§ 3035 — Duties of commissioner; submission of fingerprints

§ 3035. Duties of commissioner; submission of fingerprints. 1. The\ncommissioner shall submit to the division of criminal justice services\ntwo sets of fingerprints of prospective employees as defined in\nsubdivision three of section eleven hundred twenty-five of this chapter\nreceived from a school district, charter school or board of cooperative\neducational services and of prospective employees received from\nnonpublic and private elementary and secondary schools pursuant to title\ntwo of this chapter, and the division of criminal justice services\nprocessing fee imposed pursuant to subdivision eight-a of section eight\nhundred thirty-seven of the executive law and any fee imposed by the\nfederal bureau of investigation. The division of criminal justice\nservices and the federal bureau of investigation shall forward such\ncriminal history record to the commissioner in a timely manner. For the\npurposes of this section, the term "criminal history record" shall mean\na record of all convictions of crimes and any pending criminal charges\nmaintained on an individual by the division of criminal justice services\nand the federal bureau of investigation. All such criminal history\nrecords sent to the commissioner pursuant to this subdivision shall be\nconfidential pursuant to the applicable federal and state laws, rules\nand regulations, and shall not be published or in any way disclosed to\npersons other than the commissioner, unless otherwise authorized by law.\n 2. No cause of action against the commissioner, the department or the\ndivision of criminal justice services for damages related to the\ndissemination of criminal history records pursuant to this section shall\nexist when the commissioner, department or division of criminal justice\nservices has reasonably and in good faith relied upon the accuracy and\ncompleteness of criminal history information furnished to it by\nqualified agencies. The provision of such information by the division of\ncriminal justice services shall be subject to the provisions of\nsubdivision sixteen of section two hundred ninety-six of the executive\nlaw. The consideration of such criminal history record by the\ncommissioner shall be subject to article twenty-three-A of the\ncorrection law.\n 3. (a) Clearance. After receipt of a criminal history record from the\ndivision of criminal justice services and the federal bureau of\ninvestigation the commissioner shall promptly notify the appropriate\nschool district, charter school, board of cooperative educational\nservices, or nonpublic or private elementary or secondary school whether\nthe prospective employee to which such report relates is cleared for\nemployment based upon his or her criminal history. All determinations to\ngrant or deny clearance for employment pursuant to this paragraph shall\nbe performed in accordance with subdivision sixteen of section two\nhundred ninety-six of the executive law and article twenty-three-A of\nthe correction law. When the commissioner denies a prospective employee\nclearance for employment, such prospective employee shall be afforded\nnotice and the right to be heard and offer proof in opposition to such\ndetermination in accordance with the regulations of the commissioner.\n (b) Conditional clearance. When the commissioner receives a request\nfor a determination on the conditional clearance of a prospective\nemployee, the commissioner, after receipt of a criminal history record\nfrom the division of criminal justice services, shall promptly notify\nthe prospective employee and the appropriate school district, charter\nschool, board of cooperative educational services, or nonpublic or\nprivate elementary or secondary school that the prospective employee to\nwhich such report relates is conditionally cleared for employment based\nupon his or her criminal history or that more time is needed to make the\ndetermination. If the commissioner determines that more time is needed,\nthe notification shall include a good faith estimate of the amount of\nadditional time needed. Such notification shall be made within fifteen\nbusiness days after the commissioner receives the prospective employee's\nfingerprints. All determinations to grant or deny conditional clearance\nfor employment pursuant to this paragraph shall be performed in\naccordance with subdivision sixteen of section two hundred ninety-six of\nthe executive law and article twenty-three-A of the correction law.\n 3-a. Upon request from a prospective employee who has been cleared by\nthe commissioner for employment and/or certification, the commissioner\nshall have the authority to forward a copy of such criminal history\nrecord to the city school district of the city of New York by the most\nexpeditious means available. Furthermore, upon notification that such\nprospective employee is employed by the city school district of the city\nof New York, the division of criminal justice services shall have the\nauthority to provide subsequent criminal history notifications directly\nto the city school district of the city of New York. Upon request from a\nprospective employee who has been cleared for licensure and/or\nemployment by the city school district of the city of New York, such\nschool district shall have the authority to forward a copy of the\nprospective employee's criminal history record to the commissioner, by\nthe most expeditious means available, for the purposes of this section.\nFurthermore, upon notification that such prospective employee is\nemployed by a school district outside the city of New York, the division\nof criminal justice services shall have the authority to provide\nsubsequent criminal history notifications directly to the commissioner.\n 4. The fee provisions of subdivision two of section three thousand\nfour-b of this chapter shall apply to criminal history records searches\nconducted pursuant to this section; provided however that,\nnotwithstanding the provisions of any other law: (a) the fees associated\nwith an employee participating in a public assistance employment\nprogram, pursuant to title nine-B of article five of the social services\nlaw, or receiving employment services through the federal temporary\nassistance for needy families block grant pursuant to appropriations to\nthe office of temporary disability assistance, shall be paid by the\nsocial services district making such employment placement or assignment\nand the cost of such fees, if not subject to full reimbursement under\nsuch federal block grant, shall be deemed to be an employment services\nadministrative expense. In no event shall such a participant described\nherein be required to personally pay any fee imposed by the division of\ncriminal justice services or the federal bureau of investigation or any\nother fee for the purpose of conducting a criminal history records\nsearch; and (b) any prospective employee, including, notwithstanding any\nprovision of law to the contrary, a prospective employee applying for a\nposition in a school district within a city with a population of one\nmillion or more, may submit a request to a governing body of a school\ndistrict, on a form prescribed by the commissioner, that the fees\nimposed for conducting a criminal history records check be waived. Such\ngoverning body may grant such a request if such governing body\ndetermines that payment of such a fee would impose an unreasonable\nfinancial hardship on the applicant or his or her family and, upon such\ndetermination, the governing body shall pay such fee on behalf of the\nprospective employee to the appropriate authority.\n 5. The commissioner and the division of criminal justice services\nshall enter into an agreement for the purposes of implementing the\nprovisions of this section.\n 6. Nothing in this section shall be construed or interpreted to alter\nor in any way diminish the integrity of collective bargaining agreements\nnegotiated between an employer and any certified or authorized\ncollective bargaining agent, with respect to payment of fees for\ncriminal history records searches, nor to diminish any rights pursuant\nto such agreements.\n