§ 36-3-16. Authority to conduct state and national background checks for applicants and employees
in state positions with access to federal tax information.
(a) Definitions. As used in this section, the following terms are hereby defined as follows:
(1) "Access,� shall mean the direct use, contact, handling or viewing of federal tax information,
as defined herein, in paper or electronic form, regardless of the frequency, likelihood
or extent of such access.
(2) "Agency� or "state agency,� shall mean a Rhode Island state agency within the executive
branch.
(3) "Agency head,� shall mean the director or designee of a state agency holding the position
with access (as defined herein).
(4) "Applicant for employment,� shall mean an individual who has applied for or may be
offered employment, transfer or promotional opportunities with a state agency, including
employment as a full-time or part-time employee, intern, temporary or seasonal employee,
or volunteer, in a position with access (as defined herein).
(5) "Current agency employee,� shall mean a full-time or part-time state employee, intern,
temporary or seasonal employee or volunteer in a position with access (as defined
herein).
(6) "Federal tax information� or "FTI� shall mean:
(i) Federal tax returns or information created or derived from federal tax returns that
is in an agency's possession or control, which is covered by the confidentiality protections
of the Internal Revenue Code and subject to 26 U.S.C. § 6103(p)(4) safeguarding requirements, including oversight by the Internal Revenue Service ("IRSâ€�);
and received directly from the IRS or obtained through an authorized secondary source,
such as the Social Security Administration (SSA), Federal Office of Child Support
Enforcement (OCSE), Bureau of the Fiscal Service (BFS), Centers for Medicare and Medicaid
Services (CMS), or another entity acting on behalf of the IRS pursuant to an Internal
Revenue Code ("IRC�) 6103(p)(2)(B) agreement; and
(ii) FTI shall expressly not include federal tax returns or information created or derived
from federal tax returns received from taxpayers or other third-parties.
(7) "Law enforcement authorized agency� shall mean a government entity authorized to conduct
national background checks using the federal bureau of investigation's fingerprinting
national background check system.
(b) The personnel administrator or designee shall require to be obtained a state and national
fingerprint-based criminal background check initially and at least every ten years,
as authorized by Public Law 92-544, to determine the suitability of an applicant for
employment prior to hiring or a current agency employee, if the position applied for
or held requires or includes access to FTI.
(c) An applicant for employment or current agency employee who refuses to comply with
the fingerprint-based background check requirements shall be considered unsuitable
for serving in a position requiring or involving, or which may require or involve,
access to FTI.
(d) The national fingerprint-based criminal background check shall be facilitated through
the office of the attorney general or another law enforcement authorized agency and
forwarded to the federal bureau of investigation for a national criminal history check,
according to the policies, procedures, and/or regulations established by the office
of the attorney general or another law enforcement authorized agency.
(1) For current agency employees, the agency shall pay the applicable fee charged through
the office attorney general or other law enforcement authorized agency to conduct
state and national background checks. However, applicants for employment shall be
required to pay the fee charged through the office attorney general or other law enforcement
authorized agency.
(2) Fingerprint submissions may be retained by the Federal Bureau of Investigation and
the office of the attorney general or other law enforcement authorized agency to assist
the personnel administrator authorized pursuant to this section to ensure the continued
suitability of an applicant for employment or a current agency employee for access
to FTI.
(3) The office of the attorney general or other law enforcement authorized agency may
disseminate the results of the state and national criminal background checks to the
personnel administrator or designee of the personnel administrator.
(4) Notwithstanding any law to the contrary, solely for the purposes of this chapter,
the personnel administrator, agency head and authorized staff of an agency may receive
criminal offender record information to the extent required by federal law and the
results of checks of national criminal history information databases under Public
Law 92-544.
(5) Upon receipt of the results of state and national criminal background checks, the
personnel administrator, agency head and other authorized staff shall treat the information
as non-public and exempt from disclosure in accordance with the Rhode Island access
to public records act, § 38-2-2(4)(A)(I)(b). Information acquired by any agency in the background check process pursuant to this
section shall be used solely for the purposes of making a determination as to the
suitability of a particular current employee or applicant for employment for and assignment
to duties in a position that requires or includes, or may require or include, access
to FTI.
(e) If the office of the attorney general or other law enforcement authorized agency receives
criminal record information from the state or national fingerprint-based criminal
background checks that includes no disposition or is otherwise incomplete, the office
of the attorney general or other law enforcement authorized agency shall notify the
personnel administrator and the subject person. The applicant for employment or the
current agency employee shall be responsible for resolving any issues in other jurisdictions
causing an incomplete background check. Within fifteen (15) business days from being
notified, the applicant for employment or current agency employee must resolve any
incomplete background check. For the purposes of this chapter, the personnel administrator,
in his or her sole discretion, may extend the amount of time to resolve an incomplete
report. Once resolved, the applicant's suitability for employment in a position requiring
or involving, or which may require or involve, access to FTI shall be determined in
accordance with subsection (f).
(1) In the event that an applicant for employment fails to resolve an issue with an incomplete
background check by the deadline stated herein, the person shall no longer be considered
for employment to the position with access.
(2) In the event that a current agency employee fails to resolve an issue with an incomplete
background check by the deadline provided herein, along with any extension, the employee
may be terminated or discharged from employment; provided, however, that a current
agency employee may be placed on administrative leave or reassigned to a position
that does not require access to FTI if that position is available and subject to the
business needs of the agency at the discretion of the personnel administrator and
agency head. Any such employment action shall be subject to the same appeal or grievance
procedures as normally authorized.
(f) The personnel administrator or designee shall review the results to determine the
suitability of the applicant for employment or current agency employee, based on criteria
established through regulation, to serve in a position requiring or involving, or
which may require or involve, access to FTI. In making such a determination of suitability,
the personnel administrator or designee may consult with the agency head and consider
mitigating factors relevant to the current agency employee's employment and the nature
of any disqualifying offense.
(1) In the event that an applicant for employment receives a final determination that
the person is unsuitable, the person shall no longer be considered for employment
into a position with access.
(2) A current employee may appeal a determination of unsuitability to the personnel administrator.
While the appeal is pending, the employee may be placed on administrative leave in
the discretion of the personnel administrator. A final determination of unsuitability
after appeal may result in termination or discharge from employment; provided, however,
that subject to the discretion of the personnel administrator and the agency head,
a current agency employee may be reassigned to a position that does not require access
to FTI if that position is available and subject to the business needs of the agency.
Any such employment action shall be subject to further appeal or grievance procedures
as normally authorized.
(g) Nothing in this section shall limit or preclude an agency's right to carry on a background
investigation of an applicant for employment or a current agency employee using other
authorized means.
(h) The Department of Administration is hereby authorized to promulgate and adopt regulations
necessary to carry out this section.
(i) The judicial branch is hereby authorized to comply with the provisions herein related
to employees with access to FTI.