San Francisco County Municipal Code Art. XII Consideration of Criminal History

OF PEOPLE APPLYING FOR OR SERVING ON CERTAIN CITY BOARDS, COMMISSIONS, AND OTHER BODIES

Sec. 16.500. Findings. Sec. 16.501. Definitions. Sec. 16.502. Use of Criminal History Information Regarding Appointments to or Removal from Policy Bodies.

The health, safety, and well-being of San Francisco's communities depend on ensuring that people with arrest or conviction records have opportunities to effectively reintegrate into the community. The findings in Police Code Section 4902 provide many of the reasons why it is critical for the City to take steps to facilitate that reintegration. One dimension of this reintegration process is to remove arbitrary roadblocks to participation in City government. To that end, this Article XII provides that the City and County of San Francisco cannot, except in appropriate circumstances, remove people from certain City boards, commissions, and other bodies or reject applicants seeking appointment to such boards, commissions, and other bodies, based on the members' or applicants' criminal history. In this way, the policies that the City applies to its appointment process for these boards, commissions, and other bodies will substantially mirror the policies that apply to private employers and housing providers under Police Code Article 49. (Added by Ord. 34-16, File No. 150902, App. 3/25/2016, Eff. 4/24/2016)

(a) As used in this Article XII, the terms "Arrest," "Background Check Report," "City," "Conviction History," "Evidence of Rehabilitation or Other Mitigating Factors," "Inquire," and "Unresolved Arrest" shall have the meanings set forth in Police Code Section 4903. (b) As used in this Article XII, the following terms have the following meanings: " Adverse Action " shall mean a decision to not nominate or appoint a person as a member of a Board Policy Body or to remove a person as a member of such a body. " Applicant " shall mean a person seeking nomination or appointment to a Board Policy Body. " Conviction " shall mean a record from any jurisdiction that includes information indicating that a person has been convicted of a felony or misdemeanor; provided that the conviction is one for which the person has been placed on probation, fined, imprisoned, or paroled. " Directly-Related Conviction " shall mean that the conduct for which an Applicant or Member was convicted or that is the subject of an Unresolved Arrest has a direct and specific negative bearing on that Applicant or Member's ability to perform the duties or responsibilities of the Board Policy Body or is directly related to matters that the Board Policy Body may consider. " Member " shall mean a person serving as a member of a Board Policy Body. " Board Policy Body " shall mean a board, commission, committee, task force, or other body, created by a resolution or ordinance adopted by the Board of Supervisors, that is responsible for exercising the sovereign powers of the City or for advising City employees, officers, departments, boards, or commissions. "Board Policy Body" shall include a committee, task force, or other body of a Board Policy Body. "Board Policy Body" shall not include boards, commissions, committees, task forces, or other bodies created by the Charter or created by an initiative ordinance that specifies the qualifications for appointments to the body. (Added by Ord. 34-16, File No. 150902, App. 3/25/2016, Eff. 4/24/2016)

(a) Regarding appointment to or removal from positions on Board Policy Bodies, City employees and officers shall not, at any time or by any means, inquire about, require disclosure of, or if such information is received base an Adverse Action in whole or in part on: (1) An Arrest not leading to a Conviction, excepting an Unresolved Arrest under circumstances identified in this Section 16.502; (2) Participation in or completion of a diversion or a deferral of judgment program; (3) A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code sections 1203.4, 1203.4a, or 1203.41; (4) A Conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system; (5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing; or (6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction. Accordingly, the matters identified in this subsection (a) may not be considered in any manner by a City employee or officer in

making a decision regarding appointment to or removal from positions on Board Policy Bodies. (b) No City employee or officer shall require Applicants to disclose on any application for membership on a Board Policy Body the facts or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(6). Nor shall any City employee or officer inquire on any application for membership on a Board Policy Body about the facts or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(6). A City employee or officer may ask on an application for membership on a Board Policy Body for an Applicant or Member's written consent for a Background Check so long as the application includes a clear and conspicuous statement that the City will not itself conduct or obtain from a third party the Background Check until either after the first live interview with the person, after the first public hearing regarding the person's potential appointment, or after conditional offer of appointment in accordance with subsection (c) of this Section 16.502. (c) No City employee or officer shall require Applicants for membership on a Policy Body to disclose, and shall not inquire into or discuss, their Conviction History or an Unresolved Arrest until either after the first live interview with the person (via telephone, videoconferencing, use of other technology, or in person), after the first public hearing regarding the person's potential appointment, or, at the City's discretion, after a conditional offer of appointment. The City may not itself conduct or obtain from a third party a Background Check until either after the first live interview with the person, after the first public hearing regarding the person's potential appointment, or after a conditional offer of appointment. (d) Prior to any Conviction History inquiry, the City shall provide notice to the Applicant or Member that substantially conforms to the notice requirement described in Police Code Section 4905(b). (e) Prior to obtaining a copy of a Background Check Report, the City shall comply with all state and federal requirements including but not limited to those in the California Investigative Consumer Reporting Agencies Act (ICRAA), California Civil Code sections 1786 et seq., and the Federal Consumer Reporting Act (FCRA), 15 United States Code sections 1681 et seq., to provide notice to the Applicant or Member that such a report is being sought. (f) In making a decision based on an Applicant or Member's Conviction History, a City employee or officer shall conduct an individualized assessment, considering only Directly-Related Convictions, the time that has elapsed since the Conviction or Unresolved Arrest, and any evidence of inaccuracy or Evidence of Rehabilitation or Other Mitigating Factors. (g) If a City employee or officer intends to base an Adverse Action on an item or items in the Applicant or Member's Conviction History, the City employee or officer shall provide the Applicant or Member with a copy of the Background Check Report, if any, and shall notify the Applicant or Member of the prospective Adverse Action and the items forming the basis for the prospective Adverse Action. (h) City employees and officers shall not engage in any communication that is intended and reasonably likely to reach persons who are reasonably likely to seek appointment to a Board Policy Body, and that expresses, directly or indirectly, that any person with an Arrest or Conviction will not be considered or may not apply for membership on a Board Policy Body. (i) References in this Section 16.502 to "City officers and employees" shall be understood to include members of Board Policy Bodies when considering appointment of persons to, and removal of members from, a committee, task force, or other body of a Board Policy Body. (Added by Ord. 34-16, File No. 150902, App. 3/25/2016, Eff. 4/24/2016)