Beginning in the 1990s, the Oregon legislature began authorizing FBI fingerprint criminal history checks for school teachers. Over the years, this authority has expanded greatly to include most state agencies that grant licenses or hire employees in “sensitive” positions. In 2005, ACLU worked on omnibus legislation in this area (HB 2157). We supported certain provisions of that proposal because it included new uniform safeguards and due process protections for all persons subject to FBI background checks and maintained the requirement that the fingerprints be destroyed after the background check.
One important safeguard is that state law generally prohibits a state agency from automatically denying employment or licensing merely because of a prior conviction of a crime. Instead, it requires an evaluation that considers the nexus between the particular crime and the type of employment or state license sought, as well as when the crime occurred and consideration of other mitigating evidence submitted by the applicant. As more and more agencies have been given the authority to conduct nationwide criminal background checks, this “nexus” evaluation has been left to each agency and licensing board to administer. That increases the risk that different standards will be applied by different agencies. Even so, we prefer the current process over expanding the list of crimes that automatically disqualify many more people from future employment or licensing.
Despite passage in 2005 of omnibus legislation that we thought would settle these issues, this session brought more than a dozen new “fingerprint” proposals. ACLU testified on most of these bills, raising concerns and successfully obtaining amendments to clarify or qualify the expanded authority being sought. Two proposals, HB 2442 and HB 2988, were of great concern, and we spent significant time lobby these two bills.
Criminal History Background Checks – Fingerprint Retention (HB 2442). Sponsored by Rep. Sara Gelser (D-Corvallis), HB 2442 establishes a quality care fund and deals with many issues related to the state’s role in caring for vulnerable Oregonians in nursing homes, foster care facilities and in-home health care. While most of HB 2442 did not raise civil liberties issues, two sections in the original version of the bill did. The first would have authorized the Department of Human Services (DHS), which oversees the FBI criminal history checks on individuals who work in these facilities, to retain the actual fingerprint cards if the individual authorizes it.
This provision was intended to address a significant problem for this highly mobile workforce, since people may be subject to multiple FBI criminal history checks over the years when they change employers, costing money and possible delays in completing the background check. We strongly opposed this provision, as we have fought hard to ensure that the FBI and other government agencies not retain the fingerprints of individuals who have never committed a crime.
The other provision of HB 2442 that we opposed was the addition of more crimes that would automatically disqualify individuals from employment in nursing homes, foster care facilities and in-home health care. That would have prohibited any case-by-case evaluation of the person’s criminal history and employment history, preventing those who have truly reformed from being considered. While ACLU agrees that most of the crimes listed in HB 2442 are those for which the person would likely never be eligible for employment, we have and will continue to oppose an approach that eliminates the possibility of exceptions being made for individuals who have fully reformed from their past behavior.
Concern for civil liberties often does not follow party lines. In this case, some of our staunchest supporters were Republican members of the House committee where the bill was being heard. We were ultimately able to reach a compromise with the chief sponsor, Rep. Gelser, and the bill was amended to remove the provision on fingerprint retention. The list of crimes barring employment, although more limited, was retained in the final bill. It then passed both the House and Senate.
PARTIAL WIN: RETENTION PROVISION REMOVED BUT MANDATORY CRIMES RETAINED
Right to Travel: Toll Bridges (HB 3409, SB 580)
While ACLU does not have a position on the use of tolls to pay for bridges and highways, we are concerned when toll collection systems are put in place that could be used for surveillance. Oregon and Washington are considering eliminating the option of paying for tolls in cash on the planned Interstate 5 bridge between Vancouver and Portland. They may require all travelers to pay with “smart cards” or other electronic devices for toll payments. While we did not take a position on either HB 3409 or SB 580, we alerted legislators to our concerns. We are now working on this issue with the ACLU of Washington as plans for the new I-5 toll bridge move forward.