33-1210. INFORMATION ON PAST JOB PERFORMANCE. (1) As used in this section:

(a) "Applicant" means an applicant for employment in a certificated or noncertificated position who is currently or was previously employed by a school district.

(b) "Employer" means a school district employer.

(2) Before hiring an applicant, a school district shall request the applicant to sign a statement:

(a) Authorizing the applicant’s current and past employers, including employers outside of the state of Idaho, to release to the hiring school district all information relating to the job performance and/or job related conduct, if any, of the applicant and making available to the hiring school district copies of all documents in the previous employer’s personnel files established pursuant to sections 33-517 or 33-518, Idaho Code, or investigative or other files, regardless of whether or not the employee has received notice of the existence of such documentation due to a voluntary separation from employment or the employee’s refusal to sign such documents, relating to the job performance by the applicant. Upon separation of employment, all documents from any other file, including an investigative file, shall be moved into the personnel file. The requirement to submit investigative files to the personnel file shall not be construed to be a waiver of the attorney client privilege. Names of any student, fellow employee or complainant, other than the employee’s administrative supervisor or administrative author shall be redacted from investigative file documents prior to placement in the personnel file. The former employee shall be provided a copy of the documents and written notice of the inclusion of the information in the personnel file to the former employee’s last known address. The former employee shall be permitted the opportunity to file a rebuttal to the new documents placed into the personnel file. If an ongoing personnel investigation was taking place, the contents of the district’s investigative file shall be forwarded to the professional standards commission when the district submits the report required pursuant to section 33-1208A, Idaho Code.

(b) Documentation related to the job performance or job related conduct of any employee/applicant is defined as and may be limited by the producing district to include: all annual evaluations, letters of reprimand, letters of direction, letters of commendation or award, disciplinary actions and documentation of disciplinary investigations, recommendations for probation, notices of probation, notices of removal from probation, recommendations for termination or nonrenewal, notices of termination or nonrenewal, notices from the professional standards commission of Idaho or any other such similar state agency of action taken against an individual’s certificate and any rebuttal documentation filed by the employee relative to any of the above documents. Names of any student or fellow employee complainant, other than the employee’s administrative evaluator or administrative author of communication to the employee, shall be redacted from such provided documentation.

(c) Releasing the applicant’s current and past employers, and employees acting on behalf of that employer, from any liability for providing information described in paragraph (a) of this subsection, as provided in subsection (4) of this section.

(3) Before hiring an applicant, a school district shall request in writing, electronic or otherwise, the applicant’s current and past public school employers, including out-of-state employers, to provide the information described in subsection (2)(a) of this section, if any. The request shall include a copy of the statement signed by the applicant under subsection (2) of this section.

(4) Not later than twenty (20) business days after receiving a request under subsection (3) of this section, a school district within Idaho shall provide the information requested and make available to the requesting school district copies of all documents in the applicant’s personnel record relating to job performance. The school district, or an employee acting on behalf of the school district, who in good faith discloses information under this section either in writing, printed material, electronic material or orally is immune from civil liability for the disclosure. An employer is presumed to be acting in good faith at the time of the disclosure under this section unless the evidence establishes one (1) or more of the following: (a) that the employer knew the information disclosed was false or misleading; (b) that the employer disclosed the information with reckless disregard for the truth; or (c) that the disclosure was specifically prohibited by a state or federal statute.

(5) A hiring district shall request from the office of the superintendent of public instruction verification of certification status, any past or pending violations of the professional code of ethics, any detail as to any prior or pending conditions placed upon a certificate holder’s certificate, any prior or pending revocation, suspension or the existence of any prior letters of reprimand and information relating to job performance as established by the provisions of subsection (11) of this section, if any, for applicants for certificated employment.

(6) A school district shall not hire an applicant who does not sign the statement described in subsection (2) of this section.

(7) School districts may employ applicants on a noncontracted provisional basis pursuant to the provisions of this section. Once the prior employer personnel performance materials have arrived for an individual provisionally hired, the district must review the documents within thirty (30) days of receipt. A standard certificated contract shall automatically be issued at the end of the thirty (30) day review period unless, prior to the expiration of the thirty (30) day period, the board articulates in writing the specific information received pursuant to subsection (2)(a) of this section, which justifies the decision not to issue a standard contract. The reason articulated in this decision must derive only from the documents received in the personnel file and cannot be based upon any event that has occurred during the status as a noncontracted provisional certified professional employee. Prior to issuing a standard certificated contract or prior to the decision not to issue a standard certificated contract, or upon the expiration of the thirty (30) day period, an individual employed as a noncontracted provisional certificated professional employee shall be provided with the same compensation and benefits as if the employee had been employed on a standard certificated contract. When requests are sent to out-of-state employers under subsection (3) of this section, an applicant who has signed the statement described in subsection (2) of this section shall not be prevented from gaining employment in Idaho public schools if the laws or policies of that other state prevent documents from being made available to Idaho school districts or if the out-of-state school district fails or refuses to cooperate with the request.

(a) If no documentation is going to be forthcoming from an out-of-state employer, the Idaho district may initially employ the applicant on a standard contract and not utilize the conditional basis employment.

(b) For new employees with no prior public school work experience or for applicants whose out-of-state former employers will not release documentation pursuant to this statute, the district board shall develop a policy to confirm prior work experience and check references.

(8) Information received pursuant to this section shall be used by a school district only for the purpose of evaluating an applicant’s qualifications for employment in the position for which he or she has applied. Except as otherwise provided by law, a board member or employee of a school district shall not disclose the information to any person, other than the applicant, who is not directly involved in the process of evaluating the applicant’s qualifications for employment. A person who violates the provisions of this subsection may be civilly liable for damages caused by such violation.

(9) Beginning September 1, 2011, the board or an official of a school district shall not enter into any resignation agreement, severance agreement, or any other contract or agreement that has the effect of suppressing information about negative job performance by a present or former employee or of expunging information about that performance or unethical conduct from any documents in the previous employer’s personnel, investigative or other files relating to job performance by the applicant. Any provision of a contract or agreement that is contrary to this subsection is void and unenforceable. This subsection does not restrict the expungement from a personnel file of information about alleged verbal or physical abuse or sexual misconduct that has not been substantiated.

(10) This section does not prevent a school district from requesting or requiring an applicant to provide information other than that described in this section.

(11) By September 1, 2012, the state board of education has the authority to and shall adopt rules defining job standards performance and "verbal abuse," "physical abuse," "sexual misconduct" and "unethical conduct" as defined in the code of ethics for Idaho professional educators for application to all certificated and noncertificated employees. The definitions of job standards performance, verbal and physical abuse and sexual misconduct adopted by the state board of education must include the requirement that the school district has made a determination that there is sufficient information to conclude that the abuse or unethical conduct occurred and that the abuse or unethical conduct resulted in the employee’s leaving his or her position at the school district.

History:

[33-1210, added 2011, ch. 246, sec. 3, p. 666; am. 2012, ch. 210, sec. 2, p. 568.]