[HISTORY: Adopted by the Common Council of the City of Middletown 4-21-2015 by L.L. No. 2-2015. Amendments
noted where applicable.]
The purpose of this chapter is to provide for the health, safety, and general welfare of the citizens of the City of Middletown through the authorization of fingerprinting and background checks for applicants who wish to be volunteer firefighters in the City or who wish to be employed by the City's Department of Recreation. In addition, because persons who obtain peddllers' or solicitors' permits under Chapter 353 of the Code of the City of Middletown may go door to door to conduct their business, this enactment is designed to authorize the fingerprinting and background checks of those persons who apply for such permits.
Background checks, which include fingerprint inquiries to the
New York State Division of Criminal Justice Services ("NYS DCJS")
in order to access criminal history record information and other types
of consumer reports, are hereby authorized and required for the following
positions and licenses:
A.
Applicants who wish to become volunteer firefighters in the City
of Middletown Fire Department.
B.
Applicants who wish to work in the City of Middletown Department
of Recreation and who will have direct access to, or work directly
with, minors.
C.
Applicants who wish to work in the City of Middletown Department
of Public Works.
A.
An applicant for any of the positions set forth in § 173-2 must be advised, in writing and in advance of any submission, that the City will require the applicant to be fingerprinted and to submit the fingerprints and any other required information to the NYS DCJS in order to access criminal history record information and to obtain a consumer report on the applicant.
B.
An applicant for any of the positions set forth in § 173-2 must be advised, in writing and in advance of any submission, of the name and address of the reporting agency or agencies that will be providing the background check to the City.
C.
An applicant for any of the positions set forth in § 173-2 must comply with fingerprinting requirements of NYS DCJS and pay any fees to NYS DCJS associated with the fingerprinting requirements and the background check. Notwithstanding the foregoing, the fees for fingerprints and the cost of any background check of applicants for any positions referred to in § 173-2A, B and C will be paid by the City of Middletown.
D.
Submission of fingerprints and payment of any applicable fees to NYS DCJS shall be in the form and manner as provided by NYS DCJS. Any costs associated with the same shall be paid by the applicant. Notwithstanding the foregoing, the costs associated with the fingerprints and payment of fees to NYS DCJS for applicants for any positions referred to in § 173-2A, B and C will be paid by the City of Middletown.
E.
The City Clerk, in conjunction with the Corporation Counsel, shall
develop a standalone form to be signed by any applicant authorizing
the City to obtain a background check on the applicant, including
the applicant's criminal history record information and to obtain
a consumer report on the applicant.
F.
If an applicant is seeking an employment position with the City of
Middletown Department of Recreation that will have direct access to,
or work directly with, minors and the annual salary for the job is
less than $25,000.00, then the background check may only report criminal
convictions that occurred in the previous seven years. If an applicant
is seeking an employment position with the City of Middletown Department
of Recreation that will have direct access to, or work directly with,
minors and the annual salary for the job is more than $25,000.00,
then the background check may report all criminal convictions of the
applicant.
G.
All requests for background checks and consumer reports for any applicant
must comply with the requirements of the Federal Fair Credit Reporting
Act (15 U.S.C. § 1681), New York's Fair Credit Reporting
Act (Article 25 of the New York General Business Law), Article 23-A
of the New York Correction Law, New York Executive Law § 296
(16), and any other applicable federal or state law or successor law
to any of the aforementioned laws.
A.
Background checks, including criminal history record information, obtained on an applicant for any of the positions set forth in § 173-2 are to be reviewed as follows:
(1)
Background checks for applicants who wish to become volunteer firefighters
in the City of Middletown Fire Department are to be reviewed by the
Fire Chiefs in conjunction with the Chief of Police or his designee.
(2)
Background checks for applicants who wish to work in the City of
Middletown Department of Recreation and who will have direct access
to, or work directly with, minors are to be reviewed by the Superintendent
of Recreation in conjunction with the Chief of Police or his designee.
B.
Applications for any of the positions or licenses as described in § 173-2 may be denied based on the results of the background check only if there is a direct relationship between the criminal offense committed and the employment sought. A direct relationship exists if:
(1)
The nature of the criminal conduct directly bears on the fitness
or ability of the applicant to perform the duties or responsibilities
of the job; or
(2)
The applicant would pose an unreasonable risk to property or the
safety or welfare of others. This includes a risk to specific individuals
or the general public.
C.
In determining whether or not an application may be denied based
on the results of the background check, the reviewing authority must
consider the following factors:
(1)
The public policy of New York State to encourage the licensure and
employment of persons previously convicted of one or more criminal
offenses.
(2)
The specific duties and responsibilities necessarily related to the
license or employment sought.
(3)
The bearing, if any, the criminal offense or offenses for which the
person was previously convicted will have on his fitness or ability
to perform one or more such duties or responsibilities.
(4)
The time which has elapsed since the occurrence of the criminal offense
or offenses.
(5)
The age of the person at the time of occurrence of the criminal offense
or offenses.
(6)
Any information produced by the person, or produced on his behalf,
in regard to his rehabilitation and good conduct.
(7)
The legitimate interest of the public agency or private employer
in protecting property, and the safety and welfare of specific individuals
or the general public.
(8)
In addition, the reviewing authority shall also give consideration
to a certificate of relief from disabilities or a certificate of good
conduct issued to the applicant, which certificate shall create a
presumption of rehabilitation in regard to the offense or offenses
specified therein.
(9)
The reviewing authority must consider each applicant on a case-by-case
basis after reviewing all of the above factors and should attempt
to verify the accuracy of the information contained in the background
check with the applicant.
(10)
If the reviewing authority chooses to deny the applicant employment,
or a position with the City, or a license because of the results of
the background check, the applicant is entitled to a written statement
giving the reasons for this denial, which must be provided to the
applicant within 30 days of the applicant's request along with
a second copy of Article 23-A of the New York Correction Law.
A.
In the event the reviewing authority chooses to deny the applicant
employment, or a position with the City, or a license because of the
results of the background check, the reviewing authority shall notify
the applicant in writing of such denial, and the individual shall
have the right to request a hearing before the Corporation Counsel.
B.
Any request for a hearing must be made by the applicant within 20
calendar days after receiving written notice of the denial from the
reviewing authority. Failure to request a hearing within such twenty-day
period shall be deemed a waiver of the applicant's right to file
an appeal.
C.
Upon receiving a timely request for a hearing, the Corporation Counsel,
as hearing officer, shall set a time and a place for a hearing. The
applicant shall have the option of whether such hearing shall be public
or private.
D.
At the time of the hearing, the applicant shall be given an opportunity
to present evidence, including the testimony of third-party witnesses,
why such denial of the application should be reversed. The reviewing
authority may also present evidence as to why the denial of the application
should be sustained. The applicant may be represented by an attorney
or may represent him- or herself at the hearing.
E.
The Corporation Counsel, as hearing officer, shall hear the evidence
and testimony as presented by the applicant and the reviewing authority.
Upon consideration of the evidence presented, the Corporation Counsel,
as hearing officer, will issue a written decision which may sustain
or reverse the decision of the reviewing authority to deny the application.
F.
In the event the applicant is not satisfied with the decision of
the Corporation Counsel as hearing officer, the applicant may file
an Article 78 proceeding pursuant to the New York CPLR, except that
such Article 78 proceeding must be filed within 30 days of the filing
of the Corporation Counsel's decision with the City Clerk of
the City of Middletown and service of the same upon the applicant.
Any and all criminal background checks supplied to the reviewing
authority shall be filed and maintained in a secure and locked cabinet
under the custody of the Chief of Police or his designee and shall
not be available to the public. Such records shall be exempt from
public disclosure under the New York Freedom of Information Law. The
records shall only be retained for such period of time as necessary
for the reviewing authority to review the background check for compliance
with this chapter. The records shall be destroyed after an applicant
is deemed qualified by the reviewing authority. In the event the reviewing
authority determines an applicant's application is denied, that
individual's background check records shall not be destroyed
until and unless the applicant exhausts all available appeal rights,
administratively and through court.
