PA 07-243—sSB 1089

Banks Committee

General Law Committee

Judiciary Committee

AN ACT CONCERNING THE RELEASE, SALE AND ACCURACY OF CONVICTION INFORMATION, THE ISSUANCE OF A REARREST WARRANT OR CAPIAS FOR FAILURE TO APPEAR, THE DUTIES OF BOARDS OF DIRECTORS AND EXECUTIVE BOARDS OF CONDOMINIUMS AND OTHER COMMON INTEREST COMMUNITIES, AND THE DEFINITION OF COMMUNITY ASSOCIATION MANAGER

SUMMARY: This act generally requires consumer reporting agencies to (1) inform consumers when they are providing reports for employment purposes that include certain “matters of public record,” such as arrest and conviction records; (2) verify any criminal matters of public record with the Judicial Department to ensure that information reported is complete and up-to-date; and (3) maintain procedures designed to ensure that any criminal matter of public record reported is complete and up-to-date.

The act requires each person or agency holding conviction information or non-conviction information to update it promptly whenever related criminal history record information is erased, modified, or corrected, or when a pardon is granted.

The act prohibits a court from issuing a rearrest warrant or a capias for failure to appear in the second degree before 4: 00 p. m. of the day of the alleged failure to appear, unless good cause is shown.

The act ensures that condominium unit owners have the right to receive information concerning, and to comment on, proposed association budgets and loan transactions and gives unit owners the right to access certain condominium records.

EFFECTIVE DATE: October 1, 2007, except for the provisions dealing with consumer reporting agencies, which become effective February 1, 2008.

DEFINITIONS

The act defines “consumer reporting agency” as any person who regularly engages, in whole or in part, in the practice of assembling or preparing consumer reports for a fee, whose reports compile and report items of information on consumers that are matters of public record and are likely to have an adverse effect on a consumer's ability to obtain employment, but does not include any public agency.

The act defines “consumer report” as any written, oral, or other communication of information bearing on an individual's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.

The act defines “criminal matters of public record” as information obtained from the Judicial Department relating to arrests, indictments, convictions, erased records, pardons and outstanding judgments, and any other conviction information, as defined by law. “Conviction information” is criminal history record information that (1) has not been erased and (2) discloses that a person has pleaded guilty or no contest, or was convicted of, any criminal offense, and the terms of the sentence.

1 — CONSUMER REPORTING AGENCY REQUIREMENTS

The act requires each consumer reporting agency that issues a consumer report that is used or is expected to be used for employment purposes and that includes criminal matters of public record to:

1. notify the consumer who is the subject of the report that it is reporting criminal matters of public record, and specify the name and address of the person receiving it;

2. access the conviction information available to the public on the Internet web site of the Judicial Department to verify, as of the date the consumer report is issued, the accuracy of any criminal matters of public record contained in the consumer report; and

3. maintain procedures designed to ensure that any criminal matter of public record reported is complete and up-to-date as of the date the consumer report is issued.

The act specifies that it does not apply in the case of a U. S. government agency or department seeking to obtain and use a consumer report for employment purposes if the head of the agency or department makes a written finding pursuant to related federal law (see BACKGROUND).

2 — AGENCIES HOLDING CONVICTION AND NON-CONVICTION INFORMATION

The act requires that each person or agency holding conviction or non-conviction information update it promptly whenever related criminal history record information is erased, modified, or corrected or when a pardon is granted.

“Conviction information” means criminal history record information that (1) has not been erased and (2) discloses that a person has pleaded guilty or no contest to, or was convicted of, any criminal offense, and the terms of the sentence. “Nonconviction information” means (1) criminal history record information that has been “erased,” (2) information relating to persons granted youthful offender status; and (3) continuances that are more than 13 months old.

The act also requires them to post on any conviction information or nonconviction information available to the public a notice that the criminal history record information may change daily due to erasures, corrections, pardons, and other modifications, and that the person or agency cannot guarantee the accuracy of the information except on the date the information is disclosed or obtained.

ADOPTION OF CONDOMINIUM BUDGET

The act affects the adoption of budgets, loans, and records of condominiums governed by the Condominium Act or by the Common Interest Ownership Act.

4 — Condominiums Governed by the Condominium Act

The act requires that, notwithstanding any provision of the condominium instruments to the contrary, the board of directors give unit owners a reasonable opportunity to express their views concerning the proposed budget before its adoption or ratification. The act requires the board to do so either at the meeting of unit owners to adopt or ratify it, or on a day before the meeting. The act requires that at least one copy of the proposed budget be available for inspection at the meeting. (Apparently, this requirement only applies to the budget adoption or ratification meeting. )

6 — Adoption of Budget by Condominiums Governed by Common Interest Ownership Act (CIOA)

By law, within 30 days after adoption of any proposed budget for the common interest community, the executive board must provide a summary of the budget to all unit owners and set a date for a meeting of unit owners to consider ratification of the budget not less than 14 days nor more than 30 days after mailing of the summary. (By law, “executive board” means the body, regardless of name, designated in the declaration to act on the association's behalf. )

The act specifies that this duty applies notwithstanding any provision of the declaration or bylaws to the contrary. It also specifies that this is the proposed budget and allows the summary to be hand-delivered.

The act requires that at the meeting, or on any day before it, the board must provide a reasonable opportunity for all unit owners to express their views before the budget is ratified. It also requires that at least one copy of the proposed budget be available for inspection at the meeting.

As required by law, the budget is ratified unless at the meeting a majority of all unit owners, or any larger vote the declaration specifies, rejects the proposed budget, whether or not a quorum is present. If the proposed budget is rejected, the periodic budget last ratified by the unit owners must be continued until the unit owners ratify a subsequent budget proposed by the executive board as the act requires.

5 & 7 — LOANS AND RECORDS OF CONDOMINIUMS

Condominiums Governed by CIOA

The act requires the executive boards of condominiums and other common interest communities governed by CIOA, at least 14 days before entering into any loan agreement on the association's behalf, to (1) disclose in writing to all unit owners the amount and terms of the loan and its effect on any common expense assessment and (2) give the unit owners a reasonable opportunity to submit written comments about the loan to the executive board. The act specifies that this requirement applies notwithstanding any provisions of the declaration or bylaws to the contrary. This applies to all condominiums and other common interest communities regardless of when they were created.

By law, the association must make all financial and other records reasonably available for examination by any unit owner and his or her authorized agents. The act also requires associations to make all association accounts and books available, including minutes of executive board meetings and executive board voting records. It imposes this duty on the association's executive board or managing agent and specifies that this duty also includes permitting copying of such records and books. Finally, it specifies that this duty to allow an examination and copying arises on a request by the unit owner or agent.

Condominiums Governed by the Condominium Act

The act requires that, notwithstanding any contrary provision in the condominium instruments, at least 14 days before entering into any loan agreement on the association's behalf the board of directors of a condominium governed by the Condominium Act must:

1. disclose in writing to all unit owners the amount and terms of the loan and its effect on any assessment for common expenses and

2. afford the unit owners a reasonable opportunity to submit written comments to the board of directors regarding the loan.

By law, records the association or its manager maintains must be available for examination and copying by any unit owner, or his or her duly authorized agents or attorneys, at the unit owner's expense, during normal business hours. The act specifies that these records must include minutes of the board of directors' meetings and their voting records. Also, it eliminates the requirement that the unit owner give reasonable notice and instead makes the duty apply on the unit owner's or his or her agent's request.

BACKGROUND

Capias

A “capias” is a court order directing a law enforcement official to take someone into custody and bring them before the court.

Erased Records

The law prohibits an employer from requiring an employee or prospective employee to disclose records and from denying employment or discharging an employee solely because of records of erased arrest, criminal charges, or convictions. It requires an employment application form asking for criminal history information to contain a clear notice that the applicant does not need to disclose erased information and that the applicant is considered never to have been arrested and can so swear under oath. The erased records covered by the law include those relating to delinquency; families with service needs; youthful offender status; criminal charges that have been dismissed, nolled, or resulted in a not guilty finding; and absolute pardons.

Exemption in Federal Law from Federal Consumer Notification Requirement

Federal law on consumer reporting agencies restricts the permissible uses of consumer reports (15 USC 1681b). It requires credit reporting agencies to notify consumers before a report about them is provided for employment purposes. The law prohibits a person using a credit report for employment purposes from taking an adverse action based on it unless the person has given the consumer a copy of the report and a description of the consumer's rights under federal law. It creates an exemption for federal agencies in matters related to national security investigations.

OLR Tracking: GC: KM: P: TS