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The 191st General Court of the Commonwealth of Massachusetts

Section 18Z: State and national fingerprint-based criminal background checks for agency employees in, or applicants for, positions requiring or including access to federal tax information

Section 18Z. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

''Access'', the direct and indirect use, contact, handling or viewing of federal tax information, in paper or electronic form, regardless of the frequency, likelihood or extent of such access or whether the access is intentional or inadvertent.

''Agency'' or ''State Agency'', a state agency within an executive office of the commonwealth established under section 2 of chapter 6A.

''Agency head'', the head of a state agency or a designee or designees.

''Applicant for employment'', an individual who has applied for or may be offered employment, transfer or promotional opportunities with a state agency, including employment as a full-time or part-time employee, apprentice, intern, temporary or seasonal employee, volunteer, contractor, sub-contractor, consultant and employees of a consultant.

''Current agency employee'', a full-time or part-time employee, apprentice, intern, temporary or seasonal employee, volunteer, contractor, sub-contractor, consultant and employees of a consultant.

''Federal tax information'', federal tax returns or information created or derived from federal tax returns that is in an agency's possession or control, which is covered by the confidentiality protections of the Internal Revenue Code and subject to 26 U.S.C. section 6103 (p)(4) safeguarding requirements, including oversight by the Internal Revenue Service.

(b) An agency head shall obtain a state and national fingerprint-based criminal background check, as authorized by Public Law 92–544, to determine the suitability of an applicant for employment or current agency employee, if the position applied for or held requires or includes, or may require or include, access to federal tax information.

(c) An agency for which access to federal tax information is necessary to the agency's core objective, as determined by the agency head, may consider all applicants for employment and current agency employees subject to the background check requirements of this section; provided, that the department of revenue shall be considered an agency for which access to federal tax information is necessary to the agency's core objectives of administration of the tax laws and the child support enforcement program. An agency head may determine that specific positions are excluded from the requirements of this section.

(d) Fingerprints taken pursuant to this section shall be submitted to the state identification section of the department of the state police for a state criminal history check and forwarded to the Federal Bureau of Investigation for a national criminal history check, according to the policies and procedures established by the state identification section of the department of the state police and by the department of criminal justice information services. Fingerprint submissions may be retained by the Federal Bureau of Investigation, the state identification section and the department of criminal justice information services to assist agency heads authorized pursuant to this section to ensure the continued suitability of a person for access to federal tax information. The department of criminal justice information services may disseminate the results of the state and national criminal background checks to an agency head or authorized staff of an agency.

(e) Authorized department staff of an agency may receive all available criminal offender record information to the extent required by federal law and the results of checks of state and national criminal history information databases under Public Law 92–544. Upon receipt of the results of state and national criminal background checks, the agency head and other authorized staff shall treat the information in accordance with sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information.

(f) There shall be a fee charged for fingerprint-based background checks pursuant to this section, established by the secretary of administration and finance in consultation with the secretary of public safety and security and the agency head, to offset the costs of operating and administering a fingerprint-based criminal background check system. The secretary of administration and finance, in consultation with the secretary of public safety and security and the agency head, may increase the fee accordingly if the Federal Bureau of Investigation increases the fee for its fingerprint background check service. The agency shall pay the applicable fee for current agency employees and may reimburse applicants for employment at the discretion of the agency head. Contractors, sub-contractors, consultants and employees of a consultant shall not be eligible for reimbursement unless required by contract. Fees collected for fingerprint-based background checks pursuant to this section shall be deposited into the Fingerprint–Based Background Check Trust Fund established pursuant to section 2HHHH of chapter 29.

(g) An applicant for employment who refuses to comply with the fingerprint-based background check requirements shall be considered unsuitable for a position requiring or involving, or which may require or involve, access to federal tax information.

(h) Upon receipt of the results of a state and national criminal background check for an applicant for employment, an agency head shall review the results and determine the suitability of the applicant for employment with regard to employment in a position requiring or involving, or which may require or involve, access to federal tax information.

(i) Notwithstanding subsections 9 and 91/2 of section 4 of chapter 151B, if an agency receives criminal record information from the state or national fingerprint-based criminal background checks that includes no disposition or is otherwise incomplete, the agency head may request that an applicant for employment provide additional information regarding the results of the criminal background checks to assist the agency head in determining the applicant's suitability for employment in a position requiring or involving, or which may require or involve, access to federal tax information.

(j) A current agency employee who refuses to comply with the fingerprint-based background check requirements shall be considered unsuitable for a position requiring or involving, or which may require or involve, access to federal tax information.

(k) Notwithstanding subsections 9 and 91/2 of section 4 of chapter 151B, if an agency receives criminal record information from the state or national fingerprint-based criminal background checks that includes no disposition or is otherwise incomplete, the agency head may request that a current agency employee provide additional information regarding the results of the criminal background checks to assist the agency head in determining the current agency employee's suitability for employment in a position requiring or involving, or which may require or involve, access to federal tax information.

(l) Upon receipt of the results of a state and national criminal background check for a current agency employee, the agency head shall review the results and determine the suitability of the current agency employee with regard to continuing access, or possible access, to federal tax information. In making a determination of suitability, the agency head shall consider mitigating factors relevant to the current agency employee's employment. Unsuitability of a current employee may result in termination or discharge from employment; provided, however, that a current agency employee may be reassigned to a position that does not require access to federal tax information if that position is available and subject to the business needs of the agency.

(m) Nothing in this section shall limit or preclude an agency's right to carry on a background investigation of an applicant for employment or a current agency employee using other authorized means.

(n) An agency subject to this section shall develop and implement policies and procedures necessary to carry out this section.

(o) Information acquired by an agency in the background check process pursuant to this section shall be used solely for the purpose of making a determination as to the suitability of a particular current employee or applicant for employment for assignment to duties in a position that requires or includes, or may require or include, access to federal tax information.