COCODE

22-32-109.8. Applicants selected for nonlicensed positions - submittal of form and fingerprints - prohibition against employing persons - department database.

Statute text

(1) Except as otherwise provided in subsection (10) of this section, any person applying to any school district for any position of employment for which a license issued pursuant to article 60.5 of this title 22 is not required and who is selected for such position of employment by such school district shall submit a complete set of fingerprints of such applicant taken by a qualified law enforcement agency, authorized employee of a school district or board of cooperative services and notarized, or any third party approved by the Colorado bureau of investigation in a completed form as specified in subsection (2) of this section. At the request of a school district, a law enforcement agency that has fingerprinting equipment that meets the federal bureau of investigation image quality standards shall take the fingerprints of an applicant pursuant to this section if an approved third-party vendor is not operating within twenty miles of the school district within the law enforcement agency's jurisdiction. A school district employee or board of cooperative services employee may use any fingerprinting equipment that meets the federal bureau of investigation image quality standards. If an approved third party takes the person's fingerprints, the fingerprints may be electronically captured using Colorado bureau of investigation-approved livescan equipment. Third-party vendors shall not keep the applicant information for more than thirty days unless requested to do so by the applicant. The fingerprints and form must be submitted to the school district at the time requested by such school district.

(2) On a form provided by the school district, a selected applicant shall certify, under penalty of perjury, either:

(a) That he has never been convicted of committing any felony or misdemeanor; but not including any misdemeanor traffic offense or traffic infraction; or

(b) That he has been convicted of committing any felony or misdemeanor; but not including any misdemeanor traffic offense or traffic infraction. Such certification shall specify such felony or misdemeanor for which convicted, the date of such conviction, and the court entering the judgment of conviction.

(3) In addition to any other requirements established by law, the submittal of fingerprints and the form pursuant to subsection (1) of this section shall be a prerequisite to the employment of a person in a nonlicensed position in a school district, and no person shall be so employed who has not complied with the provisions of subsection (1) of this section.

(4) (a) Any school district to which fingerprints are submitted pursuant to subsection (1) of this section shall forward such fingerprints to the Colorado bureau of investigation for the purpose of conducting a state and national fingerprint-based criminal history record check utilizing the records of the Colorado bureau of investigation and the federal bureau of investigation.

(b) When the results of a fingerprint-based criminal history record check of an applicant performed pursuant to this subsection (4) reveal a record of arrest without a disposition, the school district shall require that applicant to submit to a name-based judicial record check, as defined in section 22-2-119.3 (6)(d).

(5) (a) A school district may employ a person in a nonlicensed position in the school district prior to receiving the results regarding the selected applicant's fingerprint-based criminal history record check or name-based judicial record check; however:

(I) The school district may terminate the person's employment if the results are inconsistent with the information provided by the person in the form submitted pursuant to subsection (1) of this section; and

(II) The school district shall terminate the person's employment if the results of a fingerprint-based criminal history record check or name-based judicial record check completed on or after August 10, 2011, disclose a conviction for an offense described in subsection (6.5) of this section.

(b) The school district shall notify the proper district attorney of inconsistent results as described in subparagraph (I) of paragraph (a) of this subsection (5) for purposes of action or possible prosecution.

(6) (a) When a school district finds good cause to believe that a nonlicensed person employed by the school district has been convicted of a felony or misdemeanor other than a misdemeanor traffic offense or traffic infraction subsequent to his or her employment, the school district shall require the person to submit to the school district a complete set of his or her fingerprints taken by a qualified law enforcement agency, an authorized employee of the school district or board of cooperative services, or any third party approved by the Colorado bureau of investigation. At the request of a school district, a law enforcement agency that has fingerprinting equipment that meets the federal bureau of investigation image quality standards shall take the fingerprints of an employee pursuant to this section if an approved third-party vendor is not operating within twenty miles of the school district within the law enforcement agency's jurisdiction. A school district employee or board of cooperative services employee may use any fingerprinting equipment that meets the federal bureau of investigation image quality standards. If an approved third party takes the person's fingerprints, the fingerprints may be electronically captured using Colorado bureau of investigation-approved livescan equipment. Third-party vendors shall not keep the applicant information for more than thirty days unless requested to do so by the applicant. The fingerprints shall be submitted within twenty days after receipt of written notification from the school district. The school district shall forward the fingerprints of the person to the Colorado bureau of investigation for the purpose of conducting a state and national fingerprint-based criminal history record check utilizing the records of the Colorado bureau of investigation and the federal bureau of investigation. If the results of the fingerprint-based criminal history record check completed on or after August 10, 2011, disclose a conviction for an offense described in subsection (6.5) of this section, the school district shall terminate the person's employment.

(a.5) When the results of a fingerprint-based criminal history record check of an employee performed pursuant to this subsection (6) reveal a record of arrest without a disposition, the school district shall require that employee to submit to a name-based judicial record check, as defined in section 22-2-119.3 (6)(d).

(b) School districts shall not charge nonlicensed personnel any fees for the direct and indirect costs of the school district for fingerprint processing performed pursuant to the provisions of this subsection (6).

(6.5) (a) Except as provided in paragraph (d) of this subsection (6.5), a person employed in or applying to a school district for employment in a nonlicensed position is disqualified from employment if:

(I) The applicant or employee has been convicted of, or convicted of attempt, solicitation, or conspiracy to commit, one of the following offenses:

(A) Felony child abuse, as described in section 18-6-401, C.R.S.;

(B) A crime of violence, as defined in section 18-1.3-406 (2), C.R.S.;

(D) Except as provided in paragraph (b) of this subsection (6.5), a felony, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3, C.R.S.;

(E) Except as provided in paragraph (b) of this subsection (6.5), a felony drug offense described in part 4 of article 18 of title 18, C.R.S., committed on or after August 25, 2012;

(F) Felony indecent exposure, as described in section 18-7-302, C.R.S.; or

(G) An offense in any other state, the United States, or any territory subject to the jurisdiction of the United States, which, if committed in this state, would constitute an offense described in sub-subparagraphs (A) to (F) of this subparagraph (I);

(II) The applicant or employee fails to submit fingerprints on a timely basis following receipt of the written request from the school district pursuant to subsection (1) or (6) of this section.

(b) The disqualification from employment pursuant to sub-subparagraphs (D) and (E) of subparagraph (I) of paragraph (a) of this subsection (6.5) shall only apply for a period of five years following the date the offense was committed, and, for the offense described in sub-subparagraph (D) of subparagraph (I) of paragraph (a) of this subsection (6.5), the person shall have successfully completed any domestic violence treatment required by the court prior to employment. An employee terminated from employment solely on the basis of the disqualification contained in sub-subparagraphs (D) and (E) of subparagraph (I) of paragraph (a) of this subsection (6.5) may reapply for employment after five years have passed since the date the offense was committed.

(c) Nothing in this subsection (6.5) shall require a second or subsequent fingerprint-based criminal history record check to be conducted for an employee for whom a fingerprint-based criminal history record check has been completed prior to August 10, 2011.

(d) (I) Notwithstanding the disqualification from employment set forth in this subsection (6.5), a school district may employ a person convicted of an offense listed in sub-subparagraphs (D) and (E) of subparagraph (I) of paragraph (a) of this subsection (6.5) after conducting an assessment of the current safety risk posed by the person.

(II) A person who is or would be disqualified from employment pursuant to sub-subparagraphs (D) and (E) of subparagraph (I) of paragraph (a) of this subsection (6.5) may submit a written request to the school district for reconsideration of the disqualification from employment. Reconsideration shall be based upon the school district's assessment of the current safety risk in hiring the person or in continuing the person's employment after considering:

(A) The seriousness and nature of the disqualifying offense;

(B) The time elapsed since the date the offense was committed;

(D) Any other relevant information.

(III) The decision of the school district shall be final.

(7) For purposes of this section, a person is deemed to be convicted of committing a felony or misdemeanor as described in this section if the person has been convicted under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States of an unlawful act which, if committed within this state, would be a felony or misdemeanor.

(8) For purposes of this section:

(a) "Convicted" means a conviction by a jury or by a court and shall also include the forfeiture of any bail, bond, or other security deposited to secure appearance by a person charged with a felony or misdemeanor, the payment of a fine, a guilty plea accepted by a court, a plea of nolo contendere, and the imposition of a deferred or suspended sentence by the court.

(a.5) "Nonlicensed" means a person does not hold, or a position of employment does not require, a license issued pursuant to article 60.5 of this title.

(b) "Position of employment" means any job or position in which any person may be engaged in the service of a school district for salary or hourly wages, whether full time or part time and whether temporary or permanent.

(9) All costs arising from the taking of fingerprints and from any fingerprint processing performed by the Colorado bureau of investigation pursuant to the provisions of this section shall be borne by school districts. Except as otherwise provided in paragraph (b) of subsection (6) of this section, school districts may charge such selected applicants a nonrefundable fee in an amount equal to the direct and indirect costs of such school district for the administration of this section. Said fees shall be credited to the fingerprint processing account and shall be used for the purposes set forth in this section and may not be expended by the school district for any other purpose; however, said fees shall not be used for the purposes set forth in subsection (6) of this section. Any moneys in said account which are not expended during a budget year shall be carried forward and budgeted for the purposes set forth in this section in the next budget year. Such fee may be paid by the selected applicant over a period of sixty days after employment.

(10) (a) The provisions of this section shall not apply to any person who is enrolled as a student in any school district and who is applying to the same school district in which such student is enrolled for a position of employment for which a license issued pursuant to article 60.5 of this title is not required.

(b) (Deleted by amendment, L. 2002, p. 974, 9, effective June 1, 2002.)

(c) Subsections (1) to (4) of this section do not apply to a person who has submitted to a fingerprint-based criminal history record check pursuant to section 22-2-119.3.

(11) (a) Each school district shall submit to the department of education the name, date of birth, and social security number from the human resource electronic data communications and reporting system required by section 22-44-105 (4)(a) for each nonlicensed person employed by the district.

(b) The department of education shall create and maintain a database of all the information submitted pursuant to this subsection (11).

(c) At the beginning of each semester, a school district shall notify the department of education when a nonlicensed employee is no longer employed by the school district, and the department shall purge at least annually the employees' information from the database created pursuant to paragraph (b) of this subsection (11).

(d) On or before August 30 each year, the department of education shall submit a list of all persons employed by each school district in the state for the preceding school year to the Colorado bureau of investigation. The list shall include each employee's name and date of birth.

(12) Nothing in this section shall create for a person a property right in or entitlement to employment or continued employment with a school district or impair a school district's right to terminate employment for a nondiscriminatory reason.

History

Source: L. 90: Entire section added, p. 1113, 3, effective June 7. L. 92: (1), IP(2), (5), (8), and (9) amended and (10) added, p. 517, 1, effective July 1. L. 93: (10) amended, p. 71, 1, effective March 26. L. 2000: (1) and (10)(a) amended, p. 1856, 57, effective August 2. L. 2002: (1), (4), (6)(a), and (10) amended, p. 974, 9, effective June 1. L. 2004: (11) added, p. 381, 1, effective April 8. L. 2006: (11)(d) amended, p. 607, 24, effective August 7. L. 2011: (3), (5), (6), (7), and (8) amended and (6.5) and (12) added, (HB 11-1121), ch. 242, p. 1055, 4, effective August 10. L. 2017: (1) and (6)(a) amended, (SB 17-189), ch. 149, p. 502, 10, effective August 9. L. 2018: (1) amended and (10)(c) added, (SB 18-229), ch. 232, p. 1451, 3, effective August 8. L. 2019: (1) and (6)(a) amended, (HB 19-1186), ch. 94, p. 345, 4, effective April 10; (4), IP(5)(a), and (5)(a)(II) amended and (6)(a.5) added, (HB 19-1166), ch. 125, p. 548, 26, effective April 18. L. 2022: (4)(b), IP(5)(a), (5)(a)(II), and (6)(a.5) amended, (HB 22-1270), ch. 114, p. 521, 27, effective April 21.

Annotations

Cross references: (1) In 2011, subsections (3), (5), (6), (7), and (8) were amended and subsections (6.5) and (12) were added by the "Safer Schools Act of 2011". For the short title, see section 1 of chapter 242, Session Laws of Colorado 2011.

(2) For the legislative declaration in HB 19-1186, see section 1 of chapter 94, Session Laws of Colorado 2019.