TO: Members of the Judiciary Committee of the General Assembly FROM: Jo A. Roberts, Senior Attorney DATE: January 16, 2001 RE: Recommendations of the Connecticut Law Revision Commission for Legislation re Criminal Background Checks By request dated June 26, 2000, Senator Donald E. Williams, Jr. and Representative Michael P. Lawlor, Co-Chairmen of the Judiciary Committee of the Connecticut General Assembly asked the Connecticut Law Revision Commission to undertake a review of statutes that require criminal background checks as a condition of licensing or for other purposes. The review was to consider the context for and policy behind the statutes and, if possible, recommend ways in which the provisions may be made more consistent.
In response to this request, the Commission formed the Criminal Background Checks Study Committee. The members of the committee are Mary Anne O’Neill, Chair; Jon P. FitzGerald; Robert W. Grant; the Honorable John Maloney; Arthur J. O’Neill and Edmund Schmidt. The study committee conducted the requested review of pertinent statutes and submitted this report with recommended legislation (Attachment A) to the Commission for its consideration.
At its meeting of January 16, 2001, the Commission adopted this report and recommendations for proposed legislation.
The legislation proposed by the study committee redrafts existing statutes to:
? Clearly provide for the background check or checks contemplated in each.
? Meet FBI requirements for conducting national criminal background checks.
? Allow for the use of new technologies in conducting background searches.
? Clearly provide for the manner in which the fee for a national check is to be paid.
? Create a general statute that provides for state and national criminal background checks, which future statutes requiring such checks may simply incorporate by reference.
? In two statutes, add national background checks to the state checks provided for presently.
I. Summary of Study Committee Review
Initially, the study committee identified those statutes that made some reference to criminal background checks. The statutes involve the following agencies: Department of Education, Department of Revenue Services, Department of Motor Vehicles, Department of Children and Families, Department of Social Services, Department of Corrections, Department of Public Health, Department of Environmental Protection and Department of Public Safety. The background checks are for applicants seeking licenses for, e.g., operating a day care facility, owning a gun, or operating a private detective or pawn broker business. Some background checks are conducted for potential employees, such as teachers, as well. The study committee found many of the statutes unclear as to whether a state or national background check, or both, was to be conducted. In addition, the study committee learned that, before it will conduct a national check, the Federal Bureau of Investigation (FBI) requires that state statutes be drafted to meet FBI specifications. If the statutes do not meet the specifications, the FBI refuses to conduct the background check. The study committee found several statutes to be improperly drafted to meet those specifications. The study committee attempted to address these and other matters in its proposed bill.
A. FBI Requirements for National Background Check
1. Statutory Specifications
Pursuant to Public Law 92-544, a state statute under which the FBI will conduct a national criminal records background check must meet five criteria :
a. The authorization must exist as the result of legislative enactment;
b. The authorization must require fingerprinting of the applicant;
c. The authorization, must, expressly or by implication, authorize use of FBI records for screening of the applicant;
d. The authorization must not be against public policy;
e. The authorization must not be overly broad in its scope; it must identify the specific category of applicants/licensees.
2. FBI List of Conforming State Statutes. Procedure for Placing Statutes on the List.
The FBI maintains a list of statutes for each state that conform to the above requirements. Presently, Connecticut has both statutes that are on the FBI’s list, but do not meet its current requirements, and statutes that meet the current requirements, but are not on the list. As to the first, Connie Ahrons of the FBI’s Access Integrity Unit believes these statutes were put on the list prior to 1992, the year in which the current FBI requirements were embodied in PL 92-544, and grandfathered when the new requirements went into effect. Statutes that appear to meet the new requirements, but are not on the FBI’s list, probably were not approved by the FBI for inclusion on its list.
The approval process for placing a state statute on the FBI list begins with the state agency to which proposed legislation concerning a criminal background check pertains. The agency must send a copy of the proposed legislation to the Control Terminal Officer (CTO) for Connecticut. Presently, that person is Lieutenant Michael Woodson of the State Police Bureau of Investigation (SPBI). The CTO then forwards the legislation to the FBI for review. The FBI will inform the CTO that the legislation is approved or, if not approved, that it needs specified revisions. The CTO then conveys the FBI’s response to the requesting agency. Once the legislation is adopted by the General Assembly, the agency must send a copy of the Public Act to the CTO, who again forwards it to the FBI. The FBI will distribute the act to all of its departments that conduct background checks so that it will be placed on each department’s list of approved statutes.
Lieutenant Woodson reported to the study committee that he has received requests for national background checks from agencies whose statutes are not on the FBI’s list, but that appear to be properly drafted to meet FBI requirements. He said that he has informed those agencies that the national check will not be conducted unless the authorizing statute is sent to the FBI for approval. To date, he has never had an agency respond by sending him a copy of the statute to be forwarded to the FBI. Woodson believes that agencies often do not want an FBI check, even though a statute might require it, because it is both too costly and too time consuming, and upon learning that the check cannot be done, the agencies simply do without it.
3. Statutes That Confer Discretionary Authority to Conduct a National Background Check.
An issue that arose during the study committee’s review was the reported FBI policy of not conducting national background checks where a state statute merely gives an agency discretion to conduct the check, rather than mandating it. For example, section 17b-750 of the General Statutes provides: "If the commissioner has reason to believe that a provider of child care services has been so convicted, he may demand that such provider be subject to state and national criminal history checks." The statute then goes on to require that, if a background check is to be done, the individual be fingerprinted and the national check be conducted through the FBI. Ms Ahrons of the FBI acknowledged that, until this past July, it was the case that the FBI would not conduct discretionary checks. However, the FBI has recently reviewed this policy and determined that a state statute may provide for discretion in conducting the check, as long as, if the check is to be done, the statute requires that the applicant be fingerprinted and specifies that the check be done using FBI records. Ahrons said a letter confirming the new policy should be distributed to state CTO’s shortly. This policy revision will allow Connecticut statutes to continue providing for criminal background checks in the discretion of the agency, rather than mandating they be done where a situation may not warrant it, and the study committee has retained discretion in statutes that currently provide for it.
4. New Technologies
The study committee wanted to redraft background check statutes to contemplate new technologies, such as electronic fingerprinting, voice identification or optical scanning, that might be on the horizon. Presently, the statutes refer to "fingerprinting" as the required means of identification. The committee wanted to avoid the legislature’s having to revise the statutes each time law enforcement agencies instituted a new means of identification to permit the new procedures. The study committee consulted Ahrons of the FBI about the matter, so that any language we proposed would meet FBI specifications. Ahrons suggested adding the phrase "any other method of positive identification" to existing statutory language to allow for newly developed identification procedures. The study committee has included the suggestion in its proposed bill.
5. Fees for FBI Background Checks
The FBI requires the SPBI to collect fees from state agencies for FBI checks. Peg Murphy of the SPBI told the study committee that this is an enormous burden on the bureau, mostly because of increased paperwork. The study committee has therefore specified in statutes that provide for national background checks that each agency is to transfer payment for FBI checks to the Department of Public Safety, both to highlight and to avoid any confusion about the agencies’ obligation to reimburse the SPBI.
B. State Background Check Procedures
Lieutenant Woodson of the SPBI informed the study committee generally about state criminal background check procedures. He said that agencies requesting either state or national checks, or both, must submit their requests to the SPBI. The SPBI then requests that the FBI conduct a national check. The state check may be done with or without fingerprints. If done without fingerprints, the agency must give only the name and date of birth of the applicant. All FBI checks are conducted with fingerprint support. State agencies are not charged for a state check (regardless of whether fingerprints are used). However, agencies must pay for an FBI search (see A. 5. above).
The study committee more recently learned that this procedure, of an agency’s sending fingerprints to the SPBI to then forward to the FBI for a national background check, may be changed in the next few years. Agencies requiring background checks may have electronic fingerprint scanners installed at their agency offices, which would allow them to scan fingerprints themselves and transmit them simultaneously to the SPBI and the FBI. The FBI estimates that it can respond to a background check request where fingerprints are supplied to it by this method within twenty-four hours, instead of the present six to eight weeks using regular mail.
C. Proposed Bill
The study committee has taken the information gathered through its review of the criminal background check statutes and, based on that information, redrafted existing statutes in the proposed bill found in Attachment A to this report. The study committee distributed drafts of the proposed bill to all the agencies affected for their comments and recommendations. The study committee believes the proposed act will clarify and create greater consistency among statutes providing for criminal background checks.
Revisions to existing statutes are intended to 1) clearly provide for state and national criminal background checks, 2) meet FBI standards in providing for national criminal background checks, 3) allow for the use of new technologies in conducting background searches and 4) clearly provide for the manner in which the fee for a national check is to be paid. As to the latter, where applicable, agencies requesting a national check may collect a fee from the applicant for which it is conducting the check. Each agency is then required to forward that amount to the Department of Public Safety. In other cases, the applicant must reimburse the Department of Public Safety directly for both state and national background checks. In each case, the statute reflects current practice.
In addition, section 24 of the proposed bill creates a general statute that provides for state and national criminal background checks. Future statutes providing for such checks may simply incorporate by reference the provisions of this general statute. Referencing this section will assure consistency among statutes requiring or permitting background checks, as well as assuring that statutes contemplating national background checks will meet FBI standards for conducting those checks. The new statute also provides for the appropriate payment of fees for conducting background checks. Finally, the new statute provides for the likelihood, noted above, that fingerprinting eventually will be done electronically and scanned fingerprints sent directly to the FBI by state agencies. Subsection (a) of the proposed new statute therefore provides that, rather than fingerprints being submitted to the FBI only by the SPBI, as is the current practice, the fingerprints will be submitted by the SPBI "unless the federal bureau of investigation permits direct submission by the requesting party."
Finally, in two instances, the bill adds national background checks to the state checks provided for in the present statutes. In section 2, the bill includes a national check for the primary contractor to provide facilities, goods or services for operations for the Connecticut Lottery Corporation, and in section 11, provides a national check for nursing home owner applicants. The committee believes the higher level of scrutiny is justified by the sensitive nature of these activities.
II. The Criminal Background Check Committee of State Human Services Agencies
The study committee learned that another committee has been formed to review issues concerning criminal background checks by state agencies. This committee, formed at the request of the Office of Policy and Management, is charged with coordinating the development of a consolidated plan to implement a criminal background check system among the specified agencies that is efficient and nonduplicative. The committee is composed of representatives of the Department of Mental Retardation, the Department of Children and Families, the Department of Mental Health and Addiction Services, the Department of Public Health and the Department of Public Safety. In developing its plan, the committee is instructed to consider the following:
1. What is currently done by each agency?
2. How extensive is the background check?
3. What would be proposed to do a comprehensive background check for employees affiliated directly or contractually by all four agencies?
4. What statutory changes will be required?
5. How will the information be protected and confidentiality assured?
6. Which groups of employees should be prioritized if implementation is phased in?
7. What are the suggested time frames for full implementation?
The committee is asked to submit a proposal to the Office of Policy and Management with their recommendations by mid-December. The legislature may want to review any recommendations made by this committee or by the Office of Policy and Management in developing legislation in this area.
CONCLUSION
The Law Revision Commission recommends a joint favorable report for the proposed legislation and its submission to the General Assembly for the 2001 legislative session.