State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_143B > GS_143B-146_16

§ 143B‑146.16. Residential school personnel criminal history checks.

(a)        As used in this section:

(1)        "Criminal history" means a county, state, orfederal criminal history of conviction of a crime, whether a misdemeanor or afelony, that indicates the employee (i) poses a threat to the physical safetyof students or personnel, or (ii) has demonstrated that he or she does not havethe integrity or honesty to fulfill his or her duties as school personnel. Suchcrimes include the following North Carolina crimes contained in any of thefollowing Articles of Chapter 14 of the General Statutes: Article 5A,Endangering Executive and Legislative Officers; Article 6, Homicide; Article7A, Rape and Kindred Offenses; Article 8, Assaults; Article 10, Kidnapping andAbduction; Article 13, Malicious Injury or Damage by Use of Explosive orIncendiary Device or Material; Article 14, Burglary and Other Housebreakings;Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery;Article 18, Embezzlement; Article 19, False Pretense and Cheats; Article 19A,Obtaining Property or Services by False or Fraudulent Use of Credit Device orOther Means; Article 20, Frauds; Article 21, Forgery; Article 26, OffensesAgainst Public Morality and Decency; Article 26A, Adult Establishments; Article27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31,Misconduct in Public Office; Article 35, Offenses Against the Public Peace;Article 36A, Riots and Civil Disorders; Article 39, Protection of Minors; and Article60, Computer‑Related Crime. Such crimes also include possession or saleof drugs in violation of the North Carolina Controlled Substances Act, Article5 of Chapter 90 of the General Statutes, and alcohol‑related offensessuch as sale to underage persons in violation of G.S. 18B‑302 or drivingwhile impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5.In addition to the North Carolina crimes listed in this subdivision, suchcrimes also include similar crimes under federal law or under the laws of otherstates.

(2)        "Residential school personnel" means any:

a.         Employee of a residential school whether full time or parttime, or

b.         Independent contractor or employee of an independentcontractor of a residential school, if the independent contractor carries outduties customarily performed by residential school personnel,

            whether paid with federal, State, local, or other funds,who has significant access to students in a residential school. Residentialschool personnel includes substitute teachers, driver training teachers, busdrivers, clerical staff, houseparents, and custodians.

(b)        The Secretary shall require an applicant for a residentialschool personnel position to be checked for a criminal history before theapplicant is offered an unconditional job. A residential school may employ anapplicant conditionally while the Secretary is checking the person's criminalhistory and making a decision based on the results of the check.

The Secretary shall not require an applicant to pay for the criminal historycheck authorized under this subsection.

(c)        The Department of Justice shall provide to the Secretary thecriminal history from the State and National Repositories of Criminal Historiesof any applicant for a residential school personnel position in a residentialschool. The Secretary shall require the person to be checked by the Departmentof Justice to (i) be fingerprinted and to provide any additional informationrequired by the Department of Justice to a person designated by the Secretary,or to the local sheriff or the municipal police, whichever is more convenientfor the person, and (ii) sign a form consenting to the check of the criminalrecord and to the use of fingerprints and other identifying informationrequired by the repositories. The Secretary shall consider refusal to consentwhen making employment decisions and decisions with regard to independentcontractors.

The Secretary shall not require an applicant to pay for beingfingerprinted.

(d)        The Secretary shall review the criminal history it receiveson a person. The Secretary shall determine whether the results of the reviewindicate that the employee (i) poses a threat to the physical safety ofstudents or personnel, or (ii) has demonstrated that he or she does not havethe integrity or honesty to fulfill his or her duties as residential schoolpersonnel and shall use the information when making employment decisions anddecisions with regard to independent contractors. The Secretary shall makewritten findings with regard to how it used the information when makingemployment decisions and decisions with regard to independent contractors.

(e)        The Secretary shall provide to the State Board of Educationthe criminal history received on a person who is certificated, certified, orlicensed by the State Board. The State Board shall review the criminal historyand determine whether the person's certificate or license should be revoked inaccordance with State laws and rules regarding revocation.

(f)         All the information received by the Secretary through thechecking of the criminal history or by the State Board in accordance withsubsection (d) of this section is privileged information and is not a publicrecord but is for the exclusive use of the Secretary or the State Board ofEducation. The Secretary or the State Board of Education may destroy theinformation after it is used for the purposes authorized by this section afterone calendar year.

(g)        There shall be no liability for negligence on the part ofthe Secretary, the Department of Health and Human Services or its employees, aresidential school or its employees, or the State Board of Education or itsemployees, arising from any act taken or omission by any of them in carryingout the provisions of this section. The immunity established by this subsectionshall not extend to gross negligence, wanton conduct, or intentional wrongdoingthat would otherwise be actionable. The immunity established by this subsectionshall be deemed to have been waived to the extent of indemnification by insurance,indemnification under Articles 31A and 31B of Chapter 143 of the GeneralStatutes, and to the extent sovereign immunity is waived under the Tort ClaimsAct, as set forth in Article 31 of Chapter 143 of the General Statutes. (1998‑131, s. 5.)