Author: Karen Brinson Bell, Executive Director
[Author]1
This numbered memo outlines procedures for county boards to request and review criminal history record information for current and prospective employees who have or will have access2 to the statewide computerized voter registration system (SEIMS). These procedures are required by state law.3 This memo does not address record checks for county directors of elections, which are managed by the State Board upon the director’s appointment, pursuant to N.C.G.S. § 163-35(b).
A record check involves an individual submitting their fingerprints and identifying information to the State Bureau of Investigations (SBI) for that agency to review criminal record databases and produce a report to the county board.
The county board will initiate a criminal history record check, review any convictions found on criminal history reports, and determine whether any such conviction(s) will result in declining a person for employment or dismissing the person from current employment. A copy of a report with any criminal conviction must be provided to the State Board, as further explained in this memo.
1 This memo is issued under the authority delegated by the State Board to the executive director pursuant to G.S. § 163-22(p).
2 “Access” to the statewide computerized voter registration system is defined as any individual identified as a “covered individual” in this memo who has a user account within SEIMS.
3 N.C.G.S. § 163-27.2(f):
A county board of elections shall require a criminal history record check of all current or prospective employees of the county board of elections, as defined in G.S. 163-37.1(a)(1), who have or will have access to the statewide computerized voter registration system maintained under G.S. 163-82.11 and for any additional position or function as the State Board may designate.
Covered Individuals
The following individuals are subject to a criminal history record check under the law:
- A current or prospective4 permanent or temporary employee of a county board who has or will have a user account within SEIMS or has a position or function designated by the State Board.5
- An employee or agent6 of a current or prospective contractor of a county board who has or will have a user account within SEIMS.
Neither appointment as a precinct official or assistant under Article 5 of Chapter 163, nor employment as an early voting official, by itself, shall require a criminal history record check.
Procedures for Conducting Background Checks
To conduct approved background checks required by state law, county boards will first execute onboarding forms with the State Bureau of Investigations (SBI), and then instruct county board staff on filling out background check request forms and obtaining fingerprints through a local law enforcement agency.
SBI Onboarding Process
Prior to initiating a request for a criminal history report, each county board office must complete an onboarding process. This includes completing and submitting the following three forms to the SBI:
- A Non-Criminal Justice Access Agreement
- A Regulations Form, and
- An Access Request Form
These are explained below. If your office has an existing account with the Access Integrity Unit of the SBI and you have been assigned an agency number, it is not necessary to repeat this onboarding process. To confirm your agency’s account, please contact SBI’s Access Integrity Unit.7
SBI provides step-by-step instructions to complete the onboarding process. Be sure to review all forms and instructions prior to completing the forms.
Onboarding forms:
- Non-Criminal Justice Access Agreement8 — This is an agreement between the SBI and a requesting agency which outlines the responsibilities of the agency for requesting and storing criminal history record information. This form must be notarized. (See the first page of the Access Agreement in Appendix A of this memo.)
- Regulations Form9 — This form outlines responsibilities and regulations for designated individuals who will have access to criminal history reports. A separate regulations form must be completed and signed by each person who will have access to criminal history reports. (See Appendix B of this memo.)
- Access Request Form10 — This is an online application. See images below for what should be entered for Agency main type and sub type dropdown items, statutory authority, and description for the agency’s need for an account. [Download the PDF version of this numbered memo below to view the images.] For consistency, it is recommended that county board directors are designated as the Agency Audit contact, the First Authorized Official and CJIS (Criminal Justice Information Services) Online Administrator.11
Initiating a Record Check
Once the county board has completed the onboarding process with SBI, the county board can begin submitting criminal history record checks.
A criminal history record check involves cross-referencing an applicant’s fingerprints and identifying information with state and national databases, like those maintained by the State Bureau of Investigation (SBI) and Federal Bureau of Investigation (FBI). If any records are found, the report will often include arrest date, location, charge, and any disposition of the charge(s). If county board staff have already completed record checks that were conducted by the SBI, they do not need to complete another record check. However, if any prior record checks were not done by the SBI, covered staff will need to submit to a record check.
To obtain a criminal history report for a current or prospective employee, the county board should follow these steps:12
- Identify “covered individuals” based on the definition above.
- Designate specific county board staff who will notify individuals subject to fingerprinting and provide instructions on how to obtain fingerprints. We recommend this be done by email. An example of such an email that the State Board uses is attached to this memo. (See Appendix C of this memo)
- The following forms, provided by the SBI, should be sent to the current or prospective employee:
- Privacy Act Statement
- Electronic Fingerprint Submission Release of Information (Live Scan) or Authority to Release Information Form
- Applicant Information Form
- Along with the forms listed above, it is recommended that the county board also request a signed Release of Criminal Records, which authorizes the county board to seek additional criminal records, if necessary.13 This form is returned to the county board. An example of this form used by the State Board is attached to this memo. (See Appendix D of this memo)
- The employee takes their Release Form and Application Information Form (items b and c above) and has their fingerprints printed at a law enforcement agency offering the service, likely at the Sheriff’s office. The agency or Sheriff’s office will submit the fingerprints directly to SBI if it has the “Live Scan” technology. Otherwise, the employee will be given their fingerprint card with instructions to mail to the SBI. Fingerprints may not be submitted via email.
- The county board should collect from the current or prospective employee the signed and completed application and release forms (items b and c above), and store in a locked and secured location. Per the SBI access agreement, these forms must be kept separate from personnel files.
- Fees: Please refer to SBI’s rates for service fees for fingerprint-based state and national records checks. This rate is currently $38 for each record check conducted. The county board is responsible to submit payment of fees upon receipt of invoice.
Employment Pending a Record Check
County boards may extend conditional offers of employment pending the processing of a record check, and a person hired can start working pending the results of the record check.14
Refusal of Criminal History Record Check
A county board may deny employment or dismiss from employment a current or prospective employee for refusal to consent to a criminal history record check, or to submit fingerprints, or to provide other identifying information required for the record check. Under state law, any such refusal shall constitute just cause for denial or dismissal from employment.15
Handling Completed Record Checks
For each request, the SBI will mail a completed criminal history report to the county board’s address on file.
Reports with Criminal Convictions to Be Forwarded to SBE
The law requires the county director to then provide the State Board a confidential copy of any report that includes criminal history — meaning any criminal conviction, whether a felony or misdemeanor — upon receipt of that report.16 Counties should only send reports that indicate criminal convictions. Reports to the State Board must be mailed or hand delivered using the following address, to ensure confidentiality:
Investigations Division
North Carolina State Board of Elections
P.O. Box 25848
Raleigh, NC 27611Determining Employment with Criminal History
When a criminal history report shows one or more convictions, it is the county board’s responsibility to determine if the conviction warrants denial of employment or dismissal. This responsibility may be delegated to the director of elections, as the lead manager of the staff.17 The material below includes recommended procedures from the State Board, based on the State Board’s management of this process for its own employees. Ultimately, however, the county board must decide how it will manage this process and what actions it will take based on any criminal convictions.
A criminal conviction constitutes legal just cause for not selecting the person for employment or for dismissing the person from current employment, if that is the choice the county board makes. However, a criminal conviction should not automatically render any current or prospective employee unsuitable for employment.18 If adverse personnel action is being considered, your office should follow any existing policies in place and consult with the county attorney and/or county human resources as necessary and advisable for further guidance prior to rendering a final decision. You are also welcome to confer with the State Board legal department.
If there are any criminal convictions, the county board may wish to request additional information and details about the conviction. This allows the current or prospective employee to produce any mitigating documentation such as age at the time of conviction, a written explanation describing the circumstances surrounding the conviction, a police report, evidence of rehabilitation such as certificates or awards received, court documentation showing they have complied with their sentence, and character reference letters. Additionally, if the employee executed a signed Release of Criminal Records form referenced in Section 2.2 above, the county board may obtain further records concerning a conviction from a court, law enforcement agency, or other official record holder.
Convictions for serious and/or violent crimes, frauds, computer-related crimes, forgery, embezzlement, and financial fraud crimes should be carefully considered before a final decision is rendered as to the employee’s suitability to perform his or her job functions. Each hiring decision should be made on a case-by-case basis taking into account the information available at the time and whether the offense bears a reasonable relationship to the job. Suggested factors to consider include:
- The level, seriousness, and intentionality of the crime;
- The date of the crime;
- The age of the person at the time of the crime;
- The circumstances surrounding the commission of the crime, if known;
- The nexus between the criminal conduct, the prospective duties of the applicant, and the public trust inherent in elections work;
- The record of rehabilitation since the conviction;
- The subsequent commission of a crime by the applicant; and
- Any affidavits or other written documents, including character references.
The county board may also wish to consider using an internal review panel as an additional process to determine suitability for employment when there is a criminal conviction. This is a procedure the State Board uses, but it is not mandatory. The purpose of the panel is to provide varying perspectives to assess the relevance of a person’s criminal history to the responsibilities of the job, as well as the individual’s fitness to carry out his or her duties. If your office chooses to assemble a review panel, it is suggested that the panel consist of the county director and a director’s designee(s), provided that all panel members are authorized under the Access agreement with SBI to access an individual’s criminal history record. After considering all the factors and available information, the panel may determine whether there is just cause for a current or prospective employee to be denied employment or for dismissing a current employee. It is recommended that the county director or the director’s designee document and retain a record of the panel’s decision to promote consistency in decisions. That record is confidential.
Retaining Records
Criminal history records must be obtained, utilized, stored, and destroyed in compliance with the State Bureau of Investigation’s Non-Criminal Justice Access Agreement.
- Criminal history reports, along with the Release of Criminal Records form, should be stored by each county board of elections in a restricted area, away from a Human Resources personnel file, for a period of one year from the date of fingerprinting.
- Copies of criminal history reports should not be made. If county board members, rather than the director, are considering criminal history reports, the members should view the physical copy of the report in the board office. It should not be emailed out to board members.
- Criminal history reports may be destroyed using a high-security shredder or by burning after one year.
- Criminal history reports are not public records under Chapter 132 of the General Statutes.19
- Per SBI’s Access Agreement, the agency may not provide a copy of criminal history report to the applicant. Applicants should contact the SBI to request a right to review their criminal history report.
4 “Prospective” employees are those who are being offered a position with the county board, not all those who have applied for a position.
5 N.C.G.S. § 163-27.2(f). The State Board has not designated any such position or function beyond those with SEIMS accounts, to date.
6 For the purpose of this memo, “agent” means any authorized person acting on behalf of any contractor in the performance of a contract with the county board. This could include temporary staff hired through a temp agency, for example.
7 aiuhelp@ncsbi.gov or (919) 582-8639
8 NC State Bureau of Investigation (NCSBI) Non-Criminal Justice Access Agreement (PDF)
10 NC State Bureau of Investigation (NCSBI) Access Request Form
11 Agency CJIS administrator will be responsible for creating user accounts for the agency, handling password changes, and adding/removing authorized personnel. Online training is required.
12 This is a process that the county director of elections, or their designee, is in the best position to carry out, since they typically manage the personnel working for the county board.
13 Prospective and current employees are not required to complete this form under the criminal record check statute, but it may prove to be helpful if limited information is available in the criminal history report.
14 N.C.G.S. § 163-37.1(e).
15 N.C.G.S. § 163-27.2(d).
16 N.C.G.S. § 163-27.2(f).
17 N.C.G.S. § 163-35(d).
18 N.C.G.S. § 163-27.2(c).
19 N.C.G.S. § 143B-1209.51(d).
[Download the PDF below to view Appendix A-D attachments.]