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.
(c) "Federal information database" means a database of
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.