September 2017, Vol. 1

Senate Bill 7 pre-employment affidavit

by Joy Baskin

Senate Bill 7, effective September 1, 2017, adds new Texas Education Code section 21.009 (in Section 7 of the bill), which requires applicants for certain positions to complete a pre-employment affidavit indicating whether the applicant has ever been charged with or adjudicated of having an inappropriate relationship with a minor.
 
At this time, no form has been adopted for the affidavit. As the law goes into effect, districts are deciding how to respond.
 
Which applicants are covered? The requirement covers “an applicant” for a position described in Texas Education Code section 21.003(a) and (b), which includes a teacher, teacher intern or teacher trainee, librarian, educational aide, administrator, educational diagnostician, school counselor, audiologist, occupational therapist, physical therapist, physician, nurse, school psychologist, licensed professional counselor, marriage and family therapist, social worker, and speech language pathologist.
 
Which employers are covered? The requirement applies to applicants for positions at a school district, district of innovation, open-enrollment charter school, Education Service Center (ESC), or shared services arrangement.
 
What is required for the affidavit? The statute requires the affidavit to be a form adopted by Texas Education Agency. If disclosing an inappropriate relationship via the affidavit, the applicant must include the relevant facts pertaining to the charge, adjudication, or conviction, and whether or not the charge was determined to be true or false.
 
What consequences can flow from a disclosure on an affidavit? A disclosed charge does not preclude employment if the employer can determine that the charge was false based on the information in the affidavit. A failure to disclose information required on the affidavit is grounds for termination. State Board for Educator Certification (SBEC) may revoke an administrator’s certificate if it is reasonable to believe the administrator employed an applicant in a relevant position and was aware that the applicant had been adjudicated for or convicted of an inappropriate relationship with a minor.
 
What constitutes being charged with an inappropriate relationship for purposes of the affidavit? The terms are not defined further in the new statute. We understand the term charge to refer to a formal criminal charge as documented by a primary charging instrument—a complaint, information, or indictment—under the Texas Code of Criminal Procedure. We infer that the term inappropriate relationship refers to the crime of improper relationship between educator and student in Texas Penal Code section 21.12. SBEC may expand the scope of this term in future rulemaking.
 
Are districts required to do anything if TEA has not yet adopted a form? With so many unanswered questions about the form and substance of the affidavit, we would not encourage districts to attempt to create a homegrown affidavit. The statute specifically says the affidavit will be a form “adopted by” TEA. A locally adopted form would not suffice. Consequently, districts may decide to take no action at this time. If your district uses the model TASB HR Services application form, it already inquires as to adjudicated offenses and includes a verification that the information is true and accurate and a statement that deliberate falsifications, misrepresentations, or omissions of fact may be grounds for rejection or dismissal from employment.
 
Some districts may decide to alter their application forms now, in light of the September 1 effective date for Senate Bill 7, to add a question on the application that reflects the substance of the future affidavit. For example, applications for the relevant positions could include the following:
 
Have you ever been charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor? If so, please state all relevant facts pertaining to the charge, adjudication, or conviction, including, for a charge, whether the charge was determined to be true or false.
 
As a reminder, falsification or omission of required information on an employment application is cause for dismissal from employment. See TASB Policy DFBB (LOCAL) and Haney v. Dallas Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 028-R2-0110 (Feb. 18, 2010) (upholding termination for failure to fully disclose criminal history as well as the seriousness of the crime).
 
Once there is a form, will it have to be notarized? Quite likely, yes. Unless a different meaning is apparent from the context of a statute, Texas Government Code section 312.011 (1) defines affidavit as “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” In other words, unless TEA indicates otherwise, we believe the affidavit must be notarized. In order for the requirement of notarization not to become a barrier to application for employment, districts may offer applicants the opportunity to have the affidavit notarized for free at the school district office.
 
Will the form be required for every applicant or just final applicants? The statute says “an applicant” for a listed position must complete the affidavit. Most districts are likely to interpret that to mean all applicants for those positions, and most are likely to include the affidavit among the documents necessary to complete an application, whether by paper or online. Arguably, the consequences of failing to complete the affidavit do not apply to anyone but the hired applicant. Consult with a school attorney before adopting a process that would require or confirm completion by only the final applicant.
 
As always, if you have questions about this or other topics, we will do our best to assist you at TASB. You can reach TASB Legal Services at 800.580.5345 or legal@tasb.org. You can reach TASB HR Services at 800.580.7782 or hrservices@tasb.org.