EMERGING ISSUES AND LAWS

Child protection is a top priority for the American Camp Association (ACA). Therefore, it is a mandatory ACA Accreditation standard for camp staff to complete a voluntary disclosure statement as a step in staff screening. Because of this requirement, ACA receives many questions about voluntary disclosure statements, including: What is it? When should it be completed? What questions should be asked?

This article will give an overview of these statements – and remind camps that their own legal counsel should be consulted as they determine what voluntary disclosure statement they choose to use, what to include, and how and when it is completed.

What is Required of ACA-Accredited Camps?

ACA standard HR.4, Annual Staff Screening states:

Does the camp require annual screening for all camp staff based on camp property (directors, counselors, administrative staff, and support staff; sea­sonal and year-round) — paid, volunteer, and contracted that includes:

• A voluntary disclosure statement (completed in compliance with state regulations)?
• A check of the National Sex Offender Public Website or verification that a check of the sex offender registry of all fifty states has been completed?

What is a Voluntary Disclosure Statement?

The “Contextual Education” for ACA standard HR.4 provides the following:

A “voluntary disclosure statement” is a statement signed by the staff member attesting, at minimum, to the non-conviction of violent crimes and crimes against children. It may also include information about other criminal behavior, previous addresses, and other data relevant to the camp and position. It should be reviewed by legal counsel.

What is Included in a Voluntary Disclosure Statement?

The sample voluntary disclosure statement available from ACA (and reviewed by ACA legal counsel) asks the following (as of 12/2019 the sample is no longer available, yet the info below is relevant for camps when developing their form with their legal counsel):

• Have you ever been arrested and/or charged with a crime? (This includes all arrest and charges whether or not they were dismissed, deemed “nolle prosequi” (we shall no longer prosecute), deferred adjudication, or found not guilty.)
• Have you ever been convicted of any crime relating in any manner to children and/or your conduct with them? If yes, explain.
• Have you ever been convicted of any crime including, but not lim­ited to, those listed below and/or any crime similar in any manner to those listed below?
• Indecent assault and battery on a child under fourteen
• Indecent assault and battery on a mentally retarded person
• Indecent assault and battery on a person who has obtained the age of fourteen
• Rape
• Rape of a child under sixteen with force
• Assault with intent to commit rape
• Kidnapping of a child under sixteen with intent to commit rape
• Distribution and trafficking of narcotics or other controlled substances
• Intent to commit any of the above crimes.
• Have you ever been adjudged liable for civil penalties or damages involving sexual or physical abuse of children? If yes, explain.
• Are you now or have you ever been subject to any court order involv­ing sexual or physical abuse of a minor, including, but not limited to a domestic order or protection? If yes, explain.
• Have your parental rights ever been terminated for reasons involving sexual or physical abuse of children?

Not all of these questions are required on a voluntary disclosure state­ment, yet these can serve as an example of the types of questions you and your legal counsel may want to consider.

When To Require the Completion of the Disclosure Statement

A critical factor in the use of voluntary disclosure statements is when state law allows it to be completed; that is, if it is allowed to be completed prior to the offer of employment, or if asking these questions must be done post-offer.

Consideration of Arrest and Conviction Records in Employment Decisions

Under Title VII of the Civil Rights Act of 1964 (1), some states require employers to wait until late in the selection process to ask about convic­tions or arrests. In order to protect workers rights. Other states are not so inclined. However it is critical to assess employability/volunteerism fairly. The issue for camps and other youth serving organizations is how to bal­ance the rights of ex-offenders with child protection issues. It is important that camps understand the laws in their state, and guidance from the Equal Opportunity Employment Commission (EEOC). For example, the EEOC recommends that employers not ask about convictions on job ap­plications and that when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.

ACA and other youth-serving organizations support child protection as a business necessity, as well. 

• To help camps navigate this issue, ACA offers guidance on setting thresholds for acceptable criminal records in the publication, Criminal Background Check Thresholds - Guidance for Camps and Other Youth Serving Organizations. http://www.acacamps.org/sites/default/files/images/publicpolicy/documents/Criminal%20Background%20Thresholds%20Guidance.pdf
• Every state is different in their approach to this issue. For resources on what your state law requires, visit: State Laws on Use of Arrests and Convictions in Employment, http://www.nolo.com/legal-encyclopedia/state-laws-use-arrests-convictions-employment.html 
• The bottom line is that child protection is the top priority for ACA and the reason we require a volun­tary disclosure statement per Accreditation Standard HR.4.1. Camps must also comply with their state employment law as to when this statement is obtained.
• Consideration of Arrest and Conviction Records in Employment Decisions. Under Title VII of the Civil Rights Act of 1964 http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Contributed by Kim Brosnan, Rhonda Mickelson, and Susan E. Yoder.