The Jessica Lunsford Act And Its Impact On Florida School Districts
Mike Bowling, Attorney
Bell, Leeper & Roper, P.A.

Effective September 1, 2005, Florida Statute §1012.465 was amended in response to the assault and murder of Jessica Lunsford, a 9 year old Citrus County student.  She was killed  allegedly at the hands of a registered sex offender who was working as a subcontractor at her school.  Though the goals of this Act are laudable, the School Districts subject thereto have been provided limited guidance, and no financial support, to effect compliance therewith.  Further, there are certain inconsistencies with regard to the application of the Act.

Prior to September 1, 2005, non-instructional employees and/or contractual personnel, who had direct contact with students were required to meet level 2 screening requirements as described in Florida Statute §1012.32.  As relevant hereto, the Statute required that non-instructional personnel under contract, who have direct contract with students must undergo background screening.  Such screening requires that the persons fingerprints be taken and submitted to the FDLE and the FBI for processing.  If it is found that such person has been convicted of a crime involving moral turpitude he or she would not be allowed to serve in any capacity requiring direct contact with students.

The amendment to  §1012.465, in material part, increases the group of persons subject to screening from those with direct contact with students to also include those who are permitted access on school grounds when students are present.  Further, the definition of contractual personnel was expanded to include any vendor, individual, or entity under contract with the School Board.

It is fair to say that the group of persons now subject to screening has increased exponentially.  Now included are the food service delivery person, the copy machine repairman, the person who fills the coke machines, construction workers, paid sports officials, litigation counsel and so on.  Basically, anyone who is paid by a School Board, or who works for an employer paid by a School Board, who comes on campus when students may be present, must be screened.

However, a glaring omission in the class of persons subject to screening are school volunteers.  Individual volunteers provide myrid valuable services at public schools.  For example, these persons mentor, chaperone, tutor, and provide administrative services.  Their level of direct student contact is typically substantially greater than that of the average vendor employee.  Nevertheless, volunteers are not subject to level 2 screening.

Also of concern is the absence of any statewide definition of what constitutes a “crime of moral turpitude”.  The Act leaves the definition of such term to the considered judgment of each district.  The absence of a settled definition is problematic.

The Florida Department of Education, at Rule 6B-4.009(6) F.A.C., defines moral turpitude as “a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes moral turpitude.”  This definition provides little practical assistance to the School District faced with the question, for example, of whether public intoxication is an act of moral turpitude.  Further, the handful of reported cases addressing this Rule provide little guidance with regard to the application of the term “moral turpitude.”

In that each School District is free to set its own definition of what conduct constitutes moral turpitude, the fact that a person meets one districts standard does not necessarily mean he or she will satisfy the standard of another district.  As such contract employees who provide on

campus services in multiple School Districts will be required to undergo screening in each district.  This procedure invites the curious result of a person satisfying one district’s standard but failing another’s.  Regardless, even if there were a statewide moral turpitude definition, there exists no centralized State registry of persons who have satisfied a district’s screening requirements.

Another potential problem relates to the confidential nature of the background screening results.  These results must be separately maintained from district public records and may only be disclosed to the individual or another School District.  If an individual fails the background screening he or she must be immediately suspended from working on school grounds.  Section 1012.465(2) imposes upon the disqualified individual the duty to inform his employer of same within 48 hours.  District personnel should never discuss with the employer the reasons or factual basis for the employee’s disqualification.

A disqualified employee has the right to challenge the accuracy of the criminal history information provided to the School District.  The review procedures are set forth in Rule 116-8001, F.A.C.  Generally, this procedure involves an administrative hearing between the individual and the reporting criminal justice agency.

Unfortunately, there is little practical advice that we can provide regarding compliance with the Act.  With respect to guidance, the only useful source is the FDLE’s Technical Assistance Bulletin-Jessica Lunsford Act- August 2005.  There is also an August 26, 2005, memorandum from Florida Senator Evelyn Lynn clarifying that though the Act sets forth September 1, 2005, as its effective date, School Boards are only expected to be moving toward level 2 screening by that date.  It is not expected that such screening should have been completed by September 1, 2005.

From a litigation standpoint, the impact of the Act is unclear. In our opinion a School Board which fails to comply with the Act, and which has a student injured by a person who would not have satisfied level 2 screening, will likely be held negligent as a matter of law.  On the other hand, it is possible that the courts will hold that a School Board which has complied with the Act will not be liable for injuries caused by vendor/subcontractor employees who have cleared level 2 screening.

No one questions the estimable purpose and potential value of this Act.  However, the Act appears to have been drafted and enacted in haste.  The legislature seems not to have thoroughly considered the monumental burden imposed upon the School Districts in effecting compliance.  Likewise, the financial burden imposed upon vendors and contractors in absorbing screening costs, typically ranging from $60 to $90 per employee, does not appear to have been factored into the Act.

To address some of the problems of the Act, amendments to same are already being considered. Specifically, the addition of a requirement that school volunteers be screened, and that a state screening registry be created, are being discussed.  These amendments would increase the efficiency, and reduce the burden, of the Act.