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April 28, 1997 Civil Division - New Castle County The Honorable Thomas P. Eichler Department of Services for Children, Youth and Their Families 1825 Faulkland Road Wilmington, DE 19805 RE: 31 Del. C. § 309 - Criminal History Information Relating to Child Care Personnel and Foster and Adoptive Parents Dear Secretary Eichler: You have asked whether those child care personnel exempted from the criminal history record check requirement under 31 Del. C. § 309 continue under that exemption when they transfer to another position, move laterally or are promoted. By way of this informal opinion we answer as follows:
The exemption of 31 Del. C. § 309(c) provides:
all prospective child care personnel are covered by the provisions of this section as well as current child care personnel who have been providing said child care for a period of less than one (1) year...
The effective date of this section was September 1, 1990, thereby exempting child care personnel employed on or before September 1, 1989 from the requirements of a criminal history record check. 67 Del. Laws c 409 § 2. The phrase "said child care" makes the exemption of §309(c) subject to more than one possible reading. The first is that child care personnel hired on or before September 1, 1989 remain exempt so long as they are continuously employed in any child care position. The second interpretation is that child care personnel remain exempt so long as they continue to hold the exact position held as of September 1, 1989. Stated differently, child care personnel employed on or before September 1, 1989 would remain exempt from criminal history record checks until they transferred, moved laterally or were promoted to another child care position. As the statute is reasonably susceptible of different interpretations, it is ambiguous. Coastal Barge Corp. v. Coastal Zone Industrial Control Board, Del. Supr., 492 A.2d 1242 (1985). Where a statute is ambiguous, the intent of the legislature must be examined. Mosley v. Bank of Delaware, Del. Supr., 372 A.2d 178 (1977). The synopsis of a piece of legislation is often helpful in determining legislative purpose together with reviewing the statue in is entirety. Synopsis language for this legislation states in part:
This Act requires certain individuals who currently provide child care to submit the necessary information in order for the Delaware State Police and the Department of Services for Children, Youth and Their Families to conduct a criminal history record investigation to determine a person's suitability to provide child care services. 67 Del. Laws C.409
Suitability is to be determined using criteria and information "reasonably related to the prevention of child abuse." 31 Del. C. § 309(h)(1). The Department of Services for Children, Youth and Their Families (hereinafter "Department") which is to make the
determination of "suitability," is broadly mandated to "...
protect and safeguard the well-being of children..." 29 Del. C. §
9001 (a). These provisions, the placement of the criminal history
record requirements in the Delaware Code chapter entitled "Child
Welfare" and the assignment of responsibility to the Department
combine to support a clear legislative intent to protect the
health, safety and welfare of Delaware children.
In view of the legislative intent of 31 Del. C. § 309, it is our
opinion that the General Assembly anticipated that movement from
one child care personnel position to another, whether resulting
from a transfer, lateral move or promotion, would require that an
employee who was exempt at the time § 309 became effective should
submit to the criminal history record check process. The
statutory purpose of § 309 is to protect Delaware children who
come within the purview, care and/or custody of the Department.
To that end, it is only appropriate that any child care personnel
changing positions within the child care field, just as any new
employee, comply with the criminal history record check, review
provisions and determination of suitability.
If we can be of further assistance, or if you have any questions,
please do not hesitate to call us.
Very truly yours,
Janice R. Tigani
Deputy Attorney General
Marsha Kramarck
Deputy Attorney General
APPROVED:
Michael J. Rich
State Solicitor