Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
18A.095,
131.032,
131.081,
131.130,
131.190,
131.990
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
42.014 requires the Office of the Secretary
to establish internal organization, functions and duties as necessary to
fulfill the duties of the cabinet.
KRS
131.032(2) requires the
Department of Revenue to promulgate administrative regulations to establish
requirements concerning criminal background investigations for employees,
including contract staff, with access to or use of federal tax information
(FTI). This administrative regulation establishes the guidelines to implement
the requirements set forth in
KRS
131.032 and Internal Revenue Service (IRS)
Publication 1075.
Section 1.
Definitions.
(1) "Applicant" means an
individual who applies for employment with the Finance and Administration
Cabinet, Department of Revenue, or a contractor working on behalf of those
agencies who have, or will likely have, access to federal tax information in
their regular course of business.
(2) "Classified employee" is defined by
KRS
18A.005(7).
(3) "Contract Staff" means an individual
employed with the Finance and Administration Cabinet, Department of Revenue, or
a contractor working on behalf of those agencies who does not meet the
definition of a classified employee with KRS Chapter 18A status.
(4) "Criminal background investigation" means
a local, state, or national fingerprint-supported criminal history background
investigation performed in accordance with
KRS
131.032.
(5) "Department" is defined by
KRS
131.010(2).
(6) "Disqualifying offense" means a
conviction, plea of guilty, Alford plea, or plea of nolo contendere to any
felony, misdemeanor, or offense the nature of which indicates that the employee
constitutes an unreasonable and immediate risk to the security of FTI or
confidential taxpayer information, unless the department determines there are
mitigating circumstances that sufficiently remediate the existing
risks.
(7) "Federally funded
time-limited employee" is defined by
KRS
18A.005(15).
(8) "Federal tax information" or "FTI" means
a return or return information received directly from the IRS or obtained
through an authorized secondary source, such as the Social Security
Administration (SSA) or any entity acting on behalf of the IRS pursuant to an
Internal Revenue Code (IRC) Section 6103 (p)(2)(B) Agreement.
(9) "Responsible agency" means an office
within the Cabinet, Department, or an entity under contract with the cabinet or
department, that employs or offers employment to an individual in a position
for which the job duties include access to FTI.
(10) "Unclassified employee" means an
employee who meets the criteria established in
KRS
18A.115.
Section 2. Requirement for Criminal
Background Investigations.
(1) The cabinet,
department, or responsible agency shall require prospective or current
employees, including contract staff, whose job duties include access to FTI, to
submit to a fingerprint-based local, state, or national criminal background
investigation as a condition of initial or continued employment:
(a) After the individual is offered a job but
before they begin working; and
(b)
At least one (1) time every five (5) years thereafter.
(2) The cabinet, department, or responsible
agency that requests a fingerprint-based local, state, or national criminal
background investigation on behalf of a prospective or current employee shall
incur all fees associated with the cost of each background investigation
requested.
(3) The cabinet,
department, or responsible agency shall not employ any person in a position for
which job duties include access to FTI or confidential taxpayer information if
the individual refuses to consent to a fingerprint-based state or national
criminal background investigation.
(4) The cabinet, department, or responsible
agency shall notify each prospective or current employee determined to have a
disqualifying offense.
Section
3. Disqualification. The cabinet, department, or responsible
agency shall not employ or offer employment to an individual with a
disqualifying offense listed in Section 1 of this administrative regulation or
whose background investigation reveals any factor that bears upon the fitness
of the individual to work in a position with access to FTI or confidential
taxpayer information. The department shall have the sole discretion to
determine if a prospective or current employee of the department is suitable to
work in a position with access to FTI or confidential taxpayer information to
ensure its protection and security in accordance with
KRS
131.190, IRS Publication 1075, and Finance
and Administration Cabinet Standard Procedure 6.1.2 entitled "Confidentiality
of State and Federal Information".
Section
4. Individuals Ineligible to be Hired. The cabinet, department, or
responsible agency may refuse to employ, contract with, or permit to work as an
employee, any applicant that submits to a background investigation if one. (1)
or more of the following conditions apply:
(1) The applicant refuses to provide photo
identification;
(2) The applicant
fails to submit their fingerprints at an authorized collection site as
directed, within five (5) business days of being offered employment;
(3) Upon completion of the criminal
background investigation, the cabinet or department receives notice that the
applicant is found to have a disqualifying offense; or
(4) Final and acceptable disposition of a
criminal charge or offense related to a disqualifying offense is not provided
to the department within sixty (60) days of fingerprint
submission.
Section 5.
Notice of a Disqualifying Offense and Appeals - Applicants.
(1) The cabinet, department, or responsible
agency shall notify applicants determined to have a disqualifying
offense.
(2) If an applicant wishes
to obtain information concerning the disqualifying offense or challenge the
accuracy of a criminal background investigation, the department shall refer the
individual to the appropriate state or federal law enforcement
agency.
Section 6. Notice
of a Disqualifying Offense and Appeals - Current Employees.
(1) A current employee with classified status
found to have a disqualifying offense upon completion of the criminal
background investigation may be:
(a)
Immediately removed from duties with access to FTI or confidential taxpayer
information;
(b) Immediately placed
on administrative leave pending an internal review of the disqualifying
offense; or
(c) Dismissed from
employment if the nature of the disqualifying offense presents an immediate,
serious, and irreparable risk to FTI or confidential taxpayer information if
the employee's job duties require access to FTI or confidential taxpayer
information.
(2) A
cabinet or department classified employee whose background investigation
reveals a disqualifying offense shall be eligible for reconsideration under an
internal department review process and determination in accordance with KRS
Chapter 18A.
(3) A cabinet or
department classified employee may submit a written request for an internal
employment reconsideration review to the Division of Human Resources no later
than fourteen (14) calendar days from the date of notice of a disqualifying
offense issued pursuant to Section 2 of this administrative regulation.
(4) A cabinet or department
classified employee who requests a reconsideration of dismissal may be retained
on staff during the review process subject to the following factors:
(a) The nature and severity of the
disqualifying offense;
(b) The
disposition of the offense;
(c) The
time elapsed since the disqualifying offense;
(d) The employee's personnel history;
and
(e) Whether the employee is
assigned duties that require access to FTI or confidential taxpayer
information.
(5) The
request for an internal employment reconsideration review shall include the
following information:
(a) A written
explanation of each disqualifying offense, including:
1. A description of the events related to the
disqualifying offense;
2. The
number of years since the occurrence of the disqualifying offense;
3. The age of the offender at the time of the
disqualifying offense; and
4. Any
other relevant and mitigating circumstances regarding the offense;
(b) Official documentation showing
that all fines, including court-imposed fines, costs, or restitution, have been
paid, or documentation showing adherence to a payment schedule, if
applicable;
(c) The date probation
or parole was satisfactorily completed, if applicable; and
(d) Employment and character references,
including any other evidence demonstrating the ability of the individual to
perform the employment responsibilities and duties competently.
(6) After review, the department
may reverse the dismissal if the department determines that the disqualifying
offense, along with any mitigating circumstances, does not bear upon the
fitness of the individual to work in a position with access to FTI or
confidential taxpayer information.
(7) No later than thirty (30) calendar days
from receipt of the written request for the reconsideration review, the
cabinet, department, or responsible agency shall notify the employee of the
final determination of the reconsideration review by the department.
(8) The employee may appeal the results of a
reconsideration review to the Personnel Board in accordance with
KRS
18A.095.
Section 7. Challenges to Criminal History
Record Information. An individual subject to a criminal background
investigation required by
KRS
131.032 and this administrative regulation
shall have the right to request and inspect his or her criminal history record
and to request correction of any inaccurate information.
Section 8. Pardons, Diversions, and
Expungements. An applicant, classified employee, unclassified employee,
federally funded time-limited employee, or contract employee who has received a
pardon for a disqualifying offense, has had a disqualifying offense dismissed
after successful completion of a diversion program, or has had a disqualifying
offense expunged, shall not be barred from employment in a position with job
duties that include access to or use of FTI or confidential taxpayer
information, for reasons related to the underlying disqualifying
offense(s).
STATUTORY AUTHORITY:
KRS
42.014,
131.032(2)