Did Florida school districts have to screen noninstructional employees who could access students or school funds?

Plain-English summary

The Polk County School Board's lawyer asked whether noninstructional district employees with specified access to students or school money had to meet level 2 screening standards, whether an exception applied, and whether a district could excuse a disqualifying result. Attorney General Bill McCollum answered yes to screening and no to the proposed employee exception and district-granted exemption. His central reading was that section 1012.465 used mandatory language: covered employees “must meet level 2 screening requirements.” The opinion connected those requirements to the standards in section 435.04 through the statute's legislative history.

The opinion distinguished employees from contractors. Sections 1012.467 and 1012.468 addressed contractors and certain other personnel, but the AG found that neither relieved the covered district employees in the question from screening. He also concluded that a local school district was not a “licensing agency” empowered to grant an exemption from disqualification under section 435.07. These were interpretations of the statutes as they stood in 2007.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Which school employees did the 2007 opinion cover?
The question concerned noninstructional school district employees permitted on school grounds while students were present, employees with direct student contact, and employees with access to or control of school funds. The AG concluded that each of these groups had to meet level 2 screening standards.

Did the contractor exceptions also exempt district employees?
No. The AG said the contractor provisions in sections 1012.467 and 1012.468 did not appear to exempt the noninstructional district employees described in the request. He separately noted that section 1012.468 contained exceptions for certain contractors, law enforcement officers, and ambulance personnel.

Could a school district waive a disqualifying background check?
The AG concluded that local school districts did not qualify as the licensing agencies authorized under section 435.07 to grant exemptions from disqualification. He reasoned that the definition did not reach every employer simply because it employed people.

Why did the AG use section 435.04 for the screening standard?
Sections 1012.465 and 1012.32 referred to level 2 screening without expressly naming section 435.04. The opinion relied on legislative history identifying section 435.04 as the source of the level 2 standards.

Background and statutory framework

Section 1012.465(1), as amended in 2007, made screening mandatory for covered noninstructional employees and contractual personnel. The opinion considered sections 1012.467 and 1012.468 as possible exceptions, then explained why they did not create an exemption for the district employees at issue. For disqualification exemptions, it read section 435.07 with the “licensing agency” definition in section 435.02(3). The AG acknowledged a lack of appellate interpretation or clear legislative history on that definition before agreeing that school districts did not fit it.

Citations and references

• Section 1012.465, Florida Statutes: covered employee screening requirement.
• Section 435.04, Florida Statutes: level 2 screening standards.
• Sections 435.07 and 435.02(3), Florida Statutes: disqualification exemptions and licensing agency definition.
• Sections 1012.467 and 1012.468, Florida Statutes: contractor screening provisions and specified exceptions.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/schools-screening-of-noninstructional-personnel
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1878

Original opinion text

Mr. C. Wesley Bridges II

Polk County School Board Attorney

Post Office Box 391

Bartow, Florida 33831

RE: SCHOOLS–PUBLIC OFFICERS AND EMPLOYEES–SCREENING–screening requirements

for noninstructional personnel in district public schools. ss. 1012.465, 435.02, 435.04,

435.07, Fla. Stat.

Dear Mr. Bridges:

On behalf of the Polk County School Board, you ask substantially the following questions:

1) Must all noninstructional school district employees who are permitted access on school grounds when students are present, who have direct contact with students, or who have access to or control of school funds meet level 2 screening requirements as described in section 435.04, Florida Statutes?

2) If so, does section 1012.465, Florida Statutes, or other authority allow for exemptions, exceptions, or waivers of the requirement that such employees meet level 2 screening requirements?

3) If so, do local school districts constitute licensing departments as contemplated in section 435.07, Florida Statutes, such that they would be authorized to grant exemptions from disqualification under that statute?

Questions One and Two

As your first and second questions are related, they will be answered together.

Section 1012.465(1), Florida Statutes, as amended in 2007, provides:

"Except as provided in s. 1012.467 or s. 1012.468, noninstructional school district employees or contractual personnel who are permitted access on school grounds when students are present, who have direct contact with students or who have access to or control of school funds must meet level 2 screening requirements as described in s. 1012.32."[1] (e.s.)

Section 1012.32, Florida Statutes, sets forth the qualifications for personnel in the public schools of the state. As you note, the statute, rather than describing the level 2 requirements, states in subsection (2)(a) that "[i]nstructional and noninstructional personnel 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, [Florida Statutes,] whichever is applicable."[2]

While sections 1012.465 and 1012.32, Florida Statutes, refer to level 2 screening requirements, neither statute specifically references section 435.04, Florida Statutes. Section 435.04, however, sets forth the level 2 screening standards. An examination of the legislative history regarding the enactment and subsequent amendment of section 1012.465 indicates that the reference in the statute to level 2 screening requirements means those standards set forth in section 435.04.[3]

Section 1012.465(1), Florida Statutes, is phrased in mandatory language.[4] While the statute recognizes two exceptions as provided in sections 1012.467 and 1012.468, Florida Statutes, neither section 1012.467 nor section 1012.468 appear to exempt noninstructional employees from the level 2 screening requirements. Section 1012.467 provides screening requirements for noninstructional contractors.[5] "Noninstructional contractor" is defined by section 1012.467(1)(a), Florida Statutes, to mean

"any vendor, individual, or entity under contract with a school or with the school board who receives remuneration for services performed for the school district or a school, but who is not otherwise considered an employee of the school district. The term also includes any employee of a contractor who performs services for the school district or school under the contract and any subcontractor and its employees."

Section 1012.468, Florida Statutes, creates exceptions to fingerprinting and criminal history checks for certain noninstructural contractors, law enforcement officers, or employees or medical directors of ambulance providers.[6] I am not aware of, nor have you brought to my attention, any exemption from, or exception to, the screening requirements of section 1012.465, Florida Statutes, for noninstructional school district employees who are permitted access on school grounds when students are present, who have direct contact with students, or who have access to or control of school funds.[7]

Accordingly, in light of the mandatory language of section 1012.465, Florida Statutes, and inasmuch as noninstructional school district employees do not fall within the exceptions recognized therein, I am of the opinion that all noninstructional school district employees who are permitted access on school grounds when students are present, who have direct contact with students, or who have access to or control of school funds must meet level 2 screening requirements as described in section 435.04, Florida Statutes.

Question Three

As discussed in the previous question, section 435.04, Florida Statutes, sets forth the level 2 screening standards. Section 435.07, Florida Statutes, provides:

"Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

(1) The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

(a) Felonies committed more than 3 years prior to the date of disqualification;

(b) Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions;

(c) Offenses that were felonies when committed but are now misdemeanors;

(d Findings of delinquency; or

(e) Commissions of acts of domestic violence as defined in s. 741.30."

Section 435.02(3), Florida Statutes, defines "Licensing agency" as

"any state or county agency which grants licenses or registration permitting the operation of an employer or is itself an employer. When there is no state licensing agency or the county licensing agency chooses not to conduct employment screening, "licensing agency" means the Department of Children and Family Services."

The above provision does not appear to have been the subject of interpretation by the appellate courts nor did a review of the legislative history surrounding the enactment of the statute indicate any evidence of legislative intent. You state that you do not believe that the school district constitutes a "licensing agency" such that it may grant exemptions pursuant to section 435.07, Florida Statutes. In the absence of judicial or legislative clarification, I concur in that conclusion. I am of the view that the above definition of "licensing agency" would appear to encompass permitting or licensing agencies including those licensing agencies which are themselves employers. I cannot conclude that the above definition is broad enough to include any employer. Such an interpretation would appear to be inconsistent with the intent underlying such statutes as section 1012.465, Florida Statutes.

Accordingly, I am of the opinion that local school districts do not constitute licensing departments as contemplated in section 435.07, Florida Statutes, such that they would be authorized to grant exemptions from disqualification under that statute.

Sincerely,

Bill McCollum

Attorney General

BM/tjw

--------------------------------------------------------------

[1] The statute provides that contractual personnel include any vendor, individual, or entity under contract with a school or the school board. The statute was amended by s. 6, Ch. 07-207, Laws of Fla., to recognize the exceptions provided in ss. 1012.467 and 1012.468 which were created by the 2007 legislation.

[2] Section 1012.56, Fla. Stat., relates to educator certification requirements. And see ss. 1012.32(2)(b) and (c), Fla. Stat., setting forth qualifications for instructional or noninstructional personnel in charter schools and alternative schools, respectively.

[3] See Senate Staff Analysis and Economic Impact Statement on CS/SB 2986 (enacted as Ch. 04-295, Laws of Fla.), p. 9, dated April 5, 2004, stating:

"The bill creates s. 1012.465, F.S., to provide for background screening requirements for certain noninstructional school district employees or contractors who have direct contact with students or who have access to or control of school funds. These individuals must meet the level 2 screening requirements in s. 435.04, F.S., for initial employment. They are also subject to level 2 background screenings every five years and are required to resubmit their fingerprints if for any reason the FDLE does not retain the prints as required by law. Costs may be borne by the district school board, the contractor, or the person being fingerprinted."

And see The Florida Senate Professional Staff Analysis and Economic Impact Statement on CS/SB 988 (enacted as Ch. 07-207, Laws of Fla.), p. 3, n.1, dated March 25, 2007, recognizing that the Legislature in the past several years has increasingly required individuals who come into contact with students to submit to Level 2 background checks and noting that "Level 2 background screening standards (disqualifying offenses) are enumerated in s. 435.04, F.S."

[4] See, e.g., Mallory v. Harkness, 895 F. Supp. 1556 (S.D. Fla. 1995), affirmed without opinion,109 F.3d 771 (11th Cir. Fla. 1997) (term "must" generally does not allow for any choice when used in a statute and means of compulsion, obligation, or requirement).

[5] Section 1012.467, Fla. Stat., was created by s. 7, Ch. 07-207, Laws of Fla.

[6] See s. 1012.468(2), Fla. Stat. For noninstructional contractors exempt from the screening requirements, s. 1012.468(3)(a), Fla. Stat., provides that such contractors are subject to a search of his or her name or other identifying information against the registration information regarding sexual predators and sexual offenders maintained by the Department of Law Enforcement under s. 943.043 and the National Sex Offender Public Registry maintained by the United States Department of Justice.

[7] Cf. s. 1012.321, Fla. Stat., providing that instructional personnel who are required to undergo level 2 background screening under s. 393.0655 or s. 402.305 and who meet the level 2 screening standards in s. 435.04 are not required to be rescreened in order to satisfy the screening requirements in s. 1012.32 if the instructional personnel:

"(1) Have completed the criminal history check within 5 years prior to having direct contact with students;

(2) Are rescreened every 5 years and meet the level 2 screening standards; and

(3) Have their fingerprints retained by the Department of Law Enforcement."