ARIZONA STATE LEGISLATURE
Forty-eighth Legislature – First Regular Session
SENATE PUBLIC SAFETY AND HUMAN SERVICES AND
HOUSE NATURAL RESOURCES AND PUBLIC SAFETY
COMMITTEE OF REFERENCE
Minutes of Meeting
Wednesday, October 3, 2007
Senate Hearing Room 109 – 2:00 p.m.
Co-Chair Senator Linda Gray called the meeting to order at 2:02 p.m. and attendance was noted by the secretary.
Members Present
Senator Jack Harper Representative Lynne Pancrazi
Senator Victor Soltero Representative Jerry Weiers
Representative John Kavanagh Senator Linda Gray, Co-Chair
Representative Barbara McGuire Representative Judy Burges, Co-Chair
Members Absent
Senator Chuck Gray Senator Leah Landrum Taylor
Auditor General Report on Board of Fingerprinting
Shan Hays, Performance Audit Manager, Auditor General’s Office, gave a presentation on the Performance Audit and Sunset Review of the Arizona Board of Fingerprinting (Attachment 1).
Representative Kavanagh said he noticed that most of the auditing has to do with how the agency is complying with the law in terms of what they have to do and the timeliness in which they do it, which is good, so that people are not without jobs because of delays. He said he is also curious as to whether or not any part of the audit was done to ascertain if the actual decisions that are made concerning the granting of waivers are good decisions.
Ms. Hays stated they looked at the decisions in the context of whether or not the Board was considering the factors that are laid out in statute. Mr. Kavanagh asked if anyone had ever done a study to see if the criteria that is being applied is good criteria and therefore people are being protected. Ms. Hays stated she is not aware of studies of this type and that perhaps the Executive Director would be better able to answer that question.
Response by the Board of Fingerprinting
Dennis Seavers, Executive Director, Arizona Board of Fingerprinting, responded to Representative Kavanagh’s question about the consistency of decisions for similarly situated individuals by saying that the closest thing they have is a performance measure to see whether there is a consistent approval rate. The issue that they are looking at is not whether the approval rate is high enough or low enough but whether it is consistent from year to year. He stated generally, it is; that it hovers around 83 percent; this year being about 87-90 percent.
Mr. Kavanagh commented he is glad they are looking at that, but the only thing that shows is consistency in either making mistakes or doing good. He commented this situation is much like a parole board and that feedback is necessary in order to know if the criteria upon which it is based is good or bad in order to make any necessary changes.
Mr. Seavers said that there is a certain oversight only in those cases where an individual is denied a waiver, and they are allowed an opportunity to request a review from the Board and later they can choose to go to superior court and request a review. Other than that, he said auditors did look at a sample of cases and only found two cases where the decisions were not appropriate.
Senator Linda Gray asked Mr. Seavers if he knew how many people who came before the Board for an exemption have come before the Board again for a violation that shows up under the clearance card. He said he does not have the number but could provide it. He said it is not a high number, probably under a hundred.
Representative Pancrazi asked if teachers have to go through this entire process every six years. Mr. Seavers stated it is required for most individuals in the fingerprint system to have their card renewed every six years. If a person is arrested in Arizona for an offense their card would be suspended, but if they were arrested in another state, it would not be. So every six years there is a check that there is nothing new on the record. There is a good cause exception to this rule determined by the Department of Public Safety by looking at the history of the applicant. He stated Senator Chuck Gray has introduced a new system to allow teachers to do one-time fingerprinting and not have to go through the procedures over and over again.
Mr. Weiers asked about the Board’s authority. Mr. Seavers said that according to a recent court decision, the Board can delegate their authority to a hearing officer. Mr. Weiers asked why not have the hearing officer make a recommendation to the Board and the Board make the decision. Senator Gray commented that it is because the statute uses the word “or.” Mr. Weiers commented that this, then, is something the Legislature can change.
Mr. Seavers continued with his presentation and referred to a memorandum given to the Auditor General’s Office by the Board of Fingerprinting (Attachment 2) and stated they took to heart the recommendations the Auditor General made and tried to implement them as expeditiously as possible.
He said he knows one of the issues this Committee is considering is what would be the negative impact of eliminating the Board of Fingerprinting and offered several possibilities. One would be to return the good cause process to the agencies. The problem that would then exist would be similar to the problem that existed many years ago when each agency might have its own standards to determine if a person should be given good cause. It also would impact the caseloads and the work of those agencies who would not want to have the good cause process revolve back to them. The other way would be to eliminate a good cause process. Mr. Seaves commented that, unfortunately, this would mean that hundreds and thousands of individuals, who otherwise would be eligible to work in human service and related activities, would not be able to work, although this probably would have a positive long-term effect in terms of public safety.
Mr. Seavers stated many of the providers, especially in rural areas, have indicated that they have an extremely high turnover and not having some kind of a good cause process would effect their ability to recruit individuals. He said he would also note that these are individuals who had criminal offenses decades ago and nothing since. He stated the Board would ask that this Committee continue the agency, considering not only the progress that has been made with the Auditor General’s recommendations but also the importance of the work that the Board does.
Representative Burges stated she is concerned with consistency in that individual hearing officers can make individual decisions as to issuing a card but with the Board it takes five individuals, all voting yes. Mr Seavers said this is something the Board discussed at a recent meeting and something with which they are concerned. If one person is making the decision it is not the level of scrutiny as when five members are making it. She said it seems almost easier to get through the process. Mr. Seavers commented the Board has discussed other options. One is to keep the review process and have the hearing officers conduct the initial hearing. He stated the process in which the Board seems most interested is returning to the Board making the final decision and the hearing officer making a recommendation. Mr. Seavers said it would take legislation to make this option happen.
Mr. Seavers stated that in terms of timeliness it is a much better process. But there is definitely a policy concern about the propriety of the hearing officer making the final decision.
Senator Linda Gray asked how much of a delay a process of this type would cause the employee. Mr. Seavers said it would make the process a bit longer from what it is currently; it could be a 40-day wait. Senator Gray commented that for a teacher to wait 40 days is a long time. She asked who hires the hearing officers. Mr. Seavers stated that the Board hires them and there are two hearing officers. He stated that according to present statute, the decision of the five Board members has to be unanimous which is very common.
Representative Kavanagh commented that all employees working in this area really need to have behavior that is above reproach and asked if there are rules or guidelines that have been issued about this. Mr. Seavers said they have not, but he can bring this to the Board for possible action to be taken.
Mr. Weiers asked if there is a requirement that the Board, the director, or the hearing officers have fingerprint checks. Mr. Seavers said there is not; that he relies on information that is publicly available. It was commented that some already would have had this done if they are coming from other agencies requiring it. Mr. Seavers said there would have to be legislation to make fingerprinting a requirement in this case.
Senator Linda Gray asked if Mr. Seavers and the staff all received performance pay. Mr. Seavers responded that they did. Senator Gray commented that it says in the auditor’s report that it took longer for people to receive a decision in 2006 than in 2005 and asked him if that fact was considered in ascertaining whether they should receive performance pay. Mr. Seavers explained why it was not possible to keep up with cases in 2006 and stated that currently that issue has been corrected. He further explained that the process has become remarkably faster as to where it was last year. Senator Gray asked about the new plan that was submitted so that performance pay could be made. She asked him to explain why the standards were lessened and why, despite a letter of reprimand, the performance pay was allowed. Mr. Seavers explained why the new plan was adopted. Senator Gray asked about the performance targets and results since April. Mr. Seavers made available to the Committee information on performance targets and results for May 2007 through September 2007 (Attachment 3).
In answering Representative Pancrazi’s question, Mr. Seavers said there is some discussion as to whether or not classified or non-certified personnel in a school district are required to have a fingerprint clearance card or whether they just need current fingerprinting. He said there seems to be some conflict in the statute and that it would involve a substantial increase in the caseload, perhaps 100 percent, to require the fingerprint card. He said his understanding is that the Department of Public Safety is working with Senator Chuck Gray to develop legislation to repeal that requirement. He said these individuals should probably be fingerprinted but probably not require a card.
Debbie Davenport, Auditor General, answered questions about the cost of the audit. She said this particular audit so far only focuses on whether or not the screening process that is required is being done efficiently, and nobody apparently has any idea if the screening process actually works and screens out the people that need to be screened out.
Ms. Davenport stated that the scope of the audit Representative Kavanagh is recommending is a much bigger audit and would take more resources from their office. If this Board is continued for less than ten years, it would be up to the Joint Legislative Audit Committee to determine if the Board would be looked at by the Auditor General’s office or just come up before the Committee of Reference without a review of her office.
Senator Soltero moved that the Senate Public Safety and Human Services and House Natural Resources and Public Safety Committee of Reference recommend that the Legislature continue the Board of Fingerprinting for five years. The motion carried by a roll call vote of 7-0-0-3 (Attachment 4).
Representative Kavanagh moved the recommendation that the next audit of the Arizona Board of Fingerprinting include an analysis to see if the criteria that is being used to either grant or deny waivers is actually screening out people inappropriate for these jobs based on their either having been fired, arrested, or involved in negligent or criminal acts, and comparing that group with a comparable group that received jobs but did not require a waiver. The motion carried by a roll call vote of 4-2-0-4 (Attachment 5).
Without objection, the meeting adjourned at 3:05 p.m.
_________________________________________
Patricia Hudock, Committee Secretary
October 3, 2007
(Original minutes, attachments and audio on file in the Office of the Chief Clerk; video archives available at http://www.azleg.gov/)
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SENATE PUBLIC SAFETY AND HUMAN SERVICES
AND HOUSE NATURAL RESOURCES AND
PUBLIC SAFETY COMMITTEE OF REFERENCE
October 3, 2007
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