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February 4, 2013

Cities, Counties, and Special Districts Must Furnish Copies of Criminal Record Information That Is a Basis for an Adverse Employment Decision


Penal Code section 11105, subdivision (b)(11) requires the Attorney General (a term used interchangeably with DOJ) to furnish state summary criminal history information to various local agencies, including any “city,” “county,” and “district.” The Attorney General furnishes this information if it is needed in the course of an agency’s or official’s duties, as when fulfilling employment, certification, or licensing duties, and access to the information is specifically authorized by the governing board of the agency because the criminal history information is required to implement a statute, ordinance, or regulation. 

An amendment to Penal Code section 11105 took effect January 1, 2013, pursuant to Assembly Bill 2343.  Among other revisions, new subdivision (t) of Penal Code section 11105 provides:

Whenever state or federal summary criminal history information is furnished by the Department of Justice as the result of an application by an authorized agency, organization, or individual defined in subdivisions (k) to (p), inclusive, and the information is to be used for employment, licensing, or certification purposes, the authorized agency, organization, or individual shall expeditiously furnish a copy of the information to the person to whom the information relates if the information is a basis for an adverse employment, licensing, or certification decision.  When furnished other than in person, the copy shall be delivered to the last contact information provided by the applicant. (Emphasis added.)

First, this new subdivision is applicable to those public entities who obtain such criminal history information from the DOJ for peace officer employment purposes.  Specifically, subdivision (k) applies to an “authorized agency or organization” that obtains state or federal criminal history for use in “peace officer employment or certification purposes.”

Apart from the limited scope of subdivision (k) as it applies to public entities in peace officer employment matters, the issue of whether the new subdivision also applies to cities, counties and special districts when obtaining criminal history information from the DOJ for non-peace officer employment purposes is not as clear.  Cities, counties, and special districts are not “authorized agencies” as defined in the remaining subdivisions (k) through (o) of section 11105. However, subdivision (p) applies “whenever state or federal criminal history information is furnished by the Department of Justice as the result of an application by an agency, organization, or individual not defined in subdivision (k), (l), (m), (n), or (o), or by a transportation company authorized pursuant to Section 11105.3, or any statute that incorporates the criteria of that section or this subdivision by reference, and the information is to be used for employment, licensing, or certification purposes.” (Emphasis added.) While the language of the section 11105 does not provide a clear definition of “agency” for purposes of interpreting subdivision (p), section 11102(a)(2) in the same chapter of the Penal Code provides some guidance based on its definition of “agency” as “any public or private entity that received criminal history information from the Department of Justice.” While subdivision (p) may yet be clarified by the courts or by subsequent legislative amendment, we currently believe that cities, counties, and special districts are “agencies” for purposes of this subdivision. 

Accordingly, cities, counties, and special districts must comply with subdivision (t), effective immediately, by furnishing a copy of criminal record information to an applicant or employee to whom the information relates, if the information is a basis for an adverse employment decision.  In other words, an applicant who is not hired, or an employee who is disciplined or released from employment, because of the criminal record information supplied by the DOJ must be given a copy of the information. Because the statute provides for furnishing the information if it is “a basis,” rather than “the basis,” for the adverse employment decision, the criminal background information need not be the sole reason for the decision. If the decision is based in any part on the criminal background information, the information must be provided to the individual to whom it relates.

The information may be furnished in person or “delivered” to the last contact information provided by the individual.  If the information is given in person, we recommend obtaining the individual’s signature affirming receipt, or completing a proof of service form under penalty of perjury.  If the information is sent by mail, we recommend certified mail, return receipt requested.

This amendment does not authorize criminal background information to be shared with anyone other than the person to whom the information relates.  All such information should continue to be treated as confidential.

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