S.B. 75

This document includes House Floor Amendments incorporated into the bill on Wed, Feb 19, 2003 at 4:25 PM by bhilbert. --> This document includes House Floor Amendments incorporated into the bill on Wed, Feb 19, 2003 at 4:40 PM by bhilbert. --> 1

CRIMINAL BACKGROUND CHECKS BY
2 POLITICAL SUBDIVISIONS OPERATING
3 WATER SYSTEMS
4 2003 GENERAL SESSION
5 STATE OF UTAH
6 Sponsor: Carlene M. Walker
7 This act enacts provisions authorizing political subdivisions of the state that operate a
8 public water system to require prospective and current employees and contractors and
9 those seeking access to public water system facilities to submit to a criminal background
10 check. The act provides for notice to a person whose employment is denied or terminated
11 and for review of the denial or termination. The act also makes conforming and technical
12 changes and provides an effective date.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 53-10-104, as last amended by Chapter 316, Laws of Utah 2000
16 63-2-302 (Effective 07/01/03), as last amended by Chapters 63 and 191, Laws of Utah
17 2002
18 63-2-302 (Superseded 07/01/03), as last amended by Chapter 63, Laws of Utah 2002
19 ENACTS:
20 11-39-101, Utah Code Annotated 1953
21 11-39-102, Utah Code Annotated 1953
22 11-39-103, Utah Code Annotated 1953
23 11-39-104, Utah Code Annotated 1953
24 Be it enacted by the Legislature of the state of Utah:
25 Section 1. Section 11-39-101 is enacted to read:
26 CHAPTER 39. CRIMINAL BACKGROUND CHECKS BY POLITICAL
27 SUBDIVISIONS OPERATING WATER SYSTEMS

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House Floor Amendments 2-19-2003 bh/rhr 28

11-39-101. Definitions.
29 As used in this chapter:
30 (1) "Applicant" means a person who seeks employment with a public water utility,
31 either as an employee or as an independent contractor h , AND WHO, AFTER EMPLOYMENT, WOULD,
31a IN THE JUDGMENT OF THE PUBLIC WATER UTILITY, BE IN A POSITION TO AFFECT THE SAFETY OR
31b SECURITY OF THE PUBLIC OWNED TREATMENT WORKS OR PUBLIC WATER SYSTEM OR TO
31c AFFECT THE SAFETY OR WELL BEING OF PATRONS OF THE PUBLIC WATER UTILITY h .
32 (2) "Division" means the Criminal Investigation and Technical Services Division of the
33 Department of Public Safety, established in Section 53-10-103 .
34 (3) "Independent contractor":
35 (a) means an engineer, contractor, consultant, or supplier who designs, constructs,
36 operates, maintains, repairs, replaces, or provides water treatment or conveyance facilities or
37 equipment, or related control or security facilities or equipment, to the public water utility; and
38 (b) includes the employees and agents of the engineer, contractor, consultant, or
39 supplier.
40 (4) "Person seeking access" means a person who seeks access to a public water utility's
41 public water system or public owned treatment works h AND WHO, AFTER OBTAINING ACCESS,
41a WOULD, IN THE JUDGMENT OF THE PUBLIC WATER UTILITY, BE IN A POSITION TO AFFECT THE
41b SAFETY OR SECURITY OF THE PUBLIC OWNED TREATMENT WORKS OR PUBLIC WATER SYSTEM
41c OR TO AFFECT THE SAFETY OR WELL BEING OF PATRONS OF THE PUBLIC WATER UTILITY h .
42 (5) "Public owned treatment works" has the same meaning as defined in Section
43 19-5-102 .
44 (6) "Public water system" has the same meaning as defined in Section 19-4-102 .
45 (7) "Public water utility" means a county, city, town, independent special district under
46 Title 17A, Chapter 2, Independent Special Districts, local district under Title 17B, Chapter 2,
47 Local Districts, or other political subdivision of the state that operates public owned treatment
48 works or a public water system.
49 Section 2. Section 11-39-102 is enacted to read:
50 11-39-102. Criminal background check authorized -- Written notice required.
51 (1) A public water utility may:
52 (a) require an applicant to submit to a criminal background check as a condition of
53 employment;

54 (b) periodically require existing employees of the public water utility to submit to a
55 criminal background check h IF, IN THE JUDGMENT OF THE PUBLIC WATER UTILITY, THE h

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House Floor Amendments 2-19-2003 bh/rhr 55a

h EMPLOYEE IS IN A POSITION TO AFFECT THE SAFETY OR SECURITY OF THE PUBLIC
55b OWNED TREATMENT WORKS OR PUBLIC WATER SYSTEM OR TO AFFECT THE SAFETY OR WELL
55c BEING OF PATRONS OF THE PUBLIC WATER UTILITY h ; and
56 (c) require a person seeking access to submit to a criminal background check as a
57 condition of acquiring access.
58 (2) (a) Each applicant, person seeking access, and existing employee h DESCRIBED IN
58a SUBSECTION (1)(b) h shall, if required

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House Floor Amendments 2-19-2003 bh/rhr 59

by the public water utility:
60 (i) submit a fingerprint card in a form acceptable to the division; and
61 (ii) consent to a fingerprint background check by:
62 (A) the Utah Bureau of Criminal Identification; and
63 (B) the Federal Bureau of Investigation.
64 (b) If requested by a public water utility, the division shall request the Department of
65 Public Safety to complete a Federal Bureau of Investigation criminal background check for
66 each applicant, person seeking access, or existing employee through a national criminal history
67 system.
68 (c) (i) A public water utility may make an applicant's employment with the public
69 water utility or the access of a person seeking access conditional pending completion of a
70 criminal background check under this section.
71 (ii) If a criminal background check discloses that an applicant or a person seeking
72 access failed to disclose accurately a criminal history, the public water utility may deny or, if
73 conditionally given, immediately terminate the applicant's employment or the person's access.
74 (iii) If an applicant or person seeking access accurately disclosed the relevant criminal
75 history and the criminal background check discloses that the applicant or person seeking access
76 has been convicted of a crime that indicates a potential risk for the safety of the public water
77 utility's public water system or public owned treatment works or for the safety or well being of
78 patrons of the public water utility, the public water utility may deny or, if conditionally given,
79 immediately terminate the applicant's employment or the person's access.
80 (3) Each public water utility that requests a criminal background check under
81 Subsection (1) shall h PREPARE CRITERIA FOR WHICH CRIMINAL ACTIVITY WILL PRECLUDE
81a EMPLOYMENT AND SHALL h provide written notice to the person who is the subject of the criminal
82 background check that the background check has been requested.
83 Section 3. Section 11-39-103 is enacted to read:
84 11-39-103. Duties of the Criminal Investigation and Technical Services Division --
85 Costs of separate file and background check.
86 (1) If a public water utility requests the division to conduct a criminal background
87 check, the division shall:
88 (a) release to the public water utility the full record of criminal convictions for the
89 person who is the subject of the background check;

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- 4 - 90 (b) if requested by the public water utility, seek additional information from regional or
91 national criminal data files in conducting the criminal background check;
92 (c) maintain a separate file of fingerprints submitted under Section 11-39-102 ; and
93 (d) notify the requesting public water utility when a new entry is made against a person
94 whose fingerprints are held in the file.
95 (2) (a) Each public water utility requesting a criminal background check shall pay the
96 cost of maintaining the separate file under Subsection (1) from fees charged to those whose
97 fingerprints are submitted to the division.
98 (b) Each public water utility requesting the division to conduct a criminal background
99 check shall pay the cost of the background check, and the monies collected shall be credited to
100 the division to offset its expenses.
101 Section 4. Section 11-39-104 is enacted to read:
102 11-39-104. Written notice to person whose employment is denied or terminated --
103 Right to respond and seek review.
104 If a public water utility denies or terminates the employment of a person because of
105 information obtained through a criminal background check under this chapter, the public water
106 utility shall:
107 (1) notify the person in writing of the reasons for the denial or termination; and
108 (2) give the person an opportunity to respond to the reasons and to seek review of the
109 denial or termination through administrative procedures established by the public water utility.
110 Section 5. Section 53-10-104 is amended to read:
111 53-10-104. Division duties.
112 The division shall:
113 (1) provide and coordinate the delivery of support services to law enforcement
114 agencies;
115 (2) maintain and provide access to criminal records for use by law enforcement
116 agencies;
117 (3) publish law enforcement and statistical data;
118 (4) maintain dispatch and communications services for public safety communications
119 centers and provide emergency medical, fire suppression, highway maintenance, public works,
120 and law enforcement communications for municipal, county, state, and federal agencies;

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- 5 - 121 (5) analyze evidence from crime scenes and crime-related incidents for criminal
122 prosecution;
123 (6) provide criminalistic laboratory services to federal, state, and local law enforcement
124 agencies, prosecuting attorneys' and agencies, and public defenders, with the exception of those
125 services provided by the state medical examiner in accordance with Title 26, Chapter 4, Utah
126 Medical Examiner Act;
127 (7) establish satellite laboratories as necessary to provide criminalistic services;
128 (8) safeguard the public through licensing and regulation of activities that impact
129 public safety, including concealed weapons, emergency vehicles, and private investigators;
130 (9) provide investigative assistance to law enforcement and other government agencies;
131 (10) collect and provide intelligence information to criminal justice agencies;
132 (11) investigate crimes that jeopardize the safety of the citizens, as well as the interests,
133 of the state;
134 (12) regulate and investigate laws pertaining to the sale and distribution of liquor;
135 (13) make rules to implement this chapter; [and]
136 (14) perform the functions specified in this chapter[.]; and
137 (15) comply with the requirements of Section 11-39-103 .
138 Section 6. Section 63-2-302 (Effective 07/01/03) is amended to read:
139 63-2-302 (Effective 07/01/03). Private records.
140 (1) The following records are private:
141 (a) records concerning an individual's eligibility for unemployment insurance benefits,
142 social services, welfare benefits, or the determination of benefit levels;
143 (b) records containing data on individuals describing medical history, diagnosis,
144 condition, treatment, evaluation, or similar medical data;
145 (c) records of publicly funded libraries that when examined alone or with other records
146 identify a patron;
147 (d) records received or generated for a Senate or House Ethics Committee concerning
148 any alleged violation of the rules on legislative ethics, prior to the meeting, and after the
149 meeting, if the ethics committee meeting was closed to the public;
150 (e) records received or generated for a Senate confirmation committee concerning
151 character, professional competence, or physical or mental health of an individual:

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- 6 - 152 (i) if prior to the meeting, the chair of the committee determines release of the records:
153 (A) reasonably could be expected to interfere with the investigation undertaken by the
154 committee; or
155 (B) would create a danger of depriving a person of a right to a fair proceeding or
156 impartial hearing;
157 (ii) after the meeting, if the meeting was closed to the public;
158 (f) employment records concerning a current or former employee of, or applicant for
159 employment with, a governmental entity that would disclose that individual's home address,
160 home telephone number, Social Security number, insurance coverage, marital status, or payroll
161 deductions;
162 (g) records or parts of records under Section 63-2-302.5 that a current or former
163 employee identifies as private according to the requirements of that section;
164 (h) that part of a record indicating a person's Social Security number if provided under
165 Section 31A-23-202 , 31A-26-202 , 58-1-301 , 61-1-4 , or 61-2-6 ;
166 (i) that part of a voter registration record identifying a voter's driver license or
167 identification card number, Social Security number, or last four digits of the Social Security
168 number; [and]
169 (j) a record that:
170 (i) contains information about an individual;
171 (ii) is voluntarily provided by the individual; and
172 (iii) goes into an electronic database that:
173 (A) is designated by and administered under the authority of the Chief Information
174 Officer; and
175 (B) acts as a repository of information about the individual that can be electronically
176 retrieved and used to facilitate the individual's online interaction with a state agency[.]; and
177 (k) information obtained through a criminal background check under Title 11, Chapter
178 39, Criminal Background Checks by Political Subdivisions Operating Water Systems.
179 (2) The following records are private if properly classified by a governmental entity:
180 (a) records concerning a current or former employee of, or applicant for employment
181 with a governmental entity, including performance evaluations and personal status information
182 such as race, religion, or disabilities, but not including records that are public under Subsection

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- 7 - 183 63-2-301 (1)(b) or 63-2-301 (2)(o), or private under Subsection [ 63-2-302 ](1)(b);
184 (b) records describing an individual's finances, except that the following are public:
185 (i) records described in Subsection 63-2-301 (1);
186 (ii) information provided to the governmental entity for the purpose of complying with
187 a financial assurance requirement; or
188 (iii) records that must be disclosed in accordance with another statute;
189 (c) records of independent state agencies if the disclosure of those records would
190 conflict with the fiduciary obligations of the agency;
191 (d) other records containing data on individuals the disclosure of which constitutes a
192 clearly unwarranted invasion of personal privacy; and
193 (e) records provided by the United States or by a government entity outside the state
194 that are given with the requirement that the records be managed as private records, if the
195 providing entity states in writing that the record would not be subject to public disclosure if
196 retained by it.
197 (3) (a) As used in this Subsection (3), "medical records" means medical reports,
198 records, statements, history, diagnosis, condition, treatment, and evaluation.
199 (b) Medical records in the possession of the University of Utah Hospital, its clinics,
200 doctors, or affiliated entities are not private records or controlled records under Section
201 63-2-303 when the records are sought:
202 (i) in connection with any legal or administrative proceeding in which the patient's
203 physical, mental, or emotional condition is an element of any claim or defense; or
204 (ii) after a patient's death, in any legal or administrative proceeding in which any party
205 relies upon the condition as an element of the claim or defense.
206 (c) Medical records are subject to production in a legal or administrative proceeding
207 according to state or federal statutes or rules of procedure and evidence as if the medical
208 records were in the possession of a nongovernmental medical care provider.
209 Section 7. Section 63-2-302 (Superseded 07/01/03) is amended to read:
210 63-2-302 (Superseded 07/01/03). Private records.
211 (1) The following records are private:
212 (a) records concerning an individual's eligibility for unemployment insurance benefits,
213 social services, welfare benefits, or the determination of benefit levels;

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- 8 - 214 (b) records containing data on individuals describing medical history, diagnosis,
215 condition, treatment, evaluation, or similar medical data;
216 (c) records of publicly funded libraries that when examined alone or with other records
217 identify a patron;
218 (d) records received or generated for a Senate or House Ethics Committee concerning
219 any alleged violation of the rules on legislative ethics, prior to the meeting, and after the
220 meeting, if the ethics committee meeting was closed to the public;
221 (e) records received or generated for a Senate confirmation committee concerning
222 character, professional competence, or physical or mental health of an individual:
223 (i) if prior to the meeting, the chair of the committee determines release of the records:
224 (A) reasonably could be expected to interfere with the investigation undertaken by the
225 committee; or
226 (B) would create a danger of depriving a person of a right to a fair proceeding or
227 impartial hearing; and
228 (ii) after the meeting, if the meeting was closed to the public;
229 (f) records concerning a current or former employee of, or applicant for employment
230 with, a governmental entity that would disclose that individual's home address, home telephone
231 number, Social Security number, insurance coverage, marital status, or payroll deductions;
232 (g) that part of a record indicating a person's Social Security number if provided under
233 Section 31A-23-202 , 31A-26-202 , 58-1-301 , 61-1-4 , or 61-2-6 ;
234 (h) that part of a voter registration record identifying a voter's driver license or
235 identification card number, Social Security number, or last four digits of the Social Security
236 number; [and]
237 (i) a record that:
238 (i) contains information about an individual;
239 (ii) is voluntarily provided by the individual; and
240 (iii) goes into an electronic database that:
241 (A) is designated by and administered under the authority of the Chief Information
242 Officer; and
243 (B) acts as a repository of information about the individual that can be electronically
244 retrieved and used to facilitate the individual's online interaction with a state agency[.]; and

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- 9 - 245 (j) information obtained through a criminal background check under Title 11, Chapter
246 39, Criminal Background Checks by Political Subdivisions Operating Water Systems.
247 (2) The following records are private if properly classified by a governmental entity:
248 (a) records concerning a current or former employee of, or applicant for employment
249 with a governmental entity, including performance evaluations and personal status information
250 such as race, religion, or disabilities, but not including records that are public under Subsection
251 63-2-301 (1)(b) or 63-2-301 (2)(o), or private under Subsection [ 63-2-302 ](1)(b);
252 (b) records describing an individual's finances, except that the following are public:
253 (i) records described in Subsection 63-2-301 (1);
254 (ii) information provided to the governmental entity for the purpose of complying with
255 a financial assurance requirement; or
256 (iii) records that must be disclosed in accordance with another statute;
257 (c) records of independent state agencies if the disclosure of those records would
258 conflict with the fiduciary obligations of the agency;
259 (d) other records containing data on individuals the disclosure of which constitutes a
260 clearly unwarranted invasion of personal privacy; and
261 (e) records provided by the United States or by a government entity outside the state
262 that are given with the requirement that the records be managed as private records, if the
263 providing entity states in writing that the record would not be subject to public disclosure if
264 retained by it.
265 (3) (a) As used in this Subsection (3), "medical records" means medical reports,
266 records, statements, history, diagnosis, condition, treatment, and evaluation.
267 (b) Medical records in the possession of the University of Utah Hospital, its clinics,
268 doctors, or affiliated entities are not private records or controlled records under Section
269 63-2-303 when the records are sought:
270 (i) in connection with any legal or administrative proceeding in which the patient's
271 physical, mental, or emotional condition is an element of any claim or defense; or
272 (ii) after a patient's death, in any legal or administrative proceeding in which any party
273 relies upon the condition as an element of the claim or defense.
274 (c) Medical records are subject to production in a legal or administrative proceeding
275 according to state or federal statutes or rules of procedure and evidence as if the medical

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- 10 - 276 records were in the possession of a nongovernmental medical care provider.
277 Section 8. Effective date.
278 This act takes effect May 5, 2003, except that the amendments to Section 63-2-302
279 (Effective 07/01/03) take effect July 1, 2003.

Legislative Review Note
as of 1-27-03 5:32 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel