2016-3996 Ordinance ORDINANCE NO. 2016-3996
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA AMENDING CHAPTER 78 OF THE CODE OF THE
CITY OF MIAMI BEACH, ENTITLED "PERSONNEL," BY AMENDING
ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 78-2,
ENTITLED "RESERVED," TO CODIFY REQUIREMENTS FOR CRIMINAL
HISTORY RECORD CHECKS FOR CERTAIN MUNICIPAL EMPLOYEES,
CONTRACTORS, EMPLOYEES OF CONTRACTORS, AND VENDORS, IN
ACCORDANCE WITH STATE LAW; PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the City of Miami beach conducts criminal background checks of
employees, applicants, and others pursuant to Section 166.0442, and other relevant provisions,
of the Florida Statutes; and
WHEREAS, Section 166.0442 was amended in 2013 to expand its scope; and
WHEREAS, Section 166.0442 currently requires criminal background check policies be
enacted by an ordinance with regard to state and national criminal history records checks for:
(a) Any position of municipal employment, whether paid, unpaid, or contractual,
which the governing body of the municipality finds is critical to security or
public safety;
(b) Any private contractor, employee of private contractor, vendor, repair person,
or delivery person who is subject to licensing or regulation by the
municipality; or
(c) Any private contractor, employee of a private contractor, vendor, repair
person, for-hire chauffeur, or delivery person who has direct contact with
individual members of the public or access to any public facility or publicly
operated facility in such a manner or to such an extent that the governing
body of the municipality finds that preventing unsuitable persons from having
such contact or access is critical to security or public safety; and
WHEREAS, to implement the provisions in Section 166.0442, the Mayor and City
Commission determine that a) positions of municipal employment are critical to security or
public safety, and b) that preventing unsuitable persons from having direct contact with
individual members of the public, or having access to public facilities and publically operated
facilities, is critical to security and public safety; and
WHEREAS, the Mayor and City Commission find that criminal history records checks
should be required of a) positions of City employment, whether paid, unpaid, or contractual, as
such positions are critical to security and public safety; and b) those City contractors or
employees of a City contractor or vendor who have direct contact with individual members of the
public or access to any public facility or publicly operated facility because preventing unsuitable
persons from having such contact or access is critical to security and public safety; and
WHEREAS, municipal ordinances enacted pursuant to Section 166.0442 must require
that such criminal history record checks include fingerprinting the applicable individuals, and
having the individuals' fingerprints submitted to the Florida Department of Law Enforcement for
a state criminal history record check and to the Federal Bureau of Investigation for a national
criminal history record check; and
WHEREAS, the information obtained from the criminal history record checks will be
used to determine the respective individual's eligibility for employment or continued employment
by the City, and to determine eligibility for City contractors, employees of City contractors, and
vendors to have access, or continued access, to public facilities or publicly operated facilities, as
authorized by this Ordinance and Section 166.0442 of the Florida Statutes.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. Section 78-2 of the Code of the City of Miami Beach, Florida, is hereby
amended to read as follows:
Chapter 78
PERSONNEL
Article I. In General
Sec. 78-2. Reserved. Criminal history record checks for certain city employees,
contractors, and vendors.
al Pursuant to Section 166.0442 of the Florida Statutes, as such may be
amended from time to time, state and national criminal history record
checks shall be required for:
1� Any position of City employment, whether paid, unpaid, or
contractual; and
21 Any City contractor, employee of a City contractor, or City vendor
who has direct contact with individual members of the public or
access to any public facility or publicly operated facility.
2
bl Each person shall be fingerprinted who is:
1) applying for, or continuing employment to any position of City
employment as provided in subsection (a)(1); and
2) a City contractor, employee of a City contractor, or City vendor
having public contact or access to public facilities or publicly
operated facilities.
The City's Human Resources Department, its successor department,
and other applicable departments shall utilize such fingerprints to
conduct the state and national criminal history record checks provided
for in this section.
c Fingerprints obtained pursuant to the authority of this section shall be
submitted to the Florida Department of Law Enforcement for a state
criminal history record check and also to the Federal Bureau of
Investigation for a national criminal history record check. The
information obtained from each respective criminal history record
check conducted pursuant to this section shall be used to determine a
person's eligibility for employment required pursuant to this section, to
determine a person's eligibility for continued employment and to
determine eligibility for City contractors, employees of City
contractors, and City vendors to have access, or continued access, to
public facilities or publicly operated facilities.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 3. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this Ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered
or relettered to accomplish such intention, and the word "ordinance" may be changed to
"section," "article," or other appropriate word.
3
SECTION 5: EFFECTIVE DATE.
This Ordinance'shall take effect on the o?O day ofru4f7L016.
• PASSED AND ADOPTED this /0 ' day of ,b ebr4r07 2016.
,Philip Levin- . !'
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COMMISSION ITEM SUMMARY
Condensed Title:
An ordinance of the Mayor and City Commission of the City of Miami Beach, Florida, amending Chapter
78 of the Code of the City of Miami Beach, entitled "Personnel," by amending Article I, entitled "In
General," by amending section 78-2, entitled "Reserved," to Codify Requirements for Criminal History
Record Checks for Certain Municipal Employees, Contractors, Employees of Contractors, and Vendors,
in accordance with State Law; providing for repealer, severability, codification, and an effective date.
Key Intended Outcome Supported:
• Strengthen internal controls to achieve more accountability
Supporting Data(Surveys, Environmental Scan, etc.): N/A
SECOND READING AND PUBLIC HEARING
Item Summary/Recommendation:
In 1999 the City of Miami Beach entered into an intergovernmental agreement with the Florida Department
of Law Enforcement to permit the City of Miami Beach to check the criminal backgrounds of persons who
work or volunteer with children, the elderly, or the disabled under the National Child Protection Act(NCPA)
(1993), as amended and § 943.0552, Florida Statutes (1999).
The City of Miami Beach runs criminal background checks prior to the beginning of employment or service
to the City on all selected candidates for employment and promotions, most contractors, contractor
employees, interns, temporary agency employees assigned to work for the City and any other such
persons whose employment or contractual relationship with the City gives them routine, who has direct
contact with individual members of the public or unescorted access to City offices or publicly operated
facilities in such a matter or to such an extent the City's governing body finds that preventing unsuitable
persons from having such contact or access is critical to security or public safety.
In May 2015, the FBI conducted a National Identity Services (NIS) audit at the City of Miami Beach. The
one finding was that the City of Miami Beach "performed FBI criminal background checks on all applicants
for employment, volunteers, contractors and interns. In addition there was not a Public Law 9-544
approved state or ordinance that covered the applicants who were not covered by the National Child
Protection ActNolunteers for Children ACT (NCPANCA)."
To correct this finding the Administration recommends adopting the ordinance.
Advisory Board Recommendation:
N/A
Financial Information:
Source of Amount Account Approved
Funds: 1
2
3
OBPI Total
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Sylvia Crespo-Tabak, Human Resources
Sign-Offs:
Department Director Assistant City Manager City M nager
SCT % MT JL
Agenda Item
Date 2-10—(,
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMISS ON MEMORANDUM
TO: Philip Levine, Mayor and Members of the City if ommission
FROM: Jimmy L. Morales, City Manager
DATE: February 10, 2016
SUBJECT: AN ORDINANCE OF THE MAYO AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 78 OF THE CODE OF
THE CITY OF MIAMI BEACH, ENTITLED "PERSONNEL," BY AMENDING
ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING SECTION 78-2,
ENTITLED "RESERVED," TO CODIFY REQUIREMENTS FOR CRIMINAL
HISTORY RECORD CHECKS FOR CERTAIN MUNICIPAL EMPLOYEES,
CONTRACTORS, EMPLOYEES OF CONTRACTORS, AND VENDORS, IN
ACCORDANCE WITH STATE LAW; PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
SECOND READING AND PUBLIC HEARING
BACKGROUND
In 1999 the City of Miami Beach entered into an intergovernmental agreement with the
Florida Department of Law Enforcement to permit the City of Miami Beach to check the
criminal backgrounds of persons who work or volunteer with children, the elderly, or the
disabled under the National Child Protection Act (NCPA) (1993), as amended and §
943.0552, Florida Statutes (1999).
The current name for the program used by the City is VECHS, which is an acronym for
Volunteer and Employee Criminal History System for criminal history checks by a
qualified entity under the (NCPA) 1993 as amended and § 943.0552, Florida Statutes
(1999).
To qualify for the VECHS program, an entity must provide some type of "care" or "care
placement services" for children, the elderly or the disabled; even if it is only a limited
part of the entity's overall business. Once qualified to participate in the program, an
entity may request criminal history information on all current and prospective employees
and volunteers, not only those who work with vulnerable persons. A qualified entity may
also request criminal history information on employees or volunteers who have or who
seek to have unsupervised access to the populations described above.
"Qualified entities" are authorized to obtain criminal history record information as
described under the NCPA and related federal guidelines. Under the NCPA and Florida
statute, a "qualified entity" is a business or organization, whether public, private, for
profit, not-for-profit, or voluntary, that provides care or care placement services, including
a business or organization that licenses or certifies others to provide care or care
placement services. "Care" means the provision of care, treatment, education, training,
instruction, supervision, or recreation to children, the . elderly, or individuals with
disabilities.
Commission Agenda—Criminal Background Checks
February 10,2016
Page 2 of 2
The City of Miami Beach runs criminal background checks prior to the beginning of
employment or service to the City on all selected candidates for employment and
promotions, most contractors, contractor employees, interns, temporary agency
employees assigned to work for the City and any other such persons whose employment
or contractual relationship with the City gives them routine, who has direct contact with
individual members of the public or unescorted access to City offices or publicly
operated facilities in such a matter or to such an extent the City's governing body finds
that preventing unsuitable persons from having such contact or access is critical to
security or public safety.
Typically, state and national criminal history record checks are completed within three
business days of receiving the electronic submission. Results are posted to DataMotion
SecureMail, a secure FDLE web mail application. The results include both state and
national criminal history information from the Federal Bureau of Investigations (FBI), as
well as any warrants and other information related to the individual.
A result notification email is sent to the email address designated by the customer and
will contain a link to this SecureMail application. This notification will also contain
descriptive information specific to the transaction.
A noteworthy inclusion to this memorandum is that adverse employment decisions
cannot be made solely based on the fact that an individual has been arrested. Title VII
of the Civil Rights Act, longstanding court decisions and the United States Federal
Government Equal Employment Opportunity Commission (EEOC) enforcement
guidelines state that prior to excluding an applicant based on a criminal history, the
hiring agency needs to consider the nature and gravity of the offense or conduct; the
time that has passed since the offense, conduct.and/or completion of the sentence; the
nature of the job sought; and whether excluding the applicant is consistent with business
necessity.
In May 2015, the FBI conducted a National Identity Services (NIS) audit at the City of
Miami Beach. The one finding was that the City of Miami Beach "performed FBI criminal
background checks on all applicants for employment, volunteers, contractors and
interns. In addition there was not a Public Law 9-544 approved state or ordinance that
covered the applicants who were not covered by the National Child Protection
ActNolunteers for Children ACT (NCPANCA)."
CONCLUSION
As requested by Commissioner Joy Malakoff, the word "Appointees," is removed from
this ordinance.
To correct this finding the Administration recommends adopting the following, "An
ordinance of the Mayor and City Commission of the City of Miami Beach, Florida,
amending Chapter 78 of the Code of the City of Miami Beach, entitled "Personnel," by
amending Article I, entitled "In General," by amending section 78-2, entitled "Reserved,"
to Codify Requirements for Criminal History Record Checks for Certain Municipal
Employees, Contractors, Employees of Contractors, and Vendors, in accordance with
State Law; providing for repealer, severability, codification, and an effective date".
J LM/J MT/SC-T
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