Due Diligence in Hiring

When hiring a new employee, the Revised School Code requires that schools: (1) obtain a criminal history and criminal records check from both the Michigan State Police (MSP) and the FBI; (2) perform an “unprofessional conduct” check; and (3) ascertain certification status when necessary. Schools should also ensure that each applicant completes and signs USCIS Form I-9 before beginning employment to verify the applicant’s identity and authorization to work in the U.S.

Employment Eligibility: I-9 Documentation

All U.S. employers must properly complete an I-9 for citizens and noncitizens they hire for employment in the U.S. The form is used to verify the person’s identity and employment authorization. To ensure compliance with the law, an employer must:

• verify the identity and employment auth-orization of each person they hire;
• complete and retain a Form I-9, Employment Eligibility Verification, for each employee; and
• refrain from discriminating against individuals on the basis of national origin, citizenship, or immigration status.

School officials can access the current version of Form I-9 here: https://www.uscis.gov/i-9.

Criminal History and Records Checks

Revised School Code Sections 1230 and 1230a require that every school district, intermediate school district, public school academy, and nonpublic school request both a criminal history check from the MSP and a criminal records check through the FBI: (1) upon an offer of initial employment to any individual to be hired for full-time or part-time employment; and (2) when school officials learn that an individual is being assigned to regularly and continuously work under contract in any school.

The law requires every applicant for employment to give written consent to conduct the criminal history and records checks. A school generally must obtain the criminal history record information (CHRI) before employing the individual as a regular employee or allowing the individual to regularly and continuously work under contract in any of its schools.

If a school needs to hire an individual during a school year, or within 30 days before the beginning of a school year, it may only employ the individual as a conditional employee without first receiving the CHRI if: (1) the board or governing body requests the required criminal history and records check before conditionally employing the individual; and (2) the individual signs a statement identifying all crimes for which he or she has been convicted, if any, and agrees that if the CHRI is inconsistent with the individual’s statement, his or her employment contract is voidable at the school’s option. A model statement may be found on pages 54-55 of the current MDE Office of Professional Preparation Services’ Reference Manual, which is available here.

If an employment contract is voided as described above, the individual’s employment is terminated and any collective bargaining agreement that would have otherwise applied to the individual’s employment does not apply. The school is not liable for a termination that complies with Sections 1230 and 1230a.

Sections 1230 and 1230a prohibit schools from employing an individual in any capacity or allowing an individual to regularly and continuously work under contract if the CHRI discloses that the individual has been convicted of a “listed offense” and the CHRI is verified using public records. Examples of listed offenses include: accosting or soliciting a child for immoral purposes, child sexually abusive activity or material, criminal sexual conduct, and pandering.

When the CHRI discloses that an individual has been convicted of a felony other than a listed offense, and the CHRI has been verified using public records, the school must not employ the individual in any capacity or allow the individual to regularly and continuously work under contract unless the superintendent or chief administrator and the board or governing body of the school both approve the employment or work assignment in writing.

The CHRI received by a school must only be used for evaluating an individual’s qualifications for employment or assignment. School employees and board members must not disclose the CHRI, except for a CHRI that reveals a felony conviction or a misdemeanor conviction involving sexual or physical abuse, to any person who is not directly involved in evaluating the applicant’s qualifications for purposes of employment or assignment. The unlawful disclosure of a report or its contents constitutes a misdemeanor punishable by a fine of up to $10,000.

Unprofessional Conduct Check

Section 1230b requires that schools run an unprofessional conduct check on an applicant for employment. “Unprofessional conduct” means “1 or more acts of misconduct; 1 or more acts of immorality, moral turpitude, or inappropriate behavior involving a minor; or commission of a crime involving a minor.” Unprofessional conduct does not require a criminal conviction, nor is it limited to sexual misconduct. The Michigan Court of Appeals has interpreted Section 1230b “misconduct” to include “conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of [its] employee.”

Before hiring any applicant for employment, a school must obtain a signed statement from the applicant that: (1) allows the applicant’s current and former employers to disclose all information from the applicant’s personnel files relating to unprofessional conduct; and (2) releases the current or former employer from any liability for providing the information. Section 1230b further requires that a school contact “at least the applicant’s current employer or, if the applicant is not currently employed, the applicant’s immediately previous employer” to provide unprofessional conduct information. A copy of the applicant’s signed statement allowing disclosure must accompany each request.

An employer that receives a Section 1230b request for information must respond within 20 business days. Absent bad faith, school officials are entitled to immunity when they disclose unprofessional conduct committed by a former employee in response to a Section 1230b request. School officials should contact every former employer of an applicant to ensure a comprehensive unprofessional conduct check. All information concerning an applicant’s or employee’s unprofessional conduct should be maintained separately from that individual’s personnel file to avoid an unintentional disclosure. This information must only be used for the purpose of evaluating an applicant’s qualifications for employment. A person who violates this restriction can be found guilty of a misdemeanor punishable by a fine of not more than $10,000.

School officials can use Thrun Policy Service Form 4205-F to help ensure Section 1230b compliance. Please contact Lucas Savoie at LSavoie@​ThrunLaw.com for more information about Thrun’s policy service.

Teacher and Administrator Certification

To avoid potential state aid penalties, school officials must ensure that their teachers and administrators hold the appropriate certifications. Revised School Code Section 1233 prohibits schools from allowing a person who lacks a valid teaching certificate to teach a grade or department of a school. A school that allows a noncertificated person to teach is subject to a state aid deduction equal to the FTE foundation allowance provided for the students taught by the teacher during that period.

For administrators, State School Aid Act (SSAA) Section 163 prohibits school officials from employing someone who lacks a valid administrator certificate or permit in any of the following positions: superintendent, principal, assistant principal, or any other person whose primary responsibility is administering instructional programs. Although the law does not define “whose primary responsibility is administering instructional programs,” MDE issued a memo explaining that a person has such a responsibility if the person has “final or executive decision-making responsibility” in at least one of the following areas:

• curriculum;
• oversight of school improvement plan design or implementation;
• oversight of instructional policies;
• executive-level reporting on academic progress to a governing authority; or
• supervision and evaluation of direct reports responsible for instruction.

A school that employs an administrator without a proper certification or permit is subject to a state aid penalty equal to 50% of the administrator’s salary during the period he or she was not certificated.

If MDE notifies a school that it is employing an administrator in violation of SSAA Section 163, the school has 10 business days after notice to discontinue that person’s employment or cure the noncertification status or MDE will impose an increased penalty of 100% of the person’s salary for the period that extends beyond these 10 business days. A school official who continues the employment of a noncertificated administrator could also be charged with a misdemeanor punishable by a fine of $1,500 for each incident.

Under SSAA Section 163(4), the State Superintendent may waive a salary-based state aid penalty by determining that the school could not obtain a substitute permit due to “unusual and extenuating circumstances resulting from conditions not within the control of school authorities.” Under the SSAA, such extenuating circumstances include:

• a natural disaster;
• death or serious illness of the individual or another employee;
• an emergency school closure;
• fraud or other intentional wrongdoing of the individual or another employee; and
• an emergency health condition.

To avoid incurring these state aid penalties, school officials should regularly review all teacher and administrator certifications to ensure they are valid. Certifications can be verified using MDE’s Michigan Online Educator Certification System.