530801 Amending Chapter 4, “Organization for Personnel Management,” of Subtitle B of Title 6 of the District of Columbia Municipal Regulations., D.C. Register

The main purpose of these emergency rules is to amend Chapter 4, “Organization for Personnel Management,” of Subtitle B of Title 6 of the District of Columbia Municipal Regulations to: (1) amend section 420 of the chapter to specify the challenge process for employees covered by the Act, and the procedure for applicants, appointees, and volunteers covered by the Act to challenge a final agency action which results in denial, removal, or termination of a volunteer, or a conditional or provisional appointee covered by the Act; (2) add a new section 426 to the chapter to address the limited concurrent personnel authority delegated to the Chief of the Fire and Emergency Medical Services Department via Mayor’s Order 2009-166, regarding criminal background and traffic record checks under the Act; and (3) add a new section 427 to the chapter to provide regulations to govern suitability appeals before the Commission on Human Rights in compliance with the Act. The Act established criminal background and traffic record checks requirements for District government employees providing direct services to children or youth in District government agencies considered “covered child or youth services providers.”

Additionally, amendments are being made to sections 403, 405, 407, 412, 416, 418, 419, 421, 422, 423, and 424 of the chapter, and subsections in those sections are renumbered to maintain uniformity in the chapter as a result of adding the new sections and subsections. The definitions of the terms “applicant,” “appointee,” “background investigation,” “children,” “covered assignment,” “covered child or youth services provider,” “covered duties and responsibilities,” “covered position,” “non-covered duties and responsibilities,” “non-covered position,” “person being considered for employment,” “volunteer,” and “youth” are being amended; and definitions of the terms “administrative action,” “disposition,” and “substantial evidence” are being added to section 499 of the chapter.

Therefore, for the immediate preservation of the peace, safety, and welfare of the public, and to ensure that the provisions of Mayor’s Order 2009-166 are immediately implemented, action was taken on September 15, 2010, to adopt the following rules on an emergency basis. The emergency rules, which became effective immediately upon adoption, shall remain in effect for up to one hundred twenty (120) days, unless earlier superseded by another rulemaking notice.

The Director also gives notice of the intent to take final rulemaking action to adopt this rulemaking in no less than thirty (30) days from the date of publication of this notice in the D.C. Register.

Chapter 4, “Organization for Personnel Management,” of Subtitle B of Title 6 of the District of Columbia Municipal Regulations is amended as follows:

Section 403, “General Provisions of Suitability,” is amended by amending Subsections 403.1 and 403.3 to read as follows:

403.1 Except for the provisions in sections 412 through 427 of this chapter, or otherwise provided by law or regulation, any pre-employment check, background check, or background investigation provisions negotiated between the District government and a labor organization shall take precedence over the provisions of this chapter, for employees in a bargaining unit represented by a labor organization, to the extent that there is a difference.

403.3 When taking suitability administrative action against an employee under this chapter, personnel authorities shall ensure compliance with the process in section 604 of the CMPA (D.C. Official Code § 1-606.04), Chapter 16 of Title 6-B of the District of Columbia Municipal Regulations (DCMR), or any other applicable law or regulation.

Section 405, “Pre-employment Checks and Background Checks and Investigations,” is amended in its entirety to read as follows:

405.1 Except as otherwise provided, the pre-employment checks, background checks and investigations, and suitability provisions and processes in this section are separate and distinct from the provisions and processes on criminal background checks, traffic record checks, and suitability for the protection of children and youth contained in sections 412 through 427 of this chapter.

405.2 Each personnel authority shall establish the suitability for employment of an appointee by conducting pre-employment checks and background checks and investigations as described in this section. Each personnel authority shall conduct the following pre-employment checks:

(b) Possession of a college degree shall be verified if the education was substituted for experience in qualifying the person for the position;

(d) Possession of a college degree from an accredited school and in the appropriate professional field shall be verified, including semester hours or other measures of credit completed, periods of attendance, type of degree and date conferred, if the degree is required as a job-related qualification standard such as is the case in the professional engineering field;

(e) Miscellaneous checks such as professional standing and other inquiries may also be conducted, if considered necessary by the personnel authority, and in addition to the pre-employment checks required in this subsection;

(f) In addition to the pre-employment checks required in this subsection, every new appointee shall be subject to completion of at least three (3) reference checks to ascertain character, reputation, relevant traits and characteristics, and other relevant personal qualities, and whether the reference would recommend the appointee for the position for which he or she is being considered; and

(g) The three (3) reference checks specified in this subsection shall be made with the appointee’s former employer; except that personal references may be utilized instead of, or in addition to, checks with former employers as deemed necessary by the personnel authority.

405.3 Based on the duties of the position, or if required by law or regulation, each personnel authority shall determine which positions, in addition to being subject to the pre-employment checks listed in subsection 405.2, shall be subject to background checks or investigations, or mandatory criminal background checks. The vacancy announcements for such positions, and for positions described in section 406 of this chapter, shall include a statement informing applicants of the specific requirement.

405.4 The Director of the DCHR (or his or her designee) shall publish in the Electronic-District Personnel Manual (or any other electronic procedural manual or manuals developed) positions in subordinate agencies subject to background checks pursuant to subsection 405.2, section 406, and sections 412 through 427 of this chapter, or any other applicable law or regulation.

405.5 Except for a mandatory criminal background check required by law or regulation,

a background check under this section shall be conducted in accordance with the following:

(a) Before conducting the background check, the personnel authority shall determine the degree of sensitivity of the position being filled in order to determine the scope of the check. Based on that determination, the background check may cover, in addition to the requirements in subsection 405.2, the following:

(4) A credit check that adheres to the notification and consent requirements of the federal Fair Credit Reporting Act and any other applicable law or regulation;

(b) In conducting the background check, a personnel authority shall attempt to verify any derogatory information by seeking it from more than one (1) source, asking former employers and other sources for permission to name them as the source and, as needed, obtaining a written release from the subject, and providing an applicant the opportunity to explain or correct any derogatory information.

405.6 Unless otherwise provided by law, regulation, or sections 412 through 427 of this chapter, in filling a position subject to background checks, a check need not be conducted if the appointee is already employed with the District government in a position subject to a background check; and the nature of the personnel action for the new appointment is one (1) of the following:

(d) An appointment or conversion of an employee who has been serving continuously with a District government agency for at least one (1) year in a position or positions under an appointment subject to a background check.

405.7 Upon completing a check or investigation in accordance with this section, the personnel authority shall inform the agency of the results, and may make a determination that an appointee is not suitable for employment, and may thereby:

(a) Deny him or her examination for or appointment to the position for which the person had been considered; or

(b) Require that the employing agency terminate the appointee from District government service.

405.8 A subordinate agency that has been delegated personnel authority to conduct checks or investigations in accordance with this section shall promptly make the appropriate determination under subsection 405.7 upon completing the check or investigation, and immediately inform the DCHR or other independent personnel authority of the determination, in writing.

405.9 Before taking suitability disqualification action against an appointee under this section, and at the discretion of the personnel authority, the person shall be given an opportunity to explain the derogatory information found, in writing, within fifteen (15) days of the notification. The appointee shall provide information to explain any discrepancies, omissions, misinformation, or mitigating circumstances.

405.10 The reasons which may be used in making a determination of disqualification of an appointee due to unsuitability may include, but shall not be limited to the following:

(b) Criminal, dishonest, or other conduct of a nature that would cause discredit to the District government;

(c) A false statement of any material fact, or engagement in deception or fraud in the examination or appointment process;

405.11 In making its determination of disqualification of an appointee due to unsuitability, the personnel authority shall consider the following additional factors, to the extent that these factors are deemed pertinent to the individual case:

(a) The kind of position for which the person is being considered or in which the person is employed, including its sensitivity;

(g) The absence or presence of rehabilitation or efforts toward rehabilitation; or

(h) In the case of criminal conduct, its relevance or relationship to the duties of the position.

405.12 Unless otherwise provided pursuant to law, regulation, or this chapter, an appointment to a position subject to background investigation pursuant to subsection 405.3 shall be subject to investigation for one (1) year from the date of appointment to continue the personnel authority’s jurisdiction to investigate the qualifications and suitability of the person after appointment, if needed, and to authorize the personnel authority to require termination when it finds that the employee is not suitable for District government employment, or to take any of the other actions specified in section 407 of this chapter, as applicable.

405.13 Unless otherwise provided pursuant to law or regulation, when an appointee is disqualified for any of the reasons listed in subsection 405.10, or for other reasons not listed, the personnel authority, at its discretion, may continue to rely on that determination with regard to subsequent applications for employment to a position in one of the Services listed in subsection 404.1 of this chapter, for a period of not more than three (3) years from the date of determination of disqualification, after which a new background investigation shall be required.

405.14 Upon expiration of the three (3) year period under subsection 405.13 of this section, a new background investigation shall be conducted and a re-determination made before the person may be appointed to any position in one of the Services listed in subsection 404.1 of this chapter.

Section 407, “Suitability Actions Against Employees Initiated or Taken by the D.C. Department of Human Resources and Independent Personnel Authorities, is amended by amending subsection 407.1 to read as follows:

407 SUITABILITY ACTIONS AGAINST EMPLOYEES INITIATED OR TAKEN BY THE D.C. DEPARTMENT OF HUMAN RESOURCES AND INDEPENDENT PERSONNEL AUTHORITIES

407.1 The DCHR and independent personnel authorities covered by this chapter shall initiate, or initiate and take, suitability action against District government employees pursuant to this section and chapter when:

(a) The DCHR or independent personnel authority, as applicable, make a determination that the employee provided a materially false statement; engaged in deception or fraud in his or her examination or appointment with the District government; or engaged in the falsification of official personnel records;

(b) Derogatory information about the employee, of a nature that constitutes an immediate hazard to the agency, the employee concerned, to other employees, or to the detriment of the public health, safety, or welfare, is disclosed by a credible source or independently discovered by the DCHR, independent personnel authority, or the employing agency;

(c) Derogatory information about an employee, of a nature that will impact the employee’s suitability to continue performing the duties of his or her position, is disclosed by a credible source or independently discovered by the personnel authority or employing agency; or

(d) A determination is made to terminate the employment of an employee subject to the provisions on criminal background checks for the protection of children and youth contained in sections 412 through 427 of this chapter because:

(2) As specified in D.C. Official Code § 4-1501.05a and subsections 419.7 and 426.7 of this chapter, the employee has been convicted of, has pleaded nolo contendere, is on probation before judgment or placement of a case upon a stet docket, or has been found not guilty by reason of insanity for a sexual offenses involving a minor.

Section 412, “Criminal Background and Traffic Record Checks for the Protection of Children and Youth-General Provisions,” is amended by amending subsection 412.1 to read as follows:

412 CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH-GENERAL PROVISIONS

412.1 Pursuant to the Criminal Background Checks for the Protection of Children Act of 2004, effective April 13, 2005 (D.C. Law 15-353; D.C. Official Code § 4-1501.01 et seq.), as amended by section 204 of Title II of the Omnibus Public Safety Amendment Act of 2006, effective April 24, 2007 (D.C. Law 16-306; D.C. Official Code § 4-1501.05) (hereinafter jointly referred to as the Act), the Mayor and other personnel authorities subject to these regulations shall be required to conduct criminal background checks and traffic record checks to investigate certain employees and volunteers, and persons being considered for employment with covered child or youth services provider agencies, as specified in sections 412 through 427 and 499 of this chapter.

Section 416, “Criminal Background and Traffic Record Checks for the Protection of Children and Youth-Standards and Procedures for Identifying Covered Positions,” is amended by amending subsections 416.1 and 416.2 to read as follows:

416 CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTIONS OF CHILDREN AND YOUTH-STANDARDS AND PROCEDURES FOR IDENTIFYING COVERED POSITIONS

416.1 Upon consulting with the head of a covered child or youth services provider agency, the appropriate personnel authority shall identify and determine which positions in the agency shall be covered under the Act. In identifying the covered positions, the personnel authority shall ensure that the duties and responsibilities of each position require the provision of direct services that affect the health, safety, and welfare of children or youth or services for the benefit of children or youth, including but not limited to at least one (1) of the following duties, responsibilities, and essential functions or tasks:

(c) Delinquency prevention and control services, including custody, security, supervision, and residential and community support services for committed and detained juvenile offenders;

(m) Therapeutic services, including individual and group therapy, and play therapy;

(q) Healthcare services, including medical, behavioral, mental health, dental, vision, nutrition, or developmental services;

(s) Public safety services, including counseling or education intervention services about safety, crime prevention, fire safety, and youth problem-solving;

(u) Driving a motor vehicle to transport children or youth; or

416.2 The following standards shall be applied in identifying positions, compensated or not, which shall be subject to the criminal background check requirement or the traffic record check requirement under the Act:

(a) The underlying guiding standard to be applied in identifying positions that shall be subject to the criminal background check requirement and traffic record check requirement shall be one of reasonableness, coupled with the standards outlined in paragraphs (b) through (k) of this subsection, as applicable;

(b) A determination that a position is covered under the Act and subject to the criminal background check requirement shall be based on a comprehensive analysis of the position description or statement of duties, as applicable. The purpose of the analysis shall be to determine if the position description or statement of duties contains at least one (1) of the duties and responsibilities listed in this section or similar duties and responsibilities and that any incumbent of the position will perform the duties and responsibilities personally and routinely;

(c) Location in a covered child or youth services provider agency does not automatically make a position or its incumbent subject to the criminal background check requirement or the traffic record check requirement of the Act;

(d) Strictly tangential, casual, or occasional contact with children or youth does not automatically make an employee or volunteer subject to the criminal background check requirement or traffic record check requirement of the Act; except that the personnel authority has discretion to make case-by-case decisions on whether a position is a covered position subject to these rules;

(e) Administrative, clerical, or technical support positions within the immediate office of the head of a covered child or youth services provider agency, and other components, units, or divisions of the agency that provide non-operational support services shall not be automatically subject to the criminal background check requirement unless the position descriptions or statements of duties, as applicable, contain at least one (1) of the duties and responsibilities listed in this section, or similar duties and responsibilities related to the direct provision of services to children or youth, and a determination is made that incumbents of the positions will perform the duties and responsibilities personally and routinely; except that the personnel authority has discretion to make case-by-case decisions on whether a position is a covered position subject to these rules;

(f) An employee who is detailed, temporarily promoted, or temporarily reassigned from a non-covered position to a covered position shall be subject to an initial criminal background check upon the effective date of the personnel action, and to periodic criminal background checks while detailed, temporarily promoted, or temporarily reassigned to the covered position;

(g) A volunteer whose assignment changes from non-covered duties and responsibilities to covered duties and responsibilities shall be subject to an initial criminal background check upon being moved to the covered assignment and to periodic criminal background checks while in the covered assignment;

(h) A determination that a position is subject to the traffic record check requirement under the Act shall be based on a comprehensive analysis of the position description or statement of duties, as applicable. The purpose of the analysis shall be to determine if the position description or statement of duties requires that any incumbent of the position drive a motor vehicle, whether the incumbent’s personal or government vehicle, to transport children or youth in the course of performing his or her duties;

(i) An employee who is detailed, temporarily promoted, or temporarily reassigned from a non-covered position to a position that will require him or her to drive a motor vehicle to transport children or youth in the course of performing the duties of the detail, temporary promotion, or temporary reassignment shall be subject to an initial traffic record check upon the effective date of the personnel action;

(j) A volunteer whose assignment changes from non-covered duties and responsibilities to duties and responsibilities that will require him or her to a drive motor vehicle to transport children or youth in the course of performing the duties of the voluntary assignment shall be subject to an initial traffic record check requirement upon being moved to the covered assignment; and

(k) Except as specified in subsection 413.2 of this chapter, any position subject to the traffic record check requirement shall also be subject to the criminal background check requirement.

Section 418, “Criminal Background and Traffic Record Checks for the Protection of Children and Youth-Authorization Process,” is amended by amending subsection 418.1 to read as follows:

418 CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH-AUTHORIZATION PROCESS

418.1 Prior to a criminal background check being conducted, the appropriate personnel authority will inform each appointee, employee, or unsupervised volunteer subject to the check of the location of the office where the check will be conducted; when to report for fingerprinting; and provide each appointee, employee, or unsupervised volunteer with a form or forms to be utilized for the following purposes:

(a) To authorize the MPD or other entity, as appropriate, to conduct the criminal background check and confirm that the appointee, employee, or unsupervised volunteer has been informed that the employing agency is authorized to conduct a criminal background check;

(b) To complete a signed affirmation stating whether or not the appointee, employee, or unsupervised volunteer:

(1) Has or has not been convicted of any of the offenses listed in paragraphs (c)(1) through (9) of this subsection, or their equivalent, either in the District of Columbia, or in any state or territory;

(2) Has or has not pleaded nolo contendere to any of the criminal offenses listed in paragraphs (c)(1) through (9) of this subsection, or their equivalent, either in the District of Columbia, or in any state or territory;

(3) Is or was on probation before judgment or had a case placed upon a stet docket for any case involving any of the criminal offenses on the list in paragraphs (c)(1) through (9) of this subsection, or their equivalent, in the District of Columbia, or in any state or territory; and

(4) Has or has not been found not guilty by reason of insanity, for any sexual offenses or intra-family offenses in the District of Columbia, or for any of the criminal offenses listed in paragraphs (c)(1) through (9) of this subsection, either in the District of Columbia, or in any state or territory;

(c) The list of offenses referred to in paragraphs (b)(1) through (4) of this subsection relating to the signed affirmation to be completed by the appointee, employee, or unsupervised volunteer is as follows:

(2) Assault, assault with a dangerous weapon, mayhem, malicious disfigurement, or threats to do bodily harm;

(7) Sexual offenses, including indecent exposure; promoting, procuring, compelling, soliciting, or engaging in prostitution; corrupting minors (sexual relations with children); molesting; voyeurism; committing sex acts in public; incest; rape; sexual assault; sexual battery; or sexual abuse; but excluding sodomy between consenting adults;

(9) Unlawful distribution or possession of or possession with intent to distribute a controlled substance;

(d) To acknowledge, in writing, that the appointee, employee, or unsupervised volunteer has been notified of his or her right to obtain a copy of the criminal background check report and to challenge the accuracy and completeness of the report;

(e) To acknowledge that the employing agency may choose to deny the appointee employment or an unsupervised volunteer position, or to terminate an employee or volunteer, based on the outcome of the criminal background check;

(f) To provide any additional identification that is required, such as name, social security number, date of birth, and gender; and

(g) To inform the appointee or employee that a false statement on the form or forms may subject the appointee or employee to criminal penalties.

Section 419, “Criminal Background and Traffic Record Checks for the Protection of

Children and Youth-Review and Determination Process,” is amended by amending

419 CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH-REVIEW AND DETERMINATION PROCESS

419.5 The information obtained from a criminal background check shall not immediately disqualify or create a presumption against employment or volunteer status of an appointee, employee, or unsupervised volunteer with a criminal record, including a proscribed offense, unless the DCHR or independent personnel authority determines that because of such criminal record, the person would pose a present danger to children or youth that makes him or her unsuitable for paid employment or unsupervised voluntary service in a covered position. This determination shall be made based on the following seven (7) factors:

(a) The specific duties and responsibilities necessarily related to the employment sought;

previously convicted will have on his or her fitness or ability to perform one (1) or more of the duties or responsibilities of the position;

(d) The age of the appointee at the time of the occurrence of the criminal offense;

(f) Any information produced by the appointee, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense; and

(g) The public policy that is beneficial generally for ex-offenders to obtain employment.

419.6 When there is a discovery of charges with no clear disposition, the DCHR or independent personnel authority shall:

(a) Contact the appointee or employee and inform him or her of the charges with no clear disposition contained in the criminal background check;

(b) Provide written notice to the appointee or employee that he or she has seven (7) business days to provide to the DCHR or independent personnel authority the necessary information concerning the final disposition of the charge(s), including an appointee’s/employee’s parole or probation status, if applicable, and any other information that the employee deems relevant; and

(c) Determine whether or not the information submitted by the appointee or employee resolves the charges with no clear disposition.

419.7 Notwithstanding the seven (7) factors listed in section 419.5 of this section, a covered District government agency shall terminate the employment of current employees, and shall not employ or permit to serve as unsupervised volunteers, persons who have been convicted of, have pleaded nolo contendere, or who are, or have ever been on probation before judgment or placement of any case upon a stet docket, at any time, or have been found not guilty by reason of insanity for any sexual offenses involving a minor.

419.11 If the DCHR or independent personnel authority determine that an employee is unsuitable to serve in a safety-sensitive position and that he or she should be terminated because of a failed criminal background check, the termination action shall be in accordance with the employee’s type of appointment (i.e., Career Probational/Permanent, term appointment, etc.) and service (i.e., Career Service, Management Supervisory Service, etc.), and the applicable legal and regulatory provisions governing adverse actions, including but not limited to terminations for cause pursuant to Chapter 16 of Title 6-B of the DCMR, or other provisions under a collective bargaining agreement (CBA), if any. The final suitability determination may be appealed to the Office of Employee Appeals within thirty (30) days of the determination of unsuitability.

419.13 A final suitability determination by the DCHR or independent personnel authority on a criminal background check or traffic record check pursuant to this section shall be the final agency decision; except that in the case of a Career Service employee terminated under Chapter 16 of Title 6-B of the DCMR or any other provisions under a CBA, the employee shall have appeal rights as specified in that chapter, or under the relevant CBA, as applicable.

Section 420, “Criminal Background and Traffic Record Checks for Protection of Children and Youth-Challenge Process,” is amended in its entirety to read as follows:

420 CRIMINAL BACKGROUN AND TRAFFIC RECORD CHECKS FOR PROTECTION OF CHILDREN AND YOUTH-CHALLENGE PROCESS

420.1 This section shall govern the procedures for challenging suitability determinations pursuant to the Act.

420.2 In accordance with section 419.11 of this chapter, termination action shall be taken against an employee pursuant to the statutory and regulatory provisions that apply to the employee’s type of appointment, specifically as follows:

(a) Termination action taken against a covered employee in the Career Service shall be in accordance with section 801 of the CMPA (D.C. Official Code § 1-608.01) and Chapters 8 and 16 of Title 6-B of the DCMR;

(b) Termination action taken against a covered employee in the Legal Service shall be in accordance with section 856 of the CMPA (D.C. Official Code § 1-608.56) and Chapter 36 of Title 6-B of the DCMR;

(c) Termination action taken against an employee in the Excepted Service shall be in accordance with section 905 of the CMPA (D.C. Official Code § 1-609.05) and Chapter 9 of Title 6-B of the DCMR; and

(d) Termination action taken against a covered employee in the Management Supervisory Service shall be in accordance with section 954 of the CMPA (D.C. Official Code § 1-609.54) and Chapter 38 of Title 6-B of the DCMR.

420.3 As applicable, within thirty (30) days of the effective date of final agency action on a criminal background check or traffic record check performed pursuant to the provisions in this chapter, a Career Service employee in a covered position may appeal the final agency decision, or an adverse action for cause that results in his or her removal, to the Office of Employee Appeals, pursuant to section 603 of the CMPA (D.C. Official Code § 1-606.03) and Chapter 6 of Title 6-B of the DCMR.

420.4 As applicable, Chapter 16 of Title 6-B of the DCMR shall apply to employee grievances and adverse actions brought as a result of determinations made in accordance with the provisions of this chapter.

420.5 An employee claiming to be aggrieved by an unlawful discriminatory practice on the part of District government agencies, officials, or employees may elect to file an administrative complaint under the rules of procedure established by the Office of Human Rights pursuant to D.C. Official Code § 2-1401.01 et seq.

420.6 An applicant or appointee who alleges an unlawful discriminatory practice on the part of District government agencies, officials, or employees may elect to file a private cause of action in a court of competent jurisdiction, or an administrative complaint under the rules of procedure established by the Office of Human Rights pursuant to D.C. Official Code § 2-1401.01 et seq., in accordance with subsection 420.5 of this chapter.

Section 421, “Criminal Background and Traffic Record Checks for the Protection of Children and Youth-Penalty for Providing False Information,” is amended by amending subsection 421.1 to read as follows:

421 CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH-PENALTY FOR PROVIDING FALSE INFORMATION

421.1 An appointee to a position subject to the Act who, in the course of applying for a position, intentionally provides false information that is material to the application shall be subject to prosecution pursuant to D.C. Official Code §§ 4-1501.09 and 22-2405.

Section 422, “CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH-APPLICATION BY VOLUNTEERS TO MULTIPLE COVERED UNSUPERVISED POSITIONS is amended by amending subsection 422.1 to read as follows:

422 CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH-APPLICATION BY VOLUNTEERS TO MULTIPLE COVERED UNSUPERVISED POSITIONS

422.1 A volunteer in an unsupervised position may use the same successful criminal background check conducted on him or her for a period of two (2) years when applying for multiple unsupervised volunteer positions, if the volunteer provides a signed affirmation stating whether or not he or she has been convicted of a crime, has pleaded nolo contendere, is or ever has been on probation before judgment or placement of a case upon a stet docket, or has been found not guilty by reason of insanity, for any sexual offenses or intra-family offenses in the District of Columbia or their equivalent in any other state or territory, or for any of the felony offenses listed in section 418.1 (c)(1) through (9) of this chapter, or their equivalent in any other state or territory, since the date of the most recent check.

Section 423.1, “Criminal Background and Traffic Record Checks for the Protection of Children and Youth-Periodic Criminal Background Checks,” is amended in its entirety to read as follows:

423 CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH-PERIODIC CRIMINAL BACKGROUND CHECKS

423.1 A periodic criminal background check for each current employee and unsupervised volunteer occupying a covered position shall be conducted within two (2) years of the required initial criminal background, and every two (2) years thereafter. Each employee or unsupervised volunteer subject to the check shall complete the signed affirmation described in section 418 of this chapter prior to submitting to the periodic criminal background check.

423.2 In addition to the two-year (2-year) periodic criminal background check, a criminal background check shall be conducted when:

(a) Derogatory information about an employee or unsupervised volunteer, of a nature that will impact their suitability to continue performing the duties of their covered positions, is disclosed to the employing agency or personnel authority by a credible source or sources, or is independently discovered by the employing agency or personnel authority; or

(b) Information about a criminal offense committed by the employee or unsupervised volunteer, such as the criminal offenses listed in section 418 of this chapter, is disclosed to the employing agency or personnel authority by a credible source or sources, or is independently discovered by the employing agency or personnel authority.

423.3 Separate from the requirements for periodic criminal background checks described in this section, each covered employee and unsupervised volunteer shall disclose to his or her supervisor any arrest, conviction of a crime, plea of nolo contendere, probation before judgment or placement of a case upon a stet docket, or if he or she has been found not guilty by reason of insanity, for any sexual offenses or intra-family offenses in the District of Columbia or their equivalent in any other state or territory, or for any of the felony offenses listed in section 418 (c)(1) through (9) of this chapter, or their equivalent in any other state or territory, immediately after any of these actions occur.

423.4 As applicable, the employing agency shall inform the personnel authority of any employee who fails to make disclosure as specified in this section. The personnel authority shall conduct an evaluation for suitability, determine if administrative action against the employee is warranted, and notify the agency of the course of action that shall be taken.

423.5 An employee who intentionally misinforms or misleads the personnel authority when completing a signed affirmation, fails a periodic criminal background check, or fails to make disclosure in accordance with subsection 423.3 of this chapter may be subject to administrative action. In determining the type of administrative action to be taken, the seven (7) factors in subsection 419.5 of this chapter shall be considered, if applicable, as well as any other similar factors and variables; except that a failing criminal background check or an employee disclosure reflecting that the employee has been convicted of, has pleaded nolo contendere, is or has ever been on probation before judgment of a case on a stet docket, or has been found not guilty by reason of insanity for any sexual offenses involving a minor shall result in removal.

423.6 In addition to, or in the place of administrative action, an employee who fails a periodic criminal background check may be reassigned to a non-covered position; except that this option shall not be available for an employee whose criminal background check reflects that he or she has been convicted of, has pleaded nolo contendere, is or has ever been on probation before judgment or placement, or ever had a case placed upon a stet docket, or has ever been found not guilty by reason of insanity for any sexual offenses involving a minor.

423.7 An unsupervised volunteer who fails a periodic criminal background check may be terminated or moved to another volunteer assignment that does not include the provision of direct services to children or youth. In determining the type of action to be taken, the personnel authority shall consider the seven (7) factors listed in section 419.5 of this chapter, as applicable; except that a criminal background check reflecting that the unsupervised volunteer has been convicted of, has pleaded nolo contendere, is or has ever been on probation before judgment or placement or ever had a case placed upon a stet docket, or has ever been found not guilty for reason of insanity for any sexual offenses involving a minor shall result in the termination of the voluntary services.

423.8 In the case of an agency that violates any of the provisions of the Act, the Mayor (or his or her designee) or personnel authority may take administrative action, or direct that administrative action be taken, against the agency head or other agency official who violated the Act.

Section 424, “Criminal Background and Traffic Record Checks for the Protection of Children and Youth-Confidentiality Provisions,” is amended by amending subsections 424.1 and 424.2 to read as follows:

424 CRIMINAL BACKGROUN AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH-CONFIDENTIALITY PROVISIONS

424.1 Criminal background check records obtained under this section shall be confidential and shall be for the exclusive purpose of making employment-related determinations under sections 412 through 427 of this chapter. Absent a court order from the U.S. District Court or Superior Court, the criminal background data (rap sheet) from the FBI or MPD, shall not be released to any person. Other records relied upon to determine the employee’s or appointee’s employment suitability shall not be released or otherwise disclosed to any person, except when:

(a) Required as one component of an application for employment with a covered child or youth services provider that is subject to these rules;

(b) Requested by the personnel authority during an official inspection or investigation;

(e) Utilized for an administrative action in a personnel proceeding, including but not limited to, disciplinary actions under Chapter 16 of Title 6-B of the DCMR.

424.2 An individual who discloses confidential information in violation of any of the provisions in section 424.1 shall be guilty of a criminal offense and, upon conviction, pursuant to D.C. Official Code § 4-1501.10, shall be fined not more than one thousand dollars ($1,000) or imprisoned for not more than one hundred eighty (180) days, or both.

426 CRIMINAL BACKGROUND AND TRAFFIC RECORD CHECKS FOR THE PROTECTION OF CHILDREN AND YOUTH – CONCURRENT LIMITED PERSONNEL AUTHORITY DELEGATED TO THE CHIEF OF THE FIRE AND EMERGENCY MEDICAL SERVICES DEPARTMENT

426.1 Notwithstanding any other provisions of this chapter, Mayor’s Order 2009-166, dated September 28, 2009, delegated to the Chief of the Fire and Emergency Medical Services Department (FEMSD), and to the Director of the DCHR, limited concurrent personnel authority of the Mayor under the Act, concurrent with the authority previously delegated to the Director of the DCHR by Mayor’s Order 2007-95, dated April 18, 2007.

426.2 Specifically, under Mayor’s Order 2009-166, the Chief of the FEMSD is delegated limited concurrent personnel authority to:

(a) Obtain and evaluate the information obtained from traffic record checks and criminal background checks conducted pursuant to the Act and consider the factors listed in the Act to determine whether a covered FEMSD employee or person being considered for compensated or voluntary employment with the FEMSD poses a present danger to children or youth; and

426.3 The Chief of FEMSD may further delegate this authority to a subordinate within the FEMSD.

426.4 Upon completing each criminal background check for the FEMSD, the designated MPD representative, or the representative for any other entity conducting the check, shall forward the criminal background check to both the DCHR and FEMSD.

426.5 Upon receipt of the criminal background check, appropriate staff within the FEMSD, with the assistance of the DCHR, shall complete a review and determination process following the procedures set forth in section 419 of this chapter and in this section.

426.6 The FEMSD, with the assistance of the DCHR, shall conduct an initial review of the criminal background check information to determine if the appointee or employee has a criminal record, including any of the proscribed offenses, and determine if there are any charges with no clear disposition.

426.7 As set forth in section 419.5 of this chapter, the information obtained from a criminal background check shall not immediately disqualify or create a presumption against employment or volunteer status of an appointee, employee, or unsupervised volunteer with a criminal record, including a proscribed offense, unless the DCHR determines that because of such criminal record, the person would pose a present danger to children or youth that makes him or her unsuitable for paid employment of unsupervised voluntary service in a covered position. This determination shall be made based on the following seven (7) factors set forth in section 419.5 of this chapter:

426.8 When there is a discovery of charges with no clear disposition, the FEMSD shall follow the process set forth in section 419.6 of this chapter to resolve the disposition of the charges.

426.9 Notwithstanding the seven (7) factors listed in section 419.5 of this chapter, and pursuant to section 205a of the Act (D.C. Official Code § 4-1501.05a), persons who have been convicted of, have pleaded nolo contendere, are on probation before judgment or placement of a case upon a stet docket, or have been found not guilty by reason of insanity for any sexual offenses involving a minor shall not be employed (compensated employment) by the FEMSD, allowed to serve as unsupervised volunteers with the FEMSD, or continue employment with the FEMSD. In the case of current FEMSD employees whose employment is to be terminated because of any of these circumstances, the process set forth in section 407 of this chapter shall apply.

426.10 After all criminal background check information issues have been resolved, the DCHR shall make the final suitability determination whether:

(a) A final offer of appointment should be made or denied to a FEMSD appointee (new hire);

(b) An unsupervised FEMSD volunteer shall be allowed to provide volunteer services;

(c) A person newly appointed by the FEMSD to a compensated position who had begun to work in a supervised setting prior to receiving the results of the check should be retained or employment shall be terminated; or

(d) A current FEMSD employee shall be retained or employment shall be terminated.

426.11 The DCHR shall notify the FEMSD of the final suitability determination. If the determination of the DCHR is that a final offer of appointment should be made to an appointee, the final offer letter shall be promptly issued.

426.12 If the DCHR makes a determination to terminate employment because of a failed criminal background check, it shall follow the procedures set forth in section 419.11 of this chapter.

426.13 In completing the review and determination process of traffic record checks, the DCHR shall rely on the criteria set forth in section 419.12 of this chapter for the review and determination process.

426.14 A final suitability determination by the DCHR on a criminal background check or traffic record check pursuant to this section that results in termination of employment within the FEMSD shall be the final agency decision; except that in the case of a Career Service employee terminated under Chapter 16 of Title 6-B of the DCMR or any other provisions under a CBA, the employee shall have appeal rights as specified in those regulations or chapter, or under the relevant CBA.

427 procedures governING Suitability Appeal Actions Before the Commission on Human Rights

427.1 The following procedures shall govern administrative appeals of suitability decisions that are currently pending before the Commission on Human Rights (Commission) under the Act.

(a) The Commission shall have subject matter jurisdiction regarding appeals of suitability decisions made by the DCHR or an independent personnel authority under the Act.

(b) Pursuant to D.C. Official Code § 2-502(8)(B), the selection or tenure of an officer or employee of the District is not a contested case under the D.C. Administrative Procedure Act.

427.2 The following procedures shall govern the time and manner of filing administrative appeals of suitability decisions before the Commission under the Act:

(a) If an applicant or volunteer to a position with the District government is denied employment because of information obtained from a criminal background check conducted pursuant to these rules, the applicant or volunteer may file an appeal with the Commission within thirty (30) days of receipt of service of the personnel authority’s final decision denying employment to the applicant or volunteer on grounds of unsuitability;

(b) The Petitioner’s Notice of Appeal may be filed on a form approved by the Commission and delivered to the Office of Human Rights, 441 Fourth Street, N.W., 570 North, Washington, D.C. 20001. At a minimum, the Notice of Appeal shall contain the following information:

(2) A copy of the final decision or agency written decision being appealed;

(3) A statement of the reasons why the written decision is being appealed; and

(c) Petitioner shall also complete any other forms approved and required by the Commission that may be needed to resolve the appeal;

(d) Petitioner shall attach a signed certificate of service to the Notice of Appeal and serve it on the General Counsel of the DCHR or on the General Counsel of the independent personnel authority a copy of the Notice of Appeal, as well as all other forms that the Commission requires the Petitioner to complete; and

(e) The filing of a Notice of Appeal shall not operate to stay the enforcement or implementation of the suitability decision issued by the DCHR or any other independent personnel authority.

427.3 The following procedures shall be followed after a Notice of Appeal is filed:

(a) Within thirty (30) days from the date of service of the Notice of Appeal upon the DCHR or independent personnel authority, the personnel authority shall certify and file with the Commission the entire agency suitability record for the petitioner, including copies of original papers comprising that record, and shall notify the petitioner of the date on which the record is filed;

(b) In addition to providing the Commission with a copy of a certified record, the personnel authority shall complete any forms approved and required by the Commission that may be needed to resolve the appeal;

(c) The Commission may not consider any evidence that was not made a part of the agency record or considered by the DCHR or the personnel authority;

(d) The pages of the agency record shall be numbered sequentially, and the documents included shall be listed in an index;

(e) If the personnel authority is precluded by law or any other privilege from including confidential information or documents in the agency record that will be filed with the Commission, it shall briefly and succinctly state the document that is being withheld and set forth the legal basis for not including the document in the record;

(f) Upon the expiration of thirty (30) days after the filing of the complete agency record, or the time that the record is due to be filed, whichever shall occur first, the Chief Administrative Law Judge shall assign the case to an Administrative Law Judge who is to review the matter;

(g) Within sixty (60) days of receiving the agency record, the assigned Administrative Law Judge shall submit a proposed decision to the Commission for review and approval for issuance as the final Commission determination on the personnel authority’s decision;

(h) Within ninety (90) days of receiving the complete agency record, the assigned Administrative Law Judge shall issue the Commission’s determination in a written decision that affirms the personnel authority’s decision, or remands the case to the personnel authority for final administrative action. Unless clearly erroneous as a matter of law, the Commission shall affirm the proposed decision issued by the Administrative Law Judge;

(i) The Commission, for good cause shown, may shorten or extend the periods set forth in this specific section;

(j) The Administrative Law Judge assigned to review the administrative appeal has the discretion to establish a briefing schedule for the parties to brief or provide information on any relevant issue or fact that is being considered on appeal; and

(k) A petitioner may voluntarily withdraw an appeal before the Commission at any time before the Commission takes final action on the appeal. The respondent may also move to involuntarily dismiss the appeal on any legal ground that is based in law or equity.

427.4 The standard of review and procedures that shall govern determinations on the administrative record for suitability appeals filed with the Commission are as follows:

(a) The standard of review of the suitability decision by the DCHR or independent personnel authority is limited. The Commission shall base its decision exclusively upon the administrative record and shall not set aside the action of the DCHR or the independent personnel authority if supported by substantial evidence in the record as a whole and not clearly erroneous as a matter of law;

(b) In determining whether the agency’s decision is supported by substantial evidence, the Commission shall examine the record to determine whether the personnel authority considered the factors set forth in section 419 of these regulations when the personnel authority rendered its decision;

(c) If the Commission determines that the decision by the personnel authority is supported by substantial evidence, or is not clearly erroneous as a matter of law, then the Commission shall issue a written decision that affirms the personnel authority’s decision;

(d) If the Commission finds that the decision by the personnel authority is not supported by substantial evidence, the Commission shall issue a decision in writing remanding the case to the personnel authority to determine whether the action taken is still appropriate based on the evidence;

(e) Upon receipt and review of the Commission’s decision, the DCHR or the independent personnel authority will issue a final decision without further appeal to the Commission or any Court. This final decision by the DCHR or the independent personnel authority shall be in writing, and a copy of this final decision shall be served on petitioner;

(f) The Commission may dismiss an appeal sua sponte, or upon motion of a party, for any of the following reasons:

(1) The DCHR or independent personnel authority has not rendered a criminal background suitability decision, and thus the appeal is premature;

(3) Petitioner voluntary withdraws appeal before the Commission issues its written decision;

(g) The Commission does not have the authority or power to award attorney fees, damages, or injunctive relief in any suitability case or appeal.

The definitions of the terms “applicant,” “appointee,” “background investigation,” “children,” “covered assignment,” “covered child or youth services provider,” “covered duties and responsibilities,” “covered position,” “non-covered duties and responsibilities,” “non-covered position,” “person being considered for employment,” “volunteer,” and “youth” are amended, and the definitions of the terms “administrative action,” “disposition,” and “substantial evidence” are added, to read as follows:

Administrative action – official reprimands, suspensions, reductions in grade, or removals under the corrective and adverse action provisions for the Career Service contained in Chapter 16 of Title 6-B of these regulations; and other similar penalties, up to and including removal, for employees in services other than the Career Service.

Agency – any unit of the District of Columbia government, excluding the courts, required by law, by the Mayor of the District of Columbia, or by the Council of the District of Columbia to administer any law, rule, or any regulation adopted under authority of law. The term “agency” shall also include any unit of the District of Columbia government created by the reorganization of one (1) or more of the units of an agency and any unit of the District of Columbia government created or organized by the Council of the District of Columbia as an agency.

Applicant – for the purposes of sections 412 through 427 of this chapter, a person who has filed a resume or written or electronic (web-based) application for employment with a covered child or youth services provider agency; or a person who has made an affirmative effort through written application, resume, or a verbal request to serve in an unsupervised volunteer position with a covered child or youth services provider agency.

Appointee – for the purposes of sections 404 through 427 of this chapter, a person who has been made a tentative job offer to a covered position, compensated or voluntary, subject to the satisfactory completion of a criminal background check or traffic record check, or both.

Background investigation – thorough inquiry into the past and present conduct and behavior of an applicant to determine his or her suitability for appointment or continuing employment in a covered position in the District government.

Children – for the purposes of sections 412 through 427 of this chapter, persons twelve (12) years of age and under.

Covered assignment – for the purposes of sections 412 through 427 of this chapter, tasks of an applicant, appointee, or volunteer with a covered child or youth services provider agency which require the provision of direct services that affect the health, safety, and welfare of children or youth, including but not limited to the duties and responsibilities listed in section 416 of this chapter.

Covered child or youth services provider – for the purposes of sections 412 through 427 of this chapter, any District government agency, or a component of a District government agency, such as an office, unit, or division, including the agencies listed in section 414 of this chapter, that provides direct services that affect the health, safety, and welfare of children or youth, including individual and group counseling, therapy, case management, supervision, or mentoring. These services are provided either directly or for the benefit of children or youth.

Covered duties and responsibilities – for the purposes of sections 412 through 427 of this chapter, duties and responsibilities of a volunteer in a covered child or youth services provider agency that require the volunteer to provide direct services that affect the health, safety, and welfare of children or youth or services for the benefit of children or youth, including but not limited to the duties and responsibilities listed in section 416 of this chapter.

Covered position – for the purposes of sections 412 through 427 of this chapter, a position, compensated or voluntary, in a covered child or youth services provider agency with duties and responsibilities that would require the employee, applicant, appointee, or volunteer to provide direct services that affect the health, safety, and welfare of children or youth or services for the benefit of children or youth, including but not limited to the duties and responsibilities listed in section 416 of this chapter.

Criminal background check – the investigation of a person’s criminal history through the record systems of the FBI or MPD.

Disposition – the court’s final determination of a lawsuit or criminal charge.

Employee – an individual who performs a service for the District government and who receives compensation for the performance of such service.

Independent agency – any board or commission of the District of Columbia government not subject to the administrative control of the Mayor.

Material – a statement that is capable of influencing, or has a natural tendency to affect, an official decision.

Non-covered duties and responsibilities – for the purposes of sections 412 through 427 of this chapter, duties and responsibilities of an applicant, appointee, or volunteer in a covered child or youth services provider agency of such a nature that would not require that the individual be subjected to the criminal background check and traffic record check requirements of the Act.

Non-covered position – for the purposes of sections 412 through 427 of this chapter, a position, compensated or voluntary, in a child or youth services provider agency with duties and responsibilities of such a nature that would not require that the employee or volunteer be subjected to the criminal background check and traffic record check requirements of the Act.

Person being considered for employment – for the purposes of sections 412 through 427 of this chapter, a person who has been made a tentative offer of employment, compensated or voluntary, to a covered position, subject to the satisfactory completion of a criminal background check or a traffic record check, or both.

Personnel authority – an individual or entity with the authority to administer all or part of a personnel management program as provided in Title IV of the CMPA (D.C. Official Code § 1-604.01 et seq.).

Subordinate agency – any agency under the direct administrative control of the Mayor, including but not limited to, the agencies listed in section 301 (q) of the CMPA (D.C. Official Code § 1-603.01(17)).

Substantial evidence  the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion of an administrative board or agency, even though other reasonable persons might disagree. Under the substantial evidence rule, the reviewing tribunal will defer to an agency determination so long as, upon an examination of the whole record, there is substantial evidence upon which the agency could reasonably base its decision.

Suitability – the quality or state of being acceptable for District government employment with respect to the character, reputation, and fitness of the person under consideration.

Volunteer – for the purposes of sections 412 through 427 of this chapter, any person who performs work without any monetary or other financial compensation, in a covered position, for a covered child or youth services provider agency; or an employee of the District government who volunteers his or her services as a host of a child or youth participating in the Summer Youth Employment Program within his or her agency.

Youth – for the purposes of sections 412 through 427 of this chapter, persons between thirteen (13) and seventeen (17) years of age, inclusive.

Comments on these proposed regulations should be submitted, in writing, to Brender L. Gregory, Director, D.C. Department of Human Resources, 441 4^th Street, NW, Suite 300S, Washington, D.C. 20001, within thirty (30) days after the date of publication of this notice. Additional copies of these proposed regulations are available from the above address.

530801 Amending Chapter 4, “Organization for Personnel Management,” of Subtitle B of Title 6 of the District of Columbia Municipal Regulations.

427 procedures governING Suitability Appeal Actions Before the Commission on Human Rights

Employee – an individual who performs a service for the District government and who receives compensation for the performance of such service.

Personnel authority – an individual or entity with the authority to administer all or part of a personnel management program as provided in Title IV of the CMPA (D.C. Official Code § 1-604.01 et seq.).

Youth – for the purposes of sections 412 through 427 of this chapter, persons between thirteen (13) and seventeen (17) years of age, inclusive.

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