under this section has qualified immunity with respect to providing the information.
    Sec. 3. If a school or the governing body of a school enters into an agreement with a licensed school employee that:
        (1) suppresses or has the effect of suppressing information relating to an ongoing investigation of the employee's alleged involvement in one (1) or more offenses set forth under IC 20-28-5-8(c) or IC 20-28-5-8(d);
        (2) suppresses or has the effect of suppressing a substantiated report concerning the employee;
        (3) allows the employee to resign in order to avoid further investigation, disciplinary action, or termination for immorality, misconduct in office, incompetency, or willful neglect of duty; or
        (4) requires the school to expunge a substantiated report or information about a substantiated report from records maintained by the school regarding the employee;
the superintendent or the equivalent authority in a charter or nonpublic school shall report the terms of the agreement and the name of the employee to the state superintendent not later than ten (10) days after the date on which the school executes the agreement.
    Sec. 4. A collective bargaining agreement entered into under IC 20-29 may not include provisions that are contrary to or preclude a school's authority or duties under this chapter.
    Sec. 5. Upon a current or former licensed school employee's production of written proof of the employee's formal exoneration from the claims set forth in a substantiated report, a school holding a record of the substantiated report shall expunge the substantiated report and any references to the substantiated report from the school's records.

SOURCE: IC 20-28-5-8; (10)SB0242.1.2. -->     SECTION 2. IC 20-28-5-8, AS AMENDED BY P.L.121-2009, SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 8. (a) This section applies when a prosecuting attorney knows that a licensed employee of a public school or a

nonpublic school has been convicted of an offense listed in subsection (c). 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 if a nonpublic school employs the licensed employee.
        (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.
    (b) The superintendent of a school corporation, presiding officer of the governing body, or equivalent authority for a nonpublic school shall immediately notify the state superintendent when the individual knows that a current or former licensed employee of the public school or nonpublic school has been convicted of an offense listed in subsection (c), (d), or (e), or when the governing body or equivalent authority for a nonpublic school takes any final action in relation to an employee who engaged in any offense listed in subsection (c), (d), or (e).
    (c) The department, after holding a hearing on the matter, shall permanently revoke the license of a person who is known by the department to have been convicted of any of the following felonies:
        (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.
        (4) Criminal deviate conduct (IC 35-42-4-2), if the victim is less than eighteen (18) years of age.
        (5) Child molesting (IC 35-42-4-3).
        (6) Child exploitation (IC 35-42-4-4(b)).
        (7) Vicarious sexual gratification (IC 35-42-4-5).
        (8) Child solicitation (IC 35-42-4-6).
        (9) Child seduction (IC 35-42-4-7).
        (10) Sexual misconduct with a minor (IC 35-42-4-9).
        (11) Incest (IC 35-46-1-3), if the victim is less than eighteen (18) years of age.
        (12) Dealing in or manufacturing cocaine or a narcotic drug (IC 35-48-4-1).
        (13) Dealing in methamphetamine (IC 35-48-4-1.1).
        (14) Dealing in a schedule I, II, or III controlled substance

(IC 35-48-4-2).
        (15) Dealing in a schedule IV controlled substance (IC 35-48-4-3).
        (16) Dealing in a schedule V controlled substance (IC 35-48-4-4).
        (17) Dealing in a counterfeit substance (IC 35-48-4-5).
        (18) Dealing in marijuana, hash oil, or hashish (IC 35-48-4-10(b)).
        (19) Possession of child pornography (IC 35-42-4-4(c)).
     (d) The department, after holding a hearing on the matter, shall permanently revoke the license of a person who is known by the department to have been convicted of a federal offense or an offense in another state that is comparable to a felony listed in subsection (c).
     (e) Upon the request of a governing body, the department, after holding a hearing on the matter, shall permanently revoke the license of a person who is known by the department to have been convicted of a misdemeanor that is comparable to a felony listed in subsection (c).
    (f) The department may suspend or revoke under section 7(2) of this chapter the license of a superintendent or the equivalent authority in a charter school, nonpublic school, or state operated school or educational program who fails to comply with the reporting requirements of IC 20-26-5.5-3.

    (d) (g) A license may be suspended by the state superintendent as specified in IC 20-28-7-7.
    (e) (h) The department shall develop a data base of information on school corporation employees who have been reported to the department under this section.

SOURCE: IC 20-28-7-4; (10)SB0242.1.3. -->     SECTION 3. IC 20-28-7-4, AS ADDED BY P.L.1-2005, SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 4. (a) If a permanent or semipermanent teacher is suspended under section 3(8) of this chapter, and except as provided in subsection (b) and IC 20-28-9-18, the governing body may not, while the teacher is suspended, withhold from the teacher any salary payments or other employment related benefits that before the suspension the teacher was entitled to receive.
     (b) The governing body may withhold salary payments and other employment related benefits while a permanent or semipermanent teacher is suspended under section 3(8) of this chapter only if the superintendent has received a substantiated report (as defined in IC 20-26-5.5-1(c)) concerning the teacher.
    (c) If the governing body returns a permanent or

semipermanent teacher to duty, the governing body shall immediately compensate the teacher for the full amount of the salary and other employment related benefits withheld during the period of suspension.

SOURCE: IC 20-28-7-13; (10)SB0242.1.4. -->     SECTION 4. IC 20-28-7-13, AS ADDED BY P.L.1-2005, SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 13. (a) Except as provided in section 4 of this chapter and IC 20-28-9-21, this chapter may not be construed to limit the provisions of a collective bargaining agreement negotiated under IC 20-29. The provisions of a collective bargaining agreement may not alter or preclude a school's authority under section 4 of this chapter and IC 20-28-9-21.
    (b) This chapter does not prohibit a school employer and an exclusive representative from collectively bargaining contracts that alter the requirements of sections 1 through 3, sections 5 through 6, and sections 8 through 12 of this chapter and IC 20-28-9-21 IC 20-28-9-22 through IC 20-28-9-23.
    (c) This chapter may not be construed to limit the rights of a school employer and an exclusive representative (as defined in IC 20-29-2-9) to mutually agree to binding arbitration concerning teacher dismissals.
    (d) If the school employer and the exclusive representative mutually agree to binding arbitration of teacher dismissals:
        (1) the arbitrator shall determine whether the hearing will be open to the public; and
        (2) the written decision of the arbitrator must be:
            (A) presented to the governing body in an open meeting; and
            (B) made available to the public for inspection and copying.
SOURCE: IC 20-28-9-21; (10)SB0242.1.5. -->     SECTION 5. IC 20-28-9-21, AS ADDED BY P.L.1-2005, SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 21. (a) This section and sections 22 through 23 of this chapter apply to the suspension of a teacher without pay when the procedure for the cancellation of the teacher's contract under IC 20-28-7-3 through IC 20-28-7-5 do not apply.
    (b) A teacher may be suspended from duty without pay only for the following reasons:
        (1) Immorality.
        (2) Insubordination, which means the willful refusal to obey the state school laws or reasonable rules prescribed for the government of the school corporation.
        (3) Neglect of duty.
        (4) Substantial inability to perform teaching duties.
        (5) Good and just cause.
         (6) Conduct covered in a substantiated report (as defined in IC 20-26-5.5-1(c)).