H. B. 3081
(By Delegates Perry, Paxton, Browning,
Canterbury, Hartman and Hrutkay)
[Introduced February 20, 2003; referred to the
Committee on Education then the Judiciary.]
A BILL to amend and reenact section twenty-one, article nine-a,
chapter eighteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and reenact
section seventeen, article five, chapter forty-nine of said
code, all relating to providing for safe schools through
alternative education programs and providing certain juvenile
justice records to public school officials.
Be it enacted by the Legislature of West Virginia:
That section twenty-one, article nine-a, chapter eighteen of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section seventeen,
article five, chapter forty-nine of said code be amended and
reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-21. Funding for alternative education programs.
(a) An appropriation
may of at least eight million dollars
shall be made to the state department to be distributed to county
boards for the operation of alternative education programs
established in accordance with
this section and policies and
procedures adopted by the state board under section six, article
two of this chapter.
Provided, That nothing in this section shall
be construed to require any specific level of funding by the
Legislature: Provided, however, That ninety percent Two million
dollars of
any the appropriation which
may be is made for the
purposes set forth in this section shall be distributed to county
boards on the basis of net enrollment and
ten percent six million
dollars of this appropriation shall be distributed on a competitive
basis to county boards for the operation of pilot or innovative
alternative education programs.
Provided further, That for the
fiscal year beginning the first day of July, two thousand, the
total appropriation which may be made for the purposes set forth in
this section shall be distributed to the county boards on the basis
of net enrollment The state superintendent shall grant county
boards awards for pilot or innovative alternative education
programs based on the following criteria: (1) Programs that will
serve the most students in the alternative program; (2) programs in
elementary schools that utilize in-school suspension and
requirements that alternative students work their way back into the
regular classroom through improved behavior; (3) programs in middle/junior high schools and high schools that provide at least
sixteen hours of instruction per week and requirements that
students work their way back to the regular classroom through
improved behavior; and (4) other criteria specifically related to
ensuring safety in regular classrooms and alternative education
strategies to help improve student behavior and learning.
(b) Each county board shall apply to the state superintendent
for receipt of its share of the distribution in the manner set
forth by the state superintendent which is consistent with the
policies and procedures adopted by the state board for the
establishment and maintenance of alternative education programs.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-17. Confidentiality of juvenile records.
(a) Records of a juvenile proceeding conducted under this
chapter are not public records and shall not be disclosed to anyone
unless disclosure is otherwise authorized by this section.
(b) Notwithstanding the provisions of subsection (a) of this
section, a copy of a juvenile's records shall automatically be
disclosed to certain school officials, subject to the following
terms and conditions:
(1) Only
the records of certain
types of juvenile
juveniles records shall be disclosed. These include and are
limited to cases in which:
(A) The juvenile has been charged with an offense;
which would
be a felony if the juvenile were an adult and
(i) The offense involves violence against another person;
(ii) The offense involves possession of a dangerous or deadly
weapon; or
(iii) The offense involves possession or delivery of a
controlled substance as that term is defined in section one hundred
one, article one, chapter sixty-a of this code; and
(B) The juvenile case has proceeded to a point where one or
more of the following has occurred:
(i) A judge, magistrate or referee has determined that there
is probable cause to believe that the juvenile committed the
offense as charged;
(ii) A judge, magistrate or referee has placed the juvenile on
probation for the offense;
(iii) A judge, magistrate or referee has placed the juvenile
into an improvement period in accordance with section nine, article
five, chapter forty-nine of this code; or
(iv) Some other type of disposition has been made of the case
other than dismissal.
(2) The circuit court for each judicial circuit in West
Virginia shall designate one person to supervise the disclosure of
juvenile records to certain school officials.
(3) If the juvenile attends a West Virginia public school, the person designated by the circuit court shall automatically disclose
all records of a juvenile case to the county superintendent of
schools in the county in which the juvenile attends school. The
person designated by the circuit court shall also automatically
disclose all records of a juvenile case to the principal of the
school which the juvenile attends.
The person designated by the
circuit court shall disclose, at a minimum, the following
information: (A) Copies of the arrest report; (B) copies of all
investigations; (C) copies of any psychological testing reports and
results; (D) copies of any evaluation reports for probation or
facility placement; and (E) any other material that would alert the
school to potential danger that the student may pose to himself,
herself or others: Provided, That the disclosure of the student's
psychological test reports and results shall only be made in
accordance with subdivision (14), subsection (b) of this section:
Provided, however, That the person designated by the circuit court
shall only have to disclose material that had not previously been
disclosed in the juvenile record to the county superintendent and
the school if multiple disclosures are required by subsection (b)
of this section.
(4) If the juvenile attends a private school in West Virginia,
the person designated by the circuit court shall determine the
identity of the highest ranking person at that school, and shall
automatically disclose all records of a juvenile's case to that person.
(5) If the juvenile does not attend school at the time the
juvenile's case is pending, the person designated by the circuit
court shall not transmit the juvenile's records to any school.
However, the person designated by the circuit court shall transmit
the juvenile's records to any school in West Virginia which the
juvenile subsequently attends.
(6) The person designated by the circuit court
shall may not
automatically transmit juvenile records to a school which is not
located in West Virginia. Instead, the person designated by the
circuit court shall contact the out-of-state school, inform it that
juvenile records exist, and make an inquiry regarding whether the
laws of that state permit the disclosure of juvenile records. If
so, the person designated by the circuit court shall consult with
the circuit judge who presided over the case to determine whether
the juvenile records should be disclosed to the out-of-state
school. The circuit judge shall have discretion in determining
whether to disclose the juvenile records, and shall consider
whether the other state's law regarding disclosure provides for
sufficient confidentiality of juvenile records, using this section
as a guide. If the circuit judge orders the juvenile records to be
disclosed, they shall be disclosed in accordance with the
provisions of subdivision (7) of this subsection.
(7) The person designated by the circuit court shall transmit the juvenile's records to the appropriate school official under
cover of a letter emphasizing the confidentiality of such records
and directing the official to consult this section of the code. A
copy of this section of the code shall be transmitted with the
juvenile's records and cover letter.
(8) Juvenile records must be treated as absolutely
confidential by the school official to whom they are transmitted,
and nothing contained within the juvenile's records shall be noted
on the juvenile's permanent educational record. The juvenile
records are to be maintained in a secure location and are not to be
copied under any circumstances. However, the principal of a school
to whom the records are transmitted shall have the duty to disclose
the contents of those records to any teacher who teaches a class in
which the subject juvenile is enrolled and to the regular driver of
a school bus in which the subject juvenile is regularly transported
to or from school. Furthermore, any school official to whom the
juvenile's records are transmitted may disclose the contents of
such records to any adult within the school system who, in the
discretion of the school official, has the need to be aware of the
contents of those records.
(9) If for any reason a juvenile ceases to attend a school
which possesses that juvenile's records, the appropriate official
at that school shall seal the records and return them to the
circuit court which sent them to that school. If the juvenile has changed schools for any reason, the former school shall inform the
circuit court of the name and location of the new school which the
juvenile attends or will be attending. If the new school is
located within West Virginia, the person designated by the circuit
court shall forward the juvenile's records to the juvenile's new
school in the same manner as provided in subdivision (7) of this
subsection. If the new school is not located within West Virginia,
the person designated by the circuit court shall handle the
juvenile records in accordance with subdivision (6) of this
subsection.
If the juvenile has been found not guilty of an offense for
which records were previously forwarded to the juvenile's school on
the basis of a finding of probable cause, the circuit court shall
not forward those records to the juvenile's new school. However,
this shall not affect records related to other prior or future
offenses. If the juvenile has graduated or quit school, or will
otherwise not be attending another school, the circuit court shall
retain the juvenile's records and handle them as otherwise provided
in this article.
(10) Under no circumstances shall one school transmit a
juvenile's records to another school.
(11) Under no circumstances shall juvenile records be
automatically transmitted to a college, university or other
post-secondary school.
(12) No one shall suffer any penalty, civil or criminal, for
accidentally or negligently attributing certain juvenile records to
the wrong person. However, such person shall have the affirmative
duty to promptly correct any mistake that he or she has made in
disclosing juvenile records when the mistake is brought to his or
her attention. A person who intentionally attributes false
information to a certain person shall be subjected to both criminal
and civil penalties, in accordance with subsection (e) of this
section.
(13) If a judge, magistrate or referee has determined that
there is probable cause to believe that a juvenile has committed an
offense but there has been no final adjudication of the charge, the
records which are transmitted by the circuit court shall be
accompanied by a notice which clearly states in bold print that
there has been no determination of delinquency and that our legal
system requires a presumption of innocence.
(14) The county superintendent shall designate a school
psychologist or other appropriately trained person to receive the
juvenile's psychological records. The person designated by the
county superintendent shall review the juvenile's psychological
testing reports and results and shall, in his or her professional
judgment, disclose to the principal of the school that the juvenile
attends, or the juvenile's classroom teachers, or the bus operator
of the bus that the juvenile takes to school, or other school employees who would have a need to know, the results of the
juvenile's psychological test and any behavior that may trigger
violence or other disruptive behavior by the juvenile.
(c) Notwithstanding the provisions of subsection (a) of this
section, juvenile records may be disclosed, subject to the
following terms and conditions:
(1) If a juvenile case is transferred to the criminal
jurisdiction of the circuit court pursuant to the provisions of
subsection (c) or (d), section ten of this article, the juvenile
records shall be open to public inspection.
(2) If a juvenile case is transferred to the criminal
jurisdiction of the circuit court pursuant to the provisions of
subsection (e), (f) or (g), section ten of this article, the
juvenile records shall be open to public inspection only if the
juvenile fails to file a timely appeal of the transfer order, or
the supreme court of appeals refuses to hear or denies an appeal
which has been timely filed.
(3) If a juvenile is fourteen years of age or older and a
court has determined there is a probable cause to believe the
juvenile committed an offense set forth in subsection (g), section
ten of this article, but the case is not transferred to criminal
jurisdiction, the juvenile records shall be open to public
inspection pending trial only if the juvenile is released on bond
and no longer detained or adjudicated delinquent of the offense.
(4) If a juvenile is younger than fourteen years of age and a
court has determined there is probable cause to believe that the
juvenile committed the crime of murder under section one, two or
three, article two, chapter sixty-one of this code, or the crime of
sexual assault in the first degree under section three, article
eight-b of said chapter, but the case is not transferred to
criminal jurisdiction, the juvenile records shall be open to public
inspection pending trial only if the juvenile is released on bond
and no longer detained or adjudicated delinquent of the offense.
(5) Upon a written petition and pursuant to a written order,
the circuit court may permit disclosure of juvenile records to:
(A) A court which has juvenile jurisdiction and has the
juvenile before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the juvenile
which requests such records for the purpose of a presentence report
or disposition proceeding;
(C) The juvenile, the juvenile's parents or legal guardian, or
the juvenile's counsel;
(D) The officials of a public institution to which the
juvenile is committed if they require such records for transfer,
parole or discharge; or
(E) A person who is conducting research. However, juvenile
records may be disclosed for research purposes only upon the
condition that information which would identify the subject juvenile or the juvenile's family shall not be disclosed.
(d) Any records open to public inspection pursuant to the
provisions of this section are subject to the same requirements
governing the disclosure of adult criminal records.
(e) Any person who willfully violates this section
shall be
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, or
confined imprisoned in
the county or regional jail for not more than six months, or both
so fined and
confined imprisoned,
and shall be liable for damages
in the amount of three hundred dollars or actual damages, whichever
is greater.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
