III. W. Background Investigations

I.   Policy

It is the policy of the Georgia Department of Technical and Adult Education that all reasonable measures will be taken to provide a safe and secure environment for employees, students, visitors, contractors, and other individuals working in, attending, and/or visiting any Department work unit or technical college. Based on this objective, a thorough background investigation, including a criminal history records check, shall be conducted on the recommended candidate for any full- or part-time position with the Department or any associated technical college before a hiring decision is finalized.

The successful completion of a criminal history records check/investigation will also be required of any contractor/employee of a contractor who works in a full-time or permanent, part-time capacity at any technical college, and whose work assignment(s) include direct contact with students and staff. Consistent with the provisions of this policy, any individual with a documented record of criminal conviction(s), as well as those on active, reporting probation or with outstanding criminal charges or active arrest warrants, may be ineligible for employment with or work assignment involving any Department work unit or technical college. 

II. Applicability

All work units and technical colleges associated with the Georgia Department of Technical and Adult Education. 
                                                 
III. Definitions

Applicant: An individual seeking employment with any work unit or technical college associated with the Georgia Department of Technical and Adult Education. This term also includes employees of other state agencies or any college/university affiliated with the University System of Georgia, as well as current or former employees of the Georgia Department of Technical and Adult Education or any technical college.

Arrest:  the restraining and seizure of an individual by the police or other person acting under the law in connection with a crime. 

Background Investigation:  may include a criminal history records (name)  check, motor vehicle/driver’s history investigation, military service investigation, employment history investigation, credit history investigation, and/or the review, verification, and/or the investigation of information provided on an applicant’s resume, employment application, or State of Georgia Security Questionnaire/Loyalty Oath.

Business Day:  Weekdays that administrative offices are open.

Consumer Report: any communication of information by a consumer reporting agency regarding a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living when such information is used for employment or other purposes. When used in conjunction with a consumer report, the term “employment purposes” is defined as a report used for the purpose of evaluating a consumer for initial employment, promotion, reassignment, or retention.

Consumer Reporting Agency:  The person (entity) who regularly assembles or evaluates consumer information and furnishes consumer reports to third parties for a fee or on a non-profit basis.  
 
Conviction:  The result of a criminal trial (proceeding) in which the defendant has been found guilty of a crime (including a plea bargain/agreement and a plea of nolo contendere).

Crime:  Conviction(s) or pending charge(s) that will disqualify an applicant from further consideration for employment.

Criminal Record: 

• Conviction of a crime;
• Arrest, charge, and sentencing for a crime where:
• a plea of nolo contendere was entered to a charge;
• First Offender Treatment without an adjudication of guilt pursuant to the charge was granted; provided, however, that this subparagraph shall not apply to a violation of O.C.G.A. Title 16, Chapter 13 relating to controlled substances, or any other offense committed in another jurisdiction which, if committed in this state, would be a violation of Chapter 13, of Title 16 if such violation or offense constituted only simple possession; or,
• Adjudication or sentence was otherwise withheld or not entered on the charge; provided however, that this subparagraph shall not apply to a violation of Chapter 13 of Title 16, relating to controlled substances, or any other offense committed in this state, would be a violation of Chapter 13 of Title 16 if such violation or offense constituted only simple possession; or,
• Arrest and being charged for a crime if the charge is pending, unless the time for prosecuting such a crime has expired pursuant to O.C.G.A. Title 17, Chapter 3.

Criminal History Records Check/Investigation:   Use of a computerized database at the state or federal level (GCIC and/or NCIC) to determine whether an individual has a criminal record.

Criminal History Record Information:   Information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges, and any disposition arising there from including acquittal, sentencing, correctional supervision, and release. 

Disposition:  The result of a criminal proceeding including information disclosing that an arresting agency has elected not to refer the matter to a prosecutor or that a prosecutor elected not to commence criminal proceedings and disclosing the nature of the termination in proceedings or, information disclosing the reason for such postponement.

Employment History Investigation:  An oral or written verification of an individual’s previous employment as referenced on his/her resume or employment application.

Fair Credit Reporting Act (FRCA):  Protects prospective employees, existing employees, and other individuals by requiring consumer reporting agencies (CRAs) to adopt procedures that promote confidentiality, accuracy, relevancy, and proper use of consumer information. Employers (in almost all circumstances) are required to follow certain steps, including obtaining an individual’s written consent before pursuing a consumer report from a consumer reporting agency.  

Felony:  A crime which generally carries a minimum term/sentence of one year or more in a state or federal prison.

First Offender Act (Probation of First Offenders):  as referenced in O.C.G.A. 42-8-60, a discharge without court adjudication of guilt. Except for registration requirements under the state Sex Offender Registry and except as otherwise provided in O.C.G.A. 42-8-63.1., the discharge completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties. Additionally, the defendant shall not be considered to have a criminal conviction.
Georgia Crime Information Center (GCIC):  A Division of the Georgia Bureau of Investigation which provides the intrastate communication of vital information relating to crimes, criminals, and criminal activity.

Misdemeanor:  a crime punishable by a fine and/or county jail time for up to one year

Name Check:  A criminal record investigation using an individual’s name and social security number as a basis for identification.   

National Crime Information Center (NCIC):  A federal criminal history record information database maintained by the Federal Bureau of Investigation (FBI).

Nolo Contendere:  a plea entered by a defendant (as an alternative to a pleading of guilty or not guilty) in response to being charged with a crime in which he/she neither admits to nor disputes the charge(s). A conviction arising from a nolo plea is subject to any and all penalties, fines, and forfeitures of a conviction from a guilty plea and can be considered as an aggravating factor in future criminal actions.

Nolle-Prosequi (Nol Pros): An entry made on the record by a prosecutor in a criminal case stating that he/she will no longer pursue the matter. An entry of nolle prosequi may be made at any time after charges are brought and before a verdict is returned or a plea entered.

Reviewing Manager:  A manager charged with reviewing the performance plans and evaluations prepared by lower level supervisor(s) in his/her direct line of supervision.

State of Georgia Security Questionnaire/Loyalty Oath:   A questionnaire required by the Sedition and Subversive Activities Act of 1953 (O.C.G.A. 16-11-5) designed to establish that there are not reasonable grounds to believe that an applicant/employee is a subversive person. As required by O.C.G.A. 45-3-11, the questionnaire includes an oath stating that an applicant will support the Constitution of the United States and the Constitution of the State of Georgia.

IV. Attachments

A.  State of Georgia Security Questionnaire/Loyalty Oath

B.  Georgia Driver’s History Consent Form

C. Notice to Applicants/Authorization to Release Background Information Form (Technical College)

D. Notice to Applicants/Authorization to Release Background Information Form (Central Office)

E.  Fair Credit Reporting Act Guidelines

F.  GCIC Awareness Statement

G. Employer Immunity from Disclosure Claims

V.  Procedures

A. General Provisions:

• All applicants, including employees of other state agencies and the University System of Georgia or individuals who were previously employed with the Department or an associated technical college, will be subject to a background investigation which may include the investigation and/or verification of the following information: criminal history; employment history; education history; military service history; driver’s license history/records; credit history;  and/or, any information provided by an applicant on the State of Georgia Security Questionnaire/Loyalty Oath or an application for employment.
• All applicants/employees will be required to report all convictions (including those that may have been pardoned), pending charges, as well as traffic violations (i.e., moving violations) for which a fine of $35.00 or more was assessed/imposed on the State of Georgia Security Questionnaire/Loyalty Oath (Attachment A).
• Written statements made by an applicant/current employee on applicable Department/technical college forms/hiring documents (e.g., employment application, State of Georgia Security Questionnaire/Loyalty Oath, etc.) will be deemed to have been made under oath as provided in state law. Falsification or misrepresentation of information, including criminal history information and educational achievement (e.g., degree[s] obtained), may result in the withdrawal of an employment offer or, if already employed, dismissal.  Current employees pursuing advancement opportunities or other position(s) who falsify employment related documents/forms shall be subject to disciplinary action up to and including dismissal from employment. 
• Although it is permissible to provide an applicant a conditional offer of employment pending the successful completion of a criminal history records (name) check/investigation, no applicant may be formally hired until this activity has been finalized.
• All current Department/technical college employees are subject to a criminal history records investigation prior to any promotion, change in employment status from part-time to full-time, movement/lateral transfer to a position deemed sensitive given the nature and scope of the individual’s newly assigned duties, or for any other legitimate business reason as determined by the Department/technical college. This provision shall be consistently applied within each technical college and the parameters for application shall be determined by the President or his/her designee.
• An applicant’s criminal history records check shall be considered valid for a period of sixty (60) days from the date of the final report. If the recommended candidate is not hired within the sixty (60) day period, this activity must be repeated if he/she subsequently applies for another position or is later considered for the same position.
• An applicant convicted of certain crime(s) as referenced in Paragraph V.B.1. shall be disqualified from employment for a minimum period of five (5) years. 
• A discharge under the provisions of O.C.G.A. 42-8-63 (Probation of First Offenders), commonly known as the First Offender Act is not a conviction  of a crime under Georgia Law and may not generally be used to disqualify a person in any application for employment or subsequent appointment in the public or private sector. An exception to the above referenced disqualification provision (i.e., O.C.G.A. 42-8-63.1) pertains to an offender (i.e., applicant or employee) discharged under the First Offender Act on or after July 1, 2007 and who applies for employment with an entity (e.g., a technical college) that provides day care or after school care for minor children after prosecution for one of the following offense(s): child molestation; sexual battery; enticing a child for indecent purposes; sexual exploitation of a child; pimping; pandering; and/or incest.
• Any current employee convicted of a crime, who is found to have falsified or misrepresented information on employment-related form(s) or document(s), or who fails a drug/alcohol screening test or other background investigation standard established/ administered by a clinical site or other third party referenced in Paragraph V.E., is subject to disciplinary action up to and including dismissal from employment consistent with the provisions of this and other applicable State Board of Technical and Adult Education policies. 
• Contractors and/or employees of a contractor who work in a full-time or permanent, part-time capacity in a technical college setting and whose work assignments include direct contact with students and staff (e.g., bookstore operations, custodial operations, food service operations) must meet the same criminal history standards as an applicant or any employee subject to the provisions of this policy.
• Contractors and/or employees of a contractor whose work assignments in a technical college setting are temporary/time-limited and/or sporadic in nature (e.g., grounds maintenance, construction projects, maintenance/installation/repair/service-related duties/tasks, etc.) are not subject to established criminal history standards. 

• Employment Restrictions

 1.   There is a mandatory disqualification period from
employment in positions subject to a criminal history records check for a minimum of five (5) years from the date of the most recent conviction, plea of nolo contendere, or release from incarceration, probation, or parole, whichever is later, for any of the following crimes:

• Any felony, including those serious violent felonies referenced in O.C.G.A. 17-10-6.1, (i.e., murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, aggravated sexual battery and other sexual offenses referenced in O.C.G.A. Title 16 (e.g., incest, sodomy, statutory rape, child molestation, enticing a child for indecent purposes, and sexual exploitation of children);
• Criminal attempt when the crime attempted is any of the crimes specified in the above paragraph;
• Simple battery or simple assault when the victim is a minor, cruelty to children, criminal attempt/battery, and contributing to the delinquency, unruliness or deprivation  of a minor when an applicant is pursuing a position in a technical college’s on-site child care/day care center;
• Any misdemeanor conviction directly related to the area of assignment; and,
• Any offense committed in another jurisdiction which, if committed in Georgia, would be one of the enumerated criminal offenses referenced in these paragraphs.
• Drug-Related Convictions

The following minimum sanctions are to be imposed on applicants who have been convicted of a criminal drug offense pursuant to the Drug-free Public Workplace Act of 1990:

• Any person who has been convicted for the first time under the laws of Georgia, the United States, or any other state, for any criminal offense involving the manufacture, distribution, sale, or possession of a controlled substance, marijuana or a dangerous drug shall be ineligible for consideration for employment for a period of twelve (12) months from the date of conviction; and;
• Any person who has been convicted two (2) or more times under the laws of Georgia, the United States, or any other state, of any criminal offense involving the manufacture, distribution, sale, or possession of a controlled substance, marijuana, or a dangerous drug shall be ineligible for consideration for employment for period of five (5) years from the most recent date of conviction.
• Misdemeanor Conviction(s)

A recommended candidate possessing a criminal record reflecting one or more misdemeanor conviction(s) not addressed in the Drug-free Public Workplace Act of 1990 may be considered for employment depending upon the specific nature, number of conviction(s), and it’s/their relationship to the position’s work location and assigned duties and responsibilities.

Other considerations include: when the offense(s) was/were committed; information concerning the character and background of the candidate from designated references, as well as his/her current and former employer(s); the candidates subsequent employment history; and, an assessment as to whether the conviction(s) could potentially pose a safety risk to the Department/technical college and its operations, employees, students, visitors, or others present in the workplace.

• Active Probation/Parole Status, Active Arrest Warrant(s), or Pending Criminal Charge(s)

An applicant cannot be considered for employment if:

•  He/she is currently on active, reporting probation or parole for any felony offense;
•  He/she is currently on active, reporting probation for a misdemeanor offense directly related to the area of assignment;
•  He/she has a pending, non-adjudicated charge for any felony or misdemeanor offense; or,
•  He/she has an active felony or misdemeanor arrest warrant;

No hiring recommendation can be made until the applicant has successfully cleared any pending charge or outstanding arrest warrant by providing a copy of the disposition or documentation that the arrest warrant has been cleared.

Before an individual on active, reporting probation for a misdemeanor offense can be considered for employment, he/she must first produce a statement from the court of jurisdiction or his/her probation officer indicating that the applicant is currently meeting all terms and conditions of his/her probation, including the payment of associated fines and restitution. 

• Motor Vehicle Records (MVR) Search

 When a position’s essential job responsibilities regularly include driving a state or personal vehicle, or in situations in which an employee may periodically transport other employees, students, a prospective employee must possess a valid Georgia Driver’s License. If the candidate is currently in the process of relocating from another state or will (if selected) relocate, a valid Driver’s License from his/her current/former state of residence will meet this requirement.

The recommended candidate may be required (as a condition of employment) to consent to a Motor Vehicle Records (MVR) Search/Check as a part of the background investigation process. In these circumstances, the individual must complete the Georgia Driver’s History Consent Form (Attachment B).

No prospective employee shall be considered for a position meeting the above requirements if he/she possesses a suspended or revoked Driver’s License; possesses a pattern of serious moving violations (e.g., speeding, reckless driving, etc.,); or, within the past five (5) years, possesses  two (2) or more Driving Under the Influence (DUI) convictions or pleas of nolo contendere.

Any applicant who refuses to sign the Georgia Driver’s History Consent Form will not be provided further consideration for employment.

Any current employee who refuses to sign the Georgia Driver’s History Consent Form will not be provided further consideration for the available position and/or may be subject to disciplinary action.

D. Credit History Investigations

The credit history of a recommended candidate may be investigated when the duties of the position to be filled include responsibility for handling money or, when appropriate for those positions charged with overseeing such activities. Care must be taken to ensure that these investigations and any subsequent employment-related decisions are made consistent with applicable provisions of the Fair Credit Reporting Act (FCRA), the Consumer Credit Protection Act, and the Bankruptcy Reform Act.

E. Notification and Authorization Requirements

All vacancy announcements/notices shall include a statement advising potential applicants of applicable background investigation requirements.

All applicants for employment, including current and former employees of other state agencies and the University System of Georgia and, as applicable, current and former employees of the Georgia Department of Technical and Adult Education, shall be verbally notified of the requirement of a criminal history records check as a condition of employment during the interview process.

The recommended candidate shall complete the applicable Notice to Applicants/Authorization to Release Background Information Form (Attachment C or D) and the State of Georgia Security Questionnaire/Loyalty Oath permitting the Department/ technical college to conduct the criminal history records check through a third party consumer reporting agency or through a state or local law enforcement agency.
Any prospective contractor/employee of a contractor working in a full-time or permanent part-time capacity in a technical college and whose work assignments include direct contact with staff and students must meet the same criminal history standards as those established for Department/technical college employees.

Any applicant who refuses to sign the Notice to Applicants/Authorization to Release Background Information Form or complete the State of Georgia Security Questionnaire/Loyalty Oath will not be considered further for employment.

Any current employee who refuses to sign the Notice to Applicants/Authorization to Release Background Information Form or complete the State of Georgia Security Questionnaire/Loyalty Oath will not be considered further for the available position and/or may be subject to disciplinary action. 

All current employees are required to report any post-employment arrest and the subsequent disposition of any pending charge (e.g., conviction, dismissal, etc.) to his/her immediate supervisor and/or reviewing manager no later than two (2) business days following the date of arrest or final disposition. 

F.  Background Checks Imposed by Third Party Organizations

Employees in certain positions, such as those who visit clinical sites as a part of their essential job duties and responsibilities, may be required (as a condition of employment) to undergo additional background screening(s) as dictated by a third party organization or clinical site. These may include:

• Inquiry with the HHS Office of the Inspector General Exclusion Program;
• Inquiry with the General Services Administration Excluded Parties List System (EPLS);
• A drug screening; and/or
• An alcohol screening.

An employee who is denied entry to a clinical site on the basis of the results of these additional screening requirement(s) and cannot perform the essential functions of his/her job, may be subject to disciplinary action up to and including dismissal from employment. 

G. Authorization to Employ an Applicant with a Criminal Record

A Technical College President, Assistant Commissioner, or Executive Director may recommend the employment of an applicant possessing one or more misdemeanor conviction(s) and/or plea(s) of nolo contendere. The recommendation should be consistent with hiring restrictions referenced in Paragraph V. B. and made in the best interests of the College/Department work unit. Before finalizing a hiring decision, the President, Assistant Commissioner, or Executive Director (or his/her designee) must consult with either the Department’s General Counsel or Director of Human Resources.           

Any recommendation to employ an applicant with one or more prior felony conviction(s) must be made in writing to the Commissioner. The request must include a synopsis of the applicant’s past criminal history, the accompanying rationale, and a copy of the completed State Security Questionnaire/ Loyalty Oath. No hiring decision in this situation can be finalized until the Commissioner and/or his/her designee has authorized the appointment in writing.

H.   Notification of Adverse Employment Decision
 
If an applicant is eliminated from consideration for a position solely on the results of a criminal history records check, or if an employee is separated from employment on the same basis, the applicant/employee must be provided one or more separate written notice(s) that disclose the specific information used in making the determination.

For those technical colleges or department work units using a third party consumer reporting agency to access criminal history information, the college must follow all pertinent notification provisions of the Fair Credit Reporting Act (FCRA) (Attachment E).

For those technical colleges using criminal history information generated from the Georgia Crime Information Center (GCIC) database by a state or local law enforcement agency, the college must follow all pertinent procedures established pursuant to GCIC Council Rules.    
 
I.  Maintenance of Criminal History Records
 
Records and documents concerning/generated/obtained in response to an applicant’s or an employee’s criminal history must be maintained separately from any personnel, management, or selection file.

When not being reviewed, this information must be stored in a locked cabinet. Areas in which the information is processed and handled must be out of public view and restricted to authorized personnel in the performance of their official duties.

J.  Access to Criminal History Information

Criminal history records and other related information will only be accessible to authorized Department/technical college staff.

Any employee who has access to or reviews criminal history records/investigation reports generated by a state or local law enforcement agency must sign a GCIC Awareness Statement (Attachment F) which is designed to ensure confidentiality and proper handling of the information. The Rules of the GCIC Council require signed Awareness Statements to be placed in each employee’s official personnel file.
Criminal history records will not be released or otherwise disseminated or disclosed to unauthorized individuals or employees.

An employee’s unauthorized release of an applicant’s or other staff member’s criminal history information to unauthorized individual(s) may subject the employee to disciplinary action up to and including dismissal.

The Georgia Crime Information Act (O.C.G.A. 35-3-38) establishes specific criminal penalties for the unlawful access of the criminal justice system or dissemination of criminal history information.

VI.  Records Retention

Criminal history records must be retained for seven (7) years.  

 Adopted April 3, 2008