HB-5254, As Passed House, December 11, 2018

HB-5254, As Passed Senate, December 11, 2018

SUBSTITUTE FOR

HOUSE BILL NO. 5254

A bill to require the fingerprinting of certain public

employees for the purpose of receiving criminal history record

information from the department of state police and the Federal

Bureau of Investigation; to provide for the powers and duties of

certain state and local governmental officers and entities; to

provide for the collection of fees; and to prohibit the release of

certain information and prescribe penalties.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the

"public employee fingerprint-based criminal history check act".

Sec. 2. As used in this act:

(a) "Agency" means a department of this state or a local

department or agency, including public departments or agencies in a

county, city, village, or township that in the course of conducting

its business has or maintains access to federal information

databases.

(b) "Employee" means an individual employed by this state, an

individual working for a private business entity under contract

with this state, an individual working for a private business

entity under contract with a county, city, village, or township, or

an individual who is employed by a county, city, village, or

township.

information maintained by the federal government that contains

confidential or personal information, including, but not limited

to, federal tax information.

(d) "Publication 1075" means Internal Revenue Service

Regulation Publication 1075 of September 2016.

(e) "Federal tax information" means any information created by

the recipient that is derived from federal return or return

information received from the Internal Revenue Service or obtained

through a secondary source such as the Social Security

Administration, Federal Office of Child Support Enforcement, Bureau

of the Fiscal Service, or Centers for Medicare and Medicaid

Services, or another entity acting on behalf of the Internal

Revenue Service pursuant to an agreement under section 6103 of the

internal revenue code, 26 USC 6103.

(f) "Return" means any tax or information return, estimated

tax declaration, or refund claim, and includes amendments,

supplements, supporting schedules, attachments, or lists required

by or permitted under the internal revenue code and filed with the

Internal Revenue Service by, on behalf of, or with respect to any

person or entity. Examples of returns include forms filed on paper

or electronically, such as forms 1040, 941, and 1120, and other

informational forms, such as 1099 or W-2. Forms include supporting

schedules, attachments, or lists that are supplemental to or part

of such a return.

(g) "Return information" means any information collected or

generated by the Internal Revenue Service with regard to any

person's liability or possible liability under the internal revenue

code. Return information includes, but is not limited to,

information that the Internal Revenue Service obtained from any

source or developed through any means that relates to the potential

liability of any person under the internal revenue code for any

tax, penalty, interest, fine, forfeiture, or other imposition or

offense, information extracted from a return, including names of

dependents or the location of a business, the taxpayer's name,

address, and identification number, information collected by the

Internal Revenue Service about any person's tax affairs, even if

identifiers, such as name, address, and identification numbers, are

deleted, information regarding whether a return was filed or not,

is under examination, or is subject to other investigation or

processing, including collection activities, and information

contained on transcripts of accounts.

Sec. 3. (1) Each agency in this state that determines it must

do so to comply with publication 1075 shall develop a written

policy that ensures that its current and prospective employees who

may have access to federal information databases in the course of

his or her employment undergo the fingerprint-based criminal

history check required by publication 1075.

(2) Except as otherwise provided in subsections (3), (4), and

(5), the results of a criminal history check conducted under this

act are confidential and are not subject to disclosure under the

freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(3) The results of a fingerprint-based criminal history check

may be provided to the Internal Revenue Service or other federal

governmental entity as required by federal regulation or law.

(4) The results of a fingerprint-based criminal history check

conducted under this act may only be provided to an agency and must

not be shared with a vendor or contractor providing employees to an

agency under a contract between a vendor or contractor and an

agency. However, the results may be shared between a requesting

agency and another agency in this state.

(5) In circumstances in which the civil service manages human

resource functions for an agency under an executive order, the

results of a fingerprint-based criminal history check may be shared

between the agency and the civil service staff providing human

resource services to the agency.

Sec. 4. (1) Upon an offer of initial employment by an agency

that is subject to publication 1075 to an individual for any full-

time or part-time employment with the agency during which the

individual may have access to federal information databases, the

agency shall request from the department of state police a

fingerprint-based criminal history check on the individual,

including a criminal records check through the Federal Bureau of

Investigation.

(2) Before assigning an individual to employment during which

he or she may have access to federal information databases, the

agency shall have received from the department of state police the

report described in subsection (5). This subsection does not

require an agency to delay hiring an individual until the

completion of the fingerprint-based criminal history check required

under this section.

(3) An agency shall ensure that an employee who may have

access to federal information databases already employed by the

agency on the effective date of this act completes the fingerprint-

based criminal history check required under this section.

(4) An agency shall make a request to the department of state

police for a fingerprint-based criminal history check required

under this section on a form and in a manner prescribed by the

department of state police.

(5) Within 30 days after receiving a proper request by an

agency for a fingerprint-based criminal history check on an

individual under this section, the department of state police shall

conduct the criminal history check and initiate the criminal

records check through the Federal Bureau of Investigation. After

the completion of the fingerprint-based criminal history check

required under this section, the department of state police shall

provide a report of the results of the fingerprint-based criminal

history check to the requesting agency. The report must contain any

criminal history record information on the individual maintained by

the criminal records division of the department of state police and

any information obtained from the Federal Bureau of Investigation.

(6) Criminal history record information received from the

department of state police under subsection (5) must be used by an

agency only for the purpose of evaluating an individual's

qualifications for employment. Except as required by federal

regulation or rule, an agency or an employee of the agency shall

not disclose the report or its contents received under this section

to any person who is not directly involved in evaluating the

applicant's or employee's qualifications to begin or maintain

access to federal information databases. A person who violates this

subsection is guilty of a misdemeanor punishable by a fine of not

more than $10,000.00.

(7) If the fingerprint-based criminal history check required

under this section has been completed for a particular employee and

the results have been reported to an agency as provided under this

section, then another fingerprint-based criminal history check is

not required under this section for that employee as long as the

employee remains employed with no separation from service from the

agency. For the purposes of this subsection, an employee is not

considered to have a separation from service if the employee is

laid off or placed on a leave of absence by the agency and returns

to active employment with the agency within 1 year after being laid

off or placed on the leave of absence.

(8) The department of state police shall store and retain

fingerprints submitted under this section in an automated

fingerprint identification system that provides for an automatic

notification if subsequent criminal information matches

fingerprints previously submitted under this section. Upon a

notification under this subsection, the department of state police

shall immediately notify the agency that requested the fingerprint-

based criminal history check. The fingerprints retained under this

act may be searched against future fingerprint submissions, and any

relevant results will be shared with submitting and subscribing

entities. The searches described under this subsection include

latent fingerprint searches.

(9) The department of state police shall forward the

fingerprints submitted under this section to the Federal Bureau of

Investigation to be retained in the Federal Bureau of

Investigation's automated fingerprint identification system that

provides for automatic notification if criminal information matches

fingerprints previously submitted to the Federal Bureau of

Investigation under this subsection. If the department of state

police receives a notification from the Federal Bureau of

Investigation under this subsection, the department of state police

shall immediately inform the agency that requested the fingerprint-

based criminal history check. This subsection does not apply unless

the department of state police is capable of participating in the

Federal Bureau of Investigation's automated fingerprint

notification system.

Enacting section 1. This act takes effect 90 days after the

date it is enacted into law.