FIFTY-FOURTH LEGISLATUREHB 98/a
FIRST SESSION, 2019
March 11, 2019
Mr. President:
Your JUDICIARY COMMITTEE, to whom has been referred
HOUSE BILL 98, as amended
has had it under consideration and reports same with recommendation that it DO PASS, amended as follows:
1. Strike House Judiciary Committee Amendment 1.
2. On page 1, line 13, after "LICENSE", insert "; CREATING EXCEPTIONS".
3. On page 5, line 4, after "required", insert "; and provided further that the prohibition against requiring additional fingerprints shall not apply to the financial institutions division of the department when utilizing the nationwide multistate licensing system and registry".
4. On page 5, between lines 24 and 25, insert the following new section:
"SECTION 2. Section 22-10A-5 NMSA 1978 (being Laws 1997, Chapter 238, Section 1, as amended) is amended to read:
"22-10A-5. BACKGROUND CHECKS--KNOWN CONVICTIONS--ALLEGED ETHICAL MISCONDUCT--REPORTING REQUIRED--[LIMITED IMMUNITY] PENALTY FOR FAILURE TO REPORT.--
A. As used in this section, "ethical misconduct" means unacceptable behavior or conduct engaged in by a licensed school employee and includes inappropriate touching, sexual harassment, discrimination and behavior intended to induce a child into engaging in illegal, immoral or other prohibited behavior.
B. An applicant for initial licensure shall be fingerprinted only upon initial licensure and shall provide two fingerprint cards or the equivalent electronic fingerprints to the department to obtain the applicant's federal bureau of investigation record. Convictions of felonies or misdemeanors contained in the federal bureau of investigation record shall be used in accordance with the Criminal Offender Employment Act. Other information contained in the federal bureau of investigation record, if supported by independent evidence, may form the basis for the denial, suspension or revocation of a license for good and just cause. Records and related information shall be privileged and shall not be disclosed to a person not directly involved in the licensure or employment decisions affecting the specific applicant. The applicant for initial licensure shall pay for the cost of obtaining the federal bureau of investigation record.
C. Local school boards and regional education cooperatives shall develop policies and procedures to require background checks on an applicant who has been offered employment, a contractor or a contractor's employee with unsupervised access to students at a public school.
D. An applicant for employment who has been initially licensed within twenty-four months of applying for employment with a local school board, regional education cooperative or a charter school shall not be required to submit to another background check if the department has copies of the applicant's federal bureau of investigation records on file. An applicant who has been offered employment, a contractor or a contractor's employee with unsupervised access to students at a public school shall provide two fingerprint cards or the equivalent electronic fingerprints to the local school board, regional education cooperative or charter school to obtain the applicant's federal bureau of investigation record. The applicant, contractor or contractor's employee who has been offered employment by a regional education cooperative or at a public school may be required to pay for the cost of obtaining a background check. At the request of a local school board, regional education cooperative or charter school, the department is authorized to release copies of federal bureau of investigation records that are on file with the department and that are not more than twenty-four months old. Convictions of felonies or misdemeanors contained in the federal bureau of investigation record shall be used in accordance with the Criminal Offender Employment Act; provided that other information contained in the federal bureau of investigation record, if supported by independent evidence, may form the basis for the employment decisions for good and just cause. Records and related information shall be privileged and shall not be disclosed to a person not directly involved in the employment decision affecting the specific applicant who has been offered employment, contractor or contractor's employee with unsupervised access to students at a public school.
E. A local superintendent, charter school administrator or regional education cooperative shall report to the department any known conviction of a felony or misdemeanor involving moral turpitude of a licensed school employee that results in any type of action against the licensed school employee.
F. A local superintendent, charter school administrator or director of a regional education cooperative or their respective designees shall investigate all allegations of ethical misconduct about any licensed school employee who resigns, is being discharged or terminated or otherwise leaves employment after an allegation has been made. If the investigation results in a finding of wrongdoing, the local superintendent, charter school administrator or director of a regional education cooperative shall report the identity of the licensed school employee and attendant circumstances of the ethical misconduct on a standardized form to the department and the licensed school employee within thirty days following the separation from employment. Copies of that form shall not be maintained in public school, school district or regional education cooperative records. No agreement between a departing licensed school employee and the local school board, school district, charter school or regional education cooperative shall diminish or eliminate the responsibility of investigating and reporting the alleged ethical misconduct, and any such agreement to the contrary is void. Unless the department has commenced its own investigation of the licensed school employee prior to receipt of the form, the department shall serve the licensed school employee with a notice of contemplated action involving that employee's license within ninety days of receipt of the form. If that notice of contemplated action is not served on the licensed school employee within ninety days of receipt of the form, the form, together with any documents related to the alleged ethical misconduct, shall be expunged from the licensed school employee's records with the department and shall not be subject to public inspection.
G. The secretary may suspend, revoke or refuse to renew the license of a local superintendent, charter school administrator or regional education cooperative director who fails to report as required by Subsections E and F of this section.
[H. A person who in good faith reports as provided in Subsections E and F of this section shall not be held liable for civil damages as a result of the report. The person being accused shall have the right to sue for any damages sustained as a result of negligent or intentional reporting of inaccurate information or the disclosure of any information to an unauthorized person.]"".
5. Renumber the succeeding sections accordingly.
6. On page 7, between lines 3 and 4, insert the following new sections:
"SECTION 4. A new section of the Uniform Licensing Act is enacted to read:
"[NEW MATERIAL] FINGERPRINTS NOT REQUIRED FOR LICENSE RENEWAL.--When a professional or occupational board requires submission of fingerprints as part of the initial license application, and a licensee has provided fingerprints and the license has been issued, the board shall not require a licensee to submit fingerprints again to renew the license, but a licensee shall submit to a background investigation if required."
SECTION 5. Section 61-9-11.2 NMSA 1978 (being Laws 2009, Chapter 51, Section 4) is amended to read:
"61-9-11.2. CRIMINAL BACKGROUND CHECKS.--
A. The board may adopt rules that provide for criminal background checks for all licensees to include:
(1) requiring criminal history background checks of applicants for licensure pursuant to the Professional Psychologist Act;
(2) requiring applicants for licensure to be fingerprinted only upon initial licensure;
(3) providing for an applicant who has been denied licensure to inspect or challenge the validity of the background check record;
(4) establishing a fingerprint and background check fee not to exceed seventy-five dollars ($75.00) to be paid by the applicant; and
(5) providing for submission of an applicant's fingerprint cards to the federal bureau of investigation to conduct a national criminal history background check and to the department of public safety to conduct a state criminal history check.
B. Arrest record information received from the department of public safety and the federal bureau of investigation shall be privileged and shall not be disclosed to persons not directly involved in the decision affecting the applicant.
C. Electronic live fingerprint scans may be used when conducting criminal history background checks."
SECTION 6. Section 61-27B-34 NMSA 1978 (being Laws 2007, Chapter 115, Section 34) is amended to read:
"61-27B-34. BACKGROUND INVESTIGATIONS.--
A. The department shall adopt rules that:
(1) are developed in conjunction with the department of public safety that require background investigations of all persons licensed or registered pursuant to the Private Investigations Act to determine if the person has a criminal history;
(2) require all applicants for licensure or registration to be fingerprinted only upon initial licensure or registration on two fingerprint cards or electronically as required for submission to the federal bureau of investigation to conduct a national criminal history investigation and for submission to the department of public safety to conduct a state criminal history investigation;
(3) provide for an applicant to inspect or challenge the validity of the record developed by the background investigation if the applicant is denied a license or registration; and
(4) establish a fee for fingerprinting and conducting a background investigation for an applicant.
B. Arrest record information received from the federal bureau of investigation and department of public safety shall be privileged and shall not be disclosed to individuals not directly involved in the decision affecting the specific applicant or employee.
C. The applicant shall pay the cost of obtaining criminal history information from the federal bureau of investigation and the department of public safety.
D. Electronic live scans may be used for conducting criminal history investigations."
SECTION 7. Section 61-29-4.4 NMSA 1978 (being Laws 2005, Chapter 35, Section 6, as amended) is amended to read:
"61-29-4.4. ADDITIONAL POWERS OF COMMISSION--FINGERPRINTING AND CRIMINAL HISTORY BACKGROUND CHECKS.--
A. All applicants for licensure as provided for in Chapter 61, Article 29 NMSA 1978 shall:
(1) be required to provide fingerprints only upon initial licensure on two fingerprint cards for submission to the federal bureau of investigation to conduct a national criminal history background check and to the department of public safety to conduct a state criminal history background check;
(2) pay the cost of obtaining the fingerprints and criminal history background checks; and
(3) have the right to inspect or challenge the validity of the records resulting from the background check if the applicant is denied licensure as established by commission rule.
B. Electronic live scans may be used for conducting criminal history background checks.
C. Criminal history records obtained by the commission pursuant to the provisions of this section are confidential. The commission is authorized to use criminal history records obtained from the federal bureau of investigation and the department of public safety to conduct background checks on applicants for certification as provided for in Chapter 61, Article 29 NMSA 1978.
D. Criminal history records obtained by the commission pursuant to the provisions of this section shall not be used for any purpose other than conducting background checks. Criminal history records obtained pursuant to the provisions of this section and the information contained in those records shall not be released or disclosed to any other person or agency, except pursuant to a court order or with the written consent of the person who is the subject of the records.
E. A person who releases or discloses the criminal history records or information contained in those records in violation of the provisions of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."
SECTION 8. Section 61-30-15.1 NMSA 1978 (being Laws 2014, Chapter 33, Section 20) is amended to read:
"61-30-15.1. CRIMINAL HISTORY BACKGROUND CHECKS.--
A. The board may adopt rules that provide for criminal history background checks for all registrants, certified licensees and licensees to include:
(1) requiring criminal history background checks of applicants for registration, certified licensure or licensure pursuant to the Real Estate Appraisers Act;
(2) requiring applicants for registration, or certified licensure or licensure to be fingerprinted only upon initial licensure or registration;
(3) providing for an applicant who has been denied registration or certified licensure or licensure to inspect or challenge the validity of the criminal history background check record;
(4) establishing a fingerprint and criminal history background check fee not to exceed fees as determined by the department of public safety to be paid by the applicant; and
(5) providing for submission of an applicant's fingerprint cards to the federal bureau of investigation to conduct a national criminal history background check and to the department of public safety to conduct a state criminal history background check.
B. Arrest record information received from the department of public safety and the federal bureau of investigation shall be privileged and shall not be disclosed to persons not directly involved in the decision affecting the applicant.
C. Electronic live fingerprint scans may be used when conducting criminal history background checks."".
7. Renumber the succeeding section accordingly.
8. On page 7, line 5, strike "2019" and insert in lieu thereof "2020".
___________________________________
Richard C. Martinez, Chairman
Adopted_______________________ Not Adopted_______________________
(Chief Clerk) (Chief Clerk)
Date ________________________
The roll call vote was 9 For 0 Against
Yes: 9
No: 0
Excused: Martinez, Moores
Absent: None
HB0098JU1.wpd .215016.3