Current through Register Vol. 56, No. 18, September 16, 2024
(a) As a condition of
securing and maintaining a certificate, the agency shall ensure that a State and
Federal CHRI fingerprint background check, in keeping with
N.J.S.A.
9:3-37 et seq., is completed for the executive
director and each staff member.
1. If the
executive director refuses to consent to or cooperate in a CHRI background check,
the Department shall deny, suspend, revoke, or refuse to renew the certificate, as
applicable. The agency may appeal the denial, suspension, revocation, or refusal to
renew, as specified in
N.J.A.C.
3A:50-2.4.
2. If a staff member refuses to consent to or
cooperate in a CHRI background check, the agency shall immediately terminate the
staff member's employment at the agency.
(b) If any person identified in (a) above has a
record of criminal conviction, the Department or its designee shall review the
record with respect to the type and date of the criminal offense and make a
determination as to the suitability of the person to administer or work at the
agency.
(c) A person shall be
disqualified from administering or working at the agency, if that person ever
committed a crime that resulted in a conviction for:
1. A crime against a child, including endangering
the welfare of a child and child pornography pursuant to
N.J.S.A.
2C:24-4;
2. Abuse, abandonment or neglect of a child
pursuant to
N.J.S.A.
9:6-3;
3. Endangering the welfare of an incompetent
person pursuant to
N.J.S.A. 2C:24-7;
4. Sexual assault, criminal sexual contact or
lewdness pursuant to
N.J.S.A. 2C:14-2
through 4;
5. Murder pursuant to
N.J.S.A. 2C:11-3 or
manslaughter pursuant to
N.J.S.A.
2C:11-4;
6. Stalking pursuant to
N.J.S.A.
2C:12-10;
7. Kidnapping and related offenses including
criminal restraint, false imprisonment, interference with custody, criminal
coercion, or enticing a child into a motor vehicle, structure, or isolated area
pursuant to
N.J.S.A. 2C:13-1 through 5
and
N.J.S.A.
2C:13-6;
8. Arson pursuant to
N.J.S.A.
2C:17-1, or causing or risking widespread injury
or damage, which would constitute a crime of the second degree pursuant to
N.J.S.A.
2C:17-2;
9. Aggravated assault, which would constitute a
crime of the second or third degree pursuant to N.J.S.A. 2C:12-1b;
10. Robbery, which would constitute a crime of the
first degree pursuant to
N.J.S.A. 2C:15-1;
11. Burglary, which would constitute a crime of
the second degree pursuant to
N.J.S.A. 2C:18-2;
12. Domestic violence pursuant to
N.J.S.A. 2C:25-17 et
seq.;
13. Terroristic threats pursuant
to
N.J.S.A.
2C:12-3;
14. An attempt or conspiracy to commit any of the
crimes or offenses listed in (c)1 through 13 above; or
15. In any other state or jurisdiction, conduct
which, if committed in New Jersey, would constitute any of the crimes or offenses
described in (c)1 through 14 above.
(d) As an exception to (c) above, the Department
may approve the employment at, or administration of, an agency by an individual
convicted of a crime specified in (c) above, if all of the following conditions are
met:
1. The Department determines that the crime
does not relate adversely to the position the individual is employed in pursuant to
N.J.S.A.
2A:168A-1 et seq.;
2. The conviction is not related to a crime
committed against a child;
3. The agency
documents that the individual's employment or administration of the agency does not
create a risk to the safety or well-being of children due to the nature and
requirements of the position. As necessary, the agency shall identify restrictions
regarding the individual's contact with, care or supervision of children;
4. The agency documents that the individual is
uniquely qualified for the position due to specific skills, qualifications,
characteristics or prior employment experiences; and
5. The Department determines that the individual
has affirmatively demonstrated rehabilitation, pursuant to the factors specified in
(e) below.
(e) An individual
may be eligible to administer or work at the agency if the individual has
affirmatively demonstrated to the Department clear and convincing evidence of
rehabilitation:
1. In determining whether an
individual has affirmatively demonstrated rehabilitation, the following factors
shall be considered:
i. The nature and
responsibility of the position at the agency that the convicted individual would
hold, has held or currently holds, as the case may be;
ii. The nature and seriousness of the
offense;
iii. The circumstances under
which the offense occurred;
iv. The date
of the offense;
v. The age of the
individual when the offense was committed;
vi. Whether the offense was an isolated or
repeated incident;
vii. Any social
conditions that may have contributed to the offense; and
viii. Any evidence of rehabilitation, including
good conduct in prison or in the community, counseling or psychiatric treatment
received, acquisition of additional academic or vocational schooling, successful
participation in correctional work-release programs or the recommendation of those
who have had the individual under their supervision.
2. Upon receipt of documentation submitted by the
agency, indicating why the individual at issue should not be precluded from
administering or working at the agency, the Department, after assessing the facts on
a case-by-case basis, shall make the final determination regarding the individual's
rehabilitation, in keeping with the provisions of the State Rehabilitated Convicted
Offenders Act,
N.J.S.A.
2A:168A-1 et seq.
3. The Department shall make the final
determination regarding the suitability of the executive director of an agency with
a criminal conviction other than those cited in (c) above.
4. For a current or prospective staff member with
a criminal conviction other than those cited in (c) above, the executive director of
the agency or the agency's board of directors shall make a determination regarding
the individual's suitability upon the Department's determination that the individual
has affirmatively demonstrated rehabilitation.
(f) If the executive director of an agency or
member of the governing board has knowledge that any individual specified in (a)
above has criminal charges pending against the individual, the executive director or
board member shall promptly notify the Department to determine whether or not any
action concerning the individual is necessary in order to ensure the safety of the
children.
(g) If the Department is
notified that any individual specified in (a) above is convicted of a crime or
offense after the CHRI has been completed, the Department shall make a determination
whether to suspend or revoke the certificate or require the agency to terminate the
individual's employment or service, as applicable.
(h) Upon completion of the CHRI for an individual
specified in (a) above, the Department and/or its designee shall notify the
individual, and the agency as applicable, in writing, of the individual's
qualification or disqualification for employment or service under
sections
4 or
5 of
P.L.
2008, c. 114 (N.J.S.A.
9:3-40.5 and
9:3-40.6).
1. If the individual is disqualified, the
convictions that constitute the basis for the disqualification shall be identified
in the written notice to the individual.
2. The individual shall have 14 days from the date
of the written notice of disqualification to challenge the accuracy of the
CHRI.
3. If no challenge is filed or if
the determination of the accuracy of the CHRI upholds the disqualification, the
Department shall notify the agency that the individual has been
disqualified.
4. The agency shall
immediately terminate the disqualified individual's employment at the
agency.
5. If the disqualified
individual is an agency executive director, the Department shall deny, suspend,
revoke, or refuse to renew the certificate, as applicable.
(i) An agency that has received an employment
application from an individual, or currently employs an executive director or staff
member, shall be immune from liability for acting upon or disclosing information
about the disqualification or termination of that individual to another agency
seeking to employ that individual, if the agency has:
1. Received notice from the Department, its
designee, or the agency's board of directors, as applicable, that the applicant,
executive director, or staff member has been determined by the Department or the
board of directors to be disqualified from employment or service at an agency
pursuant to P.L. 1968, c. 282 (N.J.S.A.
2A:168A-1 et seq.); or
2. Terminated the employment of a staff member
because the individual was disqualified from employment or service at the agency on
the basis of a conviction of a crime pursuant to P.L. 1968, c. 282 (N.J.S.A.
2A:168A-1 et seq.) after commencing employment or
service at the agency.
(j) An
agency that acts upon or discloses information pursuant to (i) above shall be
presumed to be acting in good faith unless it is shown by clear and convincing
evidence that the agency acted with actual malice toward the individual who is the
subject of the information.
(k) Upon
termination or separation of an executive director or staff member, the agency shall
immediately notify the Office of Licensing.
