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2004 Opinions

December 14, 2004
Nathan A. Adams, IV
(850) 245-0442
205-0442
04-07
None
Date:
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Memorandum Opinion

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Subject:
Nancy M. Alfonso
Daniel J. Woodring, Esquire
General Counsel
Vendor Personnel Screening Requirements Under Section 1012.465 and Section 1012.32, Florida Statutes

Question Presented: Does Section 1012.465, Florida Statutes, require screening of all noninstructional personnel of vendors with direct student contact contracting with the school district to provide work-study or clinical experience for students on and off campus; services which are administered to students by regulated individuals including counselors, nurses, dentists, therapists and other day care and healthcare providers; or services on campus not directly involving students? Can the school district rely upon screenings conducted by other school districts of vendors’ noninstructional personnel?

Answer: Section 1012.465 and 1012.32(2)(a), Florida Statutes, explicitly require certain work-study, clinical and other vendor personnel to be screened and explicitly excuse others from screening as set forth below, but are unclear whether additional vendor personnel who have not contracted with a school district, charter school or other covered entity but who are providing services to students must be screened. School districts must make their own decisions about additional vendor personnel subject to screening, rather than rely upon screenings conducted by other school districts and covered entities.

  • Vendor personnel who contract with a school district, charter school or other covered entity and who have direct contact with students on or off campus must undergo screening.
  • Vendor personnel who have direct contact with students on or off campus and who would otherwise have to be replaced by school district staff for mandatory programs or credentials must undergo screening.
  • Vendor personnel who have access to or control of school funds must undergo screening.
  • Vendor personnel who do not have direct contact with students and do not have access to or control of school funds do not need to undergo screening.
  • Non-personnel or clients of vendors are not required to be screened.

Analysis: Section 1012.32(2)(a), Florida Statutes, states, "Instructional and noninstructional personnel1 who are hired or contracted to fill positions requiring direct contact with students in any district school system or university lab school shall, upon employment or engagement to provide services, undergo background screening as required under s. 1012.465 or s. 1012.56, whichever is applicable." Section 1012.32(2)(b), Florida Statutes, applies the same requirement to charter schools; Section 1012.32(2)(c), Florida Statutes, to “an alternative school that operates under contract with a district school system”; and Section 1012.32(2)(d), Florida Statutes, to student teachers, persons participating in pre-service field experience pursuant to s. 1004.04(6) or s. 1004.85, and persons participating in a short-term experience as a teacher assistant pursuant to s. 1004.04(10) in any district school system, lab school, or charter school.

Section 1012.32(2), Florida Statutes, requires that fingerprints be submitted to the FDLE and FBI. “Persons subject to this subsection found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed, engaged to provide services, or serve in any position requiring direct contact with students. Probationary persons subject to this subsection terminated because of their criminal record have the right to appeal such decisions.” Id. Moral turpitude is “a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.” Rule 6B-4.009(6), Fla. Admin. Code. See also State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933).

Section 1012.465(1), Florida Statutes, referenced by Section 1012.32(2), provides, "Noninstructional school district employees or contractual personnel who have direct contact with students or have access to or control of school funds must meet level 2 screening requirements as described in s. 1012.32." Section 1012.465(2), Florida Statutes, adds a requirement for a level 2 and FBI screening every five years following employment or entry into a contract in a capacity described in subsection (1) and a self-reporting requirement within 48 hours of a conviction or disqualifying offense. Section 1012.465(3), Florida Statutes, states, “If it is found that a person who is employed or under contract in a capacity described in subsection (1) does not meet the level 2 requirements, the person shall be immediately suspended from working in that capacity and shall remain suspended until final resolution of any appeals.”2

Interpreted together, these provisions may be deemed applicable to agreements for work-study or clinical experience, services administered by regulated individuals, and other services to the District. By focusing upon “personnel who are contracted” and “contractual personnel,” Section 1012.32(2)(a) and Section 1012.465(1) explicitly indicate that personnel in privity of contract with the school district, charter school, or other covered entity must be screened. The statutes are less clear whether they should be interpreted broadly to encompass personnel of vendors not contracting with the school district but in fact providing services to students under an agreement. Neither statute references as relevant the location of the direct student contact whether on or off campus or the status of the non-instructional personnel whether as director, officer, “principal,” owner, or employee.

It is unlikely that Section 1012.465(1) is broader than Section 1012.32(2)(a), because the former does not explicitly require contractual personnel to be contracted to fill positions. Nevertheless, Section 1012.465(1) requires them to follow the “screening requirements as described in s. 1012.32.” Agreements between the school district and vendors are not ordinarily thought for the purpose of filling a position, yet may have this effect; i.e., when school districts would otherwise have to make internships or externship services available for mandatory programs or credentials. The statutes require screening for those personnel who would otherwise have to be replaced by school district staff or have access to or control of school funds. The statutes do not require screening of vendor personnel who lack direct contact with students and access to or control of school funds. Additionally, the statutes do not require non-personnel or clients of vendors contracting with the school district to be screened.

Section 1012.32(2)(a), Florida Statutes, requires that relevant vendor personnel “upon … engagement to provide services, undergo background screening as required under s. 1012.465….” Section 1012.465(1) requires screening “as described in s. 1012.32.” The statutes do not explicitly permit the school district to rely upon the screening conducted by another school district for the same service or to rely upon screenings of regulated individuals conducted by professional associations, but school districts may contend that a rule of reasonability applies. Each school district must make its own decision about relevant vendor personnel subject to screening under statutory law even if another school district has conducted vendor screening. Each school district must ensure that screening was conducted properly as to relevant vendor personnel.

Conclusion: Section 1012.465 and 1012.32(2)(a), Florida Statutes, explicitly require certain work-study, clinical and other vendor personnel to be screened and explicitly excuse others from screening as set forth below, but are unclear whether additional vendor personnel who have not contracted with a school district, charter school or other covered entity but who are providing services to students must be screened. School districts must make their own decisions about additional vendor personnel subject to screening, rather than rely upon screenings conducted by other school districts and covered entities.

  • Vendor personnel who contract with a school district, charter school or other covered entity and who have direct contact with students on or off campus must undergo screening.
  • Vendor personnel who have direct contact with students on or off campus and who would otherwise have to be replaced by school district staff for mandatory programs or credentials must undergo screening.
  • Vendor personnel who have access to or control of school funds must undergo screening.
  • Vendor personnel who do not have direct contact with students and do not have access to or control of school funds do not need to undergo screening.
  • Non-personnel or clients of vendors are not required to be screened.

1Section 1012.01(2), Florida Statutes, defines “instructional personnel” as “any K-12 staff member whose function includes the provision of direct instructional services to students” and “K-12 personnel whose functions provide direct support in the learning process of students.” Included in the classification of instructional personnel are classroom teachers, staff responsible for student personnel services, libraries/media specialists, education paraprofessionals, and other instructional staff as defined in Section 1012.01(2), Florida Statutes. “Noninstructional personnel” are not defined, but impliedly include all others.

2Section 1012.56(2)(d), Florida Statutes, is a parallel provision to 1012.465(1), Florida Statutes, but pertains to instructional personnel. Section 1012.56(2)(d), Florida Statutes, provides that to be eligible for an educator certification, a person must submit to a background screening in accordance with s. 1012.56(9), which requires in subsection (a), “Each person who seeks certification under this chapter must meet level 2 screening requirements as described in s. 1012.32 unless a level 2 screening has been conducted by a district school board or the Department of Education within 12 months before the date the person initially obtains certification.” Section 1012.56(9)(b) adds a requirement for a level 2 and FBI screening every five years following certification and a self-reporting requirement within 48 hours of a conviction or disqualifying offense. Section 1012.56(9)(c), Florida Statutes, states “If it is found under s. 1012.796 that a person who is employed in a position requiring certification under this chapter does not meet the level 2 screening requirements, the person’s certification shall be immediately revoked or suspended and he or she shall be immediately suspended from the position requiring certification.”

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