Submitted By: Patrick G. Gilligan
presenter
Presentation By: Robert Batsel Jr.
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Department: City Attorney
STAFF RECOMMENDATION (Motion Ready):
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Adopt Ordinance 2022-33 that enables the City to conduct criminal background checks on employees, appointed positions, and third parties doing business with or in the City of Ocala where the City determines such screenings are necessary for security or public safety reasons. This ordinance is authorized by Florida Statute, § 166.0442.
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OCALA’S RELEVANT STRATEGIC GOALS:
Quality of Place, .
PROOF OF PUBLICATION:
4/8/2022 - 29655134
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BACKGROUND:
It is critical to the security/public safety of the citizens of the City of Ocala that criminal background investigation is done for those seeking employment as well as those currently employed by the City.
FINDINGS AND CONCLUSIONS:
A criminal background investigation for those applying to the City for employment or appointment with the City is currently being done. This ordinance brings the current practice into compliance with Florida Statute, § 166.0442 that enables such background checks. This ordinance also allows the City, at its option, to do similar checks on any private contractor, employee of a private contractor, vendor, repair person, or delivery person who is subject to licensing or regulation by the municipality; or any private contractor, employee of a private contractor, vendor, repair person, for-hire chauffeur, or delivery person who has direct contact with individual members of the public or access to any public facility or publicly operated facility in such a manner or to such an extent that the governing body of the municipality finds that preventing unsuitable persons from having such contact or access is critical to security or public safety.
FISCAL IMPACT:
The cost of the background checks. These are done in-house by the Ocala Police Department.
PROCUREMENT REVIEW:
N/A
LEGAL REVIEW:
This ordinance has been prepared by Assistant City Attorney Patrick G. Gilligan.
ALTERNATIVE:
Not do criminal background checks.
AUTHORITY:
Florida Statute, § 166.0442.
ORDINANCE 2022-33
AN ORDINANCE OF THE CITY OF OCALA, FLORIDA, CONCERNING CRIMINAL HISTORY SCREENING FOR PROSPECTIVE AND CURRENT EMPLOYEES IN POSITIONS THAT ARE CRITICAL TO SECURITY OR PUBLIC SAFETY AND FOR ANY PRIVATE CONTRACTOR, EMPLOYEE OF A PRIVATE CONTRACTOR, VENDOR, REPAIR PERSON, OR DELIVERY PERSON WHO IS SUBJECT TO LICENSING OR REGULATION BY THE CITY; OR ANY PRIVATE CONTRACTOR, EMPLOYEE OF A PRIVATE CONTRACTOR, VENDOR, REPAIR PERSON, FOR-HIRE CHAUFFEUR, OR DELIVERY PERSON WHO HAS DIRECT CONTACT WITH INDIVIDUAL MEMBERS OF THE PUBLIC OR ACCESS TO ANY CITY FACILITY OR CITY OPERATED FACILITY IN SUCH A MANNER OR TO SUCH AN EXTENT THAT THE CITY COUNCIL FINDS THAT PREVENTING UNSUITABLE PERSONS FROM HAVING SUCH CONTACT OR ACCESS IS CRITICAL TO SECURITY OR PUBLIC SAFETY; PROVIDING FOR FINDINGS; ADDING NEW SECTIONS 2-195 AND 2-196; PROVIDING FOR A DESCRIPTION OF THE USE OF THE CRIMINAL HISTORY SCREENING RECORD INFORMATION; PROVIDING FOR PERSONS WHO WILL HAVE ACCESS TO THE CRIMINAL HISTORY RECORD INFORMATION; PROVIDING THAT THE CRIMINAL HISTORY SCREENINGS SHALL NOT SUPERSEDE OR REPLACE ANY OTHER EMPLOYEE BACKGROUND SCREENING; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ALL CONFLICTING ORDINANCES AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS:
A. As provided in Section 2(b), Article VIII of the Constitution of the State of Florida, and Florida Statute, §166.021(1), the City of Ocala (the “City”), enjoys all governmental, corporate, and proprietary powers necessary to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except as expressly prohibited by law.
B. As provided in Florida Statute, §166.021(3), the governing body of each municipality in the state has the power to enact legislation concerning any subject matter upon which the state legislature may act, except when expressly prohibited by law.
C. As provided in Florida Statute, § 166.0442(1)(a), the City may require, by ordinance, state and national criminal history screening for: “any position of municipal employment or appointment, whether paid, unpaid, or contractual, which the municipality finds are critical to security or public safety”.
D. As provided in Florida Statute, § 166.0442(1)(b), the City may require, by ordinance, state and national criminal history screening for: “any private contractor, employee of a private contractor, vendor, repair person, or delivery person who is subject to licensing or regulation by the municipality”.
E. As provided in Florida Statute, § 166.0442(1)(c), the City may require, by ordinance, state and national criminal history screening for: “any private contractor, employee of a private contractor, vendor, repair person, for-hire chauffeur, or delivery person who has direct contact with individual members of the public or access to any public facility or publicly operated facility in such a manner or to such an extent that the governing body of the municipality finds that preventing unsuitable persons from having such contact or access is critical to security or public safety”.
F. Council finds that the City employs a multitude of positions, which, due to factors including, without limitation, access to sensitive areas or information; working with juveniles, the elderly, and other potentially vulnerable persons; access to private homes and property; and the possibility of tampering with water, electricity, natural gas or other utility facilities or infrastructure; are critical to security or public safety.
G. Council has concluded that, due to the various factors mentioned above, it is in the best interests of the public to require state and national criminal history screening for any persons employed or appointed for employment by the City.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OCALA, FLORIDA, in regular session as follows:
Section 1. The foregoing recitals are hereby ratified and confirmed as being true and correct and are hereby made a part of this ordinance.
Section 2. That the Code of Ordinances, City of Ocala, Florida, is hereby amended by adding a section to be numbered 2-195, which section reads as follows:
Sec. 2-195. Criminal history record checks for city employees and appointees.
(a) It is hereby found by the city council that all employment positions are critical to the security or public safety of its citizens and visitors.
(b) City council may adopt a resolution exempting certain employment positions that it finds are not critical to the security or public safety and not appropriate for criminal history screenings. City council may update and amend this designation by resolution from time to time.
(c) Pursuant to Florida Statute, §166.0442, any person applying for, or continuing employment or appointment in any employment position, unless designated by resolution as set forth in subsection (b) must, upon request, timely submit identifying information, including two sets of their fingerprints to the city police department. Upon receipt, the city police department will transmit this information to the Florida Department of Law Enforcement (“FDLE”) for a state criminal history record check and to the Federal Bureau of Investigation (“FBI”) for a national criminal history record check.
(d) The city will use the information obtained pursuant to subsection (c), or a failure to comply with subsection (c), to evaluate the subject person’s eligibility for employment or appointment with the city, which may result in a denial of an application or termination of employment or appointment, or any other action the city believes is necessary for security or public safety.
(e) The city will, upon request from any person subject of a criminal history screening pursuant to subsection (c) and after payment by such person of all reasonable applicable costs, furnish a copy of the related criminal history record to such person. The city will not be responsible for correcting any alleged or actual errors in such report and will not make any amendments or corrections to same unless notified or instructed by the appropriate law enforcement agency.
(f) The provisions of this Section are in addition to, and shall not supersede or replace, any other background screening, including without limitation criminal history background checks, which the city may lawfully undertake.
Section 3. That the Code of Ordinances, City of Ocala, Florida, is hereby amended by adding a section to be numbered 2-196, which section reads as follows:
Sec. 2-196. Criminal history record checks for third parties doing business for or in the city.
(a) It is hereby found by the city council that there are:
1. private contractors, employees of a private contractors, vendors, repair persons, or delivery persons and who are subject to licensing or regulation by the city; or
2. private contractors, employees of a private contractors, vendors, repair persons, for-hire chauffeurs, or delivery persons who have direct contact with individual members of the public or access to any public facility or publicly operated facility in such a manner or to such an extent that the city finds that preventing unsuitable persons from having such contact or access is critical to security or public safety; and
therefore, the city may require criminal history records checks of such persons for the protection of its citizens and visitors.
(b) City council shall designate pursuant to a duly adopted resolution all third-party positions identified in subparagraph (a) above that will require criminal history records checks that are private contractors, employees of a private contractors, vendors, repair persons, or delivery persons and who are subject to licensing or regulation by the city, or that are critical to the security or public safety and appropriate for criminal history screenings. City council may update and amend this designation by resolution from time to time.
(c) Pursuant to Florida Statute, §166.0442, any third-party in a position designated by City council resolution as in subparagraph (b) above must, upon request, timely submit identifying information, including two sets of their fingerprints to the city police department. Upon receipt, the city police department will transmit this information to the Florida Department of Law Enforcement (“FDLE”) for a state criminal history record check and to the Federal Bureau of Investigation (“FBI”) for a national criminal history record check.
(d) The city will use the information obtained pursuant to subsection (c), or a failure to comply with subsection (c), to evaluate the subject person’s licensing eligibility or access to certain public facilities, and which may result in a denial of an application or termination of accessibility to public facilities, or any other action the city believes is necessary for security or public safety.
(e) The city will, upon request from any person subject of a criminal history screening pursuant to subsection (c) and after payment by such person of all reasonable applicable costs, furnish a copy of the related criminal history record to such person. The city will not be responsible for correcting any alleged or actual errors in such report and will not make any amendments or corrections to same unless notified or instructed by the appropriate law enforcement agency.
(f) The provisions of this Section are in addition to, and shall not supersede or replace, any other background screening, including without limitation criminal history background checks, which the city may lawfully undertake.
Secs. 2-197-2-210. - Reserved.
Section 4. Severability Clause. Should any provision or section of this ordinance be held by a court of competent jurisdiction to be unconstitutional or invalid, such decision shall not affect the validity of this ordinance as a whole, or any part thereof, other than the part so declared to be unconstitutional or invalid.
Section 5. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
Section 6. This ordinance shall take effect upon approval by the Mayor or becoming law without such approval.
ATTEST: CITY OF OCALA
By: By:
Angel B. Jacobs Ire Bethea Sr.
City Clerk President, Ocala City Council
Approved/Denied by me as Mayor of the City of Ocala, Florida, on __________________, 2022.
By: __________________________________
Reuben Kent Guinn
Mayor
Approved as to form and legality:
By: _________________________________
Robert W. Batsel Jr.
City Attorney
Ordinance No: 2022-33
Introduced: 4/5/2022
Adopted: 4/19/2022
Legal Ad No: 4/8/2022 - 29655134