Senate Bill No. 624
(By Senator Tomblin, Mr. President)
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[Introduced February 23, 2004; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §6C-2-1, §6C-2-2,
§6C-2-3, §6C-2-4, §6C-2-5, §6C-2-6 and §6C-2-7; and to amend
and reenact §15-2C-1 and §15-2C-4 of said code, all relating
to requiring state employing units to conduct background
checks on prospective employees, employees considered for
promotions or transfers and individuals seeking to provide
services through personal service contracts.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §6C-2-1, §6C-2-2,
§6C-2-3, §6C-2-4, §6C-2-5, §6C-2-6 and §6C-2-7; and that §15-2C-1
and §15-2C-4 of said code be amended and reenacted, all to read as
follows:
CHAPTER 6C. PUBLIC EMPLOYEES.
ARTICLE 2. CRIMINAL AND CREDIT HISTORY INVESTIGATIONS FOR PUBLIC
EMPLOYMENT.
§6C-2-1. Legislative finding.
The Legislature finds that individuals that have been
convicted of crimes, have a poor credit history or driving history,
may not, under some circumstances, be appropriate candidates for
public employment. The determination in specific cases is best
made by the employing unit.
§6C-2-2. Investigations required; definition.
(a) Each state employing unit shall conduct investigations
necessary to ensure the security and integrity of the operation of
the unit of:
(1) Applicants for employment, promotion or transfer in the
employing unit; and
(2) Subject to rules promulgated pursuant to section five of
this article, persons seeking to provide personal services through
a contract.
(b) The unit shall require persons subject to the
investigations to provide information, including fingerprints, that
is needed by the state police for processing or as is otherwise
necessary to facilitate access to credit records, driving records
and state and federal criminal history information.
(c) As used in this article, a "state employing unit" means
any department, division, agency or institution of the state government of West Virginia that has hiring or contracting
authority, and includes, but is not limited to, the governor,
attorney general, auditor, secretary of state, treasurer, board of
investments, commissioner of agriculture, higher education policy
commission, the higher education governing boards and all agencies
and institutions of higher education.
§6C-2-3. Consideration of criminal convictions; credit history;
and driving history.
(a) (1) Each state employing unit shall consider the criminal
conviction record of an individual prior to employing, promoting or
transferring the individual. The unit shall consider the
job-related circumstances surrounding a conviction in determining
whether the employment, promotion or transfer of the individual
would be consistent with the safe and efficient operation of the
unit. The circumstances to consider may include the time, nature
and number of convictions, the facts surrounding each offense, the
job-relatedness of each conviction, the length of time between a
conviction and the employment decision, the individual's employment
history before and after the conviction and the individual's
efforts at rehabilitation.
(2) When an employing unit is considering the promotion or
transfer of an employee, it is not required to request the
employee's criminal history information if it has obtained the
employee's criminal history information, as required by this article, within two years from the date of the promotion or
transfer.
(b) (1) Each state employing unit shall consider the credit
history of an individual prior to employing, promoting or
transferring the individual into a position that has authority to
process financial transactions on behalf of the state in amounts of
fifty thousand dollars or more.
(2) When an employing unit is considering the promotion or
transfer of an employee, it is not required to request the
employee's credit history information if it has obtained the
employee's credit history information, as required by this article,
within two years from the date of the promotion or transfer.
(c) (1) Each state employing unit shall consider the driving
record of an individual prior to employing, promoting or
transferring the individual into a position requiring the
individual to possess a driver's license.
(2) Subject to the provisions of article two-a, chapter
seventeen-a of this code, the commissioner of motor vehicles shall
furnish full information regarding the driving record of any
individual to any state employing unit employing or considering
employing the individual. The state employing unit is responsible
for paying the fee, if any, established pursuant to section nine,
article two-a, chapter seventeen-a of this code.
(3) In the event the individual under consideration by the unit has had a driver's license issued to him or her by a
jurisdiction other than West Virginia within ten years from the
date of the individual's application for employment, promotion or
transfer, the unit shall request the driving record from the other
jurisdiction and consider it prior to employing, promoting or
transferring the individual.
(d) After rules are promulgated pursuant to subsection (c),
section five of this article, prior to entering into a contract for
personal services and subject to the rules, each state employing
unit shall consider:
(1) The criminal conviction record of each individual who will
be providing personal services to the unit through the contract;
(2) The credit history of each individual that will be
providing personal services through the contract that will be
involved in the processing of financial transactions on behalf of
the state in amounts of fifty thousand dollars or more; and
(3) The driving record of each individual providing services
through the contract whose service requires, directly or
indirectly, the individual to possess a driver's license.
§6C-2-4. Requirement to request criminal history information;
state police duties.
(a) (1) Each state employing unit may request criminal history
information from the state police and appropriate federal
law-enforcement agencies, including, but not limited to, the federal bureau of investigation.
(2) Each employing unit shall maintain the confidentiality of
information it receives that is required to be kept confidential.
(3) The employing unit is responsible for payment of
applicable fees incurred in obtaining criminal history information.
(b) Except as provided in section three of this article, each
state employing unit shall request, and the state police, upon
proper request, shall disclose to an employing unit information
contained in the central abuse registry
under the conditions and
procedures provided in section four, article two-c, chapter fifteen
of this code.
(c)
The following are exempt from the requirements of
subsection (b) of this section:
(1) An institution of higher education
when hiring
a student
attending the institution; and
(2) State employing units hiring temporary workers under a
summer work program, educational intern program or similar
programs.
§6C-2-5.
Rules.
(a) (1) The division of personnel of the department of
administration shall adopt procedural and interpretive rules as
necessary to implement the provisions of this article by the first
day of July, two thousand four. To the extent necessary, it shall
propose legislative rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this
code to aid in the implementation of this article. The rules shall
at a minimum, contain provisions:
(A) Addressing the retention and safe-keeping of confidential
information received pursuant to this article;
(B) Providing guidance for state employing units in
interpreting and applying information received pursuant to this
article; and
(C) Establishing uniform procedures to be followed by state
spending units in complying with this article.
(2) In the event the division of personnel determines
legislative rules are necessary to fully implement the provisions
of this article, it shall, notwithstanding the provisions of
article three, chapter twenty-nine-a of this code promulgate
emergency rules by the first day of July, two thousand four. The
emergency rules may be effective no longer than the first day of
August, two thousand five.
(3) Rules adopted or promulgated pursuant to this subsection
apply to all executive agencies, including the office of the
governor, except those mentioned in subsection (b) of this section.
(b) (1) The attorney general, auditor, secretary of state,
treasurer, board of investments, commissioner of agriculture,
higher education policy commission and the higher education
governing boards shall adopt, promulgate or propose rules for legislative approval, as appropriate, to aid in the implementation
of this article, for their respective employing units. The rules
shall at a minimum, contain provisions:
(A) Addressing the retention and safe-keeping of confidential
information received pursuant to this article;
(B) Providing guidance in interpreting and applying
information received pursuant to this article; and
(C) Establishing uniform procedures to be followed in
complying with this article.
(2) The rules shall be adopted or promulgated within the same
times specified in subsection (b) of this section. If legislative
rules are considered necessary to fully implement the provisions of
this article, the rules, notwithstanding the provisions of article
three, chapter twenty-nine-a of this code, shall be promulgated as
emergency rules. In that case, the rules shall be promulgated by
the first day of July, two thousand four. The emergency rules may
be effective no longer than the first day of August, two thousand
five.
(c) The purchasing division of the department of
administration, after consulting with the division of personnel,
shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
necessary to implement the provisions of this article concerning
the conducting of background checks under the provisions of subsection (d), section three of this article, by the first day of
August, two thousand four. The rules may not be promulgated as
emergency rules and shall at a minimum, contain provisions:
(A) Addressing the retention and safe-keeping of confidential
information received pursuant to this article;
(B) Providing guidance for state employing units in
interpreting and applying information received pursuant to this
article;
(C) Establishing uniform procedures to be followed by state
spending units in complying with this article; and
(D) Establishing criteria and procedures to be used in
identifying the:
(i) Types of personal service contracts that require
background checks to be performed on individuals who will be
providing services to a state employing unit under the contracts;
and
(ii) Individuals upon which the background checks will be
conducted.
§6C-2-6.
Contract for credit reports.
(a) The purchasing division of the department of
administration shall, prior to the first day of July, two thousand
four, contract with a credit reporting agency to provide credit
reports to all state employing units, including, but not limited
to,
the attorney general, auditor, secretary of state, treasurer, board of investments, commissioner of agriculture, higher education
policy commission and the higher education governing boards
. The
contract term shall be for one year with a provision that it may be
renewed, at the option of the division,
for an additional year.
The division shall solicit bids for a new contract at least every
two years.
(b) When requesting credit reports required under this
article, an employing unit shall request the report from the credit
reporting agency with which the division has contracted.
§6C-2-7. Compliance date.
Except as otherwise provided in subsection (d), section three
of this article, all state spending units shall begin complying
with the provisions of sections two, three, four and six of this
article, by the first day of July, two thousand four.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2C. CENTRAL ABUSE REGISTRY.
§15-2C-1. Definitions.
The following words when used in this article have meanings
ascribed to them in this section, except in those instances where
the context clearly indicates a different meaning:
(a) "Central abuse registry" or "registry" means the registry
created by this article which shall contain the names of
individuals who have been convicted of a felony or a misdemeanor
offense constituting abuse, neglect or misappropriation of the property of a child or an incapacitated adult or an adult receiving
behavioral health services.
(b) "Child abuse and neglect" or "child abuse or neglect"
means those terms as defined in section three, article one, chapter
forty-nine of this code, and shall include includes any act with
respect to a child which is a crime against the person pursuant to
article two, chapter sixty-one of this code, any act which is
unlawful pursuant to article eight-d of said chapter sixty-one, and
any offense with respect to a child which is enumerated in section
three of this article.
(c) "Abuse or neglect of an incapacitated adult" means
"abuse," "neglect" and "incapacitated adult" as those terms are
defined in section one, article six, chapter nine, and shall
include includes any act with respect to an incapacitated adult
which is a crime against the person pursuant to article two,
chapter sixty-one of this code, and any offense with respect to an
incapacitated adult which is enumerated in section three of this
article.
(d) "Adult receiving behavioral health services" means a
person over the age of eighteen years who is receiving any
behavioral health service from a licensed behavioral health
provider or any behavioral health provider whose services are paid
for, in whole or in part, by medicaid or medicare.
(e) "Conviction" of a felony or a misdemeanor means an adjudication of guilt by a court or jury following a hearing on the
merits, or entry of a plea of guilty or nolo contendere.
(f) "Residential care facility" means any facility where a
child or an incapacitated adult or an adult receiving behavioral
health services resides which is subject to registration, licensure
or certification by the department of health and human resources,
and shall include includes nursing homes, personal care homes,
residential board and care homes, adult family care homes, group
homes, legally unlicensed service providers, residential child care
facilities, family based foster care homes, specialized family care
homes and intermediate care facilities for the mentally retarded.
(g) "Misappropriation of property" means any act which is a
crime against property under article three, chapter sixty-one of
this code with respect to a child in a residential care facility or
an incapacitated adult or an adult receiving behavioral health
services in a residential care facility or a child or an
incapacitated adult or an adult receiving behavioral health
services who is a recipient of home care services.
(h) "Home care" or "home care services" means services
provided to children or incapacitated adults or adults receiving
behavioral health services in the home through a hospice provider,
a community care provider, a home health agency, through the
medicaid waiver program, or through any person when that service is
reimbursable under the state medicaid program.
(i) "Requester" means the West Virginia department of
education, any residential care facility, any state licensed day
care center, or any provider of home care services or an adult
receiving behavioral health services providing to the central abuse
registry the name of an individual and other information necessary
to identify that individual, and either: (1) Certifying that the
individual is being considered for employment by the requester or
for a contractual relationship with the requester wherein the
individual will provide services to a child or an incapacitated
adult or an adult receiving behavioral health services for
compensation; or (2) certifying that an allegation of abuse,
neglect or misappropriation of property has been made against the
individual; "requestor" also includes an employing unit, as defined
in section two, article two, chapter six-c of this code, certifying
that the individual is being considered for employment by the
employing unit or for a contractual relationship requiring the
performance of personal services with the
employing unit.
§15-2C-4. Disclosure of information.
(a) The information contained in the central abuse registry is
confidential, and may not be disclosed except as specifically
provided in this section. The criminal identification bureau shall
disclose the information described in subdivisions (1) through (3)
and subdivision (5), subsection (b), section two of this article to
any requester, except that the name of the victim of the act alleged shall may not appear on the information disclosed and shall
be stricken from any statement filed by an individual. The
department of health and human resources shall certify not later
than fifteen days following the effective date of this section the
list of requesters, not otherwise authorized by the provisions of
section three, article three, chapter six-c of this code, that are
authorized to obtain registry information, and shall inform the
criminal identification bureau promptly of subsequent additions and
deletions from the list. The information contained in the registry
with respect to an individual shall be provided to that individual
promptly upon request. Individuals on the registry requesting
registry information shall be afforded the opportunity to file
statements correcting any misstatements or inaccuracies contained
in the registry. The criminal identification bureau may disclose
registry information to authorized law-enforcement and governmental
agencies of the United States and its territories, of foreign
states and of the state of West Virginia upon proper request
stating that the information requested is necessary in the interest
of and will be used solely in the administration of official duties
and the criminal laws. Agreements with other states providing for
the reciprocal sharing of abuse registry information are
specifically authorized.
(b) An active file on requests for information by requesters
shall be maintained by the criminal identification bureau for a period of one year from the date of a request. If an individual
who is the subject of the request is placed on the registry with
respect to any conviction within one year of the date of the
request, that information shall promptly be disclosed to the
requester.
NOTE: The purpose of this bill is to require state employing
units to conduct background checks on prospective employees,
employees considered for promotions or transfers and individuals
seeking to provide services through personal service contracts.
§§6C-2 is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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