§ 3-1-23. Criminal history record check and fingerprinting; appointment to sensitive positions  


Latest version.
  • (a) Finding. The Board of Supervisors of Fairfax County, Virginia, hereby finds that it is necessary in the interest of public welfare and safety to determine whether the past criminal conduct of a person conditionally offered employment in a sensitive position in the County's competitive or exempt service is directly related to such position and would be compatible with the nature of such employment.

    (b) Intent. It is the intent of the Board of Supervisors in enacting this section to comply with the provisions of Va. Code Ann. §§ 15.2-1503.1, 15.2-1505.1 and 19.2-389(A)(7), as amended, to be able to access criminal history record information regarding those persons conditionally offered employment in sensitive positions in the County service in order to determine whether the past criminal conduct of such persons would be compatible with the nature of such employment. Further, the provisions of this section are intended to be in addition to, and not in derogation of all other federal and state statutes and County ordinances providing for access to criminal history record information concerning applicants for, and persons offered, positions in the County service, including, but not limited to, Va. Code Ann. §§ 18.2-389(A)(25) and 37.1-197.2, concerning direct consumer care positions assigned to the Fairfax-Falls Church Community Services Board.

    (c) Definitions.

    (1) As used in this section, a sensitive position is a position in the county service that meets one or more of the following criteria and is designated as such by the County Executive in accordance with the provisions of sub-section (e)(1)(A) of this section:

    (A) Where the employee is responsible for providing services to further the health, safety, and welfare of minors, persons with disabilities, the elderly, or other persons unable to care for themselves.

    (B) Where the employee, as part of his or her duties, must enter person's residences or businesses.

    (C) Where the employee has the capability of making changes to County technology systems,

    (D) Where the employee is employed in a position involved in water or wastewater treatment,

    (E) Where the employee is required as part of his or her duties to operate a vehicle requiring a Commercial Drivers License or an aircraft,.

    (F) Where the employee handles cash or has the ability to effect transfers of County funds or funds of others, or otherwise is accountable for County funds,.

    (G) Where the employee has access to public records, records containing personal information as defined in Va. Code Ann. § 2.2-3801(2), and/or records that are made confidential by state or federal statute,

    (H) Where the employee needs to enter secured County facilities, or

    (I) Where the employee is otherwise directly responsible for the health, safety, and welfare of the general populace and/or the protection of critical infrastructure.

    (2) As used in this section, the phrase conditionally offered employment shall include a conditional offer of initial employment in a sensitive position, a conditional offer to laterally transfer, promote, or demote an employee to a sensitive position, or the conditional offer of a sensitive position in the County's competitive service to an employee in its exempt service or of a sensitive position in the County's exempt service to an employee in its competitive service.

    (d) Policy. All persons conditionally offered employment in a sensitive position in the County service, shall as a condition of their employment, prior to the effective date of such employment, submit to fingerprinting and provide personal descriptive information to be forwarded to the Central Criminal Records Exchange and the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding them. All offers of employment in sensitive positions in sensitive positions are conditioned upon the person offered such employment submitting to fingerprinting and providing personal descriptive information as described above. Failure of the person conditionally offered employment in a sensitive position to submit to fingerprinting and to provide personal descriptive information shall disqualify the person from employment in the position.

    (e) Responsibilities.

    (1) The County Executive:

    (A) After consultation with the Human Resources Director and department heads, shall establish and maintain the list of sensitive positions that are subject to the provisions of this section. He or she may list a position as a sensitive position by job classification under the County's Classification Plan, by the department or sub-division of the department to which the position is assigned, by work location, by position number, or any combination thereof. The County Executive may, from time to time, as may be necessary, add or remove positions from the list of sensitive positions.

    (B) Unless and until removed from the list of sensitive positions by the County Executive, those positions listed in the former version of this section under sub-section (a), as reflected in Ordinance 48-92-3, as amended by Ordinance 12-99-3, shall be deemed sensitive positions on such list.

    (C) Shall receive the report from the Central Criminal Records Exchange concerning whether the person conditionally offered employment has no criminal history record information or the record of criminal history information. He or she may designate the Human Resources Director to receive such reports.

    (2) The Human Resources Director shall:

    (A) Ensure that the class specifications, position descriptions, and announcements of sensitive positions reflect that the positions are sensitive positions that are subject to the provisions of this section; provided, however, that his or her failure to do so shall not change the status of the position as a sensitive position subject to the provisions of this section.

    (B) Upon receipt of the report from the Central Criminal Record Exchange concerning a person conditionally offered employment that indicates that the person has a criminal history record, and after consulting with the appointing authority, determine whether the conviction or convictions on the record directly relate to the sensitive position, whether the past criminal conduct contained in the record is compatible with the nature of the employment in the sensitive position, and whether such conviction or convictions disqualifies the person from employment in that sensitive position. In determining whether a criminal conviction directly relates to a sensitive position, the Human Resources Director shall consider the following criteria:

    (i) The nature and seriousness of the crime,

    (ii) The relationship of the crime to the work to be performed in the position applied for,

    (iii) The extent to which the position applied for might offer an opportunity to engage in further criminal activity of the same type as that in which the person had been involved,

    (iv) The relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the position being sought,

    (v) The extent and nature of the person's past criminal activity,

    (vi) The age of the person at the time of the commission of the crime,

    (vii) The amount of time that has elapsed since the person's last involvement in the commission of a crime,

    (viii) The conduct and work activity of the person prior to and following the criminal activity, and

    (ix) Evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release.

    (C) Notify in writing all persons who are denied employment in a sensitive position because of the information appearing in his or her criminal history record that information obtained from the Central Criminal Records Exchange contributed to such denial and inform him or her of his or her right to obtain a copy of his or her criminal history record from the Central Criminal Records Exchange.

    (D) Shall issue procedural instructions and promulgate all forms necessary to carry out the provisions of this section.

    (3) Department heads shall:

    (A) Upon making a conditional offer of employment in a sensitive position, notify the County Executive, or his or her designee, and the Human Resources Director, or his or her designee, of the extension of such offer; provided, however, that his or her failure to do so shall not change the status of the position as a sensitive position subject to the provisions of this section.

    (B) Upon making a conditional offer of employment in a sensitive position, inform the offeree in writing that he or she must, as a condition of employment, submit to fingerprinting and provide personal descriptive information to be forwarded along with the applicant's fingerprints to the Central Criminal Records Exchange and the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding him or her; provided, however, that his or her failure to do so shall not change the status of the position as a sensitive position subject to the provisions of this section.

    (f) Nothing in this section shall be construed as prohibiting the voluntary disclosure by an applicant for a sensitive position of his or her criminal history record information and information relevant to the criteria set forth in sub-section (e)(2)(B) during the application, examination, certification, and selection processes, or prohibiting the solicitation of such voluntary disclosure by applicants. (48-92-3; 12-99-3; 5-04-3.)