Miami-Dade Legislative Item
File Number: 152918
   Clerk's Official Copy   

File Number: 152918 File Type: Ordinance Status: Adopted
Version: 0 Reference: 15-118 Control: Board of County Commissioners
File Name: CRIMINAL HISTORY FROM ALL COUNTY EMPLOYMENT APPLICATIONS Introduced: 12/9/2015
Requester: NONE Cost: Final Action: 10/6/2015
Agenda Date: 10/6/2015 Agenda Item Number: 7R
Notes: THIS IS FINAL VERSION AS ADOPTED. ALSO SEE 151260 Title: ORDINANCE ELIMINATING QUESTIONS REGARDING CRIMINAL HISTORY FROM 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 [SEE ORIGINAL ITEM UNDER FILE NO. 151260]
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

County Attorney 12/9/2015 Assigned Michael B. Valdes 12/11/2015

Board of County Commissioners 10/6/2015 7R AMENDED Adopted as amended P
REPORT: Assistant County Attorney Michael B. Valdes read the foregoing proposed amendment into the record. He stated the amended requirement to the ordinance would not apply to the hiring of law enforcement officers, police complaint officers, police dispatchers, firefighters, correctional officers, correctional technicians, and correctional labor supervisors. As such the phrase “any of the practices outlined in subsection “B” shall not apply to the hiring of law enforcement officers, police complaint officers, police dispatchers, firefighters, correctional officers, correctional technicians, and correctional labor supervisors” shall be entered as a new subsection “C2” on handwritten page 8 and all of the provisions that follow shall be renumbered accordingly. Chairman Monestime expressed his appreciation for the support received for “BAN THE BOX”, which is about fairness with the hiring process for employment with Miami-Dade County (MDC). He noted this item does not condone criminality, it does not supersede any state and federal laws, nor does it remove the requirement that a criminal history background check be conducted prior to an offer of employment. Chairman Monestime urged his colleagues to help MDC be leaders and to support this item as amended. Commissioner Levine Cava very proud we have moved forward and wanted to clarify that this ordinance does not eliminate background checks and it would ensure that all applicants were given a fair chance. She noted that the Equal Employment Opportunity Commission (EEOC) endorsed this practice as the best practice and stated this was a plus for MDC to attract the best candidates. Commissioner Sosa expressed concern and indicated that certain departments should have additional filters that allow for questions of applicants with recurring convictions. Chairman Monestime stated this was highly researched and noted out of the seventeen states that have passed a similar ordinance there have been no liabilities. Mr. Richard De Maria, Chief Assistant Public Defender, Miami Dade Public Defender, stated thousands of low income residents face charges without any representation and in many instances a plea was taken without proper knowledge of what they have agreed upon. He indicated this was about fundamental justice and fairness and he advised that the Public Defender’s office supports the decision to ‘Ban the Box”. Mr. De Maria pointed out that a public defender would be discharged or not appointed if the prosecutor’s office would ask the judge to sign an order of no incarceration. He further advised that although the defendant would not face jail time they could still be subject to having a conviction on their record and indicated this contributed to unfairness and injustice. Commissioner Suarez stated that he was in favor of this ordinance that provides applicants an opportunity to be considered for employment. Commissioner Moss inquired if a background check was conducted prior to the final hiring process of an applicant. Mayor Gimenez advised background checks were done after a conditional offer of employment and if there was a conviction, there has to be a nexus from the conviction to the specific job. He stated in regards to the Parks department, background checks were run on all employees every 3 years. Commissioner Bovo asked for clarification regarding the question listed on the employment application. Ms. Arleene Cuellar, Director, Human Resources Department, stated the online application provides for an optional question to enter criminal history information pertaining to convictions not an arrest. Mayor Gimenez commented that individual not qualified to hold specific jobs due to their convictions will be eliminated. Ms. Cuellar advised that a person was not automatically disqualified for further consideration if they listed a conviction. Commissioner Bovo asked if the application indicated that a background check would be conducted and if it did not he suggested that information should be listed on the application. Responding to Mayor Gimenez’ question, Ms. Cuellar advised that information could be added to notify the applicants job offers were contingent upon passing a full background check. Commissioner Bovo indicated that he felt more comfortable with the disclaimer being included on the application. Mayor Gimenez stated that information would be included on the application. Ms. Cuellar informed Commissioner Jordan that each department has the ability to have screening questions to filter by qualifications or eligibility. Commissioner Jordan provided examples of why certain individuals would not apply for jobs and indicated various reasons why she was in favor of banning the box. Commissioner Sosa agreed with Commissioner Bovo’s suggestion of informing the applicants that a background check would be conducted. Mayor Gimenez advised Commissioner Souto that any ordinance passed by this commission would not supersede any state laws. Chairman Monestime this ordinance provides an opportunity for individuals to make an honest living and to also help reduce the income equality gap in Miami-Dade County. Hearing no further comments or questions, the Board proceeded to vote on the foregoing proposed ordinance, as presented.

Legislative Text


TITLE
ORDINANCE ELIMINATING QUESTIONS REGARDING CRIMINAL HISTORY FROM 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 [SEE ORIGINAL ITEM UNDER FILE NO. 151260]

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 County employment applications 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:
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) Any of the practices outlined in subsection (b) shall not apply to the hiring of law enforcement officers, police complaint officers, police dispatchers, fire fighters, correctional officers, correctional technicians, and correctional labor supervisors.

(3) 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.

(4) 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.

(5) 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.



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