Section 3035. Duties of commissioner; submission of fingerprints

1. The
  commissioner shall submit to the division of criminal  justice  services
  two  sets  of  fingerprints  of  prospective  employees  as  defined  in
  subdivision three of section eleven hundred twenty-five of this  chapter
  received  from a school district, charter school or board of cooperative
  educational  services  and  of  prospective  employees   received   from
  nonpublic and private elementary and secondary schools pursuant to title
  two  of  this  chapter,  and  the  division of criminal justice services
  processing fee imposed pursuant to subdivision eight-a of section  eight
  hundred  thirty-seven  of  the  executive law and any fee imposed by the
  federal bureau  of  investigation.  The  division  of  criminal  justice
  services  and  the  federal  bureau  of investigation shall forward such
  criminal history record to the commissioner in a timely manner. For  the
  purposes  of this section, the term "criminal history record" shall mean
  a record of all convictions of crimes and any pending  criminal  charges
  maintained on an individual by the division of criminal justice services
  and  the  federal  bureau  of  investigation.  All such criminal history
  records sent to the commissioner pursuant to this subdivision  shall  be
  confidential  pursuant  to  the applicable federal and state laws, rules
  and regulations, and shall not be published or in any way  disclosed  to
  persons other than the commissioner, unless otherwise authorized by law.
    2.  No cause of action against the commissioner, the department or the
  division of  criminal  justice  services  for  damages  related  to  the
  dissemination of criminal history records pursuant to this section shall
  exist  when the commissioner, department or division of criminal justice
  services has reasonably and in good faith relied upon the  accuracy  and
  completeness   of  criminal  history  information  furnished  to  it  by
  qualified agencies. The provision of such information by the division of
  criminal  justice  services  shall  be  subject  to  the  provisions  of
  subdivision  sixteen  of section two hundred ninety-six of the executive
  law.  The  consideration  of  such  criminal  history  record   by   the
  commissioner   shall   be  subject  to  article  twenty-three-A  of  the
  correction law.
    * 3. (a) Clearance. After receipt of a criminal  history  record  from
  the  division  of  criminal  justice  services and the federal bureau of
  investigation the commissioner shall  promptly  notify  the  appropriate
  school  district,  charter  school,  board  of  cooperative  educational
  services, or nonpublic or private elementary or secondary school whether
  the prospective employee to which such report  relates  is  cleared  for
  employment based upon his or her criminal history. All determinations to
  grant  or deny clearance for employment pursuant to this paragraph shall
  be performed in accordance  with  subdivision  sixteen  of  section  two
  hundred  ninety-six  of  the executive law and article twenty-three-A of
  the correction law. When the commissioner denies a prospective  employee
  clearance  for  employment,  such prospective employee shall be afforded
  notice and the right to be heard and offer proof in opposition  to  such
  determination in accordance with the regulations of the commissioner.
    (b)  Conditional  clearance.  When the commissioner receives a request
  for a determination  on  the  conditional  clearance  of  a  prospective
  employee,  the  commissioner, after receipt of a criminal history record
  from the division of criminal justice services,  shall  promptly  notify
  the  prospective  employee  and the appropriate school district, charter
  school, board of  cooperative  educational  services,  or  nonpublic  or
  private  elementary or secondary school that the prospective employee to
  which such report relates is conditionally cleared for employment  based
  upon his or her criminal history or that more time is needed to make the
  determination.  If the commissioner determines that more time is needed,
  the notification shall include a good faith estimate of  the  amount  of

  additional  time  needed. Such notification shall be made within fifteen
  business days after the commissioner receives the prospective employee's
  fingerprints. All determinations to grant or deny conditional  clearance
  for  employment  pursuant  to  this  paragraph  shall  be  performed  in
  accordance with subdivision sixteen of section two hundred ninety-six of
  the executive law and article twenty-three-A of the correction law.
    * NB Effective until July 1, 2010
    * 3. After receipt of a criminal history record from the  division  of
  criminal  justice  services  and the federal bureau of investigation the
  commissioner shall promptly  notify  the  appropriate  school  district,
  charter  school, board of cooperative educational services, or nonpublic
  or private  elementary  or  secondary  school  whether  the  prospective
  employee  to  which  such report relates is cleared for employment based
  upon his or her criminal history. All determinations to  grant  or  deny
  clearance for employment pursuant to this subdivision shall be performed
  in accordance with subdivision sixteen of section two hundred ninety-six
  of  the  executive law and article twenty-three-A of the correction law.
  When the  commissioner  denies  a  prospective  employee  clearance  for
  employment,  such  prospective employee shall be afforded notice and the
  right to be heard and offer proof in opposition to such determination in
  accordance with the regulations of the commissioner.
    * NB Effective July 1, 2010
    3-a. Upon request from a prospective employee who has been cleared  by
  the  commissioner  for employment and/or certification, the commissioner
  shall have the authority to forward a  copy  of  such  criminal  history
  record  to  the city school district of the city of New York by the most
  expeditious means available. Furthermore, upon  notification  that  such
  prospective employee is employed by the city school district of the city
  of  New  York,  the division of criminal justice services shall have the
  authority to provide subsequent criminal history notifications  directly
  to the city school district of the city of New York. Upon request from a
  prospective   employee   who  has  been  cleared  for  licensure  and/or
  employment by the city school district of the city  of  New  York,  such
  school  district  shall  have  the  authority  to  forward a copy of the
  prospective employee's criminal history record to the  commissioner,  by
  the  most expeditious means available, for the purposes of this section.
  Furthermore,  upon  notification  that  such  prospective  employee   is
  employed by a school district outside the city of New York, the division
  of  criminal  justice  services  shall  have  the  authority  to provide
  subsequent criminal history notifications directly to the commissioner.
    4. The fee provisions of subdivision two  of  section  three  thousand
  four-b  of this chapter shall apply to criminal history records searches
  conducted   pursuant   to   this   section;   provided   however   that,
  notwithstanding the provisions of any other law: (a) the fees associated
  with  an  employee  participating  in  a  public  assistance  employment
  program, pursuant to title nine-B of article five of the social services
  law, or receiving employment  services  through  the  federal  temporary
  assistance  for needy families block grant pursuant to appropriations to
  the office of temporary disability assistance,  shall  be  paid  by  the
  social  services district making such employment placement or assignment
  and the cost of such fees, if not subject to  full  reimbursement  under
  such  federal  block grant, shall be deemed to be an employment services
  administrative expense. In no event shall such a  participant  described
  herein  be required to personally pay any fee imposed by the division of
  criminal justice services or the federal bureau of investigation or  any
  other  fee  for  the  purpose  of  conducting a criminal history records
  search; and (b) any prospective employee, including, notwithstanding any
  provision of law to the contrary, a prospective employee applying for  a

  position  in  a  school  district within a city with a population of one
  million or more, may submit a request to a governing body  of  a  school
  district,  on  a  form  prescribed  by  the  commissioner, that the fees
  imposed  for conducting a criminal history records check be waived. Such
  governing  body  may  grant  such  a  request  if  such  governing  body
  determines  that  payment  of  such  a  fee would impose an unreasonable
  financial hardship on the applicant or his or her family and, upon  such
  determination,  the  governing  body shall pay such fee on behalf of the
  prospective employee to the appropriate authority.
    5. The commissioner and the  division  of  criminal  justice  services
  shall  enter  into  an  agreement  for  the purposes of implementing the
  provisions of this section.
    6. Nothing in this section shall be construed or interpreted to  alter
  or in any way diminish the integrity of collective bargaining agreements
  negotiated   between   an  employer  and  any  certified  or  authorized
  collective bargaining  agent,  with  respect  to  payment  of  fees  for
  criminal  history  records searches, nor to diminish any rights pursuant
  to such agreements.