HomeMy WebLinkAbout15.D.1. Criminal History Background Checks for Volunteers
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CITY OF SHAKOPEE
MEMORANDUM
To: Mayor and City Council
Mark McNeill, City Administrator
From: Mark Themig, Facilities and Recreation Director
Sherry Dvorak, Recreation Supervisor
Meeting Date: April 15, 2003
Subject: Criminal History Background Checks for Volunteers
INTRODUCTION
Staff is working on updating criminal history background check procedures, and is
requesting direction from City Council regarding background checks for volunteers of
City programs.
BACKGROUND
In 2001, we began meeting with youth and adult sports associations to clarify the
relationship between the City and associations. Throughout this process, we discussed
many items related to how associations conduct their business, and what role the City
has in their activities. However, one of the items that generated the most discussion was
requiring background checks for association volunteers that work with children.
This discussion raised many questions from both associations and City staff, such as the
need for these checks, perception of requiring background checks for volunteers, how
the background checks would be done and who would administer the process, etc. In
addition, the discussion raised several questions regarding the City's own background
check practices.
As you may be aware, in 1998, City Council adopted Section 2.41 of City Code that
allows the Police Department to conduct criminal history background investigations on
applicants where the City Administrator has determined that convictions of a crime may
relate directly to the position being sought (see Attachment A). As a general practice,
the City has conducted background checks on finalists over the age of 18 for all
positions. However, we have not been conducting background checks on applicants
under age 18, or volunteers for City programs.
DISCUSSION
As a result of the questions raised in meeting with sports associations, City staffs held a
series of meetings in 2001 and 2002 to discuss the City's background check practices
and procedures. We identified several questions that needed to be clarified, which the
City Attorney responded to (see Attachment B). With this response, we are clarifying
and updating our background check procedures. The most significant change being the
implemented includes background checks on applicants under 18 years old.
However, one area we need direction from City Council is whether or not to conduct
background checks on volunteers for City programs. These individuals are volunteers for
City coordinated programs, not sports association. (We will be working with sports
associations more in the next few months and will likely bring back further information for
City Council action.) Up to this point, we have not been conducting background checks
for City volunteers, although City Code 2.41 does permit these checks.
In discussing background checks for volunteers, there is consensus at a staff level that
we should be conducting background checks, especially those that work with children on
an ongoing basis in an independent setting. (For example micro-soccer coaches.) This
would involve performing approximately 100 additional background checks each year.
We anticipate that the process would occur similarly to background checks for applicants
where the Police Department would conduct the checks, and provide information to staff.
BUDGET IMPACT
Conducting an additional 100 background checks will have an impact to the Police
Department. In discussing this impact with Chief Hughes and Sgt. Forberg, they believe
that it may involve some overtime to complete the background checks in a timely
manner.
5gt. Forberg completed the attached cost estimate (Attachment C). These costs could
either be covered by the City's general fund, or could be assessed to the program
participants by increasing program participant fees. We are recommending the later.
However, our summer program fees have already been publicized, so we wouldn't be
able to assess these costs until fall programs.
ALTERNATIVES
1. Direct staff to begin conducting background checks on City volunteers that work with
children, and fund the costs associated with these background checks by raising
program participant fees.
2. Direct staff to begin conducting background checks on City volunteers that work with
children, and fund the costs associated with the general fund.
3. Do not background check City volunteers.
4. Direct staff to provide additional information.
RECOMMENDATION
Alternative #1.
REQUESTED ACTION
If City Council concurs, move to direct staff to begin conducting background checks on
City volunteers that work with children, and fund the costs associated with these
background checks by raising program participant fees.
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92.39
We dedicate ourselves to the highest ideals of honor and integrity and the principles of equality for all
regardless of race, color, creed, religion, national origin; sex, marital status, status with regard to public
assistance, disability, sexual orientation, or age.
We believe it is our duty continually to improve our abilities and skills in order to sustain productive
and quality pertonnance.
We emphasize a friendly and courteous attitude and seek to present a positive image of public
service.
We respect and treat as privileged, infonnation accepted in trust, to the extent pennitted by law, and
believe that all matters of personnel should be handled fairly according to established rules.
We believe that personal gain, either immediate or in the future, secured by the misuse of one's
position, is totally unethical. PUBLIC SERVICE IS A PUBLIC TRUST.
Subd. 3. Disclosure of Economic Interest. In the event any individual City Council member, member of a
board or commission, individual City official, or person acting as a representative or appointee of the City
shall have a conflict of interest, the individual shall disclose such conflict to the City Attorney prior to any
action by the City on the matter(s) which causes the possible conflict. The City Attorney shall, in turn, advise
appropriate City officials of the possible conflict and make a recommendation as to the proper procedures to
be followed. (Ord. 438, January 18, 1996)
~EC. 2.40. PERSONNEL RUlE0
The Council may establish personnel rules setting forth the rights, duties and responsibilities of employees.
Such rules may from time to time be amended. (Ord. 1, April 1 , 1978)
SEC. 2.41. CRIMINAL HISTORY BACKGROUND CHECKS. (Added, Ord. 512, May 7,1998)
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Subd. 1. Criminal Historv Backaround Checks Authorized. The Police Department is authorized to
conduct a criminal history background investigation on applicants for positions with the City, as provided by
this Section. This Section applies only to applicants who are finalists for paid or volunteer positions with the
City, where the City Administrator has detennined that conviction of a crime may relate directly to the position
sought. The Police Department may not perform a background investigation unless the applicant consents in
writing to the investigation and to the release of the investigation information to the City Administrator and
other City staff as is appropriate. An applicant's failure to provide consent may disqualify the applicant for the
position sought
Subd. 2. . Reauired Disclosure. If the City rejects the applicant's application due, solely or in part, to the
applicant's prior conviction of a crime, subject to the exception set forth in Minnesota Statutes, Section
364.09, the City Administrator must notify the applicant in writing of the following:
A. The grounds and reasons for the rejection;
B. The applicable complaint and grievance procedure set forth in Minnesota Statutes, Section
364.06;
C. The earliest date the applicant may reapply for employment; and
D. That all competent evidence of rehabilitation will be considered upon reapplication.
page revised in 1998
84
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MEMORANDUM
TO: Mark McNeill, City Administrator
FROM: Jim Thomson, City Attorney
DATE: August 23, 2002
RE: Background Investigations and Consent Forms
I am writing this memo to respond to questions that have arisen with respect to the City's
obligation to perform background investigations on applicants for City employment. I understand
that the issue has come up primarily with respect to employees in the Park and Recreation
Department who work with youth programs. I thought that the best way to handle this topic is to
address the questions that are relevant to this issue. I have addressed some of these questions in
previous email messages, but I thought that it would be worthwhile to repeat them here so they are
all in one place.
1. Is the City required to perform background investigations on prospective employees?
State law and the City Code contain provisions dealing with background investigations. Section
2.41 of the City Code authorizes the police department to conduct a criminal history background
investigation on applicants for positions where the city administrator has determined that conviction
of a crime may relate directly to the position being sought. Section 2.41 also states that a
background investigation cannot be performed unless the applicant consents in writing to the
investigation and to the release of information. An applicant's failure to provide consent may
disqualify the applicant for the position being sought.
Although Section 2.41 authorizes background investigations, it does not require that
investigations be done.
There is a state law known as the "Minnesota Child Protection Background Check Act," which
is contained in Minnesota Statutes, Section 299C.60 to 299C.64. That statute governs the BCA's
procedure for conducting background checks for a "children's service provider" to investigate the
background of a "children's service worker." The term "children's service provider" includes any
public or private organization that provides "children's services," which is defined to mean "the
provision of care, treatment, education, training, instruction, or recreation to children." The term
"children's service worker" includes anyone who is, or seeks to be, employed by or volunteer with a
"children's service provider." Some city positions, particularly some in the Park and Recreation
Department, clearly fall within the ambit of this statute.
The Act requires the BCA to develop procedures to enable a children's service provider to
request a background check to determine whether a children's service worker is the subject of a
reported conviction for any "background check crime," which includes child abuse, murder,
manslaughter, felony level assault or any assault crime committed against a minor, kidnapping,
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arson, criminal sexual conduct, and prostitution related crimes. The law states that the BCA may
not perform a background check unless the children's service provider submits a written document
signed by the children's service worker containing certain information and disclosures. Section
299C.62, subd. 5 states that the Act does not create any duty to perform a background check.
In summary, nothing in the City Code or State law requires the City to perform background
investigations on any employees or job applicants.
2. Should the City conduct background investigations even if the City is not legally obligated
to do so?
This is a policy question that has been pretty much answered by the provision in Section 2.41
stating that background checks may be performed "where the City Administrator has determined
that conviction of a crime may relate directly to the position sough!." Pursuant to Section 1.11 of
the City Code, the reference to "City Administrator" includes your designee. Consequently, you
could delegate this determination to department heads.
Before deciding whether to do a background check on a job applicant, City staff should be
aware of the type of criminal matters that can constitute a sufficient legal basis to disqualify a
person from public employment. If the information being sought in the background investigation
could not be used to disqualify a person from public employment, there is no need to do the
investigation.
3. What types of matters can be used to disqualify a person from public employment?
Minnesota Statutes, Section 364.03 states that "notwithstanding any other provision of law to
the contrary, no person shall be disqualified from public employment .., because of a prior
conviction of a crime or crimes unless the crime or crimes directly relate to the position of
employment sought." In making that determination, the hiring authority must consider the
following factors:
1. The nature and seriousness of the crime for which the applicant was convicted;
2. The relationship of the crime to the position of public employment being sought; and
3. The relationship of the crime to the ability, capacity and fitness required to perform the
duties and to discharge the responsibilities of the position.
Section 364.03 further provides that even if an applicant has been convicted of a crime that
would otherwise constitute a basis for disqualification from public employment, if he or she shows
sufficient evidence of rehabilitation, the criminal conviction cannot be used to deny public
employment. Sufficient evidence of rehabilitation can be established by, among other things,
evidence showing that at least one year has elapsed since release from any correctional institution
without subsequent conviction of a crime, or by evidence showing that the applicant has complied
with all terms and conditions of probation or parole. In determining whether the applicant has
provided sufficient evidence of rehabilitation, the hiring authority must consider the nature and
seriousness of the crime, any mitigating circumstances or social conditions surrounding the
commission of the crime, the age of the person at the time the crime was committed, the length of
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time elapsed since the crime was committed, and any other competent evidence of rehabilitation
such as letters of reference.
Section 364.04 provides that the following criminal records "shall not be used, distributed,
or disseminated" in connection with any application for public employment: (1) records of arrests
not followed by a valid conviction; (2) convictions that have been annulled or expunged; or (3)
misdemeanor convictions for which no jail sentence can be imposed.
With respect to a "children's service worker," the Minnesota Child Protection Background
Check Act specifies the types of crimes that can be used to disqualify an applicant. As stated above,
they include convictions for child abuse, murder, manslaughter, felony assault, any assault
committed against a minor, kidnapping, arson, criminal sexual conduct, and prostitution related
cnmes.
In summary, only convictions for certain offenses can be used to disqualify an applicant
from public employment. Arrests that do not result in convictions cannot be considered.
4. Can juvenile offenses be used to disqualify an applicant from public employment?
Section 364.03 does not specifically address juvenile offenses. However, Section 364.02,
Subdivision 5 defines the phrase "conviction of crime or crimes" to mean convictions of felonies,
gross misdemeanors, and misdemeanors for which a jail sentence may be imposed. Subdivision 5
further states that "no other criminal convictions shall be considered."
Juvenile offenses ultimately result in an "adjudication of delinquency," not a "conviction."
Therefore, in my opinion, an applicant's juvenile record is not relevant in determining whether that
person should be disqualified from public employment.
Marilyn Remer has indicated that she is aware that other cities, such as Eagan, Brooklyn
Center, Apple Valley and New Hope require background checks on minors. I am not sure if the
term "minors" in that context means applicants under 21, or applicants under 18. If it means the
latter, the information that would be obtained as part of the investigation could not be used to
disqualify a job applicant because it is impossible for a person under 18 to be convicted of a crime
within the meaning of Section 364.02, unless the person was tried as an adult rather than as a
juvenile.
5. Is the City's consent form sufficient?
The Commissioner of Administration has published a model consent form and instructions
to provide guidance for governmental entities when they request information that is classified as
private information under state or federal laws. I am attaching a copy of that document. I
recommend that the City compare its current form with the model form. If City staff has any
specific questions about whether the City's form complies with the Commissioner's model form,
please let me know.
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As stated above, the Child Protection Background Check Act also contains disclosure
requirements if a background check is being performed on an prospective "children's service
worker." Those requirements are contained in Minnesota Statutes, Section 299C.62, Subdivision 3,
a copy of which I am attaching to this memo. City staff should review those requirements to ensure
that the proper disclosures are being made. To the extent necessary, the City might want to consider
using an additional consent form for job applicants for a "children's service worker" position.
6. If a background investigation reveals information about a juvenile, what is the
status of that information?
If a job applicant has properly consented to the background investigation, any information
obtained by the police department can be used solely for the reasons contained in the consent form.
Minnesota Statutes, Section 260B.171 sets forth the rules with respect to juvenile records.
The general rule is that those records are private, but they can be disclosed in certain situations.
(See Section 260B.171, Subdivisions 5 and 6.) One of the exceptions is that information may be
exchanged between law enforcement agencies "if the exchanged information is pertinent and
necessary for law enforcement purposes." That exception, however, is not relevant to the situation
where the information is being obtained as part of the process for obtaining background information
on an applicant for pubic employment.
As stated above, Section 364.04 states that only certain criminal records can be ''used,
distributed, or disseminated" by governmental entities in connection with an application for public
employment. Juvenile records are not included in those records. Therefore, if the police
department happens to obtain juvenile data as part of performing a background investigation on a
job applicant, that information should not be disseminated beyond the police department.
7. If the job applicant is under 18 years old, does the City need to obtain parental
consent before performing a background check?
As stated above, juvenile data cannot be used to disqualify a person from public
employment. Therefore, it is not necessary to perform a background investigation for job applicants
under the age of 18, unless the City wanted to be sure that the applicant has no juvenile offenses that
were handled as adult matters.
Persons under 18 cannot enter into binding contracts. Although signing a consent to
perform a background check might not be a "contract," in my opinion the City should obtain
parental consent before performing a background investigation on a job applicant under the age of
18. The enclosed model form from the Commissioner of Administration suggests the same.
I hope that this memo addresses all of the issues relating to this topic. If I have missed any,
or if you have any questions about the issues addressed in the memo, please let me know.
cc: Dan Hughes
Marilyn Remer
Mark Themig
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Attachment C
Cost Estimate for Performing Background Checks
for Recreation Volunteers
The information listed below is based on each background check taking approximately
112-1 hour to complete. For estimates, we are judging that the check will take 45
minutes for completion. Staff from the Police Department, either a Community Service
Officer (CSO) or a Detective, would complete each background check. The cost of
completing these checks would be dependent on which employee actually performed the
check.
The table below shows in comparison the estimated cost of performing 100 additional
background checks.
Number of Time
Background Required for
Checks Each
100 3f4 hour
Number of Time
Background Required for
Checks Each
100 3f4 hour