[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 2703, THE PRIVATE SECURITY OFFICER EMPLOYMENT ACT OF 2007
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR AND PENSIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, FEBRUARY 26, 2008
__________
Serial No. 110-79
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut [Vacancy]
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Vic Klatt, Minority Staff Director
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS
ROBERT E. ANDREWS, New Jersey, Chairman
George Miller, California John Kline, Minnesota,
Dale E. Kildee, Michigan Ranking Minority Member
Carolyn McCarthy, New York Howard P. ``Buck'' McKeon,
John F. Tierney, Massachusetts California
David Wu, Oregon Kenny Marchant, Texas
Rush D. Holt, New Jersey Charles W. Boustany, Jr.,
Linda T. Sanchez, California Louisiana
Joe Sestak, Pennsylvania David Davis, Tennessee
David Loebsack, Iowa Peter Hoekstra, Michigan
Phil Hare, Illinois Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York Tom Price, Georgia
Joe Courtney, Connecticut Virginia Foxx, North Carolina
Timothy Walberg, Michigan
C O N T E N T S
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Page
Hearing held on February 26, 2008................................ 1
Statement of Members:
Andrews, Hon. Robert E., Chairman, Subcommittee on Health,
Employment, Labor and Pensions............................. 1
Prepared statement of.................................... 3
Additional submissions:
Statement of the National Employment Law Project..... 38
Statement of the Service Employees International
Union.............................................. 41
Kline, Hon. John, Senior Republican Member, Subcommittee on
Health, Employment, Labor and Pensions..................... 3
Prepared statement of.................................... 4
Statement of Witnesses:
Campbell, Frank A.S., Senior Counsel, Office of Legal Policy,
U.S. Department of Justice................................. 5
Prepared statement of.................................... 7
Clarke, Floyd I., member of the board of managers, Allied
Security Holdings.......................................... 32
Prepared statement of.................................... 34
de Bernardo, Mark, Jackson Lewis LLP......................... 25
Prepared statement of.................................... 27
Kennedy, Weldon, vice chairman, Guardsmark, LLC.............. 21
Prepared statement of.................................... 23
Follow-up comments....................................... 49
Ricci, Joseph, CAE, executive director, National Association
of Security Companies (NASCO).............................. 16
Prepared statement of.................................... 17
Uzzell, Donna M., Director, Criminal Justice Information
Services, Florida Department of Law Enforcement; Chairman,
National Compact on Crime Prevention and Privacy Council... 27
Prepared statement of.................................... 29
H.R. 2703, THE PRIVATE SECURITY OFFICER EMPLOYMENT ACT OF 2007
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Tuesday, February 26, 2008
U.S. House of Representatives
Subcommittee on Health, Employment, Labor and Pensions
Committee on Education and Labor
Washington, DC
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The subcommittee met, pursuant to call, at 10:32 a.m., in
room 2175, Rayburn House Office Building, Hon. Robert Andrews
[chairman of the subcommittee] presiding.
Present: Representatives Andrews, Wu, Hare, Kline, McKeon,
Davis of Tennessee, and Foxx.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Carlos Fenwick, Policy Advisor,
Subcommittee on Health, Employment, Labor and Pensions; Brian
Kennedy, General Counsel; Sara Lonardo, Junior Legislative
Associate, Labor; Robert Borden, Minority General Counsel;
Cameron Coursen, Minority Assistant Communications Director; Ed
Gilroy, Minority Director of Workforce Policy; Rob Gregg,
Minority Legislative Assistant; Richard Hoar, Minority
Professional Staff Member; Alexa Marrero, Minority
Communications Director; Jim Paretti, Minority Workforce Policy
Counsel; and Linda Stevens, Minority Chief Clerk/Assistant to
the General Counsel.
Chairman Andrews [presiding]. Committee will come to order.
Good morning.
Colleagues and ladies and gentlemen, welcome to the
subcommittee hearing this morning. We are dealing with an
interesting issue and we have two panels of witnesses that we
will proceed to expeditiously.
As we meet this morning, a nuclear power plant or a
hazardous waste site or an oil refinery or a chemical plant is
most probably being guarded by a person who is an employee of a
private company. And the men and women who serve in that
capacity broadly, almost uniformly, I would say, do a very,
very good job. They are competent, they are qualified, they are
honest, they are hardworking. They are doing a very good job
defending our country.
But we don't know if all of them fit that description
because there are holes in the system that does background
checks on people that have such a critical responsibility.
The Department of Homeland Security has identified that 85
percent of the critical infrastructure of our country is owned
by private sector firms who almost always use private sector
security firms to provide their security.
So how would we know if the person gathering--if the person
who was guarding that hazardous waste site, or that person who
is guarding that oil refiner is competent or not? How would we
know whether he or she is perhaps even a terrorist? How would
we know?
Well, the answer is we might know, but we might not. If
this facility is located in a state that has elected under a
2004 law to get access to FBI database background checks, and
if the employer in that state has elected to gain access to the
information, and if that employer has chosen to use that
information to bar or otherwise limit employment for a person
that doesn't pass the background check--if all three of those
qualifications are met, then we can be sure, if the information
is accurate, we can be sure that the person working, guarding
that hazardous waste plant or chemical plant, is not a
terrorist and ought to be there.
There are too many ifs in that equation, as far as I am
concerned. I think that in order to protect the public, we need
to know certainly that the people to whom we are entrusting
this important responsibility are qualified, competent and
safe, as the huge majority of those in that field are already
doing.
So how do you reach the point where we have that 100 degree
certainty, or as close as we can get to 100 percent? There are
many issues that are raised by the legislation in front of us.
The purpose of this hearing is to begin the process of
evaluating those issues and improving the legislation that is
in front of us.
Here are some questions that come to mind:
Is it necessary to have a requirement that states either
have background check standards that meet a federal standard or
give way to a federal background check process? Is it necessary
or not? We all have one witness, a very qualified witness, who
will testify that we should wait for states to catch up. I
think we all have other witnesses who will testify to the
contrary.
Next question: How can we be sure that the information that
is being conveyed is accurate? That is a very important
question. We certainly do not want a situation where someone is
denied a job, or a promotion, or some other employment
opportunity because they are inaccurately identified as someone
who is a problem.
Another important question about privacy. Once an employer
has access to information about someone's background, how can
we be sure the employer will only use that information in a
legitimate and appropriate way and not in a way that will
unfairly or unduly harm that employee? A very important
question.
Then, finally, there is a question of whether or not
employers who have access to the background check information
should be compelled to use it, or simply given the discretion
as to whether or not to use it. And there are two views on that
subject as well.
I am pretty confident that there is universal agreement on
the proposition that we want the best system in place we can to
ensure that private employees who are responsible for guarding
the critical infrastructure of this country are worthy of that
responsibility. I don't think there would be much disagreement
about that at all, if any disagreement.
I am sure there will be disagreement on the panels today
about the best way to accomplish that objective. I have a set
of ideas, but they are a set of ideas that are subject to
criticism and evaluation to make the underlying bill better.
Again, the goal here is that we reach a point where we can
say with a high degree of confidence to our constituents that
the person who is guarding that radioactive waste dump, who is
an employee of a private security firm, is safe and qualified
and going to do his or her job, so that someone is not going to
steal the contents of that waste dump and make a dirty bomb
that would put the community at risk.
This is a very important issue. It is one that the Congress
has acted on in 2004, but I think we need to reconsider and
review in this context, and I am very pleased that we have some
very distinguished ladies and gentlemen who are going to help
us sift through this issue here today.
At this point, I will turn to my good friend, the ranking
member from Minnesota, for his opening comments, and we all
then proceed to our first panel, which is Mr. Campbell.
Mr. Kline?
Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on
Health, Employment, Labor and Pensions
Good morning and welcome to today's HELP Subcommittee hearing on HR
2703, the Private Security Officer Employment Authorization Act
(PSOEAA) of 2007.
In 2004, President Bush signed into law the Private Security
Officer Employment Authorization Act (PSOEAA). PSOEAA authorizes the
security industry to request access to criminal history information for
consenting prospective employees from the state. Like the banking,
nursing and child care industries, it is essential for private security
officer employers to have access to this information in order to ensure
that applicants being considered for employment are qualified for the
position.
Four years later, many states have yet to prioritize implementation
of a timely process for private security employers to obtain background
information. These implementation issues combined with the failure of
several states to even establish a background check process has left us
vulnerable.
To address this flaw in the protection of our homeland, I have
introduced HR 2703, ``The Private Security Officers Act of 2007.'' HR
2703 ensures that private security employers protecting our critical
infrastructure conduct criminal background checks on all potential
employees.
Specifically, HR 2703: (1) prohibits private security employers
from hiring guards without obtaining certain state criminal history
information; (2) requires a process to allow private security guard
employees or applicants to challenge the accuracy or completeness of
their criminal history records; (3) specifies the crimes for which
states must provide conviction information to such employers; (4)
imposes confidentiality and recordkeeping requirements on such
employers; and (5) protects such employers from liability for good
faith employment determinations based upon available criminal history
information.
Since 85 percent of our critical infrastructure such as power
plants, oil and gas refineries, chemical plants, communication
networks, schools, and hospitals are monitored and protected by the
private security industry, I believe it is imperative that these
employers have access to an applicant's criminal background information
with the proper safeguards in place to protect their information. I
thank all the witnesses for coming before the committee today and look
forward to hearing their testimony.
______
Mr. Kline. Thank you, Mr. Chairman. Thanks for holding the
hearing.
We do indeed have two panels of terrific witnesses, and I
am looking forward to getting into the discussion. I have a
prepared statement, which I would like to submit for the
record.
Chairman Andrews. Without objection.
[The statement of Mr. Kline follows:]
Prepared Statement of Hon. John Kline, Senior Republican Member,
Subcommittee on Health, Employment, Labor, and Pensions
Good morning, and welcome to our witnesses.
In 2004, the Republican-led Congress adopted, with overwhelming
bipartisan support, the ``Private Security Officer Employment
Authorization Act of 2004.'' Contained within intelligence reform and
anti-terrorism legislation, this law recognized a simple but important
fact: namely, companies that employ individuals to provide security
services should have access to information about any criminal record of
these individuals.
In a post-9/11 world, where the threat of terrorism can never fully
be out of sight, it seems obvious that employers want and need to know
whether the employees they are hiring to secure their safety and
property have a criminal history. Unfortunately, because of the state-
based nature of so many of our criminal records, complete information
may too often be lacking. An employer checking an employee's criminal
history may be limited to what relevant state agencies can provide and
the employee himself tells--or fails to tell--the employer.
It was for that reason that Congress in 2004 adopted the Private
Security Officer Employment Authorization Act, to provide access to
federal criminal history information maintained by the FBI at the
Department of Justice. Under the 2004 law, Congress affirmatively
allowed employers to submit identifying information through state-based
agencies for the purpose of conducting background checks against
federal criminal records.
Three years later, we will hear today whether and how the Private
Security Officer Employment Authorization Act has lived up to its
promise. In particular, I welcome the testimony of our witnesses as to
how the bill's original intent--that federal criminal background checks
be conducted through a state-based system--has succeeded or failed.
Testimony today will focus on H.R. 2703, legislation introduced by
Chairman Andrews, which would amend key provisions of the 2004 law. I
will say that I have a number of questions about the bill's intent and
effect, and I welcome our witnesses' commentary on these points.
I look forward to a healthy discussion of these issues, and welcome
today's hearing as the forum to determine whether further legislative
action is necessary, and if so, the scope of such action. I welcome
each of our distinguished witnesses, and yield back my time.
______
Mr. Kline. And just make a couple of very, very quick
comments, because, Mr. Chairman, you gave a very thorough,
broad, deep, wide and all those sorts of things overview, and
it would be very hard for me to disagree with any of that.
We are really exploring to see if that 2004 law, the
Private Security Officer Employment Authorization Act of 2004,
is doing its job. And if not, what to do to make it better.
Chairman Andrews has a bill, H.R. 2703, according to my notes,
which we are clearly going to be talking about today to see if
there are shortcomings in the 2004 law, if 2703 meets those
shortcomings, fills those gaps and does it in a way that is
acceptable to us.
There are certainly points to be argued on each side. This
is one of those times, Mr. Chairman, which I am coming into
this with a completely open mind. We want to dig to the bottom
of this and find, as you said, Mr. Chairman, what is the best
way to ensure that the private security guards, who we entrust
for so much of our infrastructure's security and personal
security in many cases in this country, to make sure that they
have the proper backgrounds, that they are the right people for
the job.
So I am looking forward to the hearing. I would like to get
started.
With that, I yield back.
Chairman Andrews. Mr. Kline, thank you very much.
The first question that we are going to address is whether
it is plausible to set up such a system. It is a huge
undertaking. Is it plausible to set up a system where private
security companies across the country can have access to the
best and most accurate data that are maintained through the
FBI? And the witness is going to talk to that and other issues,
Mr. Frank Campbell.
Mr. Campbell is senior counsel in the Office of Legal
Policy at the U.S. Department of Justice. He was the author of
the Attorney General's Report on Criminal History Background
Checks, issued in June 2006. Mr. Campbell was central to the
development of the fingerprint fast-capture device for criminal
history checks. He also serves as the principal Department of
Justice liaison for the National Crime Prevention and Privacy
Compact Council, which establishes rules relating to the
intrastate exchange of FBI criminal history for non-criminal
justice purposes.
Mr. Campbell graduated from Lafayette College, has overcome
that liability, I say as a Bucknell graduate. And he has
received his law degree from the George Washington University
Law School.
Mr. Campbell, welcome to the committee. We thank you for
your testimony.
STATEMENT OF FRANK CAMPBELL, SENIOR COUNSEL, OFFICE OF LEGAL
AFFAIRS, U.S. DEPARTMENT OF JUSTICE
Mr. Campbell. Chairman Andrews, Ranking Member Kline and
members of the subcommittee, thank you for the opportunity to
address you on the implementation of the Private Security
Officer Employment Authorization Act.
The act was passed as a means of prompting states without
private security officer licensing systems to set up programs
that would allow private security companies to attain FBI
criminal history background checks to screen prospective and
current private security officers.
Under current law, access to FBI-maintained criminal
history information is governed by a patchwork of state and
federal statutes. The main vehicle for providing such access
has been state statutes approved by the attorney general under
Public Law 92544 that allow criminal background checks using
FBI information in certain licensing and employment decisions.
These checks are processed through state identification
bureaus and in order to provide more complete information,
include a check of state records. The results of these checks
are supplied to public agencies that provide their own
suitability criteria or those established under state law.
Currently there are approximately 1,200 Public Law 92544
state statutes. Other access has been authorized by federal
statutes allowing particular industries to go directly to the
FBI for a criminal history check without going through a state
identification bureau, including, for example, discretionary
access granted to the banking, securities and nuclear energy
industries.
According to the FBI, 41 states plus the District of
Columbia and Puerto Rico have passed 92544 statutes in
connection with licensing and employment of individuals as
private security guards. Some of the statutes only cover
background checks for armed security guards. Many of the
statutes permit but do not mandate such checks.
The Private Security Officer Employment Authorization Act
authorized private security companies to submit fingerprints of
employees or applicants to a state identification bureau, have
an FBI check done, and have the results returned to a state
agency that would apply either existing state standards for
employment of private security guards, or when no state
standards exist provide notice to the employer whether the
individual has a criminal history record for an offense
specified in the act.
Under the act, private security companies are permitted,
but not required, to request these checks. The act does not
compel an adverse or a favorable employment determination based
on the results of the check. The act specifies that states may
opt out of the background check system authorized by enacting a
law or issuing an order by the governor providing that the
state is declining to participate.
To date, only one state, Wyoming, has notified the FBI that
it has opted out of the act's background check system. While
the act provides that states are considered to be participating
in the system if they have not opted out, the law provides no
enforcement mechanism to compel participation by states that
have neither opted out, nor taken steps to make these checks
available to the private security industry.
The Department expects in the near future to send an
additional communication to the states, reminding them of the
act's expectation that they participate in the background check
system if they have not opted out, as specified in the law.
We understand that Chairman Andrews has introduced a bill,
H.R. 2703, to amend the Private Security Officer Employment
Authorization Act. The Department does not have at this point a
position developed on that bill, so I am unable to comment on
the bill's provisions today.
I can note, however, that in response to a provision in the
Intelligence Reform and Terrorism Prevention Act of 2004, the
Department sent to Congress in June 2006 the Attorney General's
Report on Criminal History Background Checks. The report made
recommendations on how the law governing access to FBI criminal
history can be changed to provide broader and more uniform
access to such information for use by private, unregulated
employers.
The report recognized that the current approach of enacting
separate authorizing statutes has resulted in inconsistent
access across states and industries. The report also
acknowledged that the competing interests involved in criminal
history checks, including the interest in facilitating the
reentry and continued employment of ex-offenders.
To account for these interests, the report states that if
broader access were to be allowed, it should be subject to a
number of rules and conditions. The rules should include
privacy protections for individuals to help ensure that the
information is accurate, secure and only used for authorized
purposes. The rules should require record screening in
accordance with federal and state laws that limit access to
criminal records for employment purposes. In addition, the
rules also should require an employer's acknowledgment of legal
obligations under federal and state equal employment
opportunity laws.
To avoid government agencies acting as suitability
clearinghouses for private employers, the report recommends
authorizing the determination of records to the employer or to
a consumer reporting agency acting on the employer's behalf.
The report also suggests that Congress consider providing
employers guidance on suitability criteria to be used in
criminal record screening and offering opportunities to
individuals to seek a waiter from a disqualification.
To take advantage of the more complete records, the access
should be through states that agree to participate and that
meet minimum standards for processing these checks. The
attorney general would establish a means of doing the checks in
states that do not opt into the program.
Finally, the report emphasized that the attorney general
must be able to prioritize private sector access to enable the
scaling of the system to meet the demand in a way that does not
interfere with the use of the system for criminal justice and
national security purposes.
Thank you for the opportunity to appear before the
subcommittee today. I would be happy to answer your questions.
[The statement of Mr. Campbell follows:]
Prepared Statement of Frank A.S. Campbell, Senior Counsel, Office of
Legal Policy, U.S. Department of Justice
Chairman Andrews, Ranking Member Kline, and Members of the
Subcommittee: My name is Frank Campbell and I serve as Senior Counsel
in the Office of Legal Policy in the United States Department of
Justice. I appreciate the opportunity to address you on the issues
relating to the implementation of the Private Security Officer
Employment Authorization Act (PSOEAA). The law was enacted as section
6402 of the Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA) and provided authority for states to perform fingerprint-based
checks of state and national criminal history records to screen
prospective and current private security officers.
Existing Authorities for Access to FBI Criminal History Background
Checks
Under current law, access to Federal Bureau of Investigation (FBI)
maintained criminal history information is governed by a patchwork of
state and federal statutes. The main vehicle for gaining access for
non-criminal justice purposes has been state statutes that take
advantage of the provisions of Public Law (Pub. L.) 92-544 (enacted in
1972), which allow sharing of FBI-maintained criminal history records
in certain licensing and employment decisions, subject to the approval
of the Attorney General. These checks are processed through state
identification bureaus and, in order to provide more complete
information, include a check of state records. These statutes generally
require background checks in certain areas that the state has sought to
regulate, such as persons employed as civil servants, day care, school,
or nursing home workers, taxi drivers, private security guards, or
members of regulated professions. The results of these checks are
supplied to public agencies that apply their own suitability criteria
or those established under state law. There currently are approximately
1,200 state statutes that are approved by the Attorney General under
Pub. L. 92-544. The National Child Protection Act/Volunteers for
Children Act (NCPA/VCA) allows state governmental agencies, without
requiring a state statute, to conduct background checks and suitability
reviews of employees or volunteers of entities providing services to
children, elderly, and disabled persons. In addition, as noted below,
the PSOEAA allows states to do FBI background checks on private
security officers without passing a state statute under Pub. L. 92-544.
Other access has been authorized by federal statutes allowing
particular industries or organizations to go directly to the FBI for an
employment, licensing, or volunteer check, without first going through
a state repository and also checking state records. These laws, some of
which were passed after the terrorist attacks on September 11, 2001,
seek to promote public safety and national security by either
authorizing access to a check by certain industries or affirmatively
regulating an industry or activity by requiring background checks and
risk assessments by government agencies. They include authority for
discretionary access by the banking, nursing home, securities, and
nuclear energy industries, as well as required security screenings by
federal agencies of airport workers, HAZMAT truck drivers and other
transportation workers, persons seeking access to nuclear facilities
and port facilities, and aliens visiting the United States.
Pub. L. 92-544 State Statues Relating to the Private Security Industry
According to the FBI, currently 41 states, plus the District of
Columbia and Puerto Rico, have passed 92-544 statutes authorizing FBI
criminal history checks in connection with licensing or employment of
individuals as private security guards, watchman, or private
investigators or detectives or for permits to carry or possess a
firearm in connection with such activities. Some of the statutes only
cover background checks or licensing for armed security guards. Many of
the statutes permit, but do not mandate, such checks.
The Provisions of the PSOEAA
The PSOEAA was passed as a means of encouraging and prompting
states without private security officer licensing systems to set up a
program that would allow private security companies to obtain FBI
background checks on prospective and current private security officers.
The PSOEAA allowed authorized employers of private security officers to
submit fingerprints to a state identification bureau for a state and
national criminal history check. State identification bureaus serve as
the criminal justice information record repositories in each state.
Upon receiving a background check request under the PSOEAA, a state
identification bureau is authorized to submit the fingerprints to the
Attorney General for a check of the FBI's national criminal history
record information databases, with the results of the FBI check to be
returned to the state identification bureau.
Upon receipt of the results of the FBI check, a state that has not
opted out of the background check system authorized by the Act is
required to provide a qualified employer notice as to (1) whether the
applicant fails existing state standards (such as licensing
requirements) relating to criminal history background for qualification
to be a private security officer, or (2) if the state has no such
standards, whether the applicant has been (a) convicted of a felony,
(b) convicted within the last 10 years of an offense involving
dishonesty or false statement or an offense involving the use or
attempted use of physical force against another person, or (c) charged
with a felony with no resolution within the preceding 365 days.
The checks under the Act are permissive, not mandatory, for private
security companies. An employer may forego requesting a check or may
provide interim employment while a check is pending. The Act does not
compel an adverse or favorable employment determination based upon the
results of the check. The Act specifies that states may decline to
participate in the background check system authorized by enacting a law
or issuing an order by the Governor (consistent with state law)
providing that the state is declining to participate. States that have
not opted-out under this subsection are considered to be participating
in the background check system established under the Act.
To date, only one state, Wyoming, has notified the FBI that it has
opted out of the PSOEAA background check system. While the PSOEAA
provides that states are considered to be participating in the Act's
background check system if they have not opted out through state
legislation or an executive order, the Act provides no enforcement
mechanism to compel participation by states that have neither opted out
nor taken steps to make these checks available to the private security
industry. Nor did the law provide carrot-and-stick incentives for state
participation, such as federal funding or federal grant penalties. The
Department, however, expects in the near future to send an additional
communication to the states on their obligations to participate in the
background check system established under the PSOEAA if they have not
opted-out under the Act. We will also make the states aware of the
option under the Compact Council's outsourcing rule\1\ to use
contractors or channeling agents to implement the suitability review
requirements under the Act. The PSOEAA, however, does not provide the
Department with authority beyond such exhortation to obtain the
cooperation of the states in performing these background checks.
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\1\ The National Crime Prevention and Privacy Compact Council,
whose members are appointed by the Attorney General from state and
federal agencies, promulgates rules and procedures governing the
exchange and use of criminal history records in the FBI-maintained
Interstate Identification Index for non-criminal justice purposes. The
Department's regulations under the PSOEAA encouraged States to consider
using channeling agents to transmit fingerprints to the FBI and the
results of the criminal history checks to the States. Channeling agents
are generally private entities that contract with authorized recipients
of criminal history information to perform routine non-criminal justice
administrative functions relating to the processing of criminal history
information. The Compact Council issued an outsourcing rule and
standard in December 2005 governing the non-criminal justice use of FBI
criminal history information. The outsourcing standard specifies that
among the functions that can be outsourced to a contractor or channeler
are making fitness determinations or recommendations, obtaining missing
dispositions, and disseminating the information as authorized by
federal law or a Pub. L. 92-544 state statute. See The National Crime
Prevention and Privacy Compact Council, Notice, Security and Management
Control Outsourcing Standard, 70 Fed. Reg. 74373, 74375 (Dec. 15,
2005).
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The Attorney General's Report on Criminal History Background Checks
As you know, in June 2006, the Department of Justice sent to
Congress ``The Attorney General's Report on Criminal History Background
Checks.'' The report responded to a provision in IRPA, section 6403,
which was a companion to the PSOEAA. We understood the reporting
requirement to be based on congressional interest in developing a more
uniform and rational system for accessing and using FBI criminal
history records for employment suitability and risk assessment
purposes. The current access scheme has created a patchwork of
statutes, including over 1,200 state statutes under Public Law 92-544.
This patchwork allows access to FBI criminal history information
inconsistently across states, inconsistently across industries, and
even inconsistently within industries. The resulting inconsistent
access authority often affects critical infrastructure industries--for
example, while the banking and nursing home industries have access
authority, the chemical industry does not. This approach frequently
leaves those without access authority with what they consider less than
adequate information for efficient and accurate criminal history
checks.
The Report attempted to account for the range of interests involved
in criminal history background check in recommending ways to provide
broader private sector access to FBI criminal history information. We
agree that there is a need to revisit the authorities under which
checks of this information can be made for non-criminal justice
purposes. Many employers can and do seek criminal history information
from other public and commercial sources, but frequently find those
sources to be inefficient, incomplete, or inaccurate. FBI criminal
records would add significant value to such checks by providing a
nationwide database of records based on the positive identification of
fingerprints. The framework for broader access authority suggested in
the Report seeks to avoid the need to enact separate statutes that
create inconsistent levels and rules for access to these records. The
basic question we considered is: How can this be done in a way that
allows the responsible use of this information to protect public safety
while at the same time protecting privacy and minimizing the negative
impact criminal screening may have on reasonable efforts to help ex-
offenders reenter and stay employed in the work force?
We answered that question by recommending that access be authorized
for all employers, but that the access be made subject to a number of
rules and conditions. We emphasized that private sector access to FBI
criminal records must be prioritized by the Attorney General to enable
the scaling of the system to meet the demand in a way that does not
interfere with the use of the system for criminal justice and national
security purposes. To avoid government agencies having to make
suitability decisions for private employment, the report recommends
authorizing dissemination of the records to the employer or a consumer
reporting agency acting on the employer's behalf. The access would be
under rules protecting the privacy interests of individuals in ensuring
that the information is accurate, secure, and used only for authorized
purposes. The rules also would require record screening to account for
federal and state laws that limit access to criminal records for
private employment purposes. In addition, the rules would require an
employer's acknowledgment of legal obligations under federal and state
equal employment opportunity laws. Consideration also should be given
to providing employers guidance on suitability criteria to be used in
criminal records screening. When possible, the access should be through
states that agree to participate and that meet minimum standards for
processing these checks, including a response time of no more than
three business days. The Attorney General would establish a means of
doing the checks in states that do not opt into the program.
The report's recommendations are forward-looking. Given the
competing law enforcement and national security demands on the FBI's
system and resources, all-employer access under the proposed rules
would likely take many years to implement.
However, the report recommends that the Attorney General should be
authorized to provide access to priority employers as FBI system
capacity and other necessary resources allow.
Several key points underlie the Report's recommendations:
FBI criminal history information, while not complete, is
one of the best sources available--it covers all 50 states and, even
when missing final disposition information, it can provide leads to
complete and up-to-date information. FBI statistics show an annual hit
rate for its civil fingerprint submissions of 11.62 percent.
To enhance data quality, state repositories should be
checked whenever possible, so that the states' more complete
disposition records can be part of the response to authorized users.
According to the Bureau of Justice Statistics, approximately 70 to 80
percent of state-held arrest records have final dispositions, as
compared to the approximately 45 to 50 percent of FBI-maintained arrest
records with final dispositions.
Use of FBI criminal history information can enhance
privacy through positive identification. Fingerprint checks reduce the
risk of the false positives and false negatives produced by name
checks. With FBI fingerprint checks, it is less likely that another
person's record would be wrongly associated with an applicant. It is
also less likely that an applicant's criminal record will be missed.
It would be reasonable to provide a means for access to
FBI records for criminal background checks for private security
officers when such checks are not available through a state, if two
conditions are met: first, that private employers satisfy requirements
for privacy protection and fair use of the information, and second,
that the FBI have the necessary resources and infrastructure to service
the increased demand for civil fingerprint checks without compromising,
delaying, or otherwise impeding important criminal justice and national
security uses of the information system.
If expanded access is allowed, the FBI and state
repositories should be authorized to disseminate the records directly
to employers. The general limitation on disseminating FBI criminal
history information only to governmental agencies that do the
suitability determinations has meant that many types of authorized
checks (such as those under the PSOEAA) do not get done. State
repositories and government agencies do not have the resources, nor, in
most cases, do they see it as part of their mission, to perform
suitability reviews for unregulated private employment.
The role of the state and federal record repositories
should be limited to that of record providers, leaving the suitability
determinations to the users or their agents. The access process must
avoid federal and state agencies acting as clearinghouses that make
employment or volunteer suitability determinations for unregulated
private employers or entities. Repositories should be allowed to
continue to focus on their mission, with the support of user fees, of
maintaining and updating criminal justice information and efficiently
delivering that information to authorized users.
Under certain conditions, the existing private sector
infrastructure for background screening, including consumer reporting
agencies subject to the Fair Credit Reporting Act (FCRA), should be
allowed to access these records on behalf of enrolled employers.
Consumer reporting agencies also could assist in finding final
dispositions of arrest records since the FCRA requires them to ensure
that the information they report is complete and up to date. Consumer
reporting agencies allowed such access, however, should meet minimum
standards for data security and training in applicable consumer
reporting laws.
Detailed privacy and fair information practice
requirements should be imposed as part of expanded access authority,
including protections similar to those in the FCRA. These requirements
include user enrollment, use limitations, Privacy Act compliant consent
and notice, rights of review and challenge, a newly streamlined and
automated appeal process, limits on redissemination, information
security procedures, compliance audits, and statutory rules on the use,
retention, and destruction of fingerprint submissions. The Report also
recommends giving an individual the option to review his or her record
before applying for a job and before it is provided to a private
employer. The latter recommendation is something that goes beyond
current FCRA requirements and helps to address the fact that many FBI-
maintained arrest records are missing final dispositions.
Most FBI civil fingerprint submissions typically are
collected by law enforcement agencies, such as police departments and
jail facilities. These locations are not the appropriate venues for
fingerprint submissions for private sector criminal history screening.
Fingerprints for these checks should be collected through an
unobtrusive electronic means, such as flat prints, in non-law
enforcement settings.
When providing FBI criminal history information to private
employers, we should not undermine the reentry policies that state and
federal consumer reporting laws seek to promote by limiting the
dissemination of certain kinds of criminal record information by
consumer reporting agencies. Expanded private sector access to FBI
criminal history information should therefore include record screening
in accordance with consumer reporting laws. This screening should be
done to respect the limits those laws place on the dissemination of
certain criminal histories for use in employment decisions. Congress
and the state legislatures may change those restrictions from time to
time, depending on the balance they wish to strike between promoting
privacy and reentry and allowing the free flow of public record
information to users making risk assessments to promote public safety.
Our recommendations in this area include suggestions to consider
changes in the FCRA to provide some greater uniformity and
predictability in access to criminal history information among the
states.
Finally, suitability criteria can play an important role
in the screening process by helping guide a determination by an
employer of the relevance of criminal history to the duties or
responsibilities of a position. For that reason, the report recommends
that Congress consider whether guidance should be provided to employers
on appropriate time limits that should be observed when specifying
disqualifying offenses and on allowing an individual an opportunity to
seek a waiver from the disqualification. Federal and state equal
employment opportunity laws and regulations bear on the use of criminal
records in deciding an individual's job suitability. Therefore, as
required by the FCRA, private employers allowed expanded access to FBI
criminal history information should certify that information under this
expanded access authority will not be used in violation of those laws.
The Report concludes that if the information is handled properly,
allowing dissemination of FBI criminal history records to private
employers can not only provide more accurate and reliable information
for use in suitability screening, but also enhance individual
protections for privacy and fair use of the information.
Thank you for the opportunity to appear before this Subcommittee
today. I would be happy to answer your questions.
______
Chairman Andrews. Mr. Campbell, thank you very much for
your longstanding work on this issue and for your testimony
today.
I notice on Page 5 of your written testimony, which without
objection will be made a part of the record----
Mr. Campbell. Thank you.
Chairman Andrews [continuing]. You reference the 2006
report that you played such an important role in, and say,
``The current access scheme has created a patchwork of
statutes, including over 1,200 state statutes under P.L. 92544.
This patchwork allows access to FBI criminal history
information inconsistently across states, across industries,
even inconsistently within industries. The resulting
inconsistent access authority often affects critical
infrastructure industries. For example, while the banking and
nursing home industries have access authority, the chemical
industry does not.''
Could you expand on that point? Does that mean that
throughout the country the chemical industry is not included in
this? Or is it just in certain places? What does that mean?
Mr. Campbell. There may be certain states that have passed
92544 laws that allow criminal history checks for chemical
companies in their states, but today there is no federal law
that provides authority for the chemical industry to get FBI
background checks.
I know that the Department of Homeland Security recently
issued guidelines to the chemical industry on security and they
do require criminal background checks for certain types of
access to those facilities. And in those regulations, they
indicate that they can use commercial sources or whatever other
sources are available.
Chairman Andrews. How would you characterize the report's
recommendation, the 2006 report's recommendation, with respect
to whether or not all people working as security guards in
critical infrastructure industries have background checks? What
does the report say about that?
Mr. Campbell. Well, the report didn't address specifically
the private security guard industry. But when we issued our
regulations under this law, we did acknowledge that the private
security industry is growing rapidly and performing an
increasingly vital role in protecting the public from violent
crime and terrorism, and we stated that the key to preserving
the trust placed by the public in private security guards
performing their protective duties are background checks that
include a criminal history check of FBI information.
Chairman Andrews. Now, the other point is I think I heard
you say that the recommendations of the report say that in
states that opt out of access to the background check, federal
background check system, that the attorney general should
establish a means through which this information is available
to employers. Is that what you said?
Mr. Campbell. That is part of our recommendation. And I
think what we were acknowledging there is the reality that it
is going to be very difficult to expect all 50 states to
provide uniform access to these kinds of checks. And if we are
interested in providing access to employers, there needs to be
some kind of federal mechanism to allow that access so that it
is more uniform and there is more rationality in the----
Chairman Andrews. And did I hear you say that that
mechanism of access for states that opt out should be some
third-party purveyor of the information?
Mr. Campbell. One of the key recommendations that we make
is that rather than having state and federal agencies act as
suitability clearinghouses for private, unregulated employers,
that we find a way that we can disseminate the information to
the users. And that is the private employers.
Right now, 92544 requires that they only go to a state
agency. The fact that a state agency has to look at the record
and examine it and make a decision whether it falls within
certain categories and then give a red light or a green light
to the user has meant that many of these authorities have not
been implemented. So that is the reason for our recommendation
that we find a way to----
Chairman Andrews. I also note that one of the
recommendations that you make is that it is important that
there be privacy criteria, that employers and third parties
handling this information adequately safeguard the records of
employees. Could you just briefly expand on what you think
those privacy considerations should look like?
Mr. Campbell. Yes. We have detailed privacy
recommendations, which include that users enrolling in the
system give them the authority to do it, that they agree to
limitation of the use of that information for only that
purpose, that there be privacy act comply and consent notice,
that there be rights of review and challenge of the
information, that a newly streamlined automated appeal process
be developed for individuals who want to challenge that
information, that there be limits on redissemination of the
information, that there be information security procedures and
compliance audits. It is a very detailed recommendation.
Chairman Andrews. What kind of enforcement mechanism do you
think should exist to enforce those requirements? And then my
time is up.
Mr. Campbell. Well, we do recommend that there be a
criminal penalty for misuse of the information or for using the
information for other than the purposes authorized. And of
course, if users are enrolled in the system, we can withdraw
their right if they abuse it to have access to this
information.
Chairman Andrews. Thank you very much, Mr. Campbell.
Mr. Kline?
Mr. Kline. Thank you, Mr. Chairman.
Thank you, Mr. Campbell.
Under the current law, which you went through very
carefully, 92544 and the 2004 act, not under the proposals of
the chairman's bill or your report, but under current law as we
sit here today, who is able to get access to the federal
criminal history record and under what circumstances, as we are
today? Who has access to that?
Mr. Campbell. Well, if a state has passed a state statute
that will authorize particular employers to get access or if
there is a licensing scheme, those employers have the right to
access.
There are certain federal statutes. For example, the
banking industry can come directly to the FBI and get an FBI
rap sheet, and they do that through a channeling agent that is
the American Bankers Association. The ABA collects the
fingerprints, submits them to the FBI, and then they channel
the records back to the banking institution.
Mr. Kline. So the banker, or the bank, goes to the ABA,
goes to get the information, comes back down the same channel?
Mr. Campbell. That is right. And similar authority is
allowed for the nursing home industry. They have to go through
state identification bureaus, but there is a law that allows
the dissemination of the criminal history information directly
to a nursing home facility. So there is another precedent for
providing the records back to the actual user as opposed to
having a governmental agency screen or review the records for
suitability.
Mr. Kline. Or even a nongovernmental agency in the case of
the ABA, for example.
Mr. Campbell. That is right. And the ABA, they don't look
at the records. They just pass the records back down to the
bank.
Mr. Kline. Ah. Okay.
We are going to explore so many aspects of this, but
clearly one of the things that has come out, we talked about
Wyoming, came up earlier, but just in your opinion, as an
informed observer, why are so many states apparently failing to
meet the obligations of the 2004 law?
Mr. Campbell. We don't have specific information on why
states aren't necessarily implementing the Private Security
Officer Employment Authorization Act. We did, however, get
general information on the attitude of the states with respect
to doing background checks when we were doing the report. We
got input from state repositories and others involved in
background checks at the state level.
And most of them indicate that the biggest hurdle to
getting checks done is the fact that the limitation on
dissemination of the record to the user, and that when you
require that, that means that the state has to designate an
agency and the resources along with it to receive the criminal
history information, examine it and make suitability
determinations, and that is one of the reasons we recommended
in our report that we find a way to authorize the dissemination
and the information down to the user.
The states also indicated that they support dissemination
to the user, because they believe the individual company is in
the best position to make a decision about the relevance of a
particular record to the position in question.
Mr. Kline. So in your opinion, then, it is fundamentally
not some sort of philosophical issue, it is a question of
resources, manpower and money. The states would rather not be
in that business. Is that right?
Mr. Campbell. That was certainly one of the factors that
was indicated to us when we were preparing this report.
Mr. Kline. And so the other way to do that would be to have
the individual employer, small business, medium business,
something, somebody who is employing these private security
guards, to go directly to the FBI, to the federal agency, to
get the information. Presumably, that would mean personnel and
resources on the part of the FBI to answer these questions. Is
that right?
Mr. Campbell. It would, and one of the things that we would
want to do in looking at any proposed amendment is to consider
the resource impact of any proposed changes.
We made recommendations that some authority ought to be
provided for allowing an authorized recipient to go to the FBI
if a state doesn't make the records available.
But as far as particular proposals, we have to take a look
and provide specific feedback on particular language.
Mr. Kline. Okay.
Thank you, Mr. Chairman. I yield back.
Chairman Andrews. Thank you, Mr. Kline.
Mr. Hare, do you have any questions?
Mr. Hare. No, I don't, Mr. Chairman. I just want to thank
you for having the hearing. It is a wonderful piece of
legislation. I look forward to working with you on it.
Chairman Andrews. Thank you very much.
Mr. Campbell, we really appreciate your testimony. If we
can prevail upon you, I am sure we all be calling upon you
again as we go through the process of refining this idea. Your
work has really been exemplary and your wealth of information
is very much needed by us, so thank you.
And I was only kidding about Lafayette College.
Mr. Campbell. Bucknell is a great school.
Chairman Andrews. What did you say about Bucknell?
Mr. Campbell. Bucknell is a great school.
Chairman Andrews. You are welcome back any time, then. Some
day, when you are attorney general, you can come back. That is
great. Thank you, sir.
Mr. Campbell. Thank you, Mr. Chairman.
Chairman Andrews. We all ask the second panel to come
forward, and I will start to introduce the members of the
second panel as they take their seats.
Joe Ricci is executive director of the National Association
of Security Companies, the nation's largest private security
trade association. He is also the founder and owner of Ricci
Communications, which implements and manages communications
efforts for corporations.
Mr. Ricci has worked with many international security
companies, including ASIS International, ICX Technologies and
Securitas Security Services.
Welcome, Mr. Ricci.
Mr. Weldon Kennedy is vice chairman of Guardsmark LLC, a
private security company, a position he has held since 1997.
After serving as a naval intelligence officer, Mr. Kennedy
joined the FBI in 1963 and stayed with the bureau for 33 years.
He rose through the ranks, eventually serving as its deputy
director, the FBI's second highest position and its highest
nonpolitical appointment.
Welcome, Mr. Kennedy, we are glad that you are here.
Mark de Bernardo enjoyed his time with us so much 2 weeks
ago, he came back today.
Mark is a partner with the law firm of Jackson Lewis, a
labor and employment law firm. In the past, Mr. de Bernardo has
served as special counsel for domestic policy and director of
labor law for the U.S. Chamber of Commerce.
He received his B.A. from Marquette University in 1976 and
his J.D. from the Georgetown University Law Center in 1979.
Welcome back. Glad to have you with us.
Donna Uzzell is the chair of the National Crime Prevention
and Privacy Compact Council. Ms. Uzzell is also director of
criminal justice information systems for the Florida Department
of Law Enforcement, a position she has held since 1996. She was
instrumental in the creation and maintenance of Florida's
sexual offender and sexual predator registration and
notification program.
Ms. Uzzell was an officer with the Tallahassee Police
Department from 1981 until 1993. She earned her B.S. from the
Florida State University School of Criminology.
Welcome. We are glad to have you with us.
And finally, we are honored to have Floyd Clarke with us
today. Mr. Clarke is former director of the Federal Bureau of
Investigation and testifying on behalf of Allied Security
Holdings, the parent company of Allied Barton Security
Services, where he holds a position on its board of managers.
Mr. Clarke joined the FBI as a special agent in 1964,
working in Birmingham, Boston, Philadelphia and Kansas City. He
progressed to be the supervisor, assistant special agent in
charge, special agent in charge, assistant director, executive
assistant director and deputy director before finally being
named acting director in 1993.
He obtained both his B.A. and J.D. from the George
Washington University.
Director Clarke, nice to have you with us this morning as
well.
So we are going to begin with Mr. Ricci. We note that there
is a box in front of you. It has lights on it. You have 5
minutes to summarize your excellent written testimony, which is
going to be made a part of the record permanently for the
committee.
When the yellow light goes on, it means you have 1 minute
left. When the red light goes on, it means the 5 minutes are up
and we would ask you to expeditiously summarize and complete
your testimony.
Mr. Ricci, welcome to the committee.
STATEMENT OF JOSEPH RICCI, EXECUTIVE DIRECTOR, NATIONAL
ASSOCIATION OF SECURITY COMPANIES
Mr. Ricci. Chairman Andrews, Ranking Member Kline and
members of the committee, my name is Joseph Ricci and I am the
executive director of the National Association of Security
Companies, or NASCO.
NASCO is the nation's only organization dedicated to
representing private contract security companies and NASCO
members employ nearly 500,000 highly-trained security guards
serving throughout the government and commercial sectors.
NASCO is committed to initiating and supporting efforts at
the federal, state and local levels to raise standards for the
licensing of private contract security firms and the
registration, screening and training of security guards.
In 2004, Congress passed the Private Security Officer
Employment Authorization Act, which authorized contract
security companies to obtain FBI criminal history records
checks for screening private security guards in every state.
While several states conducted these checks based on state
statutes, most did not.
Unfortunately, now 3 years after the passage of the law,
the situation remains relatively unchanged. Given public policy
and the compelling reasons for the existing law, we believe
efforts to increase the facilitation of FBI records checks
cannot be ignored.
NASCO welcomes the congressional attention to this problem
and we are particularly grateful to Chairman Andrews for his
continuing interest in improving the background screening of
security. NASCO supports any attempts to improve the
facilitation of FBI CHRI checks, including legislation,
education and dialogue.
NASCO and its members look forward to working with
Representative Andrews and other concerned legislators to
improve access to the FBI checks, including amending the PSOEAA
to access checks through a third-party DOJ authorized entity or
channeler to process the FBI checks in states without
established processes.
Employers of private security guards could use these
channelers to access and screen employees based on existing
state screening standards or suitability determinations; in the
absence of state standards, using federal standards established
by the PSOEAA.
When the PSOEAA was considered by the House of
Representatives in 2004, it was reported that approximately
half the states were not conducting FBI criminal records checks
for private security. While only 40 states license private
security firms and guards, only 31 of these states require or
facilitate FBI records checks. And in seven of these states,
the FBI check is only done for armed guard applicants.
More recent estimates have put the state numbers that offer
FBI checks at 16 states. Regardless of the exact number of
states conducting FBI checks on security guards, it is clear
that despite the authority and a law directing states to
facilitate these checks, the majority of the states do not
conduct FBI federal criminal history checks.
In trying to find a solution, it is important not to lose
sight of the urgent national security and public safety
concerns associated with conducting criminal history checks and
NASCO is hopeful a solution can be fashioned as soon as
possible.
Today, nearly 2 million people are employed with the
private security industry domestically, protecting businesses,
public offices, schools, hospitals, business districts,
residential communities, nursing homes, day care centers and
shopping centers. And as Representative Andrews said earlier,
they protect 85 percent of the critical infrastructure,
including public utilities, pipelines, ports, reservoirs,
bridges, tunnels and many others.
If this is a policy argument, empirical evidence further
highlights the importance of FBI checks, including results from
several states, including California, that when they
implemented their FBI checks in 2003 it resulting in nearly 15
percent of guard applicants being denied licenses based on
criminal convictions for sex-related offenses, burglary,
robbery and battery outside of the state. Similar results in
other states substantiate these figures.
The use of channelers to facilitate criminal background
checks is a well-developed concept and was recommended in the
2006 DOJ Report on Background Checks. It specifically addressed
the issue of employers getting FBI checks from non-state
parties.
NASCO has specifically discussed the problems of obtaining
FBI CHRI checks and the use of channelers with DOJ officials
and believes this approach would increase the facilitation of
these checks.
NASCO has reviewed H.R. 2703 and looks forward to the
opportunity to discuss the legislation in detail with the
drafters and the committee staff. As noted, NASCO supports the
primary element of H.R. 2703, which authorizes the use of non-
state channelers or any designated by DOJ to conduct FBI checks
on security guard employers when a state is not performing
these checks.
I want to thank the committee for holding today's hearing
and paying attention to the problem associated with a lack of
FBI CHRI checks for private security guards pertaining to the
existing law. We believe these checks, combined with NASCO's
continued efforts to raise standards at the federal, state and
local level for private security are vital to our national
homeland security and the issue of public safety and
protection.
We look forward to working with you to find a solution to
the problem.
Thank you.
[The statement of Mr. Ricci follows:]
Prepared Statement of Joseph Ricci, CAE, Executive Director, National
Association of Security Companies (NASCO)
Chairman Andrews, Ranking Member Kline, and members of the
Committee, my name is Joseph Ricci, and I am the Executive Director of
the National Association of Security Companies (NASCO). NASCO is the
nation's only organization dedicated to representing private contract
security companies, and NASCO member companies employ nearly 500,000
highly trained security guards serving throughout the government and
commercial sector. NASCO is committed to initiating and supporting
efforts at the federal, state and local levels to raise standards for
the licensing of private contract security firms and the registration,
screening and training of security guards.
In 2004, Congress passed the Private Security Officer Employment
Authorization Act (PSOEAA) which authorized contract security companies
to obtain FBI Criminal History Records Checks (CHRI) through the states
for screening private security guards in every state.\1\ While some
states were already conducting these checks pursuant to state statues,
most were not. Unfortunately, now three years after the passage of the
PSOEAA and two years after the implementing regulations were published
by the Department of Justice (DOJ), the situation remains relatively
unchanged. NASCO knows of no states facilitating contract security
company access to FBI CHRI checks for the screening of private security
guards pursuant to the PSOEAA. Given public policy and the compelling
reasons for passing the PSOEAA, conducting criminal records checks for
security guards can no longer continued to be ignored.\2\
NASCO welcomes the congressional attention to this problem, and we
are particularly grateful to Chairman Andrews for his continuing
interest in improving the background screening of security guards and
H.R. 2703 is one attempt to solve this problem. NASCO supports all
efforts that improve the facilitation of FBI CHRI checks including
legislation, education and dialogue. NASCO and its members look forward
to working with Rep. Andrews and other concerned legislators pursue
activities to improve the facilitation of these checks including
amending the PSOEAA to access checks through a third-party DOJ
authorized entity (``channeler'') to process FBI CDHRI checks in states
without established processes pursuant to the PSOEAA. Employers of
private security guards will be able to utilize a ``channeler'' to
access and screen employees based on existing state screening
(``fitness determination'') standards or in absence of such standards
pursuant to the federal standards in the PSOEAA.\3\
The regulation and licensing of private security guards has
traditionally been the domain of the states, and as mentioned, for many
years states--pursuant to state statutes passed after a 1972 federal
law authorizing state use of FBI CHRI for employment regulation--have
been conducting FBI checks on security guards as part of that state's
security guard licensing process.\4\ However, when the PSOEAA was being
considered by the House of Representative in 2004, it was reported that
approximately half the states were not conducting FBI criminal record
checks for private security guards. While 40 States were licensing
private security officers, only 31 of those states permitted or
required an applicant to undergo a FBI fingerprint check for prior
criminal history, and in seven of those states, an FBI check was done
only when a person was applying for an armed guard position.\5\ More
recent estimates have put the number of states that offer FBI checks
for security guards at 16.\6\
Regardless of the exact number of states that are currently
conducting FBI checks on security guards, it is abundantly clear that
at this moment--despite the pre-PSOEAA authority states possessed to
conduct FBI checks on security guards, and despite the enactment of
PSOEAA directing states to facilitate these checks--the majority of
states do NOT conduct these checks.
As mentioned, NASCO supports amending the PSOEAA so that employers
of security guard could alternatively use a ``channeler'' to obtain FBI
criminal history checks in states not doing check. Furthermore, NASCO
believes such legislation is strongly justified by Congress' passage of
the PSEOAA, public policy, and current federal and state background
check practices and realities.
The PSOEAA and Public Policy
First, and foremost, when Congress passed the PSOEAA in 2004, the
purpose of the law was clear--to provide the authority for security
guard employers in states not doing FBI checks to get these checks per
request. At the time, directing employers to go through state
identification bureaus made sense since many of the states not
conducting FBI checks were regulating security guards and states were
already familiar with and conducting FBI checks on other classes of
employees. However, for a variety of reasons, it is now very apparent
that processing the FBI checks through the state identification bureau
is not sufficient or workable.
In trying to find a solution to the current FBI check
``processing'' problem, it is very important not to lose sight of the
urgent national security and public safety concerns that lead to the
passage of the PSOEAA and NASCO is hopeful a solution can be fashioned
as soon as possible.
Today, nearly two million people are employed in private security
domestically compared to less than 700,000 law enforcement personnel.
Security officers are on duty protecting businesses, public offices,
schools, hospitals, nursing homes, day care centers, shopping centers
and housing communities. In addition, private security officers are
stationed at many of the nation's critical infrastructure sites and
facilities including nuclear plants, public utilities, oil pipelines,
ports, bridges, tunnels and many other places.
Recent estimates indicate that 85% of the nation's infrastructure
is owned and operated by private industry and private security officers
protect the vast majority of these assets. Similarly, the overwhelming
majority of ``first responders'', who are first on the scene in the
case of an attack or other emergency situation in our manufacturing
plants, office buildings, banks, public utilities, shopping malls, are,
more often than not, private security officers.
In addition to the policy arguments much empirical evidence was
also provided to Congress on why FBI screening was needed for security
guards during the consideration of the PSOEAA. Here are three examples
provided at the 2004 House hearing on the PSOEAA.
(1) In California, in 2003 there were over 69,000 ``Guard Card''
applicants. Of those applicants, almost 18,000 had an FBI ``rap'' sheet
indicating some sort of a prior criminal history. Thanks largely to a
new law that went into effect in California in 2003, over 9,000 or 51%
of those applicants with a rap sheet were denied a guard card. The
three most common reasons for denial were for sex related offenses,
burglary/robbery and battery convictions. Other data also showed that
registered sex offenders frequently attempted to obtain a guard card in
California.\7\
(2) In Illinois, a 2004 review showed that the FBI criminal history
records check eliminated four times as many applicants as the Illinois
State Police check for crimes committed within the State. Put another
way, Illinois State Police clear 87% of all applicants while the FBI
check clears only 64%--a 23% difference.\8\
(3) Rep. Shelia Jackson-Lee asked one of the witnesses, Westchester
DA Jeanine Pirro, ``Has there been difficulty in hiring private
security officers and finding that they have criminal backgrounds?''
Ms. Pirro replied, ``It is difficult to identify those individuals who
have a criminal history from another State in New York. That is the
problem and just recently in Westchester there were several security
guards that my office indicted for sexual assault of students who had
criminal histories in other States that we had no way of knowing and
that the schools had no way of knowing.'' \9\
Given the importance of private security to protecting our nation's
critical infrastructure, as well as people and property, and given the
implicit trust that people have, and should have, in private security
guards, it made complete sense when Congress passed the PSOEAA in order
to better ensure that persons who are convicted of serious crimes are
identified and prevented from employment in these positions of trust.
It also makes sense now that Congress pursues opportunities to
facilitate these FBI CHRI checks as authorized in PSOEAA.
Background Check Developments and Realities
While the Department of Justice and the FBI can best describe the
processes necessary to set up a system for facilitating FBI CHRI checks
through an authorized entity or channeler, the use of a private entity
or a ``channeler'' to facilitate criminal background checks is a well
developed concept. In 2006, pursuant to a request from Congress, DOJ
produced a comprehensive ``Report on Background Checks'' that
specifically addressed the issue of employers getting FBI checks from
non-state parties, and the use of private third party channelers was
recommended.\10\
NASCO has specifically discussed the PSOEAA checks problems with
DOJ officials and we have not received any indication that, if
authorized by Congress, the use of private parties or channelers to
conduct PSOEAA FBI checks on security guards would not work.
Furthermore, the DOJ Report states that ``there already exist standards
to govern management of records'' by channelers.\11\
Of course, such a screening entity or ``channeler'' would be fully
governed by applicable laws and regulations regarding the handling of
FBI records. In fact, the use of private channelers to obtain FBI CHRI
is already authorized and regulated by DOJ.
In the DOJ Background Report, it is recommended that ``existing
private sector infrastructure for background screening'' (such as a
``consumer reporting agency'') be used to obtain FBI checks in state
not conducting such checks. As mentioned in Footnote 1, if a state is
not regulating an industry, there are a variety of reasons complicating
any efforts to facilitate these checks and prompting states to not want
to conduct FBI checks, screening or fitness determinations for employee
in that industry. When a state is not willing to do FBI checks on
certain employees, DOJ recommends that the FBI be able to send the
CHRI; (1) directly to an authorized employer (direct access is
currently not legal for security guard employers under the PSOEAA or
other statutes and is a much bigger issue) or, (2) to a third party who
could do the required state or federal screening for the employer.
As mentioned, there are already standards in place that would
safeguard the FBI CHRI when received by a channeler, and the
authorization for third parties to conduct FBI screening when a state
is not doing it as DOJ recommends, is precisely what security guard
employers need from Congress in legislation to address the current
problem with implementation of the PSOEAA.
This solution is especially needed to facilitate checks in those
ten states where there are no regulations governing security guards.
The DOJ Report explains why FBI records should go to non-state parties;
``* * * (t)he FBI should be authorized to disseminate FBI-
maintained criminal history records directly to employers or entities
authorized to request a criminal history background check, or consumer
reporting agencies acting on their behalf, subject to screening and
training requirements and other conditions for access and use of the
information established by law and Attorney General regulations behalf,
subject to screening and training requirements and other conditions for
access and use of the information established by law and Attorney
General regulations. EXPLANATION: A major limitation in the background
check scheme under Public Law 92-544 is the requirement that the
records be disseminated only to a governmental agency that applies
suitability criteria and provides the results of its fitness
determination--qualified or not qualified--to the employer or entity
involved. This makes sense when the state is affirmatively regulating
employment in a particular area and a government agency is designated
as responsible for reviewing the records and making suitability
determinations according to specified criteria. This model does not
necessarily make sense in industries where employment is not being
regulated by the government. Requiring suitability screening by a
government agency when there is no regulation generally has meant that
the screening does not get done. This has been the true in the case of
the NCPA/VCA. Notwithstanding the authority provided under those
statutes, most states have not created means for the screening of
employees or volunteers for entities providing services to children,
the elderly, and disabled persons.\12\
DOJ has made it clear, and state agencies have confirmed, that
unless a state is already conducting fitness determinations or
suitability screening for employers as part of a licensing or
regulatory regime for a particular class of employees, it is not likely
that states will affirmatively undertake setting up a process to
conduct further checks or screening--despite federal legislation such
as the PSOEAA authorizing and encouraging such checks. For states to
start doing new FBI checks, it will involve the need for additional
state resource and administrative support, and such a system cannot be
set up simply because there is also authority to collect user fees. In
fact, in those states where there is no regulation of security guards,
it has been suggested that state legislation would be necessary to set
up an FBI check system pursuant to the PSOEAA, thus putting security
guard employers in the same difficult situation they were in before the
passage of the PSOEAA.
NASCO will continue to work state agencies and organizations, state
representatives and support all efforts to improve the facilitation of
FBI CHRI checks pursuant to the implementation of the PSOEAA. However,
given the inaction of the past several years, the observations of DOJ
on such situations and state level budget and administrative hurdles,
NASCO clearly believes congressional authorization to use third parties
to obtain FBI checks is a solution definitely worth pursuing.
Regardless of the process to conduct these checks, NASCO recognizes
and supports the authority of states to regulate the security guard
industry. If Congress allows third parties to conduct FBI checks for
employees in states where such checks are not available, NASCO fully
supports the DOJ Report's recommendation ``that the law of the state of
employment should be applied in the screening'' when an FBI check is
done for an employee in a that state.\13\ NASCO is very concerned about
any implication, which could be received negatively by the states, that
legislation to facilitate FBI checks for security officers in every
state will permit federal screening standards to supersede existing
state standards.
Comments on H.R. 2703
NASCO has reviewed H.R. 2703 and looks forward to the opportunity
to discuss the legislation in detail with the drafters and Committee
staff. As noted, NASCO supports the primary element of H.R. 2703 which
authorizes the use of a non-state ``entity designated by DOJ'' to
conduct PSOEAA checks for security guard employers when a state is not
doing such checks. NASCO believes this notion should be the foundation
of any legislative effort to address to the current situation.
There are some elements of H.R. 2703 which raise issues that
require more clarification and discussion including the structure and
processes for the DOJ authorized entity, the list of disqualifying
offenses, mandatory checks and temporary hires, as well as
clarification regarding application of standards for fitness
determinations and safeguards to prevent superseding of state authority
to regulate private security.
Conclusion
Thank you for holding today's hearing and bringing attention to the
problem associated with the lack of FBI CHRI checks for private
security guards pursuant to the implementation of PSOEAA. We believe
these checks, combined with NASCO's continued efforts to raise
standards at the federal, state and local level for the licensing of
private security companies and the registration, screening and training
of private security guards, is vital to our national security and an
issue of public safety and protection. We look forward to working with
you to find a solution to this problem.
endnotes
\1\ Pub. L. No. 108-458 Sec. 6402 (2004), 28 USC Sec. 534
\2\ The term ``check'' and ``screen'' are used interchangeably.
Both denote a party--such as a state agency or a DOJ designated
entity--obtaining a person's complete FBI CHRI or ``rap sheet'' and
then screening or checking the rap sheet for arrests and/or convictions
that may or not under applicable law disqualify the person from
employment or a license or may or may not have to be reported to an
employer. This screening/checking process is also referred to as a
``fitness determination''. It is also important to note, that under
pre-existing federal law that authorized states to access FBI CHRI for
certain types of employees including security officers, and also under
the PSOEAA, a security officer employer is never allowed to be given
the FBI ``rap sheet.'' Thus any state currently doing FBI checks on
security guards obtains the rap sheet and then uses it as a part of a
fitness determination (e.g. licensing application decision). Any new
state doing an FBI check pursuant to the PSOEAA would also have to get
the FBI rap sheet and then review it against any employment or
licensing standards the state may have, or if the state did not have
such standards, then against the reportable offense standard in the
PSOEAA. The administrative burden and cost of making fitness
determinations is cited in several sources as major reasons why states
are not and will not do security officer FBI background checks.
\3\ NASCO ``Background Screening Resolution'' October 17, 2007
APPENDIX 1
\4\ PL 92-544
\5\ Prepared Statement of Mr. Don Walker, Chairman, Securitas
Services USA, ``Legislative Hearing on S.1743 the ``Private Security
Officer Employment Authorization Act of 2003,'' Before the House
Judiciary Subcommittee on Crime, Terrorism, and Homeland Security,
108th Cong., Serial No. 108-89 (March 30, 2004). http://
judiciary.house.gov/HearingTestimony.aspx?ID=59
\6\ January 30, 2008 Letter to Attorney General Michael Mukasey
from Senators Joseph Lieberman, Carl Levin, Lamar Alexander, and
Representative Steve Cohen.
\7\ See Footnote 2, Statement of Don Walker, Chairman Securitas
Services USA.
\8\ Ibid.
\9\ Legislative Hearing on S.1743 the ``Private Security Officer
Employment Authorization Act of 2003,'' Before the House Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security, 108th Cong.,
Serial No. 108-89 (March 30, 2004). Transcript at Page 68. http://
commdocs.house.gov/committees/judiciary/hju92829.000/hju92829--0f.htm
\10\ U.S. Department of Justice Office of the Attorney General
``THE ATTORNEY GENERAL'S REPORT ON CRIMINAL HISTORY BACKGROUND CHECKS''
June 2006.
\11\ Ibid at 102
\12\ Ibid at 90.
\13\ Ibid at 120.
______
Chairman Andrews. Mr. Ricci, thank you for your testimony.
We appreciate your constructive approach to this, and we know
that is something shared by each of the witnesses.
Mr. Kennedy, welcome to the committee.
STATEMENT OF WELDON KENNEDY, VICE CHAIRMAN, GUARDSMARK, LLC
Mr. Kennedy. Thank you, Mr. Chairman, Ranking Member Kline
and members of the subcommittee. Thank you for this opportunity
to present the views of Guardsmark concerning H.R. 2703.
I am Weldon Kennedy, as previously introduced, the vice
chairman of Guardsmark, and I was previously the director of
the FBI. An experience in these capacities, I hope, to be
useful to this committee.
Guardsmark appreciates the chairman's interest in the
common goal that we all share, increasing the access of the
private security industry to a nationwide criminal history
record information. This interest will undoubtedly promote U.S.
homeland security and we thank you for your willingness to help
in this regard.
Guardsmark has concerns about H.R. 2703 that led us to
recommend that it not be enacted. We certainly share your
objective of obtaining proper access for our industry to
nationwide criminal history record information.
Guardsmark has two principle concerns with 2703. First, it
federalizes a regulatory system that is currently based in over
40 states. And, No. 2, it pulls the FBI into the employment
process much further than I believe that the bureau or the
Department of Justice would be comfortable.
On this first point, we observe that the private security
industry is regulated in over 40 jurisdictions in the United
States. Regulation of who may enter a profession is a classic
state function and the PSOEAA made no fundamental changes to
this regime in 2004.
H.R. 2703, however, would shift the system to one of much
greater federal intervention, which could prompt the states to
reduce their scrutiny of companies and individuals working in
our industry. We think that this unintended result would be
adverse to the industry and inconsistent with improving
homeland security.
Our second main point is that the FBI would not likely be
comfortable in taking an enhanced role in the regulation of the
security industry. While sharing criminal history record
information is certainly acceptable to the FBI, H.R. 2703 goes
well beyond the sharing function, imposing expanded regulatory
responsibility upon the FBI and imposing expanded regulatory
responsibility on the FBI is unlikely to lead to positive
results for the industry.
Some in our industry may expect that the FBI alone can
solve our criminal history record access problems, but I
believe those expectations are unrealistic and that
disappointment is inevitable. The states simply have to be a
part of the solution because it is information on state
criminal convictions to which we need access.
We also have a number of additional drafting concerns with
H.R. 2703 that I will simply identify now and ask that the
subcommittee review our written statement for all the details.
In summary, the bill will unwisely create a new federal
precondition to employment of a private security officer. It
establishes a federal employment eligibility standard that
could conflict with certain state standards. Three, it allows
for a federally designated entity to assess the standards that
have traditionally been reserved to the states. Four, it
requires the states to respond in 3 days, which could provoke
some of them to opt out of the bill altogether. And, five, it
significantly expands the list of disqualifying offenses in a
manner that could encourage opposition from the employee rights
perspective, a criticism that the 2004 law worked hard to
avoid.
Mr. Chairman, we are happy to work with you in a
constructive manner to improve our industry's access to CHRI.
Let me repeat that we appreciate your interest and your
objectives. We reluctantly oppose the legislation you have
introduced, but we desire to work constructively and closely
with you and this committee to devise suitable alternative
approaches.
Thank you again for this opportunity to testify.
[The statement of Mr. Kennedy follows:]
------
Chairman Andrews. Mr. Kennedy, thank you for the spirit of
your testimony and very worthy suggestions. We really do
appreciate your constructive approach to this.
Mr. Kennedy. Thank you.
Chairman Andrews. Mr. de Bernardo, welcome back.
STATEMENT OF MARK DE BERNARDO, JACKSON LEWIS LLP
Mr. de Bernardo. Thank you, Mr. Chairman.
Thank you, Mr. Kline, members of the subcommittee.
I appreciate this opportunity to testify in support of
criminal background checks and in support of H.R. 2703.
The Council for Employment Law Equity, which I represent,
and Jackson Lewis, which is a 450-lawyer, 34-city employment
law firm representing management, we support employers'
interests, the users of criminal background checks. And let me
say, I think the role of criminal background checks in
employment is strong, appropriate and necessary, and it is
particularly necessary in such industries and in such
employment categories as the use of security guards in private
sector employment.
We feel that employment use of criminal background checks
is not only pro-employer, it is pro-employee and, ultimately,
it is in the interest of the ex-offenders themselves. They have
a better chance of being reintegrated into society and into
employment by those employers who actually use criminal
background checks. In fact, studies that are cited in my
testimony uniformly say that those employers who use criminal
background checks are more likely to hire ex-offenders than
those employers who do not. In fact, three and a half times
more likely.
So that societal interest of having those people coming out
of prison, getting them reintegrated in society, is actually
served in this regard.
But more information is better than less information, and I
think the spirit and thrust of H.R. 2703 is that we would have
more consistent information, we would have more information
that is available to employers on a regular basis. Right now it
really is a patchwork at the state level. There are great
inconsistencies. You know the old saying, ``garbage in, garbage
out.''
You know, as employers we want to know whether or not the
job applicants that are coming before us are qualified, and we
particularly want to know this for those positions where there
are high-risk populations, where there are people that are
particularly vulnerable, whether they be customers, workforce
or certain job positions that are discussed in my testimony,
job positions in hospitals, day care centers, elder care.
Certainly any jobs involving youth, school districts, youth
camps, counseling programs, certainly any jobs involving
national security or the defense industry.
You know, if we are going to have defense contractors that
are employing employees on military bases, we want to have
every opportunity to know as much as we possibly can about
those job applicants and do the screening. And the jobs go on
and on. If you have access to financial securities or large
amounts of cash, certainly those situations. Pharmaceutical
companies, drug stores, anywhere where there would be access to
drugs on the open market are going to be valuable.
So what we want is more information, more consistent
information, more readily available information. What we have
now is information that comes from the states, which talks
about conviction in that state.
But, you know, so often those being released from prison
are crossing state lines. Los Angeles County, 47,000 people
released from prison are going to be in Los Angeles County last
year. One-third of the 23 percent of those people being pulled
from prison in California will be in Los Angeles County itself.
Well, California has 11 percent of the nation's population.
They have 23 percent of the nation's former prison inmate
population, again concentrated in Southern California.
So there are people crossing state lines with the
inconsistency of what is going on at the state levels with the
exclusion of those people who are serving out federal offenses.
Sure, I am in favor of a system by which we can identify and
have better information, more consistent information, more
accurate information, and I applaud you, Chairman Andrews, for
approaching this in one segment with H.R. 2703.
[The statement of Mr. de Bernardo may be accessed at the
following Internet address:]
http://edlabor.house.gov/testimony/2008-02-26-MarkdeBernardo.pdf
______
Chairman Andrews. Mr. de Bernardo, thank you very much for
your contribution today.
Ms. Uzzell, welcome.
STATEMENT OF DONNA UZZELL, CHAIRWOMAN, NATIONAL CRIME
PREVENTION AND PRIVACY COMPACT COUNCIL
Ms. Uzzell. Thank you.
Good morning. I am Donna Uzzell and I work for the Florida
Department of Law Enforcement. I am currently, as the chairman
mentioned, the chairman of the National Crime Prevention and
Privacy Compact Council.
The council is a federal rule-making body that works in
partnership with states, end-users and policy-makers like
yourselves to inform or to regulate and facilitate the sharing
of criminal history record information to non-criminal justice
users to enhance public safety and still address privacy
rights. To date, 27 states have ratified the compact and 11
have signed our MOU.
I am delighted to be here today. I represent my fellow
states. I do need to say that my comments reflect the practices
in my state and the individual opinions of several of our
members and not our official position as a council, since this
is a federal rule-making body.
This council fully agrees that persons who are placed in
any position of trust should be appropriately screened.
Clearly, individuals such as private security guards are vital
to the nation's domestic security. In Florida, I am proud to
say that these checks have been done by our Division of
Licensing for over 20 years. We average 30,000 checks a year.
But as we heard, not all states do participate.
In my handout I have expressed the concerns with the
existing law and would be glad to expand on that during any
Q&A. In regards to solutions, though, I would like to reference
not only my testimony provided earlier on the AG Report on
Criminal History Background Checks, but I would like to share
with you firsthand experience from a proven model that is also
referenced in the AG report.
Several years ago in Florida volunteer agencies were
considering implementing the National Volunteers for Children
Act to protect children, the disabled and the elderly. There
are a number of volunteer organizations, such as Boys & Girls
Clubs and churches, that fall within this category, as well as
large employers in our state, such as Universal Studios and
Disneyworld.
The dilemma was that no one agency could take on the
workload of screening and no one criteria was appropriate. The
solution, through an amendment to the act, was to allow the
qualified entity, with the presence of a waiver, to receive the
criminal history information and to make their own suitability
determinations.
This allowed us to implement this law in our state and the
entities are subject to state audits to address privacy and
security concerns. It has been working in our state since 1999
and we have conducted over 140,000 criminal history checks
since, using this model.
Another model that is applicable, as Frank Campbell
mentioned, was Public Law 105277, which was passed in 1998,
allowing nursing home facilities to receive national criminal
history information from the state in the event that a state
statute was not in place. Three states take advantage of this
law and in 2007 alone over 27,000 checks were done under that
act.
One more model that was recently enacted by Congress via
Section 153 of the Adam Walsh Act is the ability for private
schools to now receive the results of criminal history
information to make suitability determinations for persons they
employ. Similar to the private security guard industry, private
schools across the country were receiving varied assistance in
obtaining checks of their employees. When Congress passed the
act in July of 2006, it enabled private schools to directly
receive national criminal history information if the provision
is requested by the governor and the checks are fingerprint
based.
In that same act, Congress made this provision available to
private companies that contract with child welfare agencies for
licensing of foster and adoptive parents. These models could be
applied to the private security guard industry and would allow
the states that wish to regulate the industry to continue doing
so, but not hold hostage the companies in states where
regulations do not exist.
Several states that I have spoken to indicated they would
be able to begin processing these checks if the information was
passed down to the employing company. And I might add that the
Florida Association of Security Companies emailed me and said
they supported this approach.
Privacy issues? Well, let me just say this: at least 25
states already make criminal history information in their state
available on the Internet. Private data companies compile this
information and sell it around the country. Information
provided by the FBI is at least fingerprint based and
eliminates some of the harm done from someone mistakenly
identified by name. And caveats could be put in place, like
were mentioned in the AG report, to protect privacy.
Rap sheets can be read. It is a myth that they can't. With
minimum training, we have evidence of that across the country.
If it is true that security guards do protect 85 percent of
the nation's critical infrastructure, and I am glad to hear
that--that is a number I have heard and I am glad to hear you
say that, Mr. Chairman--and we trust them with tremendous
responsibility, then why wouldn't we trust them to receive
criminal history information to ensure that the right person is
placed within these sensitive positions and allow public safety
to take precedent?
So, consistent with past congressional precedents, if
legislation is enacted I would strongly consider allowing
private security guards to receive the information. Despite
what you may have been told, there are companies that would
like to police themselves and are willing to step up to the
plate and take on the responsibilities.
And just one more thing, Mr. Chairman. I have heard
anywhere from 16 to 32 to 40, just in preparing for this I
pulled 17 states and 14 of the 17 actually do these checks. So
what I will do as Compact Council chairman is I will be glad to
work with the security guard industry, but I will do a poll and
survey, and I would be glad to share the information not only
of what states conduct the checks, but states that have any
limitations, so I can share those with you as well.
[The statement of Ms. Uzzell follows:]
Prepared Statement of Donna M. Uzzell, Director, Criminal Justice
Information Services, Florida Department of Law Enforcement; Chairman,
National Compact on Crime Prevention and Privacy Council
Good Morning, I am Donna Uzzell and I am the Director of Criminal
Justice Information Services for the Florida Department of Law
Enforcement. I am here representing the National Crime Prevention and
Privacy Compact Council and I currently hold the position as Chairman.
On October 9, 1998, President Clinton signed into law the National
Crime Prevention and Privacy Compact (Compact) Act, establishing an
infrastructure by which states can exchange criminal records for
noncriminal justice purposes according to the laws of the requesting
state, and provide reciprocity among the states to share records. The
Compact became effective April 28, 1999, after Montana and Georgia
became the first two states to ratify it, respectively. To date, 27
states have ratified the Compact and 11 states have signed the
Council's Memorandum of Understanding (MOU) in voluntary recognition of
the Council's authority to adhere to the rules and procedures of the
Compact. The remaining states are represented by the FBI who has a
designated member to the Council. Therefore, between the states who
have ratified the Compact and established MOUs, 38 states are now under
the purview of the Compact.
Goal and Mission of Compact Council
The Goal of the Compact Council is to make available the most
complete and up-to date records possible for noncriminal justice
purposes. Our mission, is to work in partnership with criminal history
record custodians, end users, and policy makers to regulate and
facilitate the sharing of complete, accurate, and timely criminal
history record information to noncriminal justice users in order to
enhance public safety, welfare and security of society while
recognizing the importance of individual privacy rights.
Because our members are federally appointed by the United States
Attorney General and federal agencies are represented on the Council,
the council does not lobby or take a position on any specific
legislation. However, I am delighted to be here today, representing my
fellow member states and extremely pleased that the committee
recognized the role of the Council and our subject matter expertise on
issues such as the one before you today. My comments are reflective of
the practices in my state and the individual opinions of several of our
members and are not an official position of the Council.
Implementation of the Private Security Officer Employment Authorization
Act (PSOEAA)
Let me begin by emphasizing that the Council members fully
recognize the importance of ensuring that persons who are placed in any
position of trust (whether it be persons with direct contact with
children, the disabled and the elderly, or persons who work in nuclear
regulatory plants, or in airports or drive hazmat materials) are
appropriately screened and that a criminal history background check be
performed on the individual before he or she is placed in that
position. The information that has been relayed to the Council is that
85% of the nation's critical infrastructure, including power plants,
water treatment facilities, and telecommunications facilities are
protected by the private security industry. Clearly, these individuals
are critical to the nation's domestic security initiatives and serve in
trusted positions.
In Florida, private security guards, both armed and unarmed,
receive a state and national criminal history check and the industry is
regulated and licensed by our Department of Agriculture and Consumer
Services, Division of Licensing. These checks have been done for over
20 years and we average around 30,000 applications a year.
I continue to hear a range of numbers as to how many states are
actually performing criminal record checks on private security guards.
I have heard numbers ranging from 16 to 25 to 32 states. Since the
Private Security Officer Employment Authorization Act was passed, I am
aware that several states have indicated they have enacted or broadened
their own state statutes. Last week at a Council committee meeting,
when I had learned that I would be testifying today, I conducted a
quick poll of a few of my counterparts and found that the states of
California, Texas, New Jersey, New York, Tennessee, Arkansas, Virginia,
New Hampshire, Texas, Louisiana and Vermont also conduct state and
national checks on private security guards armed and unarmed. In fact,
according to the FBI there are 41 states, the District of Columbia and
Puerto Rico that have requested and received authorization under Public
Law 92-544 to perform national criminal history checks on private
security guards. Some, like Georgia, the regulatory agency has
authorization to do both armed and unarmed but regulates only armed
security guards, some like Kansas and Oklahoma are permissive in their
checks and are not mandatory.
Because it appears that a current accurate accounting state by
state does not exist, I am going to do a formal survey with the Compact
Council and hope to enlist the support of the National Consortium for
Justice Information and Statistics (SEARCH) and the National
Association of Security Companies (NASCO) to fully understand how many
states are actually performing these checks, the limitations within the
state and any point of contact. I would be more than happy to share
with the committee the results of that survey when completed. However,
I think most will agree that one thing we do know is that there are
approx. approximately 8 to 10 states that do not have any legal
authority whatsoever to conduct national checks on security guards.
Idaho is one of those states. Idaho does not have a state statute
authorizing these checks. Last week, in a discussion with a
representative from this state, I did learn that there has not been a
demand by the industry within that state to enact legislation or
implement the PSOEAA. The state representative in Idaho, welcomes the
opportunity to work with members of the industry although admits that
implementation presents a set of challenges.
Current Problems with PSOEAA Implementation
While implementing the PSOEAA checks without a 92-544 statute may
appear to be a simple solution, such a task has certain obstacles that
would need to be overcome. First of all, the state would need to not
only submit the fingerprints and receive the criminal history results
but would also be required to perform the suitability determinations
based on the federal criteria. The volume of those checks could be
significant. Although a fee could be assessed for this purpose, the
state would need to have state authority via legislation or executive
order to assess the fee, receive the money, hire the necessary
resources to perform the task of adjudicating the results, handle
appeals and process approvals and denials. Even if the state chose to
outsource some of these functions, the state cannot outsource something
it is currently not authorized to do, so the infrastructure would still
need to be in place for the state to take on the responsibility for
these checks.
If the state does not have the ability to participate based on the
concerns previously mentioned, the state may ``opt out'' to enable a
``participating state'' to do these checks for them. While this may
also sound reasonable in theory, once again, it is a complex
undertaking. A state that is performing the checks usually has a
licensing or regulatory function with specified criteria used within
that state for screening. Even though a fee for services is authorized,
it would be very difficult for the state to justify requesting
additional resources to accommodate other states, and to ask them to
screen to the federal standard for these checks and their own standards
for checks within their state.
I can speak personally for the state of Florida in saying that we
are continually being asked to scale down our budget and limit the
hiring of additional resources. Even if we could collect a fee for that
service, expanding our government to provide services outside our state
would be questioned. We continue to be told to stick to our core
missions and I am sure since you also represent the states that this is
something you can certainly understand.
How do we make this work?
So you ask yourself, well what would work. The USAG was tasked in
Section 6403 of Intelligence Reform Bill and Terrorism Prevention Act
to conduct a study on the issue of background checks. The Compact
Council was specifically mentioned in the law as a reference group for
the topic. The Council posted notes to the Federal Register as comments
and worked closely with USDOJ's Office of Legal Policy in the
development of the final report. It is important to note that the
report to Congress is very much aligned with the recommendations of
compact council members. It is also very much aligned with the comments
from SEARCH. The part of the report that may be specifically relevant
to Congress is in Section V Recommendations for Standardizing Non-
Criminal Justice Access Authority.
Suggested Models for Consideration
Let me share with you firsthand experience from a proven model that
is referenced in the AG report in Section III, Examples of Programs
Implementing Criminal History Check Authorities. In Florida, several
years ago there was a similar situation concerning the ability to
perform state and national checks on persons employed or volunteering
around children, the elderly and the disabled. There are a number of
agencies that fall under this category in Florida to not only include
volunteer organizations such as Boys and Girls Club, churches, and
universities, but large employers in our state such as Universal
Studios, and Disney World. The dilemma was that no ``one'' agency in
the state could take on the workload of screening for these entities
and there was not ``one set of criteria'' that would be appropriate for
all. The United Way was concerned about the impact on volunteerism and
that persons with criminal offenses that would still make them suitable
for some jobs could be ultimately screened out. For instance, an agency
may want to allow someone with multiple driving violations including
Driving While Intoxicated to volunteer in a facility with the elderly
as long as they are not driving the patients but may not want someone
with a history of fraud, with an elderly person who could be vulnerable
to fraudulent scams. The solution, through an amendment to the
Volunteers for Children's Act was to allow the qualified entity, with
the presence of a waiver, to receive the criminal history information
and make their own suitability determinations. The entities are subject
to state audits to ensure that they are maintaining all security
requirements in the maintenance and dissemination of the information.
This program has been in place since 1999, and in 2006/2007 Florida
conducted 144,693 criminal history checks using this model.
Another model that is applicable to this situation is the Public
Law 105-277 which was passed in 1998 allowing Nursing home facilities
to receive national criminal history information from the state in the
event that a state statute was not in place to provide for these
checks. Three states take advantage of this law and in 2007 alone over
27,000 checks were done under this statute.
One more model that was recently enacted by Congress via the Adam
Walsh Act is the ability for private schools to receive the results of
criminal history information to make suitability determinations for
persons they employ. Similar to the Private Security Guard Industry,
private schools across the country were receiving varied assistance in
obtaining criminal history checks for their employees. Some state laws
only authorized criminal history checks for public schools and some
included private schools but required them to fall under the state
board of education for regulation. In states, where the state did not
want to regulate private schools or where the private schools wanted
separation from the state board there was little to no avenue for them
to receive the information and do the right thing. When Congress passed
the Adam Walsh Act in July 2006, you enabled private schools to
directly receive national criminal history information if the provision
was requested by the Chief Executive Officer of the state and the
checks were fingerprint based. In the same act, Congress made this
provision available to contracted entities of Child Welfare Agencies
for the licensing of Foster and Adoptive parents.
In each of the models, a group was defined as having a specialized
need for persons in trusted positions to be background checked, there
was no consistency nationwide, and the decision as to whether to
conduct the checks was based on the states ability to provide resources
to adjudicate the results and apply criteria for suitability. These
models could be applied to the Private Security Guard Industry and
would allow the states that wish to regulate the industry to continue
doing so, but not hold hostage the companies in states where
regulations do not exist. In Georgia, the state has indicated that it
will continue to license armed guards and that if the records could be
pushed back to the employing agency they would be willing to proceed
with all security guards. Other states have indicated the same. In
Florida, even though security guards are licensed by the state, many of
the guard companies would like to receive the results of screening to
determine if they would want to apply their own standards for persons
they hire to ensure that they are appropriately placing persons in
positions. Today, they must do a private company search of these
records or a state only search of these records in order to accommodate
that need.
Privacy Concerns
The privacy issues surrounding this information should not deter
you from taking this type of action for the following reasons:
In at least 25 states, the states information is already
available on the internet by a name based check.
Private data companies compile criminal record information
from courts, corrections and other databases from around the country
and sell to their customers.
At least, the information provided by the FBI is
fingerprint based and limits the harm done from someone being
mistakenly identified by name.
Caveats, like those mentioned in the AG report could be
put in place to protect privacy.
Rap sheets CAN be read and we have examples at the state
level of numerous organizations that are screening criminal history
records today with minimum training, to say otherwise is a myth.
If it is true that security guards do protect 85% of the nation's
critical infrastructure, and we trust them with that tremendous
responsibility then why wouldn't we trust them to receive the criminal
history information to ensure that the right person is placed within
these sensitive positions and allow public safety to take precedence.
Recommendations
This recommendation is consistent with past congressional actions
as previously mentioned and could be enhanced by placing minimum
criteria in place that the agencies would need to adhere to.
I urge you to do the following:
Prior to passing legislation, ensure that you have received
accurate information and in those states that are already regulating
the industry and conducting these searches allow them to continue as
appears to be recommended in this legislation.
If legislation is enacted, strongly consider allowing the private
security guard industry to receive the results of the criminal history
information. If these individuals are truly guarding areas that are
critical to our nation's domestic security, then do not tie their hands
to enable them to employ the right person in these sensitive jobs.
Despite what you may have been told, there are security guard companies
that would like to police themselves and are willing to step up to the
plate to take on this responsibility.
In doing so you will:
enable persons who currently cannot be checked to receive
the screening, and
enable more states to participate.
The USAG report recommendation on access to criminal history
records indicates that when a state agrees to participate in processing
these checks and passing them down to the employer the state should be
able to do so with certain protections in place. If the state opts out,
then the employing entity should be able to go directly to the FBI.
Critical Infrastructure is listed as one of the first priorities in
determining who should be able to avail themselves of this service.
Consider implementing the recommendations of the USAG report.
______
Chairman Andrews. We would be eager to receive that
information. Thank you.
Ms. Uzzell. Thank you for letting me be here today. I
appreciate it.
Chairman Andrews. Our privilege.
Mr. Clarke, welcome to the committee. Glad to have you with
us.
STATEMENT OF FLOYD CLARKE, MEMBER, BOARD OF MANAGERS, ALLIED
SECURITY HOLDINGS
Mr. Clarke. Thank you, Chairman Andrews and Ranking Member
Kline and the rest of the committee.
It is a pleasure and I appreciate the opportunity to appear
before you today to offer some comments about H.R. 2703.
As you mentioned, I am a member of the board of managers of
Allied Security Holdings, the parent company of Allied Barton
Security. And previously I spent 30 years in the FBI, leaving
in January 1994 as the acting director. So I approach this
issue with the benefit of the perspective from both the FBI and
private sector.
Allied Barton is the largest American-owned security
services company. We have more than 52,000 security officers in
over 100 offices and we service approximately 3,500 clients
across the United States.
Let me begin, Mr. Chairman, by commending you for your
commitment to this issue over the years. As Congress recognized
in the legislation that you were instrumental in helping to
pass in 2004, there is a homeland security imperative for
having professional, reliable and responsible security officers
for the protection of people, facilities, institutions, and
ensuring that these officers are thoroughly screened and
trained.
In an effort to achieve this objective, Congress enacted
the Private Security Officers Employment Act to allow private
security officer companies to submit requests through the
states to screen employees against the FBI's criminal history
records. Unfortunately, for a variety of reasons, states have
generally not exercised the authority that they have been given
and employers still cannot regularly screen perspective
employees against the national database.
And I want to again commend you, Mr. Chairman, for
recognizing the need to strengthen this earlier legislation.
Private security officers, as you mentioned, provide a
primary line of defense for much of our country, securing
countless lives, tens of thousands of important facilities from
coast to coast. The threat of additional terrorists acts
requires the cooperation between the public and the private
sectors.
The private sector, as you mentioned, controls 85 percent
of the critical infrastructure in this nation, and unless a
terrorist target is a military or other secure government
facility, the first first responders most likely will be
civilians. Those civilians will include private security
guards. We want to do all that we reasonably can to ensure that
the officers that we hire are trustworthy and not likely to
commit criminal acts or aide or support terrorists.
At a minimum, this requires that our company have a
reliable and timely way of learning about any serious criminal
history of our applicants.
Congress directed the attorney general to examine the issue
related to non-law enforcement access to federal criminal
history records and the AG concluded that reliable criminal
history background check cannot be accomplished without timely
access to the records of the FBI.
Without access to the federal records, the only records
available to an employee are those in the states, where the
records are typically kept in the courthouse in each county.
Since there is no practical way to check all 3,000 clerks of
court around the country for every employee, employers will
usually only request a check in the counties in which the
applicant says that they have recently lived or worked. This
leaves the employer blind to any criminal history in states for
which the applicant failed to disclose contacts.
Congress acted in 2004 to provide employers access to that
federal database. Unfortunately, in doing so Congress required
that the employers always go through the state identification
bureaus in order to get that access. In other words, we must
submit the employee information to the state bureau, which then
decides whether to forward the request to the federal level.
An employer in a state that cannot or chooses not to
provide timely background check results that incorporate both
state and FBI data should be able to make requests for criminal
history records to the FBI either directly or through an entity
designated by the attorney general.
We strongly support this recommendation and applaud you,
Mr. Chairman, for incorporating this provision in H.R. 2703.
I understand that there may be concerns that this
legislation bypasses states. As I read it, however, it clearly
requires employers to go through the states in every instance
where the states are willing and able to respond. The only
instance in which employers can make a request other than
through the state is where the state has chosen not to
establish a mechanism for getting prompt federal records checks
accomplished.
We fully support efforts to get more states to adopt such
mechanisms. However, that will take time, time during which we
will continue to have a dangerous gap in the screening.
H.R. 2703 does not preclude continuing efforts to work with
the states and ensures that as those states come into
compliance with the AG's standards, employers will be required
to go through them for their record checks.
Our experience indicates that the protections afforded to
employees under Congress, which Congress included in 2004, are
appropriate and that the legislation that is being suggested
and offered here builds upon those and even strengthens those.
I would be more than happy to answer any questions that you
might have.
[The statement of Mr. Clarke follows:]
Prepared Statement of Floyd I. Clarke, Member of the Board of Managers,
Allied Security Holdings
Chairman Andrews, Ranking Member McKeon, and Members of the
Subcommittee, thank you for the opportunity to testify today about HR
2703, the Private Security Officers Employment Authorization Act of
2007 and the experience of AlliedBarton Security Services in attempting
to use the criminal history database of the Federal Bureau of
Investigation (FBI) to help screen applicants for these positions of
trust,
I am the Vice President for Corporate Compliance of MacAndrews &
Forbes Holdings, Inc. and a Member of the Board of Managers for Allied
Security Holdings LLC, the parent company of AlliedBarton Security
Services. Previously, I spent 30 years working at the Federal Bureau of
Investigation, ending in January 1994 as Acting Director of the Bureau.
Thus, I approach this issue with the benefit of the perspective of both
the FBI and the private sector.
AlliedBarton Security Services, headquartered in King of Prussia,
Pennsylvania, is the largest American-owned security officer services
company. Established in 1957, AlliedBarton is a trusted leader with
proven expertise in providing highly trained security officers to a
number of markets, including manufacturing and industrial, financial
institutions, colleges and universities, commercial real estate,
government services, healthcare, residential communities, and shopping
malls and other retail facilities. AlliedBarton has more than 52,000
security officers and over 100 offices located across the United States
from which we help protect the facilities, employees, and customers of
our approximately 3,500 clients.
Mr. Chairman, let me begin by commending you for your commitment to
this issue over the years. As Congress recognized in legislation that
you were instrumental in helping to pass in 2004, there is a homeland
security imperative for having ``professional, reliable, and
responsible security officers for the protection of people, facilities,
and institutions'' and ensuring that these private security officers
are ``thoroughly screened and trained.'' \1\
In an effort to achieve this objective, as part of the Intelligence
Reform and Terrorism Prevention Act of 2004, Congress enacted the
Private Security Officer Employment Authorization Act (PSOEAA) to allow
Allied-Barton and other private security officer firms to submit
requests through the states to screen employees\2\ against the FBI's
criminal history records. Unfortunately, for a variety of reasons,
states have generally not exercised this authority and private security
officer employers still cannot regularly screen prospective employees
against the national database. I want to again commend you, Mr.
Chairman, for recognizing the need to strengthen that earlier
legislation.
I know from my experience at the FBI how important it is to obtain
timely criminal history record checks. In my years with AlliedBarton, I
have seen how important it is in the private security officer context
as well. My testimony today briefly discusses why this access is so
important, how it has worked--and not worked--for AlliedBarton over the
last two years, and why the changes made by HR 2703 are important for
both applicants and employers.
Reliable Private Security Officers are Crucial to our Nation's Security
Private security officers provide a primary line of defense for
much of our country, securing countless lives and tens of thousands of
important and valuable facilities from coast to coast. The Intelligence
Reform and Terrorism Prevention Act of 2004 (Pub. L. No. 108-458) found
that ``the threat of additional terrorist attacks requires cooperation
between public and private sectors and demands professional, reliable,
and responsible security officers for the protection of people,
facilities, and institutions.'' Noting that the private sector controls
85% of the critical infrastructure in the nation, the 9/11 Commission
concluded that, ``unless a terrorist's target is a military or other
secure government facility, the `first' first responders will almost
certainly be civilians.'' \3\
Those civilians are likely to include private security guards,
counted on as the prime protectors of homes (apartment buildings,
dormitories, and private communities), offices, financial institutions,
factories, public sector facilities, hospitals and other critical
elements of the infrastructure of our nation. For the safety of the
people at these locations and the facilities involved, the companies
employing these private security officers want to do all that we
reasonably can to ensure that the officers we hire are trustworthy and
not likely to commit violence or, at worst, aid or support terrorists.
At a minimum, this requires that our companies have a reliable and
timely way of learning about any serious criminal history of our
applicants and employees.
Reliable Criminal History Checks Require Access to FBI-Maintained
Records
When Congress enacted the PSOEAA, it also directed the Attorney
General to examine the issues related to non-law enforcement access to
federal criminal history records and report back. The Attorney
General's Report\4\ concluded that a comprehensive and reliable
criminal history background check cannot be accomplished without timely
access to the records of the Criminal Justice Information Services
Division of the Federal Bureau of Investigation. We agree. Let me
explain why this is so important.
Without access to federal records, the only records available to an
employer are those in the states and their political subdivisions,
where the records are typically kept at the courthouse in each county.
Since there is no practical way to check all 3,000 clerks of court
around the country for every employee, employers usually will request a
record check in the counties in which the applicant says they have
recently lived or worked. This leaves the employer blind to any
criminal history records in states for which the applicant failed to
disclose contacts. How can employers rely on a system to weed out
untrustworthy or dangerous applicants when that process necessarily
depends on the honesty and forthright nature of every applicant?
There are commercial databases that aggregate criminal history
information from multiple states but, as the AG Report found, these are
not truly national in scope because not all states, courts, or agencies
make their records available to such compilers. Moreover, these
databases are only updated occasionally and, thus, may lack current
data. These commercial databases, therefore, are not adequate
substitutes for screening against the FBI-maintained database.
Congress acted in 2004 to provide private security officer
employers with access to that federal database. Unfortunately, in doing
so, Congress required that the employers always go through the state
identification bureaus in order to get that access. In other words, we
must submit the employee information to the state bureau, which then
decides whether to forward the request to the federal level.
We work closely with state regulators of private security officers
and, for the most part, they fully and competently fulfill their state
role. However, the states with which we work have not prioritized the
next step of seeking an FBI records check, despite the 2004 statute
permitting them to do so. In addition, several states have no
background check process at all. Thus, without another way to access
the FBI-maintained database, AlliedBarton and other security officer
employers have no way to verify applicants' backgrounds in these
states.
It is equally important that record checks be completed in a timely
manner. Significant delays in getting responses to criminal history
record requests are unfair to employers and applicants, and present
potential security risks. Hiring needs are typically time-sensitive,
which means either passing over the applicant because the records are
not in, or, where permitted, placing a private security officer
applicant ``on the job'' pending the results of a state background
check--leaving potentially unreliable and dangerous persons as the
protectors of loved ones and valuable sites for weeks.
The Attorney General's Report found that the processing time for
states, from the date of the fingerprint capture to the date of
submission to the FBI ranged up to 42 days.\5\ This is consistent with
AlliedBarton's experience over the last 2 years under the current
statute.
Recommendations: Protecting Our Nation
To address these problems, the AG's Report recommends that private
sector employers be able to screen job applicants against the FBI's
criminal history records, with the states serving as employers' primary
access point for criminal background checks only if they can meet
standards set by the Attorney General. The Report recommends, ``In
order to participate, states must meet standards specified by the
Attorney General, within parameters set by statute, for the scope of
access and the methods and time frames for providing access and
responses for these checks.'' \6\ Specifically, the Attorney General
concluded, ``A participating state or the FBI should be required to
respond to an enrolled employer, entity, or consumer reporting agency
within three business days of the submission of the fingerprints.'' \7\
Importantly, this means that an employer in a state that cannot, or
chooses not to, provide timely background check results that
incorporate both state and FBI data should be able to make requests to
the FBI, either directly or through an entity designated by the
Attorney General, for criminal history records. The Attorney General's
Report stated it this way: ``Access to FBI-maintained criminal history
records should be available to employers when states do not opt to
participate, either because they lack the authority, the resources, or
infrastructure (such as system capacity) to process such checks, or
because the access they can offer is limited in scope or does not meet
the national standards set for this system.'' \8\
Based on our experience, we strongly support this recommendation
and applaud the Chairman for incorporating it in HR 2703. Ensuring
timely and accurate record checks is in the best interest of both
employers and employees.
The best way to ensure accuracy is to combine federal and state
records, which the proposed legislation authorizes. There are sound
reasons for employers seeking comprehensive criminal histories to also
check state repositories. The Attorney General's Report noted that the
``rationale for requiring the submission of fingerprints through a
state record repository is based on the fact that the FBI-maintained
records are not as complete as the records maintained at the state
level.'' \9\ The FBI's records also have more limited information
regarding disposition of arrests, with only 50 percent of its arrest
records containing final dispositions, compared to the states that
range from 70 to 80 percent.\10\ HR 2703 provides a process for
ensuring that screening is not based on incomplete records by requiring
that when records are incomplete, the government shall provide notice
of any state(s) in which such records may be completed or verified.
Thus, even if employers are permitted to submit requests without
first going through the state, they will use the federal response as an
indicator of which states contain records regarding the employee, and
then they will check the records in those states. This process,
however, will avoid the delays involved in having to go through the
states just to get the FBI response.
Mr. Chairman, I understand there may be concerns that this
legislation by-passes the states. As I read it, however, it clearly
requires employers to go through the states in every instance where the
states are willing and able to respond. The only instance in which
employers can make a request other than through the state is where the
state has chosen not to establish a mechanism for getting prompt
federal records checks accomplished. AlliedBarton fully supports
efforts to get more states to adopt such mechanisms. However, that will
take time; time during which we will continue to have a dangerous gap
in screening. HR 2703 does not preclude continuing efforts to work with
the states and ensures that, as those states come into compliance with
AG standards, employers will be required to go through them for the
record checks.
Guaranteeing Employee Protections
AlliedBarton's experience indicates that the protections afforded
to employees that Congress wisely included in the Private Security
Officer Employment Authorization Act have worked well to protect
important privacy rights, ensure the fairness of the process, and
support essential policies to promote appropriate re-entry of ex-
offenders. These protections are consistent with the recommendations in
the Attorney General's Report and include:
Written, informed consent of the employee
The opportunity for the employee to review the information
received
Specific qualifying crimes, where states do not have their
own standards
Criminal penalties for misuse of the criminal history
information
In addition, Allied supports the additional safeguards in HR 2703
to protect applicant rights and improve accuracy of NCIC records. HR
2703 adds a new section requiring the Attorney General to ensure that
there is a process whereby an employee subject to a request for a
National Crime Information Center criminal history records check will
have the opportunity to provide to the head of the National Crime
Information Center of the Federal Bureau of Investigation information
concerning the accuracy or completeness of such results.
The bill also imposes strict record management requirements to
protect confidentiality. Under these amendments, employers would be
required ensure that the results of the records search are maintained
confidentially and are not misused or disseminated to any person not
involved in the employment decision. It also requires that the results
of the search request are destroyed with one year unless a claim is
pending.
Moreover, HR 2703 limits reporting to convictions only. It deletes
the current language in the PSOEAA that allows employers to consider
arrests for which there has been no resolution for 365 days. In
addition, this version provides greater specificity in offenses,
ensuring their direct relevance to the position of private security
officer, replacing current broad language that includes any ``offense
involving dishonesty or a false statement.''
Conclusion
In conclusion, I want to thank you again for the opportunity to
testify today in support of HR 2703. It provides essential improvements
to the PSOEAA and I'm confident that these improvements in the
screening of private security officers--specifically by insuring
employers' timely access to FBI criminal records while preserving
employee rights--will make our nation safer.
endnotes
\1\ P.L. 108-458, section 6402.
\2\ References to ``employees'' in this statement should be
understood to also include applicants.
\3\ The National Commission on Terrorist Attacks on the United
States (``9/11 Commission''), The 9/11 Commission Report: Final Report
of the National Commission on Terrorist Attacks on the United States,
397-98 (July 2004).
\4\ United States Department of Justice, The Attorney General's
Report on Criminal History Background Checks (June 2006).
\5\ Id at 22.
\6\ Id at 87.
\7\ Id at 94.
\8\ Id at 88.
\9\ Id at 27.
\10\ Id.
______
Chairman Andrews. Well, thank you, Mr. Clarke.
And thank each of the witnesses for very edifying and
instructive testimony.
We do have issues and concerns about employee privacy
issues, and I would ask unanimous consent at this time to have
letters entered into the record from the National Employment
Law Project and the Service Employees International Union, so
that we may have their views, which will clearly be taken into
consideration if this process goes on, without objection.
[The statement of the National Employment Law Project
follows:]
------
[The statement of the Service Employees International Union
follows:]
------
Chairman Andrews. Mr. Clarke, I think that you answered a
question I was about to ask, but I want you to reiterate it.
Mr. Kennedy speaks of his concerns about the federalization of
the process of hiring private security guards, and the rule in
our country is that we don't have federal rules--federal rules
are the exception, not the rule. And it take exceptional
circumstances to have federal regulation in order to solve a
perceived problem.
What are the exceptional circumstances here that in your
view justifies a greater federal role in this process?
Mr. Clarke. Well, it is a varied rationale, Mr. Chairman.
First of all, that there is inconsistency within which the
states apply these standards. As Mr. Kennedy mentioned, there
are 40 states that have some type of process, but that process
varies from record checks to nothing more than a licensing
process that does not include record checks.
So when we were considering what is at risk and what the
American public expects when they go to a shopping mall or they
have their students enroll in a university or we have critical
petrochemical or pharmaceutical industries where private
security people are employed, that there should be some
national, some basic threshold that governs whether or not we
put people in these positions of trust.
So in the areas where states have regulations, we work with
those states and use those as the standards. It is only in the
places where states don't do the record checks or don't have
standards that we need to have some additional help to govern
what those standards should be.
Chairman Andrews. Mr. Ricci, is it my understanding that of
the nine companies that are a part of the association, you
represent that eight of them essentially agree with Mr.
Clarke's position? Is that correct?
Mr. Ricci. NASCO did not vote particularly on the H.R.
2703. What we did is, we passed a resolution by majority in the
fall that look at the issues associated with the bill and
really supporting the idea of creating a third party entity as
approved by DOJ. And I am looking at things such as
disqualifying offenses and mandatory turnaround times and
really working with your office and with other legislators to
handle those issues.
So there were some votes done, but we usually have 17
members and they were not involved in that.
Chairman Andrews. I understand.
Mr. Kennedy, I want to ask you a question, and I very much
appreciate the constructive spirit of your testimony.
Let us take the scenario of hazardous medical waste, which
is generated a lot of different places around the country,
hospitals, research labs and whatnot. And almost always the
institutions that generate this waste use private security
guards to guard their facilities.
The theft of a fairly small amount of hazardous medical
waste could make a dirty bomb. It is a very real and present
concern.
In a state that has opted not to be part of the federal
system and that has opted not to require security companies to
do background checks on their security guards, why shouldn't we
pass a federal law that requires that hospital or that medical
institution to have background checks of the security guards
that are guarding that hazardous medical waste? Why shouldn't
we do that?
Mr. Kennedy. Mr. Chairman, that is an extremely complex
issue, as I am sure you understand.
Chairman Andrews. Yes.
Mr. Kennedy. There are some states that have been long
involved in administration of their own internal processes with
regard to licensing, et cetera.
Chairman Andrews. Right.
Mr. Kennedy. It is true, of course, that we have 10 states
that do not currently have a licensing procedure for private
security individuals.
Our company and many others in our industry--however, not
unanimously--conduct extremely thorough background
investigations on the individuals being employed. We believe at
our company we have the most comprehensive system to do that.
Mr. Clarke mentioned that there are 3,000 counties in the
United States and that there is no current system to have a
check of all 3,000 counties to determine whether or not a
criminal record may exist on an individual throughout the
United States.
Your bill would cure that problem, but it would impose
federalization of those standards on states, all of the states,
all 50.
Chairman Andrews. But how about the specific question I
asked. Is it your answer that we shouldn't impose the
requirement to get that background check done because it is too
complicated? Because it can't be done? What is the answer? Is
your answer yes or no?
Mr. Kennedy. My answer is no, we should not, because it
imposes on the states' rights.
Chairman Andrews. Okay.
Mr. Kennedy. In England, for example, they have a statute
that you are talking about. It is a very----
Chairman Andrews. England is not a perfect world in any
sense of----
Mr. Kennedy. No, it isn't. But they have a very----
Chairman Andrews. Look, what we could tell you to do here
is to balance these concerns. And clearly, as I said a few
minutes ago, the general rule in American law is that states
decide things under the 10th amendment. The exception is that
we do.
I am more inclined to agree with Mr. Clarke, that this is
one of those exceptional circumstances because of the
relationship between guarding the critical infrastructure. But
certainly we do understand that cost, the complexity, the other
balancing issues, and we all take them into consideration.
Mr. Kline?
Mr. Kline. Thank you, Mr. Chairman.
Thank you, gentlemen and lady, for your testimony, it is
excellent, as we try to make sure we are approaching what
appears to be a shortfall in the 2004 law in a reasonable way.
Mr. de Bernardo, you seem in your testimony, written and
oral here, to support mandated background checks for security
personnel. Am I right in that reading?
Mr. de Bernardo. You are correct, yes.
Mr. Kline. So let us explore that a little bit here to make
sure we don't overreach.
In the examples that the chairman has given today, I don't
think there is any question that we want those security guards
to have a pretty thorough background check, armed guards at
nuclear power plants, perhaps people where there is hazardous
waste, whether it is nuclear or medical or something.
But the term ``security guard'' is pretty broad. There are
people involved in security that are in parking lots, maybe
they are making sure that thinks aren't pilfered from dressing
rooms and so forth. We are talking about a lot of people here.
Is it your testimony and your view that all of those people
should have mandated background checks? Every employer who
hires anybody who could be involved in that security business
would be required to have a background investigation?
Mr. de Bernardo. Well, Mr. Kline, we would find that
acceptable.
Normally, the CELE, the employer community in general, is
not going to be in favor of mandates, as you well know. But,
you know, there are some issues that are so important and as a
practical matter, two things.
Number one, I think the overwhelming majority of employers
are doing criminal background checks for people who are in
security positions. And, secondly, if they are not, they
should, you know, given the potential liabilities. In our
litigious society, one of the things that is discussed in our
testimony, is the fact that negligent hiring, negligent
retention lawsuits, there has been explosive growth in this
regard.
I think that it is unwise for employers to hire people in
security positions, or any positions where there are at-risk
populations that would be affected by having a criminal in that
position.
One of the long sections of our testimony discusses
criminal recidivism. There is absolutely no question that
someone who has a criminal conviction in their background, no
matter when it was, is more likely to commit a crime again than
a normal citizen. Those getting out of prison are 53 times--no
matter what their conviction was for--are 53 times more likely
to commit a homicide than a normal American citizen.
In fact, the recidivism rate, unfortunately, it is a
tragedy in America, is as high as 80 percent. Eighty percent of
those people who have had criminal convictions in the past, as
many as 80 percent, are likely to be convicted of a crime
again.
Mr. Kline. You are not arguing, though, if I may interrupt,
you are not arguing for mandated background checks on every
employee? Is that right? Or are you? Somebody who works a cash
register----
Mr. de Bernardo. No, absolutely not.
Mr. Kline. There is liability there. You know, greeters.
Mr. de Bernardo. I think it should be up to the employer,
okay, in the----
Mr. Kline. That is what I am getting at. If it is going to
be up to the employer, who is determining who gets the
background investigation? Is this somebody who is responsible
for making sure that things aren't taken from dressing rooms or
is this somebody who is guarding nuclear waste? Or does it
matter? Again, in your view, does it matter?
Mr. de Bernardo. I think that is a sort of simplistic
approach. You----
Mr. Kline. I am not a lawyer. I am kind of a simplistic
guy, Mr. de Bernardo, so that happens.
Mr. de Bernardo. No offense intended.
We are not talking about people that are guarding
restrooms. We are talking about people who----
Mr. Kline. I am trying to get at, should we be careful
about how we define security guard in this legislation. You
know, it is our job to do a balance here, as the chairman says,
and to make sure that we are not overreaching and we are not
creating something that is going to turn out to be very, very
difficult for employers to enforce. So I am just asking, should
we pull in the definition of security guard, or not?
Mr. de Bernardo. If there is a sensible definition of
security guards that makes sense, then we would favor that,
sure.
Mr. Kline. Thank you.
I yield back.
Chairman Andrews. Mr. Hare?
Mr. Hare. Thank you, Mr. Chairman.
Mr. Ricci, in your testimony you were citing findings from
a 2004 review of records for applicants that applied for guard
positions in my home state of Illinois. The review found that
the FBI criminal history checks provided serious criminal
information four times more frequently than the state-wide
check.
I wonder, what information could be overlooked when private
security employers have access to state criminal history
records only and what limitations the state checks in providing
a complete record of applicants criminal history are involved
here?
Mr. Ricci. I think you are referring to, typically, when a
state licenses security, much like Illinois does, they check
the state record. So they will check any criminal activity that
may be in the state record depositories as well as looking at
where an applicant may say they lived within that state.
But the information that is lacking is anything that may
have happened in another state. It could be a neighboring
state. It could be a state that they used to live in. It could
be a state they vacation in, perhaps. Or it could be a federal
offense. And none of those would be reported through the state
process.
So when you refer to that Illinois study, what it said was
when they started to implement these checks, they started to
uncover people that had cleared through the state check but
were getting results from the federal check, and I think that
is really important.
I cited California as well, that since that time those
percentages of security officers that have been denied based on
criminal activity have gone done, because some of it is
deterrent, if they know the federal checks are going to be done
in those particular states, as they are also done in the state
of New Jersey and the state of Minnesota, in a different form.
They all check federal criminal records checks, and so there is
a form of deterrence there as well.
Mr. Hare. And just for the panel, and anybody is welcome to
respond to this, a lot of you acknowledged that states face
considerable challenges in efforts to implement timely
processing of criminal background checks, such as lack of
financial resources, adequate staff, combined with large
volumes of request.
I am wondering, A, has this interfered with the compliance
of the Private Security Officer Employment Authorization Act?
And/or how can the federal government ease the burden of the
states?
Ms. Uzzell. From the states that I have spoken to, as I
said in my testimony, the suitability criteria and making that
determination and adjudicating the results at the state
repository, if you don't mind my expression, is the gorilla in
the middle of the room. It is difficult for them to have the
resources, not only--they all process the fingerprint cards.
That is their job. They will send the information up to the FBI
and get the results back. And then the office will get--40
percent of the records in 2009 will be decentralized at the
state. They will no longer be kept at the FBI, because that is
the rule of the compact.
But I think the other piece to this is that when they get
the records back, it is not really the state repository's role
to review the records, locate missing dispositions and suitable
screen, handle appeals and process that function. So if the
records were allowed to be passed back to the entity that was
making the decision, closest to the decision-making authority,
then I think the states would more likely say, yes, more states
that do not regulate, and you pass the records back, we all do
these checks.
We all get the records through the state repository first
and get a better check, and then we all give the records back
to the employment agency so they can screen under the criteria
that you, as Congress, determine, with privacy protections in
place.
So I do truly believe that if that was put in as part of
this legislation, that I think it would be a help to the states
to actually do it.
Mr. Hare. Anybody else?
Mr. Kennedy. Yes, sir.
In the past, when the FBI was trying to modernize the
criminal history system and go from the card, the fingerprint,
10-point print card, submitting that hard card to the FBI and
switching over to an electronic method, many, many states chose
to do that immediately because it was more efficient, they had
the resources to do it.
But there were a number of states--in fact, I would want to
suggest that it might be the same 10 states we are talking
about here, who chose not to do that initially. There were
statutes enacted, enabling a federal funding process for states
that chose to make such an application in order to build and
construct that capability within their state system.
I would suggest something along those lines might be
attractive to the states. Again, that suitability issue still
is the big gorilla in the room, but at least that would
possibly encourage those states who do not do any regulatory
processes on security guard personnel, they might be encouraged
to do so.
Mr. Hare. Thank you.
Mr. Ricci?
Mr. Ricci. As we mentioned in our testimony, we support the
creation of a third-party entity to assist with both the
transaction of the electronic fingerprint, but also in the
suitability screening. We believe that a third-party agency
could help in the screening.
Part of the complication there, as we mentioned, there are
40-plus states that have some type of licensing or registration
criteria. Those disqualifying offenses vary by state. So it
would be incumbent upon this third-party channeler to be
involved in that process of looking through those criteria and
assisting with the screening and suitability studies.
Mr. Hare. Thank you very much.
I yield back, Mr. Chairman.
Chairman Andrews. I thank the gentleman for yielding.
Mr. Kline, do you have any concluding comments for today?
Mr. Kline. Thank you, Mr. Chairman.
I just want to say thanks. Excellent two panels, real
expertise here. It is always a pleasure when we have a panel of
witnesses like this as we are really trying to dig into the
bottom and make sure we are producing good law here. So thanks
to all of you very much.
And thanks to you, Mr. Chairman.
Chairman Andrews. Thank you.
I would like to associate myself with Mr. Kline's remarks.
This was an excellent panel, as was Mr. Campbell's testimony in
the first panel.
Our objective is to learn more about this issue and write a
good law, should one be necessary. And is usually the case, an
excellent panel raises more questions than it answers, which is
good for us.
We are going to call upon each of the six of you that
testified today for further input.
Here is where I would like to see us go, to go back to my
hypothetical scenario of the person guarding the hazardous
medical waste. I would like to be sure that he or she has
passed a background check, that the person is not a felon or a
terrorist. I would like to be 100 percent sure that is the
case, to the extent that we can be.
I would also like to be sure that we are sure that that
record is about that person, that there wasn't a mistaken
record that unfairly deprives someone of a job or of an
employment opportunity because the record was wrong. I would
also like to be sure that the person holding that background
check information is under very strict legal requirements not
to share it with someone unlawfully or unfairly. I would like
to be sure that employers are given meaningful and practical
ways of accessing this information that are not unduly costly.
I would like to be sure that states are given similar
flexibility and reasonableness as well.
So all of this is easier said than done, but I think that
you have given us a roadmap to answer those questions and get
this done.
Look, one of the many lessons that I learned from 9/11 is
that we have an adaptive enemy who is looking for our
vulnerabilities, and you know we focused on our vulnerability
after we have been attacked. And we spent a lot of time on the
airline industry in this Congress since then, as we well should
have.
But I suspect that we are dealing with a terrorist enemy
that is spending time in areas that we are not spending time
in. And I do think it is incumbent upon all aspects of our
national governance to think that through. Not in an
environment of paranoia, but in a careful, methodical way that
gets several steps ahead of those who would do us harm.
I am glad we live in a country where 85 percent of the
critical infrastructure is guarded by private concerns. I don't
want to live in a state economy where the government owns and
controls everything of any value. I am glad that we live in
such a country. But I do acknowledge that in such a system,
because we have grown up in peace in this country, the idea
that we would have this kind of organized attack on our soil
was incomprehensible to us just a few years ago. The fact that
we have a patchwork quilt of laws, that we clearly have gaps in
our system, I think imposes upon us to take a rational, careful
approach to fixing the problem.
Ms. Uzzell, I would compliment your colleagues in
particular for the work you are doing in the states on this
issue. And by no means do I mean today's hearing to suggest
that we think the states have failed. That is not true at all.
A more accurate statement is we want every state to hit the
level of success that the best states have hit. We want every
private security company to hit the level of success that the
representatives of the two companies here have hit and I think
the association has largely hit.
I just want to make one final comment, that this is
obviously not a hearing getting a huge amount of press
attention. I am glad. And the reason I say that is that I
assure you, if, God forbid, we had a terrorist attack that
could trace its roots to stolen medical waste that made a dirty
bomb and that the material was stolen because we had
coconspirators working on the inside as private security
guards, we would fill the room. I never want the room to be
filled. I want us to think ahead, to use the most intelligent,
legal methods available to us to prevent that from ever
happening.
So you have made an excellent contribution to this today,
each of the six of you. We appreciate that.
I now want to read my little script here, that says, ``As
previously ordered, members will have 7 days to submit
additional materials for the hearing record.'' That also
includes witnesses, should you choose to do so. And any member
who wishes to submit follow-up questions in writing to the
witnesses should coordinate with the majority staff within 7
days.
With that said and without objection, the hearing is
adjourned.
[Follow-up comments from Mr. Kennedy follow:]
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[Whereupon, at 11:48 a.m., the subcommittee was adjourned.]