1304 Teacher Registration and Police Vetting Report - 9 April 2013

• Needs to be updated at least every 3 years and new non-teaching staff vetted asap.

Police vetting requirements in relation to board non teaching employees and contractors

The Education Amendment Act 2010 has changed requirements regarding police vetting of non teaching staff and contractors in schools.  This information updates our original advice.

Police vetting: The purpose of vetting is to minimise the likelihood of the more vulnerable members of society (children, older people and those with special needs) being put at risk by individuals who may have displayed behaviour that could be detrimental to others' safety and wellbeing.  Associated with this is the need to ensure that associated risks to an organisation are identified as part of effective employment practices.

All non-teaching employees (s78C) who work at schools are required to undergo a police vet. This vet must be applied for no later than two weeks after the person begins work at the school.  Contractors, and employees of contractors, (s78CA) must be police vetted if they are likely to have unsupervised access to students at the school during normal school hours.  A police vet must be obtained before the person has, or is likely to have, unsupervised access to students at the school during normal school hours (s78CB).

Section 78CD requires that strict confidentiality is observed in the handling of police vets and the person concerned is given reasonable time and opportunity to validate what is in the police vet before any action is taken.

Whilst teaching staff are currently vetted by the Teachers Council as part of their registration process this does not preclude boards from seeking this information if they so choose.  There have been instances where teachers have been subject to police inquiries and possible charges but the matter has not yet been dealt with by the Teachers Council.

All current employees who work at the school during normal school hours must have their police vets renewed every three years.

Boards are not required (although they may choose to do so) to seek a police vet of a person employed solely to provide classes that are usually held outside normal school hours and that are open to people not enrolled full-time at the school.

The normal practice is to make all appointments conditional on a “satisfactory” police vet.  To avoid dispute about what “satisfactory” means this should be discussed with the prospective employee in terms of what the board considers this may mean.

“Satisfactory” vet: In general the view of NZSTA is that this does not contain convictions/information (but of course each case needs to be judged on its own merits) that indicates:

(a)    a person may jeopardise the safety of children, that is, a conviction for sexual offences or offences involving violence

(b)    the person may be a harmful example for children, for instance, convictions involving possession or supply of drugs

(c)    a person is not suitable for the particular job, for instance, fraud/theft convictions if the job involves handling money

Effects on existing employees: In most cases there will be no issue.  The likelihood of negative police vets is not considered to be significant.  There are a variety of potential outcomes from a negative police vet.  It is important to note that each case will be based on the individual circumstances surrounding it. Strict procedures need to be in place to protect the privacy of those being vetted to avoid inappropriate information being released.

Vetting contractors: Contractors and their employees that work in the school during the normal school day and are likely to have unsupervised access to students will need to be vetted.

Vetting others: Boards are not legally required to vet -

(a)    board members

(b)    contractors who will not have unsupervised access to students during the normal school day

(c)    persons employed to teach classes out of normal school hours open to persons other than students

(d)    volunteers, ie, parent helpers – however NZSTA suggests that only those volunteers who are known to be trustworthy and reliable are chosen to assist students/teachers at school or during school trips

How do we vet?: You must apply to the New Zealand Police Licensing and Vetting Service Centre for a vet on non teaching employees or contractors. There is currently no administrative fee attached to the police vetting service.

As the vets are legally compulsory it is technically unnecessary for the person to give “permission” to a vet but the police require that the individual being vetted signs the consent form for privacy purposes.  You should take this opportunity to explain what the process is with the person being vetted and give them an opportunity to check the information you are sending in the application.  This will help put the person at ease and allow them to provide information that may help to distinguish them from others with the same name.

If a contractor is likely to have unsupervised access to students during the school day they must be vetted. A contractor may choose to discontinue their work at the school or change the hours they work in the school grounds rather than undergo a vet. This is a matter to be discussed with each contractor.

If you are asking a prospective employee to be vetted before you give them a confirmed job offer then you should ask for their permission and appropriate information to ensure an accurate vet. Like a contractor a prospective employee may choose to decline a police vet and not continue with their application.

What does a vet show?:  Convictions and “red stamps” – this is where there has been no conviction but the police believe the person should not be around children unsupervised.  For instance, where there was sufficient evidence to bring a case to trial but the trial did not proceed due to the complainant withdrawing the complaint.

What does a vet not show?: Diversion is not shown (but may be drawn from questions in the application form) nor are convictions subject to the Clean Slate Act.  Boards can apply to the police for a disclosure of convictions subject to the Clean Slate Act if they can show the position predominantly involves the care of children as opposed to their education.  This is relevant for special schools.

What do we do with the vet once we have it?: The board must establish internal procedures for dealing with police vets that are received, including identifying the person or office-holder within school to whom police vets must be sent by the Police Licensing and Vetting Service, ensuring that strict confidentiality is observed for police vets.

A board may not take adverse action in relation to a person who is the subject of a police vet until:  the person has validated the information contained in the vet; or the person has been given a reasonable opportunity to validate the information, but has failed to do so within a reasonable period. The result of a police vet may raise employment issues and it is up to each board, as an employer, to decide if the information gained indicates that they must act. Care must be taken that a fair process is followed if a board is considering any action.

If the vet does not reveal any criminal offences or concerns by the police then the vet should be destroyed or handed to the employee or contractor.  A record of the vet having taken place must be kept.

If the vet reveals criminal offences or concerns by the police:  then consideration needs to be given as to whether the information should affect employment at or access to the school. Every situation is different and should be discussed with an NZSTA personnel/industrial relations adviser before any action is taken. Some of the factors that may be looked at are - How serious was the offence? Was it a one-off offence or is there a pattern of offending?

If after considering the nature of an individual’s criminal record the board decides it has no concerns, then the vet should be destroyed or handed to the employee/contractor. A record of the vet having taken place must be kept. 

If a criminal record does raise issues about the suitability of the person in their role at the school then consult with an NZSTA personnel/industrial relations adviser on the correct procedure to follow in each case.

Safeguarding privacy:  The information gained in the vet is confidential and should be treated in the same way as an employee’s personnel file. Access to it should be restricted to the board (as employer), the principal (as chief executive), and any employee tasked with handling the information. It is preferable that this responsibility is delegated by the board to one person to minimise information “leakage” and it would be expected that this would be the principal in most cases (particularly for existing employees).  While the result of a vet is being considered it should be kept in a secure place.  The information must not be retained longer than is required but you need to keep a record that the vet has been undertaken.

What happens next?: Make sure you have the processes worked thorough and operating in your school.  Matters of process for documentation can be directed to the the Police, www.police.govt.nz/service/vetting/guidelines.html, 04 474 9499.  For other issues contact your NZSTA adviser or the helpdesk.  

 Appendix 1: Police vetting procedures

Introduction

The following provides guidelines to boards on appropriate steps to take when developing your procedures for police vetting of new employees. 

In the case of contractors similar principles apply but may also be subject to contractual matters related to the specifics of the contract in that where it is an employee of the contractor they will be subject to their own human resource practices and it will be for the contractor to determine what process to follow. Specific legal advice may be required when letting contracts but as a basic rule you should have in any contract expected levels of behaviour (eg,contractors and their employees are expected to have a satisfactory police vet and maintain appropriate standards of behaviour consistent with the school’s policies).

Procedures

Every board is responsible for taking reasonable measures to protect students from harm (NAG 5) and ensure that all employees maintain proper standards of integrity and conduct (State Sector Act s77A).

Schools will normally have procedures relating to employees, volunteers, and contractors on:

·           recruitment and selection

·           employee information

·           privacy and official information

·           code of conduct/behaviour

·           misconduct

·           use of consultants and contractors

·           use of volunteers

These should be checked to ensure that there is reference to the requirement for obtaining and maintaining a police vet and maintaining appropriate conduct and behaviours.

Preparing to conduct a police vet

A police vet is part of a screening process - not a selection criterion. Before placing police vetting into screening processes, a board should establish screening criteria with:

·           clear guidelines stating which offences are relevant

·           what offences will disqualify an applicant

·           what other factors will be considered, and

·           how the rights of the applicant will be preserved

The school has to determine the amount of risk that it wishes to accept or level of behaviour it deems appropriate.  Correct use of the application form is essential to obtain the appropriate information.

Relevant offences

The offences that boards might consider relevant are a function of the specific position in which a paid employee or contractor will serve.   The question that boards must answer is: "What offence histories would disqualify an individual from serving in such positions?"

When establishing screening criteria, boards must take into account employment and related legislation (eg, Employment Relations Act 2000, Privacy Act 1993).

For positions that require substantial direct contact with children personal safety concerns are paramount. Therefore, the focal points of criminal history record checks for these positions are crimes against persons.

Offences become relevant based upon the nature of the position held at the school.

It is generally practice that individuals should be disqualified from holding positions that require substantial contact with children if their criminal records include any of the following:

·           past history of sexual abuse of children

·           conviction for any crime in which children were involved

·           history of any violence or sexually exploitative behaviour

For other positions the criteria may relate to matters pertaining to the type of work.  For example, if involved in financial matters relating to the school then previous convictions relating to fraud would be relevant.

The more specific a criterion is, the more useful it is for screening. Specific offences pinpoint the areas of concern and do not necessarily disqualify applicants. Some other organisations include broad categories of offences in their lists of disqualifying offences, for example, "drug-related offences". This category encompasses everything from a single misdemeanour possession of less than a gram of marijuana to drug dealing.  Boards should consider narrowing their categories to target specific relevant offences committed within a defined time period.

The main part of the screening process is based on convictions - not arrest information. Boards may, however, consider any arrests for which final disposition is pending. This is especially true for individuals who have charges pending for which they could be disqualified if a guilty verdict were to be reached. For example, if an applicant was arrested for child sexual abuse and is awaiting trial, the organisation may disqualify the individual from appointment until the final disposition of the charge.

Other factors

When establishing criteria for evaluating criminal history records, boards should consider what other factors should be taken into account. The five items listed below offer examples of circumstances that boards may consider when evaluating criminal history records.

Rather than focusing on one or two of these factors, boards should examine the totality of the record to determine if it should disqualify an applicant.

·           How long ago the conduct occurred and the circumstances surrounding the conduct in question - Crimes that occurred within the past year or two may be more reliable indicators than crimes that occurred several years ago. (Keep in mind, however, that any convictions for child sexual abuse, rape, or other sexually exploitative offences constitute an unacceptable level of risk extending throughout an individual’s life.)

·           The age of an individual at the time of the offence - Some records will not be available as they may be protected by confidentiality requirements.

·           Societal conditions that may have contributed to the nature of the conduct - While societal conditions should not serve to excuse illegal behaviour, the context in which the illegal behaviour occurred may be considered (eg the 1981 tour).

·           The probability that an individual will continue the type of behaviour in question - Criminal history records that document a continuing pattern of repeated criminal offences provide justification to believe that the individual represents a high risk for future criminal conduct.

·           The individual’s commitment to rehabilitation and to changing the behaviour in question - When an applicant has a criminal history record that includes potentially disqualifying offences, the board may consider the steps the applicant has taken towards rehabilitation.

Applicants’ rights

Applicants have the right to be treated fairly and to have their privacy respected. Boards are responsible for protecting these rights and therefore may need to establish and implement policies and procedures that achieve these objectives. Criminal history databases are not perfect and sometimes a records check will falsely identify a person as having committed a crime. For this reason, applicants should be given a chance to challenge the accuracy of information that an organisation receives.

It is best to let the applicant resolve any disputes with the appropriate agency (usually the police in the first instance) from which the information is received. Until the board receives a correction from the police, it should assume that the information it received is correct.

Due to the sensitive nature of the information a school may receive pursuant to a criminal history records check and the fact that it could be incorrect, a school must take steps to prevent its accidental disclosure.  Establish policies governing who has access to the information, how it is stored, and how it is to be destroyed once it is no longer needed by the organisation.  Refer to NZSTA 2009 publication “Guidelines for Boards of Trustees: Privacy Act 1993”.

Application forms and offers of appointment

All application forms should have reference to the fact that the appointment will be subject to a satisfactory police vet and have appropriate questions on matters relating to previous convictions.  Use the NZSTA template form for this purpose.

Note: Copies of a suitable application form can be obtained from the NZSTA website.

If an offer of employment is made (either orally or in writing) before the police vet is completed then a statement should be made providing for this:

“Please note in addition, you are required to complete a police vetting check and the offer of employment remains conditional until such time as this has been completed and is satisfactory. To this end the attached form, which confirms your agreement to the necessary information being accessed, will need to be completed and returned.”

Contractors

All contracts (existing and new) should be reviewed to ensure they contain provision for police vetting of those contractors and their employees who are likely to have unsupervised access to students during the normal school day.

 Appendix 2 Vetting: Common Questions and Answers