WSR 18-14-054
PROPOSED RULES
OFFICE OF
FINANCIAL MANAGEMENT
[Filed June 28, 2018, 3:23 p.m.]
Original Notice.
Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).
Title of Rule and Other Identifying Information: WAC 357-19-183 Must DCYF conduct background checks on all employees in covered positions and individuals being considered for a covered position?, 357-19-184 Besides the DCYF, may other employers conduct background checks on applicants or employees and what is the requirement to notify applicants or employees?, 357-19-186 For purposes of WAC 357-19-183, what information is considered in a background check conducted by DCYF and what are the results of the background check used for?, 357-19-187 For purposes of WAC 357-19-183, must an employee and/or individual being considered for a covered position authorize the secretary of the DCYF or designee to conduct a background check and what happens if the employee or individual being considered for a covered position does not provide authorization?, 357-19-188 What happens when a permanent DCYF employee is disqualified because of a background check?, 357-19-189 What are the responsibilities of the secretary of the DCYF in carrying out the requirement to conduct background checks?, and 357-19-191 Does a permanent employee of DCYF who is disqualified from a covered position as a result of a background check have the right to request a review of the disqualification?
Hearing Location(s): On August 9, 2018, at 8:30 a.m., at the Office of Financial Management (OFM), Capitol Court Building, 1110 Capitol Way South, Suite 120, Conference Room 110, Olympia, WA 98501.
Date of Intended Adoption: August 16, 2018.
Submit Written Comments to: Brandy Chinn, OFM, P.O. Box 47500, Olympia, WA 98501, email Brandy.Chinn@ofm.wa.gov, fax 360-586-4694, by August 2, 2018.
Assistance for Persons with Disabilities: Contact OFM, TTY 711 or 1-800-833-6384, by August 2, 2018.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: 2ESSHB [2E2SHB] 1661 creates the department of children, youth and families (DCYF) effective July 1, 2018. Section 807 of 2ESSHB [2E2SHB] 1661 amends RCW 41.06.475 which removes the requirement for OFM to adopt background check rules for the department of early learning and requires OFM to adopt background check rules for DCYF.
Reasons Supporting Proposal: To align Title 357 WAC with the changes made to chapter 41.06 RCW which became effective on June 7, 2018.
Statutory Authority for Adoption: Chapter 41.06 RCW.
Statute Being Implemented: RCW 41.06.475.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: [OFM], governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Brandy Chinn, 128 10th Avenue, Olympia, WA 98501, 360-407-4141.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. Rules are related to internal government operations and are not subject to violation by a nongovernmental party. See RCW 34.05.328 (5)(b)(ii) for exemption.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party.
June 28, 2018
Roselyn Marcus
Assistant Director of
Legal and Legislative Affairs
AMENDATORY SECTION(Amending WSR 08-07-062, filed 3/17/08, effective 4/18/08)
WAC 357-19-183Must ((DEL)) DCYF conduct background checks on all employees in covered positions and individuals being considered for a covered position?
(1) The ((director)) secretary of the department of ((early learning (DEL))) children, youth and families (DCYF) or designee must conduct background checks on all employees in covered positions and individuals being considered for a covered position.
(2) The requirement for background checks must include the following:
(a) Current employees in covered positions.
(b) Any employee considered for a covered position because of a layoff, reallocation, transfer, promotion, demotion, or other actions that result in the employee being in a covered position.
(c) Any individual being considered for positions which are covered positions.
(3) Considered for positions includes decisions about:
(a) Initial hiring, layoffs, reallocations, transfers, promotions, demotions, or
(b) Other decisions that result in an individual being in a position that will or may have unsupervised access to children as an employee, an intern, or a volunteer.
AMENDATORY SECTION(Amending WSR 07-17-125, filed 8/20/07, effective 9/20/07)
WAC 357-19-184Besides the ((DEL)) DCYF, may other employers conduct background checks on applicants or employees and what is the requirement to notify applicants or employees?
(1) Employers may conduct background checks on applicants and/or employees if required by state or federal law, or if the employer identifies the need for a background check to verify that the applicant or employee satisfies the position requirements.
(2) Employers who conduct background checks must develop procedures regarding how and when background checks will be conducted. The procedures must include notification to applicants and/or employees if a background check is required.
AMENDATORY SECTION(Amending WSR 07-17-125, filed 8/20/07, effective 9/20/07)
WAC 357-19-186For purposes of WAC 357-19-183, what information is considered in a background check conducted by ((DEL)) DCYF and what are the results of the background check used for?
(1) The background check information considered by the ((director)) secretary of the ((DEL)) DCYF will include but not be limited to conviction records, pending charges, and disciplinary board final decisions.
(2) The results of the background check must be used solely for the purpose of determining the character, suitability and competence of the applicant and/or employee.
AMENDATORY SECTION(Amending WSR 08-07-062, filed 3/17/08, effective 4/18/08)
WAC 357-19-187For purposes of WAC 357-19-183, must an employee and/or individual being considered for a covered position authorize the ((director)) secretary of the ((DEL)) DCYF or designee to conduct a background check and what happens if the employee or individual being considered for a covered position does not provide authorization?
An employee and/or individual applying for or being considered to remain in a covered position must authorize the ((director)) secretary of the ((DEL)) DCYF or designee to conduct a background check.
Failure to authorize the ((director)) secretary of the ((DEL)) DCYF or designee to conduct a background check disqualifies an employee or individual from consideration for any covered position including their current covered position.
AMENDATORY SECTION(Amending WSR 07-17-125, filed 8/20/07, effective 9/20/07)
WAC 357-19-188What happens when a permanent ((DEL)) DCYF employee is disqualified because of a background check?
(1) A permanent employee with a background check disqualification may be subject to any of the following actions in no specific order:
(a) Voluntary demotion;
(b) Job restructuring;
(c) Voluntary resignation;
(d) Job reassignment;
(e) Nondisciplinary separation in accordance with WAC 357-46-195; or
(f) Disciplinary action in accordance with WAC 357-40-010.
(2) An appointing authority may use the following interim measures while exploring the availability of actions (not to exceed thirty calendar days except in cases where there are investigations of pending charges):
(a) Voluntary use of accrued vacation, exchange, and/or compensatory time;
(b) Authorized leave without pay, if there is no paid leave available, or if the employee chooses not to use paid leave; and/or
(c) Reassignment to another work location.
(d) When considering the above actions, the agency will consider the least restrictive means necessary to prevent unsupervised access.
(3) Before a permanent employee may be separated due to a background check disqualification, the search for a noncovered position will occur over a period of thirty calendar days.
AMENDATORY SECTION(Amending WSR 07-17-125, filed 8/20/07, effective 9/20/07)
WAC 357-19-189What are the responsibilities of the ((director)) secretary of the ((DEL)) DCYF in carrying out the requirement to conduct background checks?
(1) In order to implement the requirements of WAC 357-19-183, the ((director)) secretary of the ((DEL)) DCYF or designee must:
(a) Notify employees and individuals being considered for covered positions that a background check is required for covered positions; and
(b) Develop policies and procedures pertaining to background checks.
(2) Information contained in background checks must be used solely for the purpose of determining the character, suitability and competence of the employee and/or individual being considered for covered positions. The information must not be disseminated further. Dissemination and use of such information is governed by the criminal records privacy act, chapter 10.97 RCW. Unlawful dissemination of information protected by the criminal records privacy act is a criminal offense and may result in prosecution and/or disciplinary action as provided in chapter 357-40 WAC. However, results of a background check may be discoverable pursuant to the rules of civil discovery, or subject to disclosure pursuant to a public records request.
AMENDATORY SECTION(Amending WSR 07-17-125, filed 8/20/07, effective 9/20/07)
WAC 357-19-191Does a permanent employee of ((DEL)) DCYF who is disqualified from a covered position as a result of a background check have the right to request a review of the disqualification?
A permanent employee of ((DEL)) DCYF who is disqualified from a covered position as a result of a background check has the right to present to the ((director)) secretary of the ((DEL)) DCYF or designee evidence that mitigates convictions, pending charges, and disciplinary board final decisions including, but not limited to:
(1) The employee's background check authorization and disclosure form;
(2) The employee's age at the time of conviction, charge, or disciplinary board final decision;
(3) The nature and severity of the conviction, charge, or disciplinary board final decision;
(4) The length of time since the conviction, charge, or disciplinary board final decision;
(5) The nature and number of previous offenses;
(6) Vulnerability of the child to which the employee will or may have unsupervised access; and
(7) The relationship between the potentially disqualifying event and the duties of the employee.