Opinion Number ( 2009 )

Dear Representative Smith:

This office has received your request for an Attorney General's opinion concerning the applicability of R.S. 17:15(A)(1)(b) and17:15(B), as amended by Act 416 of the 2005 Regular Session, to persons hired to provide services in public schools by companies who contract with school boards to provide such services. (We will refer to employees hired by such service companies as "contract employees" in order to distinguish them from school employees hired by the board.)

You indicated in your letter that from 2004 through 2008, a school board awarded contracts to a company for air conditioning maintenance and repair at public schools within its jurisdiction and such services were rendered. You have asked whether R.S. 17:15(A)(1)(b) and 17:15(B), as amended, apply to contract employees hired pursuant to (a) new service contracts awarded by the school board after the effective date of Act 416, and to (b) renewals, after the effective date of the act, of contracts that were originally awarded by the board prior to the effective date. For reasons discussed below, it is the opinion of this office that these two amended provisions apply to all new and renewed contracts executed after the effective date of the act, including the renewals of contracts that were originally awarded prior to the effective date of the act.

R.S. 17:15(A)(1)(a) provides that no person who has been convicted of or has pled nolo contendere to certain enumerated crimes shall be hired by a public school board as a school employee. R.S. 17:15(A)(1)(b), which was added by Act 416, provides that any person employed to provide or maintenance services by a company that contracts with a school board to provide such services shall be considered to be hired by a school system, thereby making this prohibition against hiring applicable to contract employees as well.' R.S. 17:15(A)(1)(a) and (b) provide, in pertinent part, as follows:

(A)(1)(a). No person who has been convicted of or has pled nolo contendere to a crime listed in R.S. 15:587.1 (C) shall be hired by any city, parish, or other local public school board or any nonpublic school or school system as a teacher, substitute teacher, bus driver, substitute bus driver, or janitor, or as a temporary, part-time, or permanent school employee of any kind . . .

(b) For purposes of this Section, any person employed to provide cafeteria, transportation, or janitorial or maintenance services by any person or entity that contracts with a school or school system to provide such services shall be considered to be hired by a school system.

Similarly, R.S. 17:15(B) was amended by Act 416 to make it applicable to contract employees. R.S. 17:15(B) requires school boards to establish, by regulation, requirements and procedures for school systems to determine whether an applicant or employee has been convicted of or pled nolo contendere to the enumerated crimes. These regulations must include the requirement and the procedure for submitting a person's fingerprints in a form acceptable to the La. Bureau of Criminal Identification and Information prior to employment of such person. Prior to 2005, subsection (B) applied only to school employees hired by school boards. Act 416 added language to subsection (B) that made school boards also responsible for these determinations for contract employees. R.S.17:15(B), as amended, provides as follows:

B. Each city, parish, and other local public school board shall establish, by regulation, requirements, and procedures consistent with the provisions of R.S. 15:587.1 under which the school systems shall determine whether an applicant, or employee, including any person employed as provided in Subparagraph (A)(1)(b) of this Section, has been arrested for or convicted of or pled nolo contendere to any criminal offense. Included in this regulation shall be the requirement and the procedure for the submission of a person's fingerprints in a form acceptable to the Louisiana Bureau of Criminal Identification and Information prior to employment of such person. A person who has submitted his fingerprints to the Louisiana Bureau of Criminal Identification and Information may be temporarily hired pending the report from the bureau as to any convictions of or pleas of nolo contendere by the person to a crime listed in R.S. 15:587.1(C), except R.S. 14:74. [Emphasis added.]

La.Const. Art. IV, § 19 provides that all laws enacted during a regular session of the legislature take effect on August 15^th of the calendar year in which they were enacted, unless specified differently. We find no language in Act 416 specifying an earlier or later effective date for these provisions, therefore R.S.17:15(A)(1)(b) and 17:15(B) became effective on August 15, 2005. We turn now to your questions regarding the applicability of these provisions to contract employees hired pursuant to new and renewed contracts awarded by school boards after August 15, 2005.

It is the opinion of this office that R.S. 17:15(A)(1)(b) does not apply to contract employees hired prior to its effective date, but is applicable to contract employees hired after its effective date. This means that no person who has been convicted of or who has pled nolo contendere to any of the enumerated crimes shall be hired as a contract employee pursuant to (a) a new contract awarded after the effective date of Act 416 or pursuant to (b) the renewal of a contract after the effective date of the Act, where the contract was originally awarded prior to the effective date. Subparagraph (A)(1)(b) does not apply to contract employees hired prior to August 15, 2005, because it contains a prohibition against hiring certain persons, but does not address persons already hired on the effective date.

We turn now to the R.S. 17:15(B), which as of August 15, 2005 applies to both school employees and contract employees and requires school boards to submit fingerprints of applicants prior to employment and to obtain their criminal histories. It is the opinion of this office that school boards must submit fingerprints of applicants for contract employment to the Bureau prior to their employment when they are being considered for employment pursuant to (a) a new contract awarded by the board after the effective date of this subsection, as well as pursuant to (b) the renewal of a contract after the effective date, where the contract was originally awarded prior to the effective date. We note in closing, that R.S.17:15(B) allows a person whose fingerprints have been submitted to the Bureau to be temporarily hired pending the report from the Bureau as to any convictions or pleas of nolo contendere to the enumerated crimes.

We trust this adequately addresses your concerns. If you have any additional questions, please contact our office.

With kindest regards,

Yours very truly,

JAMES D. "BUDDY" CALDWELL Attorney General

_________________________ DENISE B. FITZGERALD Assistant Attorney General

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