senate Bill S4570

2011-2012 Legislative Session

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

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 21, 2012 committed to rules
Jun 04, 2012 advanced to third reading
May 31, 2012 2nd report cal.
May 30, 2012 1st report cal.953
Jan 04, 2012 referred to finance
Jun 24, 2011 committed to rules
Jun 14, 2011 advanced to third reading
Jun 13, 2011 2nd report cal.
Jun 07, 2011 1st report cal.1106
Apr 12, 2011 referred to finance

Votes

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May 30, 2012 - Finance committee Vote

S4570
27
2
committee
27
Aye
2
Nay
4
Aye with Reservations
0
Absent
2
Excused
0
Abstained
show Finance committee vote details

Jun 7, 2011 - Finance committee Vote

S4570
29
0
committee
29
Aye
0
Nay
6
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Finance committee vote details

S4570 - Bill Details

See Assembly Version of this Bill:
A8095
Current Committee:
Law Section:
State Finance Law
Laws Affected:
Amd §163, St Fin L; amd §709, Exec L

S4570 - Bill Texts

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

view sponsor memo
BILL NUMBER:S4570

TITLE OF BILL:

An act
to amend the state finance law, in relation to background checks in
connection with certain contracts; and to amend the executive law, in
relation to background checks of current and transferred employees of
the division of homeland security and emergency services

PURPOSE OF BILL:

This bill would provide legal authority for state agencies and public
authorities to include in contract documents a requirement that
fingerprint-based background checks be conducted on contract
employees that would enter, remain or have access to a critical
infrastructure site or sensitive security information; and would
provide the New York State Division of Homeland Security and
Emergency Services (DHSES) with specific authority to conduct
fingerprint-based criminal history background checks on current and
transferred employees.

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.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4570

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 12, 2011
                               ___________

Introduced by Sen. BALL -- (at request of the Division of Homeland Secu-
  rity  and  Emergency  Services) -- read twice and ordered printed, and
  when printed to be committed to the Committee on Finance

AN ACT to amend the state finance law, in relation to background  checks
  in  connection with certain contracts; and to amend the executive law,
  in relation to background checks of current and transferred  employees
  of the division of homeland security and emergency services

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 10 of section 163 of the state finance  law  is
amended by adding a new paragraph g to read as follows:
  G.  IN  CONTRACTS  FOR  SERVICES RELATED TO CRITICAL INFRASTRUCTURE, A
STATE AGENCY, DEPARTMENT, BOARD, BUREAU, DIVISION,  COMMISSION,  COMMIT-
TEE,  PUBLIC  AUTHORITY,  PUBLIC  CORPORATION,  COUNCIL, OFFICE OR OTHER
GOVERNMENTAL AGENCY MAY INCLUDE IN  CONTRACT  DOCUMENTS,  A  REQUIREMENT
THAT  PERSONS EMPLOYED BY THE CONTRACTOR TO PERFORM WORK PURSUANT TO THE
CONTRACT SHALL BE REQUIRED TO UNDERGO  A  STATE  AND  NATIONAL  CRIMINAL
HISTORY RECORD CHECK. WHEN REQUIRED, THE FINGERPRINTS OF SUCH AN EMPLOY-
EE  SHALL  BE SUBMITTED TO THE DIVISION OF CRIMINAL JUSTICE SERVICES AND
THE DIVISION OF CRIMINAL JUSTICE SERVICES IS AUTHORIZED TO CHARGE A  FEE
IN  CONNECTION  WITH  SUCH CRIMINAL HISTORY RECORD CHECK AND SUBMIT SUCH
FINGERPRINTS TO THE FEDERAL BUREAU OF INVESTIGATION, IN ACCORDANCE  WITH
APPLICABLE  RULES  OR INFORMATION, IF ANY, CONCERNING SUCH EMPLOYEE, AND
FOR A NATIONAL CRIMINAL HISTORY RECORD CHECK. THE  CONTRACTOR  SHALL  BE
RESPONSIBLE  FOR  INFORMING  ITS  EMPLOYEES  THAT  SUCH CRIMINAL HISTORY
RECORD CHECKS SHALL BE CONDUCTED AND FOR OBTAINING THE FINGERPRINTS  FOR
TRANSMITTAL TO THE DIVISION OF CRIMINAL JUSTICE SERVICES IN THE FORM AND
MANNER  PRESCRIBED  BY  THE  DIVISION. IN DETERMINING WHETHER TO INCLUDE
SUCH REQUIREMENT IN CONTRACT DOCUMENTS, THE COMMISSIONER OR STATE  AGEN-
CY,  DEPARTMENT,  BOARD, BUREAU, DIVISION, COMMISSION, COMMITTEE, PUBLIC
AUTHORITY, PUBLIC CORPORATION, COUNCIL,  OFFICE  OR  OTHER  GOVERNMENTAL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09686-03-1

S. 4570                             2

AGENCY  SHALL  CONSIDER,  BUT NOT BE LIMITED TO CONSIDERING, WHETHER THE
CONTRACTOR'S EMPLOYEES WILL ENTER, REMAIN OR OTHERWISE  HAVE  ACCESS  TO
CRITICAL  INFRASTRUCTURE  AS THAT TERM IS DEFINED IN SUBDIVISION FIVE OF
SECTION  EIGHTY-SIX OF THE PUBLIC OFFICERS LAW IN THE COURSE OF PERFORM-
ING THE CONTRACT, OR HAVE ACCESS TO SENSITIVE SECURITY INFORMATION,  AND
WHETHER  THE  WORK  IS  OF A TYPE THAT, IF PERFORMED BY EMPLOYEES OF THE
STATE, APPLICANTS FOR EMPLOYMENT WOULD  BE  REQUIRED  BY  THE  STATE  TO
SUBMIT  TO  A CRIMINAL HISTORY RECORD CHECK PURSUANT TO SECTION FIFTY OF
THE CIVIL SERVICE LAW OR ANY OTHER APPLICABLE LAW.  A  DETERMINATION  ON
WHAT  CONSTITUTES  CRITICAL INFRASTRUCTURE IN THE STATE SHALL BE MADE BY
THE CONTRACTING STATE ENTITY IN CONSULTATION WITH THE OFFICE OF  COUNTER
TERRORISM.  DETERMINATIONS  ON  THE  SUITABILITY  OF  WHETHER A CONTRACT
EMPLOYEE SHALL BE PERMITTED TO ENTER, REMAIN OR OTHERWISE HAVE ACCESS TO
CRITICAL INFRASTRUCTURE OR SENSITIVE SECURITY INFORMATION IN THE  COURSE
OF  PERFORMING THE CONTRACT SHALL BE MADE BY THE CONTRACTING STATE AGEN-
CY, DEPARTMENT, BOARD, BUREAU, DIVISION, COMMISSION,  COMMITTEE,  PUBLIC
AUTHORITY, PUBLIC CORPORATION, COUNCIL, OFFICE OR THE GOVERNMENTAL AGEN-
CY IN ACCORDANCE WITH ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW.
  S  2.  Subdivision 2 of section 709 of the executive law is amended by
adding a new paragraph (v) to read as follows:
  (V) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, INCLUDING  SUBDIVISION
FOUR  OF  SECTION  FIFTY  OF  THE CIVIL SERVICE LAW, REQUIRE CURRENT AND
TRANSFERRED EMPLOYEES TO UNDERGO A STATE AND NATIONAL  CRIMINAL  HISTORY
RECORD  CHECK FOR PURPOSES OF CONDUCTING BACKGROUND CHECKS OF SUCH INDI-
VIDUALS. THE FINGERPRINTS OF SUCH INDIVIDUALS SHALL BE SUBMITTED TO  THE
DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  AND  THE DIVISION OF CRIMINAL
JUSTICE SERVICES IS AUTHORIZED TO CHARGE A FEE IN CONNECTION  WITH  SUCH
CRIMINAL  HISTORY  RECORD  CHECKS  AND  SUBMIT  SUCH FINGERPRINTS TO THE
FEDERAL BUREAU OF INVESTIGATION, IN ACCORDANCE WITH APPLICABLE RULES  OR
REGULATIONS  PROMULGATED  BY  SUCH ENTITIES, IN ORDER TO OBTAIN CRIMINAL
HISTORY RECORD INFORMATION CONCERNING  SUCH  INDIVIDUALS.  THE  DIVISION
SHALL CONDUCT BACKGROUND INVESTIGATIONS OF ALL SUCH INDIVIDUALS.  DETER-
MINATIONS  ON  THE  EFFECT  OF ANY CRIMINAL CONVICTIONS SHALL BE MADE IN
ACCORDANCE WITH ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW.
  S 3. The director of the office of counter terrorism  in  consultation
with the commissioner of the division of criminal justice services shall
promulgate  rules  and regulations necessary to implement paragraph g of
subdivision 10 of section 163 of the state finance law.
  S 4. This act shall take effect immediately; provided,  however,  that
the amendments to subdivision 10 of section 163 of the state finance law
made  by  section  one  of  this act shall not affect the repeal of such
section and shall be deemed repealed therewith.

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