On
August 23, 2019, Governor Pritzker signed Public Act 101-0531 which takes
effect immediately. As further described
in this briefing, the Public Act changes several areas of the School Code. Most notably, the Public Act significantly
changes the procedure for investigating sexual abuse allegations made against a
school district’s staff members, vendors, or volunteers. The Public Act also makes several additional changes
that impact school districts’ hiring processes; applicant and employee
background checks; staff mandated reporting obligations under the Abused and
Neglected Child Reporting Act; and, the suspension of a teacher’s license for
improperly resigning.
Sexual Abuse Investigations
The
Public Act adds Section 22-85 to the School Code. This section requires boards of education to
adopt a policy and procedure governing the investigation of alleged incidents
of sexual abuse upon a child by an employee, school vendor or volunteer
(“school staff member”) either on or off school grounds. This procedure must include the following:
1. If any mandated reporter at a school
becomes aware of an allegation of sexual abuse by a school staff member, he/she
must “immediately” contact DCFS after obtaining the “minimal information
necessary to make a report”.
2. Any incident of alleged sexual abuse
reported to DCFS or local law enforcement which is accepted for investigation
must also be referred by the “entity that received the report” to the local
Children’s Advocacy Center. This
requirement applies to “schools in a county with an accredited Children’s
Advocacy Center.” We recommend that you
become familiar with your local Children’s Advocacy Center’s contact
information and reporting protocols.
3. The school will need to designate a
contact person to communicate with the local Children’s Advocacy Center. This can be the school’s Title IX officer, a
school resource officer or the employee selected to lead the investigation into
the allegation.
4. After a complaint is accepted for
investigation by DCFS or local law enforcement:
a. The school may not interview the alleged victim regarding the details
of the incident until after completion of a forensic interview of the victim by
the Children’s Advocacy Center; and
b. If asked by DCFS or local law enforcement,
the school must provide any evidence the school has gathered to local law
enforcement or DCFS provided said disclosure does not violate State and federal
law.
The Public Act
also creates a process by which school personnel may view the electronic
recordings of the alleged victim, or to interview the alleged victim if there
are delays in the forensic interview or if the school determines that the
information learned from the forensic interview is insufficient to complete the
school’s investigation.
Finally, every two
(2) years each district must review all existing policies and procedures that
it has concerning sexual abuse investigations to ensure compliance with Section
22-85.
Given some of the
procedural requirements to conduct this interview, we recommend you work with
your attorneys to ensure compliance with the new statutory obligations.
Hiring
and Background Checks
Under
the Public Act, the following actions are now required of local school
districts:
- Each
employee must be checked every five (5) years of employment through the
Statewide Sex Offender Database and the Murderer and Violent Offender Against
Youth Database. We recommend that each
District complete this check of all employees who have been employed with the
District for more than five (5) years within the next sixty (60) days and keep
records of the check. You can then
establish a rolling review for all employees employed less than five (5) years
so that this is completed on an annual basis.
- Each
district must “consider” the status of a person with an indicated finding of
abuse or neglect by DCFS or another child welfare agency prior to hire. This does not preclude the hiring of
individuals with an indicated finding but only requires that the finding be
considered. We recommend keeping
information outlining the steps taken in considering the employment of such an
individual and the reasons that a decision was made to hire such a person.
- If
the district becomes aware that an employee has a prohibited conviction under
Section 21B-80 or which requires registration under the Statewide Sex Offender
Database or the Murderer and Violent Offender Against Youth Database, the
district Superintendent is required to notify the State Superintendent in
writing of the conviction or registration within fifteen (15) business days.
Prohibited
Criminal Offenses
The following prohibited convictions have
been added to the School Code by the Public Act:
- Luring
of a Minor – 720 ILCS 5/10-5.1 - Involuntary
Sexual Servitude of a Minor – 720 ILCS 10-9(c) - Solicitation
to Meet with a Child – 720 ILCS 5/11-6.6 - Sexual
Relations within Families – 720 ILCS 5/11-11 - Aggravated
Battery – 720 ILCS 5/12-3.05 - Aggravated
Domestic Battery – 720 ILCS 5/12-3.3 - Criminal
Street Gang Recruitment on School Grounds – 720 ILCS 5/12-6.4 - Hate
Crime – 720 ILCS 5/12-7.1 - Female
Genital Mutilation – 720 ILCS 5/12-34 - Inducement
to Commit Suicide – 720 ILCS 5/12-34.5 - Sexual
Conduct or Sexual Contact with an Animal – 720 ILCS 5/12-35
It
is our opinion that you are not required to terminate any current employees who
were employed prior to August 23, 2019 who have been convicted of one of these
newly added offenses prior to their employment.
Any new applicants for employment would not be eligible for employment
if they have any of these convictions.
In addition, any current employees who are convicted of one of these
offenses subsequent to August 23, 2019 would also be ineligible for employment.
Mandated
Reporting
The Public Act
requires that all mandated reporters employed by a district annually review
ISBE developed materials and DCFS developed materials on reporting
obligations. We recommend that an annual
sign-off sheet or similar acknowledgement be created which documents compliance
with this provision.
The Public Act
also permits the immediate termination of non-licensed employees based upon a
negligent or willful failure to report an instance of suspected child abuse and
further permits the suspension of any licensed employee for the same
conduct.
Another major
change made by the Public Act is that the State Superintendent is required to
immediately suspend the license of any employee “charged” with any offense
prohibited under Section 21-80 of the School Code. While the Public Act does not require it, we
recommend that a school district report any employee charged with a prohibited offense
to the State Superintendent, so that she may fulfill her role in this process.
Teacher Resignations
The
Public Act modifies Section 24-14 of the School Code, which deals with
resignations by teachers. As you are
likely aware, a tenured teacher may only resign after providing thirty (30)
days written notice upon the secretary of a board of education or obtaining the
board’s consent. Moreover, no teacher
(probationary or tenured) may resign during a school term in order to accept
another teaching position without the board of education’s concurrence. As amended, if a teacher resigns improperly
the Board of Education may pass a resolution reflecting that the teacher’s
resignation was not in conformity with Section 24-14 and serve it upon the
State Superintendent. The State
Superintendent is then required to convene an informal evidentiary hearing
within ninety (90) days after the date of the resolution. If it is determined at this hearing that the
resignation was not in conformity with the School Code, the teacher’s license “shall”
be suspended for a period of one (1) year.
A teacher may also agree to a “lesser licensure sanction” in lieu of
such a hearing and finding, at the State Superintendent’s discretion. We are happy to work with your District to
create a resolution that is in conformity with the requirements of the State
Superintendent should you have any resignations which are unauthorized.
As you can see,
the changes made by the Public Act are numerous and will impact several areas
of the day-to-day operations of local school districts. If you have questions regarding the Public
Act or would like recommendations on implementing its new requirements, please
call one of our attorneys in Flossmoor at 708-799-6766 or in Oak Brook at
630-928-1200.