Relates to background checks in connection with certain contracts and current and transferred employees of the division of homeland security and emergency services

Summary of provisions

Section 1 of the bill would amend State Finance Law § 163(10) by adding a new paragraph (g) to permit state agencies and public authorities to include in contract documents a requirement that fingerprint-based background checks be conducted on contract employees who would enter, remain or have access to a critical infrastructure site or have access to sensitive security information.

Section 2 of the bill would amend Executive Law § 709(2) by adding a new paragraph (v), which would require DHSES to conduct a fingerprint-based background check on current and transferred employees.

Section 3 of the bill would provide DHSES, in consultation with the Division of Criminal Justice Services, with rule-making authority to implement the new provision in the State Finance Law.

Section 4 of the bill would provide an immediate effective date.

Existing law

There is no existing statutory authority permitting state agencies and public authorities to include in contract documents a requirement that fingerprint-based background checks be conducted on contract employees who would enter, remain or have access to a critical infrastructure site or sensitive security information.

Likewise, there is no statutory authority authorizing DHSES to conduct fingerprint-based criminal history background checks on current or transferred employees. With a few exceptions, see, e.g. Labor Law § 201-a, State law generally prohibits the fingerprinting of individuals as a condition of securing employment or of continuing employment.

Civil Service § 50(4) specifically prohibits State agencies from accessing criminal history information on current or transferred employees.

Legislative history

In 2007, the Office of Homeland Security proposed a departmental bill to require fingerprint-based background checks of current and transferred employees, but neither the Senate nor the Assembly introduced the bill.

Statement in support

Critical infrastructure sites continue to be prime targets for terrorist attacks as demonstrated by the numerous plots to attack these locations both here in New York and worldwide. Terrorist tactics may include pre-operational surveillance in an attempt to obtain as much information about the intended target as possible. Terrorists, cognizant of law enforcement efforts to detect pre-operational surveillance efforts, often shift tactics to avoid detection and to enhance their chances of success. Pre-operational terrorist surveillance under the guise of a contract employee to gain access to a critical infrastructure site is a legitimate concern. Permitting state agencies and public authorities to require fingerprint-based background checks in contract documents would provide State entities with an important screening measure to help prevent terrorists from obtaining sensitive information on critical infrastructure sites and close a recognized security gap.

Permitting DHSES to conduct fingerprint based criminal history background checks on current and transferred employees is also necessary to close an internal security gap. Pursuant to Executive Law § 709(2)(f), DHSES is responsible for coordinating the State's resources for the collection and analysis of information relating to terrorist threats and terrorist activities throughout the State. DHSES also is responsible for conducting threat vulnerability assessments of the State's power plants and transmission facilities, chemical storage facilities and commercial aviation transmission facilities and pipelines. See Executive Law §§ 713, 714 and 716. Consequently, DHSES maintains and has access to sensitive and classified security information, including federally classified "secret" and "top secret" information.

Although sensitive and classified information maintained by DHSES is properly safeguarded and only accessible by authorized personnel, fingerprint-based background checks would add another important layer of protection to these records and enable DHSES to take into consideration an individual's criminal history data to make a determination on whether a current or transferred employee poses a security risk to the safeguarding of sensitive and classified security information on a continuing basis.

Budget implications

None.

Effective date

This bill would take effect immediately, with provisions.