Bill S4570-2011

Relates to background checks in connection with certain contracts and current and transferred employees of the division of homeland security and emergency services

Relates to background checks in connection with certain contracts and current and transferred employees of the division of homeland security and emergency services.

Details

Actions

  • Jun 21, 2012: COMMITTED TO RULES
  • Jun 4, 2012: ADVANCED TO THIRD READING
  • May 31, 2012: 2ND REPORT CAL.
  • May 30, 2012: 1ST REPORT CAL.953
  • Jan 4, 2012: REFERRED TO FINANCE
  • Jun 24, 2011: COMMITTED TO RULES
  • Jun 14, 2011: ADVANCED TO THIRD READING
  • Jun 13, 2011: 2ND REPORT CAL.
  • Jun 7, 2011: 1ST REPORT CAL.1106
  • Apr 12, 2011: REFERRED TO FINANCE

Votes

Memo

BILL NUMBER:S4570

TITLE OF BILL:

An act to amend the state finance law, in relation to background checks in connection with certain contracts; and to amend the executive law, in relation to background checks of current and transferred employees of the division of homeland security and emergency services

PURPOSE OF BILL:

This bill would provide legal authority for state agencies and public authorities to include in contract documents a requirement that fingerprint-based background checks be conducted on contract employees that would enter, remain or have access to a critical infrastructure site or sensitive security information; and would provide the New York State Division of Homeland Security and Emergency Services (DHSES) with specific authority to conduct fingerprint-based criminal history background checks on current and transferred employees.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend State Finance Law § 163(10) by adding a new paragraph (g) to permit state agencies and public authorities to include in contract documents a requirement that fingerprint-based background checks be conducted on contract employees who would enter, remain or have access to a critical infrastructure site or have access to sensitive security information.

Section 2 of the bill would amend Executive Law § 709(2) by adding a new paragraph (v), which would require DHSES to conduct a fingerprint-based background check on current and transferred employees.

Section 3 of the bill would provide DHSES, in consultation with the Division of Criminal Justice Services, with rule-making authority to implement the new provision in the State Finance Law.

Section 4 of the bill would provide an immediate effective date.

EXISTING LAW:

There is no existing statutory authority permitting state agencies and public authorities to include in contract documents a requirement that fingerprint-based background checks be conducted on contract employees who would enter, remain or have access to a critical infrastructure site or sensitive security information.

Likewise, there is no statutory authority authorizing DHSES to conduct fingerprint-based criminal history background checks on current or transferred employees. With a few exceptions, see, e.g. Labor Law § 201-a, State law generally prohibits the fingerprinting of individuals as a condition of securing employment or of continuing employment.

Civil Service § 50(4) specifically prohibits State agencies from accessing criminal history information on current or transferred employees.

LEGISLATIVE HISTORY:

In 2007, the Office of Homeland Security proposed a departmental bill to require fingerprint-based background checks of current and transferred employees, but neither the Senate nor the Assembly introduced the bill.

STATEMENT IN SUPPORT:

Critical infrastructure sites continue to be prime targets for terrorist attacks as demonstrated by the numerous plots to attack these locations both here in New York and worldwide. Terrorist tactics may include pre-operational surveillance in an attempt to obtain as much information about the intended target as possible. Terrorists, cognizant of law enforcement efforts to detect pre-operational surveillance efforts, often shift tactics to avoid detection and to enhance their chances of success. Pre-operational terrorist surveillance under the guise of a contract employee to gain access to a critical infrastructure site is a legitimate concern. Permitting state agencies and public authorities to require fingerprint-based background checks in contract documents would provide State entities with an important screening measure to help prevent terrorists from obtaining sensitive information on critical infrastructure sites and close a recognized security gap.

Permitting DHSES to conduct fingerprint based criminal history background checks on current and transferred employees is also necessary to close an internal security gap. Pursuant to Executive Law § 709(2)(f), DHSES is responsible for coordinating the State's resources for the collection and analysis of information relating to terrorist threats and terrorist activities throughout the State. DHSES also is responsible for conducting threat vulnerability assessments of the State's power plants and transmission facilities, chemical storage facilities and commercial aviation transmission facilities and pipelines. See Executive Law §§ 713, 714 and 716. Consequently, DHSES maintains and has access to sensitive and classified security information, including federally classified "secret" and "top secret" information.

Although sensitive and classified information maintained by DHSES is properly safeguarded and only accessible by authorized personnel, fingerprint-based background checks would add another important layer of protection to these records and enable DHSES to take into consideration an individual's criminal history data to make a determination on whether a current or transferred employee poses a security risk to the safeguarding of sensitive and classified security information on a continuing basis.

BUDGET IMPLICATIONS:

None.

EFFECTIVE DATE:

This bill would take effect immediately, with provisions.


Text

STATE OF NEW YORK ________________________________________________________________________ 4570 2011-2012 Regular Sessions IN SENATE April 12, 2011 ___________
Introduced by Sen. BALL -- (at request of the Division of Homeland Secu- rity and Emergency Services) -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the state finance law, in relation to background checks in connection with certain contracts; and to amend the executive law, in relation to background checks of current and transferred employees of the division of homeland security and emergency services THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 10 of section 163 of the state finance law is amended by adding a new paragraph g to read as follows: G. IN CONTRACTS FOR SERVICES RELATED TO CRITICAL INFRASTRUCTURE, A STATE AGENCY, DEPARTMENT, BOARD, BUREAU, DIVISION, COMMISSION, COMMIT- TEE, PUBLIC AUTHORITY, PUBLIC CORPORATION, COUNCIL, OFFICE OR OTHER GOVERNMENTAL AGENCY MAY INCLUDE IN CONTRACT DOCUMENTS, A REQUIREMENT THAT PERSONS EMPLOYED BY THE CONTRACTOR TO PERFORM WORK PURSUANT TO THE CONTRACT SHALL BE REQUIRED TO UNDERGO A STATE AND NATIONAL CRIMINAL HISTORY RECORD CHECK. WHEN REQUIRED, THE FINGERPRINTS OF SUCH AN EMPLOY- EE SHALL BE SUBMITTED TO THE DIVISION OF CRIMINAL JUSTICE SERVICES AND THE DIVISION OF CRIMINAL JUSTICE SERVICES IS AUTHORIZED TO CHARGE A FEE IN CONNECTION WITH SUCH CRIMINAL HISTORY RECORD CHECK AND SUBMIT SUCH FINGERPRINTS TO THE FEDERAL BUREAU OF INVESTIGATION, IN ACCORDANCE WITH APPLICABLE RULES OR INFORMATION, IF ANY, CONCERNING SUCH EMPLOYEE, AND FOR A NATIONAL CRIMINAL HISTORY RECORD CHECK. THE CONTRACTOR SHALL BE RESPONSIBLE FOR INFORMING ITS EMPLOYEES THAT SUCH CRIMINAL HISTORY RECORD CHECKS SHALL BE CONDUCTED AND FOR OBTAINING THE FINGERPRINTS FOR TRANSMITTAL TO THE DIVISION OF CRIMINAL JUSTICE SERVICES IN THE FORM AND MANNER PRESCRIBED BY THE DIVISION. IN DETERMINING WHETHER TO INCLUDE SUCH REQUIREMENT IN CONTRACT DOCUMENTS, THE COMMISSIONER OR STATE AGEN- CY, DEPARTMENT, BOARD, BUREAU, DIVISION, COMMISSION, COMMITTEE, PUBLIC AUTHORITY, PUBLIC CORPORATION, COUNCIL, OFFICE OR OTHER GOVERNMENTAL
AGENCY SHALL CONSIDER, BUT NOT BE LIMITED TO CONSIDERING, WHETHER THE CONTRACTOR'S EMPLOYEES WILL ENTER, REMAIN OR OTHERWISE HAVE ACCESS TO CRITICAL INFRASTRUCTURE AS THAT TERM IS DEFINED IN SUBDIVISION FIVE OF SECTION EIGHTY-SIX OF THE PUBLIC OFFICERS LAW IN THE COURSE OF PERFORM- ING THE CONTRACT, OR HAVE ACCESS TO SENSITIVE SECURITY INFORMATION, AND WHETHER THE WORK IS OF A TYPE THAT, IF PERFORMED BY EMPLOYEES OF THE STATE, APPLICANTS FOR EMPLOYMENT WOULD BE REQUIRED BY THE STATE TO SUBMIT TO A CRIMINAL HISTORY RECORD CHECK PURSUANT TO SECTION FIFTY OF THE CIVIL SERVICE LAW OR ANY OTHER APPLICABLE LAW. A DETERMINATION ON WHAT CONSTITUTES CRITICAL INFRASTRUCTURE IN THE STATE SHALL BE MADE BY THE CONTRACTING STATE ENTITY IN CONSULTATION WITH THE OFFICE OF COUNTER TERRORISM. DETERMINATIONS ON THE SUITABILITY OF WHETHER A CONTRACT EMPLOYEE SHALL BE PERMITTED TO ENTER, REMAIN OR OTHERWISE HAVE ACCESS TO CRITICAL INFRASTRUCTURE OR SENSITIVE SECURITY INFORMATION IN THE COURSE OF PERFORMING THE CONTRACT SHALL BE MADE BY THE CONTRACTING STATE AGEN- CY, DEPARTMENT, BOARD, BUREAU, DIVISION, COMMISSION, COMMITTEE, PUBLIC AUTHORITY, PUBLIC CORPORATION, COUNCIL, OFFICE OR THE GOVERNMENTAL AGEN- CY IN ACCORDANCE WITH ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW. S 2. Subdivision 2 of section 709 of the executive law is amended by adding a new paragraph (v) to read as follows: (V) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, INCLUDING SUBDIVISION FOUR OF SECTION FIFTY OF THE CIVIL SERVICE LAW, REQUIRE CURRENT AND TRANSFERRED EMPLOYEES TO UNDERGO A STATE AND NATIONAL CRIMINAL HISTORY RECORD CHECK FOR PURPOSES OF CONDUCTING BACKGROUND CHECKS OF SUCH INDI- VIDUALS. THE FINGERPRINTS OF SUCH INDIVIDUALS SHALL BE SUBMITTED TO THE DIVISION OF CRIMINAL JUSTICE SERVICES AND THE DIVISION OF CRIMINAL JUSTICE SERVICES IS AUTHORIZED TO CHARGE A FEE IN CONNECTION WITH SUCH CRIMINAL HISTORY RECORD CHECKS AND SUBMIT SUCH FINGERPRINTS TO THE FEDERAL BUREAU OF INVESTIGATION, IN ACCORDANCE WITH APPLICABLE RULES OR REGULATIONS PROMULGATED BY SUCH ENTITIES, IN ORDER TO OBTAIN CRIMINAL HISTORY RECORD INFORMATION CONCERNING SUCH INDIVIDUALS. THE DIVISION SHALL CONDUCT BACKGROUND INVESTIGATIONS OF ALL SUCH INDIVIDUALS. DETER- MINATIONS ON THE EFFECT OF ANY CRIMINAL CONVICTIONS SHALL BE MADE IN ACCORDANCE WITH ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW. S 3. The director of the office of counter terrorism in consultation with the commissioner of the division of criminal justice services shall promulgate rules and regulations necessary to implement paragraph g of subdivision 10 of section 163 of the state finance law. S 4. This act shall take effect immediately; provided, however, that the amendments to subdivision 10 of section 163 of the state finance law made by section one of this act shall not affect the repeal of such section and shall be deemed repealed therewith.

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