§ 36-3-16. Authority to conduct state and national background checks for applicants and employees in state positions with access to federal tax information. (a) Definitions. As used in this section, the following terms are hereby defined as follows:

(1) "Access," shall mean the direct use, contact, handling or viewing of federal tax information, as defined herein, in paper or electronic form, regardless of the frequency, likelihood or extent of such access.

(2) "Agency" or "state agency," shall mean a Rhode Island state agency within the executive branch.

(3) "Agency head," shall mean the director or designee of a state agency holding the position with access (as defined herein).

(4) "Applicant for employment," shall mean an individual who has applied for or may be offered employment, transfer or promotional opportunities with a state agency, including employment as a full-time or part-time employee, intern, temporary or seasonal employee, or volunteer, in a position with access (as defined herein).

(5) "Current agency employee," shall mean a full-time or part-time state employee, intern, temporary or seasonal employee or volunteer in a position with access (as defined herein).

(6) "Federal tax information" or "FTI" shall mean:

(i) Federal tax returns or information created or derived from federal tax returns that is in an agency's possession or control, which is covered by the confidentiality protections of the Internal Revenue Code and subject to 26 U.S.C. section 6103(p)(4) safeguarding requirements, including oversight by the Internal Revenue Service ("IRS"); and received directly from the IRS or obtained through an authorized secondary source, such as the Social Security Administration (SSA), Federal Office of Child Support Enforcement (OCSE), Bureau of the Fiscal Service (BFS), Centers for Medicare and Medicaid Services (CMS), or another entity acting on behalf of the IRS pursuant to an Internal Revenue Code ("IRC") 6103(p)(2)(B) agreement; and

(ii) FTI shall expressly not include federal tax returns or information created or derived from federal tax returns received from taxpayers or other third-parties.

(7) "Law enforcement authorized agency" shall mean a government entity authorized to conduct national background checks using the federal bureau of investigation's fingerprinting national background check system.

(b) The personnel administrator or designee shall require to be obtained a state and national fingerprint-based criminal background check initially and at least every ten years, as authorized by Public Law 92-544, to determine the suitability of an applicant for employment prior to hiring or a current agency employee, if the position applied for or held requires or includes access to FTI.

(c) An applicant for employment or current agency employee who refuses to comply with the fingerprint-based background check requirements shall be considered unsuitable for serving in a position requiring or involving, or which may require or involve, access to FTI.

(d) The national fingerprint-based criminal background check shall be facilitated through the office of the attorney general or another law enforcement authorized agency and forwarded to the federal bureau of investigation for a national criminal history check, according to the policies, procedures, and/or regulations established by the office of the attorney general or another law enforcement authorized agency.

(1) For current agency employees, the agency shall pay the applicable fee charged through the office attorney general or other law enforcement authorized agency to conduct state and national background checks. However, applicants for employment shall be required to pay the fee charged through the office attorney general or other law enforcement authorized agency.

(2) Fingerprint submissions may be retained by the Federal Bureau of Investigation and the office of the attorney general or other law enforcement authorized agency to assist the personnel administrator authorized pursuant to this section to ensure the continued suitability of an applicant for employment or a current agency employee for access to FTI.

(3) The office of the attorney general or other law enforcement authorized agency may disseminate the results of the state and national criminal background checks to the personnel administrator or designee of the personnel administrator.

(4) Notwithstanding any law to the contrary, solely for the purposes of this chapter, the personnel administrator, agency head and authorized staff of an agency may receive criminal offender record information to the extent required by federal law and the results of checks of national criminal history information databases under Public Law 92-544.

(5) Upon receipt of the results of state and national criminal background checks, the personnel administrator, agency head and other authorized staff shall treat the information as non-public and exempt from disclosure in accordance with the Rhode Island access to public records act, § 38-2-2(4)(A)(I)(b). Information acquired by any agency in the background check process pursuant to this section shall be used solely for the purposes of making a determination as to the suitability of a particular current employee or applicant for employment for and assignment to duties in a position that requires or includes, or may require or include, access to FTI.

(e) If the office of the attorney general or other law enforcement authorized agency receives criminal record information from the state or national fingerprint-based criminal background checks that includes no disposition or is otherwise incomplete, the office of the attorney general or other law enforcement authorized agency shall notify the personnel administrator and the subject person. The applicant for employment or the current agency employee shall be responsible for resolving any issues in other jurisdictions causing an incomplete background check. Within fifteen (15) business days from being notified, the applicant for employment or current agency employee must resolve any incomplete background check. For the purposes of this chapter, the personnel administrator, in his or her sole discretion, may extend the amount of time to resolve an incomplete report. Once resolved, the applicant's suitability for employment in a position requiring or involving, or which may require or involve, access to FTI shall be determined in accordance with subsection (f).

(1) In the event that an applicant for employment fails to resolve an issue with an incomplete background check by the deadline stated herein, the person shall no longer be considered for employment to the position with access.

(2) In the event that a current agency employee fails to resolve an issue with an incomplete background check by the deadline provided herein, along with any extension, the employee may be terminated or discharged from employment; provided, however, that a current agency employee may be placed on administrative leave or reassigned to a position that does not require access to FTI if that position is available and subject to the business needs of the agency at the discretion of the personnel administrator and agency head. Any such employment action shall be subject to the same appeal or grievance procedures as normally authorized.

(f) The personnel administrator or designee shall review the results to determine the suitability of the applicant for employment or current agency employee, based on criteria established through regulation, to serve in a position requiring or involving, or which may require or involve, access to FTI. In making such a determination of suitability, the personnel administrator or designee may consult with the agency head and consider mitigating factors relevant to the current agency employee's employment and the nature of any disqualifying offense.

(1) In the event that an applicant for employment receives a final determination that the person is unsuitable, the person shall no longer be considered for employment into a position with access.

(2) A current employee may appeal a determination of unsuitability to the personnel administrator. While the appeal is pending, the employee may be placed on administrative leave in the discretion of the personnel administrator. A final determination of unsuitability after appeal may result in termination or discharge from employment; provided, however, that subject to the discretion of the personnel administrator and the agency head, a current agency employee may be reassigned to a position that does not require access to FTI if that position is available and subject to the business needs of the agency. Any such employment action shall be subject to further appeal or grievance procedures as normally authorized.

(g) Nothing in this section shall limit or preclude an agency's right to carry on a background investigation of an applicant for employment or a current agency employee using other authorized means.

(h) The Department of Administration is hereby authorized to promulgate and adopt regulations necessary to carry out this section.

(i) The judicial branch is hereby authorized to comply with the provisions herein related to employees with access to FTI.

History of Section. (P.L. 2019, ch. 88, art. 3, § 6.)