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Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts
©2018 (c) Liebert Cassidy Whitmore
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d. Access to Criminal Records
The Education Code provides procedures for accessing the criminal records of non-academic
employees.
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This provision describes the preparation of identification cards by local law
enforcement that are then forwarded to the Department of Justice for background checks.
However, the procedure differs from that of academic employees
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in two key respects:
The section states that for each person employed, or to be employed in a
non-academic position, the governing board “
shall
” within 10 working days
of the date of employment, require the employee to have identification cards
prepared by a local law enforcement agency.
Rather than utilize the Department of Justice, a district with full-time
equivalent students of at least 60,000 may process the cards itself.
Substitute and temporary employees, employed for less than a school year, may be exempted
from these provisions. Further, the section does not apply to a district that has an average daily
attendance of at least 400,000, or to a community college district wholly within a city and
county, unless the governing board provides for adherence to this rule.
4. S
TUDENT
E
MPLOYEES
The Education Code provides that, notwithstanding any other provision of law to the contrary, a
governing board may employ any student enrolled in the district who is an ex-convict or who is
on parole, other than a person determined to be a sexual psychopath, to perform non-instructional
duties.
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Such students are not considered classified employees.
5. O
THER
O
FFENSES
If the prospective employee has not been convicted of a crime specified above, the District must
consider hiring that person as long as the prospective employee is otherwise qualified for the job.
Thus, in deciding whether to hire an individual with a criminal record, an employer must assess
the candidate’s ability to perform the essential functions of the job. An employer must evaluate
the applicant’s circumstances to determine if the conviction is sufficiently serious, recent and job
related to disqualify him or her from the job.
In other words, in the case of an applicant, a district should be prepared to demonstrate why the
particular offense makes the applicant unsuitable for the position. For current employees, a
district will have to show that the offense giving rise to the conviction constitutes cause to
terminate. For academic employees, this will mean satisfying one of the grounds set out in
Education Code section 87732 (e.g. immoral conduct, unprofessional conduct, etc.) For
classified employees cause would be demonstrated based upon the provisions of district policy in
non-merit districts or by statute in merit districts.
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