Legislative Matter

Miami-Dade Legislative Item
File Number: 151260

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File Number: 151260

File Type: Ordinance

Status: Amended

Version: 0

Reference:

Control: Board of County Commissioners

File Name: CRIMINAL HISTORY FROM ALL COUNTY EMPLOYMENT APPLICATIONS

Introduced: 5/26/2015

Requester: NONE

Cost:

Final Action:

Agenda Date: 10/6/2015

Agenda Item Number: 7R

Notes:

SEE 152918 FOR FINAL VERSION AS ADOPTED.

Title:

ORDINANCE ELIMINATING QUESTIONS REGARDING CRIMINAL HISTORY FROM ALL COUNTY EMPLOYMENT APPLICATIONS; ESTABLISHING SCREENING PRACTICES FOR THE USE OF CRIMINAL HISTORY INFORMATION IN COUNTY EMPLOYMENT DECISIONS; CREATING SECTION 2-31 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

Indexes:	APPLICATIONS
	CRIMINAL BACKGROUND CHECKS

Sponsors:	Jean Monestime, Co-Prime Sponsor
	Daniella Levine Cava, Co-Prime Sponsor
	Barbara J. Jordan, Co-Prime Sponsor
	Audrey M. Edmonson, Co-Prime Sponsor
	Dennis C. Moss, Co-Sponsor

Sunset Provision: No

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History
Acting Body	Date	Agenda Item	Action	Sent To	Due Date	Returned	Pass/Fail

Board of County Commissioners	10/6/2015	7R	Amended
REPORT:	See Agenda Item 7R Amended, Legislative File No. 152918 for the Amended version.

Board of County Commissioners	9/16/2015	7C	Deferred		10/6/2015		P
REPORT:	First Assistant County Attorney Abigail Price-Williams read into the record the title of the foregoing proposed ordinance. Chairman Monestime relinquished the chair to Vice Chairman Bovo. Commissioner Monestime noted Assistant County Attorney Michael Valdes would read into the record the proposed amendment. Assistant County Attorney Valdes advised that the proposed amendment would add a new Subsection c(2) on handwritten page 8, with the following language: “any of the practices outlined in Subsection b shall not apply to the hiring of fire fighters, law enforcement officers, police complaint officers, police dispatchers, correctional officers, correctional technicians, and correctional labor supervisors,” additionally all of the provisions that follow shall be renumbered accordingly. Commissioner Monestime explained his point of view on the foregoing proposed ordinance, noting that providing second chances would provide a positive impact on this community. Commissioner Heyman advised that she believed in justice and in fully recognizing the far end spectrum of the justice system called corrections and rehabilitation based on her academic and professional background of 30 years in the criminal justice system. She stated that a successful civil society allowed people to be justly processed while providing those people a chance to make amends whether through restitution, custody time, or service rendered. She stated that she also believed people should be allowed to move forward without a bias after making a mistake. She explained that she had a concern because the Board had a responsibility as a governing body for many things across the board due to the sensitivity of certain positions that have access to sensitive information and special assignments based on which department employed the applicant. She also expressed concern for other departments within the County having access to sensitive information, certain categories, and timing. Therefore, she believed an employment application should show certain information upfront for Human Resources due to the tremendous demand on resources for everyone involved in the process. Pursuant to Commissioner Monestime’s comments, Commissioner Heyman advised that the proposed amendments did not include certain departments that needed to be included and the timing for all departments. Discussion ensued between Commissioner Heyman and Assistant County Attorney Valdes regarding the amendment and its impact. Commissioner Sosa expressed her concern for the underlying message being sent. She pointed out that, even though she believed that people who made mistakes should be afforded a second chance, sometimes personnel was hired to work for parks and elderly people; and additionally, County positions were paid with taxpayers’ money. She stated that, even though it was okay to afford opportunities to those who had made a mistake in the past, she would still be interested in knowing an applicant’s background history and criminal record when considering an applicant for a position. Therefore, she would be unable to support the proposed legislation as written. She stated that she felt a system should be created for Human Resources to use depending on the offense to soften the impact and provide an opportunity. Following a discussion among the members of the Board and Assistant County Attorney Valdes regarding how this ordinance would impact the hiring process, Commissioner Diaz advised he would be supportive of the proposed legislation because there was nothing preventing the County from hiring someone that should not be hired for a position. Commissioner Souto noted that everyone should follow the law and assume responsibility for their acts; and even though he believed on giving second chances, he had many concerns regarding this legislation due to how it would impact the hiring process for the Department of Parks, Recreation, and Open Spaces. Discussion ensued among the members of the Board regarding statistics on convictions and arrests and the rationale for this ordinance. Vice Chairman Bovo suggested that the employment application should include a question to disclose conviction of a crime; and if the application indicated a conviction, it should be followed up. Discussion ensued among the members of the Board, Deputy Director Juan Perez, Miami-Dade Police Department (MDPD), and Human Resources Director Arleene Cuellar, regarding whether the employment application should disclose convictions. Vice Chairman Bovo suggested a Sunshine meeting should be held to discuss the impact of this legislation. Commissioner Sosa proposed to amend the foregoing ordinance to include in the employment application a question asking: “Have you ever been convicted of a crime?” She stated that an employment application should disclose convictions due to the importance of resources and time and the sensitivity of certain positions. She suggested the Board should follow the recommendations of MDPD. Commissioner Moss explained the intent of the foregoing ordinance and the hiring process currently in place. Commissioner Diaz advised the hiring process should have an emphasis on the applicant and not on what happened in the past; and even though there were many issues to be taken into consideration for certain departments, he concurred with the sponsored of the proposed legislation. Commissioner Monestime summarized the statistics for other states enacting similar legislation, noting this County should determine whether to be innovative or not; therefore, he would like to have this item deferred to the Chairman’s Council for Prosperity Initiatives in order to be able to review this legislation on the issue of inclusion and ensure all issues were understood. After the vote, Chairman Monestime resumed chairing the meeting. This ordinance was deferred to the next scheduled Board of County Commissioners’ meeting scheduled for October 6, 2015.

Economic Prosperity Committee	8/27/2015	1G4	Forwarded to BCC with a favorable recommendation				P
REPORT:	Chairman Suarez opened the public hearing and called for persons wishing to be heard. Assistant County Attorney Cynthia Johnson-Stacks read the foregoing proposed ordinance into the record. The following persons appeared before the Committee in support of the foregoing proposed ordinance: 1. Miami-Dade Public Defender Carlos Martinez, 1320 NW 14th Street, Miami FL 33125 appeared in support of the foregoing proposed ordinance. He spoke about the number of individuals with arrest records not resulting in convictions that would stand to benefit from the passing of this proposed ordinance. 2. Mr. Roderick “Rick” Beasley, Executive Director for CareerSource South Florida, 7300 Corporate Center Drive, Miami FL appeared on behalf of the South Florida Workforce Investment Board in support of the foregoing proposed ordinance. He pointed out that other States had adopted the “Ban the Box” which allowed employees with an arrest record to be considered for job positions based solely on qualifications. Commissioner Moss inquired about the current process/application being utilized by CareerSource South Florida. Mr. Beasley explained that while CareerSource South Florida did not include questions regarding criminal history as a part of its internal application process, it was a part of the application process for many private employers. He indicated that individuals proceeding with the eligibility phase of the program were required to disclose their criminal background information, but because of CareerSource South Florida’s commitment to working with ex-offenders and probationers, this information was not used to preclude anyone from services offered by the entity. Mr. Beasley voiced his concern about private employers including the question on applications and the difficulty it created in placing individuals from the program in private sector jobs. Commissioner Moss asked if private employers typically requested CareerSource South Florida to provide information about a candidate’s criminal background. Mr. Beasley reviewed CareerSource South Florida’s role in referring candidates to private sector employers. He pointed out that candidates still needed to complete the application process with the private employer which included disclosure of their criminal background. Mr. Beasley discussed the precedent the County would be setting in adopting the foregoing ordinance and how it would influence the private sector to adopt a similar practice. He stressed that the foregoing ordinance did not eliminate the screening process but merely removed the question from the application process. 3. Ms. Vickie Smith Jackson, representing Miami Community Relations Board, 12387 SW 143rd Lane, Miami FL. 4. Ms. Lovette McGill, representing A. Philip Randolph Institute, 4771 NW 6th Avenue, Miami FL spoke in support of the foregoing item and spoke of her personal experience as an individual with a criminal past and how it has affected and limited job opportunities. 5. Ms. Berlinda Faye Dixon, representing Smash the Slumlords and Miami Workers Center. 6. Mr. Adrian Madriz, representing Smash the Slumlords, 1841 NW 1st Court, Miami FL. 7. Ms. Jessica Chiappone, Vice President of Florida Rights Restoration Coalition and member of Miami-Dade Reentry Task Force, 138 West Palmetto Park Road, Boca Raton FL spoke about her criminal record and how it has affected her family and life. 8. Mr. Kenneth Orozco, representing Transition Incorporated, 1550 NW 3rd Avenue, Miami FL. 9. Ms. Serena Perez, Director of Gender Justice at The New Florida Majority, 8330 Biscayne Boulevard, Miami FL 10. Mr. Randall Briggins, representing Transition Incorporated, 1550 NW 3rd Avenue, Miami FL. 11. Mr. Alan Rauzin, President of Transition Incorporated, 1550 NW 3rd Avenue, Miami FL spoke about the precedent the foregoing proposed ordinance would set for other municipalities and private employers. 12. Ms. Daniela Saczek, representing Miami Workers Center, 8175 NW 8th Street, Miami FL spoke about the impact of having a criminal background and applying for public housing. She read several recommendations into the record regarding how the housing application process could be improved. 13. Ms. Trenise Bryant, representing Miami Workers Center, 8175 NW 8th Street, Miami FL Shanice echoed the sentiments and recommendations made by Ms. Saczek. 14. Ms. Rosalie Whiley, representing Miami Workers Center, 2901 NW 164th Street, Miami FL spoke about the issues individuals with criminal records face with regards to public housing. 15. Mr. Roy Hardemon, Chairman of Model City Community Advisory Committee (CAC), 2930 NW 65th Street, Miami FL. Seeing no other persons wishing to appear, Chairman Suarez closed the public hearing. Commissioner Sosa noted while she supported the idea of providing opportunities and second changes to individuals with a criminal record and agreed to the elimination of questions regarding criminal arrest from all County employment applications; she believed it was important to inquire about criminal convictions in order to make informed decisions. She expressed her concerns that the foregoing proposed ordinance would send a message to the youth that bad decisions or bad/criminal behavior was without consequence or repercussions. Commissioner Edmonson voiced her support for the foregoing proposed ordinance. She spoke about the County’s negotiations with Miami Worldcenter to “ban the box.” She explained the foregoing item was intended to eliminate questions regarding criminal history from the initial application process and would not preclude an employer from conducting a background check the initial interview phase. Commissioner Edmonson reiterated her support for the proposed item; because it would provide individuals with a criminal history the opportunity to at least interview with a prospective employer instead of being immediately rejected or denied a chance; based on one question on an application. She added that people should not be made to suffer because of mistakes made in their youth. Commissioner Edmonson requested to be added as a co-prime sponsor. Responding to Commissioner Sosa’s concerns, Commissioner Jordan directed her colleagues’ attention to Page 6 of the memorandum attached to the foregoing proposed ordinance and read Section B (1) into the record. Commissioner Sosa thanked Commissioner Jordan for clarifying the specifics of the proposed ordinance and process as it pertained to individuals with prior convictions. Commissioner Moss requested to be added as a co-sponsor voicing his support for the foregoing item. He noted that he was in receipt of a letter from the Chairman of the Community Relations Board, Dr. Walter T. Richardson urging the Committee members to support the foregoing proposed ordinance. Chairman Suarez read a statement into the record from Commissioner Levine Cava voicing her support of the foregoing proposed ordinance and her apologies for being absent from today’s (8/27) meeting. There being no further questions or comments, the Committee proceeded to vote on the foregoing proposed ordinance, as presented.

Economic Prosperity Committee	7/9/2015	1G3	Deferred to next committee meeting				P
REPORT:	Assistant County Attorney Cynthia Johnson-Stacks read the foregoing proposed ordinance into the record. Discussions ensued among Chairman Suarez, Commissioner Barreiro and Assistant County Attorney Terrence Smith regarding the loss of quorum. Commissioner Barreiro moved to defer the item before quorum was lost. Commissioner Levine Cava requested that the public speakers present to address the Committee members regarding the item be heard. Discussions ensued among Chairman Suarez, Commissioner Levine Cava, Commissioner Barreiro and Assistant County Attorney Johnson-Stacks regarding the loss of quorum and inability to hear from members of the public wishing to speak on the foregoing proposed ordinance. Commissioner Levine Cava apologized to the members of the public who were present to address the Committee members regarding the item and who were unable to do so due to the loss of quorum. Following discussions, the Committee by motion duly made, seconded and carried, voted to defer the foregoing proposed ordinance to the Committee meeting scheduled for August 27, 2015.

Board of County Commissioners	6/2/2015		Tentatively scheduled for a public hearing	Economic Prosperity Committee	7/9/2015

Board of County Commissioners	6/2/2015	4I	Adopted on first reading		7/9/2015		P
REPORT:	The foregoing proposed ordinance was adopted on first reading and scheduled for a public hearing before the Economic Prosperity Committee on July 9, 2015 at 2:00 p.m.

Office of the Chairperson	6/1/2015		Scrivener's Errors
REPORT:	On handwritten page 2, it has been determined the “6 weeks required between first reading and public hearing” and “4 weeks notification to municipal officials required to public hearing” is not required.

County Attorney	5/26/2015		Assigned	Michael B. Valdes		5/26/2015

County Attorney	5/26/2015		Referred	Economic Prosperity Committee	7/9/2015

Legislative Text

TITLE
ORDINANCE ELIMINATING QUESTIONS REGARDING CRIMINAL HISTORY FROM ALL COUNTY EMPLOYMENT APPLICATIONS; ESTABLISHING SCREENING PRACTICES FOR THE USE OF CRIMINAL HISTORY INFORMATION IN COUNTY EMPLOYMENT DECISIONS; CREATING SECTION 2-31 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY
WHEREAS, the ability of individuals with criminal records to successfully reintegrate into their communities contributes to reduced recidivism, strengthens families, and leads to safer communities; and
WHEREAS, research studies have found that securing stable employment is a significant factor for individuals with criminal records to attain successful reintegration with their communities; and
WHEREAS, the National Employment Law Project estimates that 70 million American adults have arrests or convictions in their past that can impact their ability to obtain employment; and
WHEREAS, employment applications often ask individuals whether they have any prior criminal arrests and/or convictions; and
WHEREAS, placing questions regarding criminal history on an employment application can create a chilling effect that discourages individuals with criminal records from applying for positions that they may be qualified for and where their prior convictions may not have any relevance to the position; and
WHEREAS, there are other, more reliable methods that an employer may use to inquire about a prospective applicant�s criminal history, such as conducting a criminal background check after the applicant has been selected as a finalist for the position based upon their qualifications; and
WHEREAS, many state and local governments have instituted policies whereby inquiries into an applicant�s criminal history will not be conducted until after an applicant has been considered for the position based upon their qualifications; and
WHEREAS, according to a report from the National Employment Law Project, such legislation has been passed in 16 states, 79 cities (including Jacksonville, Pompano Beach, St. Petersburg, Tampa, and Tallahassee), 21 counties, and Washington D.C.; and
WHEREAS, the �My Brother�s Keeper� Task Force created by President Barack Obama has also recommended eliminating questions regarding criminal history from employment applications in order to give applicants a fair chance and an opportunity to be judged on their merits; and
WHEREAS, the removal of questions concerning an applicant�s criminal history from any County employment application would not impact the County�s ability to make informed hiring decisions because hiring managers can still review criminal history information obtained from an applicant�s background check and assess its potential relevance to job responsibilities after the applicant has been selected as a finalist for the position based upon their qualifications; and
WHEREAS, this Board simply wishes to give full and fair consideration in employment for individuals with a criminal history and assist in the successful reintegration of those individuals who are the most qualified applicants for open positions within Miami-Dade County,
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:
Section 1. Section 2-31 of the Code of Miami-Dade County, Florida is hereby created to read as follows:1
Sec. 2-31. Criminal history screening practices.
(a) Definitions. The following definitions shall apply.

(1) Applicant�means a person who applies for employment with Miami-Dade County.

(2) Criminal history�means any information related to criminal charges against the applicant, proceedings related to the applicant's criminal charges and disposition of the applicant's criminal charges.

(3) Criminal history background check�means the process of obtaining information about an applicant�s criminal history through third party sources.

(4) Finalist�means an applicant conditionally selected for a position pending a criminal history background check.

(5) Initial application for employment�means any document, whether in paper or electronic form, that Miami-Dade County requires an applicant to submit prior to being selected as a finalist for a position.

(6) Position�means the particular job with Miami-Dade County sought by the applicant.

(b) Criminal history background checks.

(1) Except as otherwise provided by state or federal law, Miami-Dade County will not inquire about an applicant's criminal history and will not seek an applicant's authorization to conduct a criminal history background check unless and until the applicant is selected as a finalist for a position.

(2) Except as otherwise provided by state or federal law, Miami-Dade County shall not advertise positions with a statement that an individual with a criminal record may not apply for the position or place on the application that a person with a criminal record may not apply.

(3) Miami-Dade County will make the finalist a conditional offer of employment, contingent upon a successful criminal history background check, as determined by Miami-Dade County.

(4) If, after making a conditional offer of employment to an applicant, Miami-Dade County determines that the applicant has been convicted of a crime, Miami-Dade County shall consider the following factors when determining whether the conviction disqualifies the applicant for the position:

a. The nature of the conviction;

b. The time that has elapsed since the conviction;

c. Whether there is a relationship between the conviction and the position�s duties and responsibilities and the bearing, if any, the conviction may have on the applicant�s fitness or ability to perform one or more such duties and responsibilities and whether the duties of employment would place a co-worker or the public in potential danger; and

d. Any information produced by the applicant or produced on his or her behalf regarding his or her rehabilitation and good conduct.

(5) If, after making a conditional offer of employment, Miami-Dade County determines that the applicant has been arrested or charged but not convicted of a criminal offense and the criminal case is not actively pending, Miami-Dade County shall not use that information as a basis for declining to make an offer of employment or for withdrawing the conditional offer of employment.

(6) If, after making a conditional offer of employment to an applicant, Miami-Dade County determines that the applicant has had a criminal conviction expunged or sealed from his or her record, received a pardon, or that charges were dismissed pursuant to successfully completing a pretrial intervention or pretrial diversion program, Miami-Dade County shall not use that information as a basis for declining to make an offer of employment or for withdrawing the conditional offer of employment.

(7) If Miami-Dade County determines that the finalist�s criminal history is cause for potential withdrawal of the conditional offer of employment, the finalist will be notified and given an opportunity to respond within five business days of notification of cause for potential withdrawal. Miami-Dade County will consider any additional information provided in writing by the finalist.

(8) If, after review of additional information submitted by the finalist, Miami-Dade County determines that the applicant�s criminal history is disqualifying and a cause for withdrawal of conditional offer of employment, the applicant will be provided with a written letter of rejection specifically stating the evidence presented and reasons for rejection.

(9) Miami-Dade County�s selection and hiring decisions are final and are not subject to appeal.

(c) Limiting provisions.

(1) Any of the practices outlined in subsection (b) shall not apply if additional or conflicting screening practices or requirements regarding criminal history are required by state or federal law.

(2) Nothing in this section requires Miami-Dade County to hire an applicant with a criminal record, nor limits Miami-Dade County�s ability to select the most qualified applicant for a position.

(3) Nothing in this section prohibits Miami-Dade County from denying employment based on a criminal conviction determined in accordance with the practices outlined in this section to be relevant to the position sought.

(4) Nothing in this section creates a cause of action for any applicant with regard to hiring or selection for employment.

(d) Implementation. The Miami-Dade County Human Resources Department, its successor department, and other applicable departments shall have 90 days from the effective date of this ordinance to develop and implement any policies necessary to ensure full compliance with this section.

Section 2. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 3. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The section of this ordinance may be renumbered or relettered to accomplish such intention, and the word �ordinance� may be changed to �section,� �article,� or other appropriate word.
Section 4. This ordinance shall be become effective ten (10) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.

1 Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.