PRIOR PRINTER'S NO. 1890

PRINTER'S NO.  2138

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

1381

Session of

2012

  

  

INTRODUCED BY WILLIAMS, PICCOLA, DINNIMAN, WASHINGTON, FARNESE, FONTANA, RAFFERTY, COSTA, WAUGH, BROWNE AND BOSCOLA, JANUARY 13, 2012

  

  

SENATOR PICCOLA, EDUCATION, AS AMENDED, MAY 1, 2012   

  

  

  

AN ACT

  

1

Amending the act of March 10, 1949 (P.L.30, No.14), entitled "An

2

act relating to the public school system, including certain

3

provisions applicable as well to private and parochial

4

schools; amending, revising, consolidating and changing the

5

laws relating thereto," providing for employment history

6

review.

7

The General Assembly of the Commonwealth of Pennsylvania

8

hereby enacts as follows:

9

Section 1. The act of March 10, 1949 (P.L.30, No.14), known

10

as the Public School Code of 1949, is amended by adding a

11

section to read:

12

Section 111.1.  Employment History Review.--(a)  (1)  This

<--

13

section shall apply to all prospective employes of public and

14

private schools, nonpublic schools, intermediate units and area

15

vocational-technical schools, including, but not limited to,

16

teachers, substitutes, janitors, cafeteria workers, independent

17

contractors and their employes, except those employes and

18

independent contractors and their employes who have no direct

19

contact with children.

 


1

(2)  This section shall apply to bus drivers offered

2

employment by a school district, private school, nonpublic

3

school, intermediate unit or area vocational-technical school or

4

by an independent contractor.

5

(b)  In addition to fulfilling the requirements of section

6

111, before a school entity may offer employment to an applicant

7

for a position with the school entity, the school entity shall:

8

(1)  Require the applicant to provide:

9

(i)  A list of the applicant's current and former employers.

10

(ii)  A written authorization that authorizes the applicant's

11

current and former employers to disclose the information

12

requested under subsection (c).

13

(iii)  A written statement of whether the applicant:

14

(A)  has been the subject of an abuse or sexual misconduct

15

investigation by any employer or child protective services

16

agency; 

17

(B)  has ever been the subject of any misconduct

18

investigation not related to abuse or sexual misconduct by any

19

employer;

20

(C)  has ever resigned from or otherwise separated from any

21

employment while allegations of any abuse or misconduct as

22

described in paragraph (A) or (B) were pending or under

23

investigation;

24

(D)  has ever been disciplined, discharged, non-renewed or

25

asked to resigned from employment; or

26

(E)  has ever had a license, professional license or

27

certificate suspended or revoked.

28

(2)  Conduct a review of the employment history of the

29

applicant by contacting the current and all past employers of

30

the applicant and requesting the following information, as well

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1

as any records relating to the information requested under

2

subclause (ii):

3

(i)  the dates of employment of the applicant;

4

(ii)  whether the applicant:

5

(A)  was the subject of any abuse or sexual misconduct

6

investigation by any employer or child protective services

7

agency;

8

(B)  was the subject of any misconduct investigation not

9

related to child abuse or sexual misconduct;

10

(C)  resigned from or otherwise separated from any employment

11

while allegations of misconduct were pending or under

12

investigation;

13

(D)  has ever been disciplined, discharged, non-renewed or

14

asked to resign from employment; or

15

(E)  has ever had a license, professional license or

16

certificate suspended or revoked.

17

(3)  Check the certification status of any professional

18

employe to determine that the applicant holds valid and active

19

certification and whether the applicant has been the subject of

20

public professional discipline.

21

(c)  An applicant who wilfully fails to disclose the

22

information required in subsection (b) shall be subject to

23

discipline up to, and including, termination or denial of

24

employment and may be subject to criminal prosecution under 18

25

Pa.C.S. § 4904 (relating to unsworn falsification to

26

authorities), and in the case of an employe, the employee shall

27

be subject to discipline under the act of December 12, 1973

28

(P.L.397, No.141), known as the "Professional Educator

29

Discipline Act."

30

(d)  The current or former employer of the applicant shall

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1

provide information and all records in the possession of the

2

employer related to subsection (b)(2) as requested under this

3

section in accordance with the provisions of subsection (e).

4

(e)  (1)  No later than twenty (20) days after receiving a

5

request under subsection (d), an employer that has or had an

6

employment relationship with the applicant shall disclose the

7

information and records requested.

8

(2)  An employer shall disclose the information on a

9

standardized form, developed by the Department of Education, and

10

shall provide any supporting records with the standardized form.

11

(3)  Information received under this section is not a public

12

record for the purposes of the act of February 14, 2008 (P.L.6,

13

No.3), known as the "Right-to-Know Law," except where the

14

information satisfies an exception to the "Right-to-Know Law." A

15

school entity receiving the information under subsection (d) may

16

use the information only for the purpose of evaluating an

17

applicant's fitness to be hired or for continued employment.

18

(4)  An employer that provides information or records as

19

required under this section about a current or former employe to

20

a prospective employer shall be immune from civil liability for

21

the disclosure of the information unless the information or

22

records provided were knowingly false.

23

(5)  Except where the laws of other states prevent the

24

release of the information or records requested, the failure of

25

the school entity or employer in which the applicant had contact

26

with children to provide the information and records as

27

requested may result in a penalty not to exceed ten thousand

28

dollars ($10,000). In the case of a school entity, failure to

29

respond may also subject the school administrator to discipline

30

in accordance with the "Professional Educator Discipline Act."

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1

(f)  (1)  A school entity may not hire an applicant who does

2

not provide the information required under subsection (b).

3

(2)  A school entity may hire an applicant on a conditional

4

basis for a period not to exceed ninety (90) days pending the

5

school entity's review of information and records received under

6

this section on the condition that the applicant has no direct

7

contact with children.

8

(3)  A school entity may not deny an applicant employment

9

solely because a current or former employer of an applicant

10

fails or refuses to comply with the requirements of subsection

11

(e) or the applicant has or had an out-of-State employer and the

12

laws or rules of that state prevent the release of information

13

or records requested under subsection (e).

14

(g)  A school entity may not enter into a collective

15

bargaining agreement, an employment contract, an agreement for

16

resignation or termination, a severance agreement or any other

17

contract or agreement or take any action that:

18

(1)  has the effect of suppressing information relating to an

19

investigation related to a report of suspect abuse, sexual

20

misconduct or other misconduct by a current or former employe;

21

(2)  affects the duties of the school entity to report

22

suspected abuse, sexual misconduct or other misconduct to the

23

appropriate authorities;

24

(3)  impairs the responsibility or ability of the school

25

entity to discipline an employe for abuse, sexual misconduct or

26

other misconduct; or

27

(4)  requires the school entity to expunge information about

28

allegations or findings of abuse, sexual misconduct or other

29

misconduct from any documents maintained by a school entity.

30

(h)  Any provision of an employment contract or agreement

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1

that is contrary to this section is void and unenforceable.

2

(i)  Nothing in this section shall be construed to prevent a

3

school entity from entering into a collective bargaining

4

agreement that includes standards for investigation of a report

5

of abuse, sexual misconduct or other misconduct.

6

(j)  Nothing in this section shall be construed to relieve a

7

school entity of its legal responsibility to report suspected

8

incidents of abuse in accordance with the provisions of 23

9

Pa.C.S. Ch. 63 Subch. B (relating to provisions and

10

responsibilities for reporting suspected child abuse).

11

(k)  As used in this section, the following words and phrases

12

shall have the meanings given to them in this subsection:

13

"Abuse" shall mean conduct that falls under the purview and

14

reporting requirements of 23 Pa.C.S. Ch. 63 (relating to child

15

protective services).

16

"School entity" shall mean any public school, including a

17

charter school or cyber charter school, private school,

18

nonpublic school, intermediate unit or area vocational-technical

19

school operating within this Commonwealth.

20

"Sexual misconduct" shall mean any act, including, but not

21

limited to, any verbal, non-verbal, written or electronic

22

communication or physical activity, directed toward or with a

23

child or a student regardless of the age of the child or student

24

that is designed to establish a romantic or sexual relationship

25

with the child or student. Such prohibited acts include, but are

26

not limited to:

27

(1)  sexual or romantic involvement;

28

(2)  dating or soliciting dates;

29

(3)  engaging in sexualized or romantic dialog;

30

(4)  making sexually suggestive comments;

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1

(5)  self-disclosure or physical exposure of a sexual,

2

romantic or erotic nature; or

3

(6)  any sexual, indecent, romantic or erotic contact with

4

the child or student.

5

Section 111.1.  Employment History Review.--(a)  This section

<--

6

shall apply to all positions for employment at school entities

7

and independent contractors of school entities involving direct

8

contact with children.

9

(b)  In addition to fulfilling the requirements of section

10

111 and 23 Pa.C.S. Ch. 63 Subch. C.2 (relating to background

11

checks for employment in schools), before a school entity or

12

independent contractor may offer employment to an applicant who

13

would be employed by or in a school entity in a position

14

involving direct contact with children, the school entity or

15

independent contractor shall:

16

(1)  Require the applicant to provide:

17

(i)  A list, including name, address, telephone number and

18

other relevant contact information of the applicant's:

19

(A)  Current employer.

20

(B)  All former employers that were school entities.

21

(C)  All former employers where the applicant was employed in

22

positions that involved direct contact with children.

23

(D)  All other former employers subsequent to the applicant's

24

eighteenth birthday and within the previous ten (10) years.

25

(ii)  A written authorization that consents to and authorizes

26

disclosure by the applicant's current and former employers in

27

subparagraph (i) of the information requested under paragraph

28

(2) and the release of related records and that releases those

29

employers from liability that may arise from such disclosure or

30

release of records pursuant to subsection (d)(5).

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1

(iii)  A written statement of whether the applicant:

2

(A)  has been the subject of an abuse or sexual misconduct

3

investigation by any employer, State licensing agency, law

4

enforcement agency or child protective services agency, unless

5

the investigation resulted in a finding that the allegations

6

were false;

7

(B)  has ever been disciplined, discharged, nonrenewed, asked

8

to resign from employment, resigned from or otherwise separated

9

from any employment while allegations of abuse or sexual

10

misconduct as described in clause (A) were pending or under

11

investigation, or due to an adjudication or findings of abuse or

12

sexual misconduct as described in clause (A); or

13

(C)  has ever had a license, professional license or

14

certificate suspended, surrendered or revoked while allegations

15

of abuse or sexual misconduct as described in clause (A) were

16

pending or under investigation, or due to an adjudication or

17

findings of abuse or sexual misconduct as described in clause

18

(A).

19

(2)  Conduct a review of the employment history of the

20

applicant by contacting those employers listed by the applicant

21

under the provisions of paragraph (1)(i) and requesting the

22

following information:

23

(i)  The dates of employment of the applicant.

24

(ii)  A statement as to whether the applicant:

25

(A)  was the subject of any abuse or sexual misconduct

26

investigation by any employer, State licensing agency, law

27

enforcement agency or child protective services agency, unless

28

such investigation resulted in a finding that the allegations

29

were false;

30

(B)  was disciplined, discharged, nonrenewed, asked to resign

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1

from employment, resigned from or otherwise separated from any

2

employment while allegations of abuse or sexual misconduct as

3

described in clause (A) were pending or under investigation, or

4

due to an adjudication or findings of abuse or sexual misconduct

5

described in clause (A); or

6

(C)  has ever had a license, professional license or

7

certificate suspended, surrendered or revoked while allegations

8

of abuse or sexual misconduct as described in clause (A) were

9

pending or under investigation, or due to an adjudication or

10

findings of abuse or sexual misconduct as described in clause

11

(A).

12

(3)  Check the eligibility for employment or certification

13

status of any applicant involving direct contact with children

14

to determine whether the applicant holds valid and active

15

certification appropriate for the position and is otherwise

16

eligible for employment and whether the applicant has been the

17

subject of public professional discipline.

18

(c)  An applicant who provides false information or wilfully

19

fails to disclose information required in subsection (b) shall

20

be subject to discipline up to, and including, termination or

21

denial of employment and may be subject to criminal prosecution

22

under 18 Pa.C.S. § 4904 (relating to unsworn falsification to

23

authorities), and may be subject to civil penalties and

24

professional discipline in accordance with subsection (k).

25

(d)  (1)  No later than twenty (20) days after receiving a

26

request for information required under subsection (b)(2), an

27

employer that has or had an employment relationship with the

28

applicant shall disclose the information requested.

29

(2)  The employer shall disclose the information on a

30

standardized form developed by the Department of Education.

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1

(3)  (i)  After reviewing the information initially disclosed

2

under paragraph (1) and finding an affirmative response to

3

subsection (b)(1)(A), (B) or (C) or (2)(A), (B) or (C), where

4

the prospective employing school entity or contractor makes a

5

determination to further consider the applicant for employment,

6

the school entity or contractor shall request that former

7

employers provide additional information about the matters

8

disclosed and all related records.

9

(ii)  Former employers shall provide the additional

10

information requested no later than sixty (60) days after the

11

prospective employer's request under this paragraph.

12

(4)  (i)  Information received under this section shall not

13

be deemed a public record for the purposes of the act of

14

February 14, 2008 (P.L.6, No.3), known as the "Right-to-Know

15

Law."

16

(ii)  A school entity that receives the information under

17

this subsection may use the information for the purpose of

18

evaluating an applicant's fitness to be hired or for continued

19

employment and may report the information as appropriate to the

20

Department of Education, a State licensing agency, law

21

enforcement agency, child protective services agency, another

22

school entity or prospective employer.

23

(5)  An employer, school entity, school administrator or

24

independent contractor that provides information or records

25

about a current or former employe or applicant shall be immune

26

from criminal liability under 23 Pa.C.S. Ch. 63 (relating to

27

child protective services) and the act of December 12, 1973

28

(P.L.397, No.141), known as the "Professional Educator

29

Discipline Act," and civil liability for the disclosure of the

30

information, unless the information or records provided were

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1

knowingly false. Such immunity shall be in addition to and not

2

in limitation of any other immunity provided by law, or any

3

absolute or conditional privileges applicable to such

4

disclosures by virtue of the circumstances or the applicant's

5

consent thereto.

6

(6)  Except where the laws of other states prevent the

7

release of the information or records requested, or disclosure

8

is restricted by the terms of a contract entered into prior to

9

the effective date of this section, the wilful failure of a

10

former employer, school entity, school administrator or

11

independent contractor to respond or provide the information and

12

records as requested may result in civil penalties, and

13

professional discipline where appropriate, in accordance with

14

subsection (k).

15

(7)  Notwithstanding any provision of law to the contrary, an

16

employer, school entity, school administrator, independent

17

contractor or applicant shall report and disclose in accordance

18

with this section all relevant information, records and

19

documentation that may otherwise be confidential under 23

20

Pa.C.S. Ch. 63 and the "Professional Educator Discipline Act."

21

(e)  (1)  A school entity or independent contractor may not

22

hire an applicant who does not provide the information required

23

under subsection (b) for a position involving direct contact

24

with children.

25

(2)  A school entity may hire an applicant on a provisional

26

basis for a period not to exceed ninety (90) days pending the

27

school entity's review of information and records received under

28

this section, provided that all of the following are satisfied:

29

(i)  The applicant has provided all of the information and

30

supporting documentation required under subsection (b).

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1

(ii)  The school administrator has no knowledge of

2

information pertaining to the applicant that would disqualify

3

the applicant from employment.

4

(iii)  The applicant swears or affirms that the applicant is

5

not disqualified from employment.

6

(iv)  The applicant is not permitted to work alone with

7

children and works in the immediate vicinity of a permanent

8

employe.

9

(f)  On or after the effective date of this section, a school

10

entity or independent contractor may not enter into a collective

11

bargaining agreement, an employment contract, an agreement for

12

resignation or termination, a severance agreement or any other

13

contract or agreement or take any action that:

14

(1)  has the effect of suppressing information relating to an

15

investigation related to a report of suspected abuse or sexual

16

misconduct by a current or former employe;

17

(2)  affects the ability of the school entity or independent

18

contractor to report suspected abuse or sexual misconduct to the

19

appropriate authorities; or

20

(3)  requires the school entity or independent contractor to

21

expunge information about allegations or findings of suspected

22

abuse or sexual misconduct from any documents maintained by the

23

school entity or independent contractor, unless after

24

investigation the allegations are found to be false.

25

(g)  Any provision of an employment contract or agreement for

26

resignation or termination or a severance agreement that is

27

executed, amended or entered into after the effective date of

28

this section and that is contrary to this section shall be void

29

and unenforceable.

30

(h)  (1)  For substitute employes, the employment history

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1

review required by this section shall be required only prior to

2

the initial hiring of a substitute or placement on the school

3

entity's approved substitute list and shall remain valid as long

4

as the substitute continues to be employed by the same school

5

entity or remains on the school entity's approved substitute

6

list.

7

(2)  A substitute seeking to be added to another school

8

entity's substitute list shall undergo a new employment history

9

review. Except as otherwise provided in paragraph (3), the

10

appearance of a substitute on one school entity's substitute

11

list does not relieve another school entity from compliance with

12

this section.

13

(3)  An employment history review conducted upon initial

14

hiring of a substitute employe by an independent contractor,

15

intermediate unit or any other entity that furnishes substitute

16

staffing services to school entities shall satisfy the

17

requirements of this section for all school entities using the

18

services of that independent contractor, intermediate unit or

19

other entity.

20

(4)  An independent contractor, intermediate unit or any

21

other entity furnishing substitute staffing services to school

22

entities shall comply with the provisions of subsection (i)(3)

23

and (4).

24

(5)  For purposes of this subsection, "substitute employe"

25

shall not mean school bus drivers employed by an independent

26

contractor.

27

(i)  (1)  For employes of independent contractors, the

28

employment history review required by this section shall be

29

performed, either at the time of the initial hiring of the

30

employe or prior to the assignment of an existing employe to

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1

perform work for a school entity in a position involving direct

2

contact with children. The review shall remain valid as long as

3

the employe remains employed by that same independent

4

contractor, even though assigned to perform work for other

5

school entities.

6

(2)  An independent contractor shall maintain records

7

documenting employment history reviews for all employes as

8

required by this section and, upon request, shall provide a

9

school entity for whom an employe is assigned to perform work

10

access to the records pertaining to that employe.

11

(3)  Prior to assigning an employe to perform work for a

12

school entity in a position involving direct contact with

13

children, the independent contractor shall inform the school

14

entity of any instance known to the independent contractor in

15

which the employe:

16

(i)  was the subject of any abuse or sexual misconduct

17

investigation by any employer, State licensing agency, law

18

enforcement authority or child protective services agency,

19

unless such investigation resulted in a finding that allegations

20

are false;

21

(ii)  has ever been disciplined, discharged, nonrenewed,

22

removed from a substitute list, asked to resign from employment,

23

resigned from or otherwise separated from any employment while

24

allegations of abuse or sexual misconduct as described in

25

subparagraph (i) were pending or under investigation, or due to

26

an adjudication or findings of abuse or sexual misconduct as

27

described in subparagraph (i); or

28

(iii)  has ever had a license, professional license or

29

certificate suspended, surrendered or revoked while allegations

30

of abuse or sexual misconduct as described in subparagraph (i)

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1

were pending or under investigation, or due to an adjudication

2

or findings of abuse or sexual misconduct as described in

3

subparagraph (i).

4

(4)  The independent contractor may not assign the employe to

5

perform work for the school entity in a position involving

6

direct contact with children where the school entity objects to

7

the assignment after being informed of an instance listed in

8

paragraph (3).

9

(j)  Nothing in this section shall be construed:

10

(1)  To prevent a prospective employer from conducting

11

further investigations of prospective employes or from requiring

12

applicants to provide additional background information or

13

authorizations beyond what is required under this section, nor

14

to prevent a former employer from disclosing more information

15

than what is required under this section.

16

(2)  To relieve a school entity, school administrator or

17

independent contractor of its legal responsibility to report

18

suspected incidents of abuse in accordance with the provisions

19

of 23 Pa.C.S. Ch. 63.

20

(3)  To relieve a school entity, school administrator or

21

independent contractor of its legal responsibility to report

22

suspected incidents of professional misconduct in accordance

23

with the "Professional Educator Discipline Act."

24

(4)  To prohibit the right of the exclusive representative

25

under a collective bargaining agreement to grieve and arbitrate

26

the validity of an employe's termination or discipline for just

27

cause or for the causes set forth in this act.

28

(k)  (1)  The Department of Education shall have jurisdiction

29

to determine wilful violations of this section and may,

30

following a hearing, assess a civil penalty not to exceed ten

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1

thousand dollars ($10,000). School entities shall be barred from

2

contracting with an independent contractor who is found to have

3

wilfully violated the provisions of this section.

4

(2)  Notwithstanding any provision of law to the contrary,

5

the Department of Education may initiate disciplinary action

6

before the Professional Standards and Practices Commission

7

pursuant to the "Professional Educator Discipline Act" against

8

any applicant, employe, independent contractor or school

9

administrator who is subject to the "Professional Educator

10

Discipline Act" for wilful violations of this section.

11

(l)  Contractors and school entities shall provide their

12

employes who have direct contact with children with mandatory

13

training on child abuse recognition and reporting and the

14

following shall apply:

15

(1)  Training shall address, but shall not be limited to, the

16

following topics:

17

(i)  Recognition of the signs of abuse and sexual misconduct

18

and reporting requirements for suspected abuse and sexual

19

misconduct in this Commonwealth.

20

(ii)  Provisions of the "Professional Educator Discipline

21

Act," including mandatory reporting requirements.

22

(iii)  School district policies related to reporting of

23

suspected abuse and sexual misconduct.

24

(iv)  Maintenance of professional and appropriate

25

relationships with students.

26

(2)  Independent contractors and school entities may provide

27

training through the Internet or other distance communication

28

systems.

29

(3)  Employes shall complete a minimum of three (3) hours of

30

training every five (5) years.

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1

(4)  Employes required to undergo continuing professional

2

education under section 1205.2 shall receive credit toward the

3

continuing professional education requirements where the

4

training program has been approved by the Department of Public

5

Welfare or the Department of Education.

6

(m)  The Department of Education shall develop the forms for

7

applicants and employers required under subsection (b)(1) and

8

(2), as well as any other forms necessary to carry out the

9

provisions of this section.

10

(n)  As used in this section, the following words and phrases

11

shall have the meanings given to them in this subsection:

12

"Abuse."  Conduct that falls under the purview and reporting

13

requirements of 23 Pa.C.S. Ch. 63 (relating to child protective

14

services) and is directed toward or against a child or a

15

student, regardless of the age of the child or student.

16

"Direct contact with children."  The possibility of care,

17

supervision, guidance or control of children or routine

18

interaction with children.

19

"School entity."  Any public school, including a charter

20

school or cyber charter school, private school, nonpublic

21

school, intermediate unit or area vocational-technical school

22

operating within this Commonwealth.

23

"Sexual misconduct."  Any act, including, but not limited to,

24

any verbal, nonverbal, written or electronic communication or

25

physical activity, directed toward or with a child or a student

26

regardless of the age of the child or student that is designed

27

to establish a romantic or sexual relationship with the child or

28

student. Such acts include, but are not limited to:

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(1)  Sexual or romantic invitation.

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(2)  Dating or soliciting dates.

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1

(3)  Engaging in sexualized or romantic dialog.

2

(4)  Making sexually suggestive comments.

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(5)  Self-disclosure or physical exposure of a sexual,

4

romantic or erotic nature.

5

(6)  Any sexual, indecent, romantic or erotic contact with

6

the child or student.

7

Section 2.  This act shall take effect in 60 days.

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