SPEAKERS CONTENTS INSERTS
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92–829 PDF
2004
PRIVATE SECURITY OFFICER EMPLOYMENT AUTHORIZATION ACT OF 2003
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
S. 1743
MARCH 30, 2004
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Serial No. 89
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
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JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Crime, Terrorism, and Homeland Security
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HOWARD COBLE, North Carolina, Chairman
TOM FEENEY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
MARK GREEN, Wisconsin
RIC KELLER, Florida
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
ROBERT C. SCOTT, Virginia
ADAM B. SCHIFF, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
JAY APPERSON, Chief Counsel
ELIZABETH SOKUL, Counsel
KATY CROOKS, Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
MARCH 30, 2004
OPENING STATEMENT
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The Honorable Howard Coble, a Representative in Congress From the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress From the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
WITNESSES
Mr. Michael Kirkpatrick, Assistant Director, Federal Bureau of Investigation, Criminal Justice Information Services Division, Department of Justice
Oral Testimony
Prepared Statement
The Honorable Jeanine Pirro, District Attorney, Westchester County, NY
Oral Testimony
Prepared Statement
Mr. Don Walker, Chairman, Pinkerton Security, Executive Member, American Society of Industrial Security, Board of Directors, National Association of Security Guard Companies
Oral Testimony
Prepared Statement
Mr. Lewis Maltby, President, National Work Rights Institute
Oral Testimony
Prepared Statement
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APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas
Questions and Responses for the Record from Michael Kirkpatrick
Questions and Responses for the Record from the Honorable Jeanine Pirro
Questions and Responses for the Record from Don Walker
Prepared Statement of Ira A. Lipman, Founder and Chairman, Guardsmark, LLC
Prepared Statement of William C. Whitmore, Jr., President and Chief Executive Officer, Allied Security, LLC
Prepared Statement of Cecil Hogan, President, National Burglar & Fire Alarm Association (NBFAA)
Prepared Statement of the National Association of Security Companies
Letter from Warren B. Rudman, Counsel, Paul, Weiss, Rifkind, Wharton, & Garrison LLP
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PRIVATE SECURITY OFFICER EMPLOYMENT AUTHORIZATION ACT OF 2003
TUESDAY, MARCH 30, 2004
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:27 p.m., in Room 2141, Rayburn House Office Building, Hon. Howard Coble (Chair of the Subcommittee) presiding.
Mr. COBLE. Ladies and gentlemen, I apologize for the delay, but as I said to you previously, when we have bills from this Committee on the floor, we suspend the hearing time. The debate has been completed, I'm told, so now we can commence with our hearing.
Today the Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing on S. 1743, the ''Private Security Officer Employment Authorization Act of 2003,'' and the need for background checks in general.
More and more, private security officers are utilized to protect our nation's assets, both in the Government and in the private sector. These assets are as diverse as the protection of the neighborhood shopping center to the protection of nuclear power plants. These officers act as the eyes and ears of both private corporations and the law enforcement community. The problem is, as USA Today reported in January of 2003, most of the nation's 1 million plus guards are unlicensed, untrained, and not subject to background checks. Their burgeoning $12 billion industry is marked by high turnover, low pay, few benefits, and scant oversight. And according to Government officials and industry experts, little has changed since September 11, 2001.
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S. 1743 addresses the unique need of the security officer industry for criminal history background checks on employees and prospective employees. Without such checks, those entrusted to protect our citizens and critical infrastructure could be the very people the security guards are hired to protect against—that is, terrorists and criminals.
As we continue waging the war against terrorism, other industries may also realize a need for criminal background checks but we must also examine the need for criminal history background checks, that may involve nonterrorism concerns, such as child care workers, for example. The Committee believes that certain types of employment should require additional screening of employees and applicants, but I have to wonder if the way that we have been addressing this issue, one bill at a time, is the most effective or most efficient.
The bill we will hear about today can trace its history to 1991. There are at least two dozen different laws with different definitions and different process structures directing the Attorney General and the FBI to conduct criminal history background checks. Since the September 11, 2001 attacks, the number of checks conducted by the FBI's integrated automated fingerprint identification system has grown from an average of 41,400 per day to 48,215 per day. Other queries of the FBI databases for immigration, law enforcement, and other purposes have also shown significant increases.
We're looking forward to hearing from our distinguished panel of witnesses today, and I am now pleased to recognize the distinguished gentleman from Virginia, the Ranking Member of the Subcommittee, Mr. Bobby Scott.
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Mr. SCOTT. Thank you, Mr. Chairman. I'm pleased to join you in convening the hearing on S. 1743, the ''Private Security Officer Employment Authorization Act of 2003.'' The private security workers play a vital role in not only securing our businesses and personal properties from theft and vandalism but also protecting critical infrastructure, both public and private, from threat of terrorism. Because of the nature of a security position and the importance of the work, it is necessary that employers have background information on applicants, such as their criminal record history, to ensure that they are trustworthy.
The private security industry is a growing industry, particularly since the 9/11 tragedies, and is important to our economy. At a time when many of the traditional manufacturing jobs, which have been the foundation of our economy and the livelihood of so many families, we must ensure that we have sufficient workforce both in the quantity and the quality of people available for jobs.
Criminal records checks can assist in weeding out untrustworthy persons but must not serve to block worthy people due to unsubstantial or unreliable information. Raw criminal record history information viewed by untrained eyes could do more harm than good in this regard and unfairly deprive an employee or applicant of a good work opportunity and the employer of a good worker, as well.
So an important balance must be struck to ensure employers get relevant information on which to assess qualifications for important and sometimes sensitive work while avoiding confusing or unfairly prejudicial information. The Private Security Officer Employment Authorization Act goes a long way toward meeting that balance by limiting the access to felonies and crimes involving dishonesty within the last 10 years. While some issue has been raised about the advisability of unresolved arrest data, perhaps a balance can be struck there, as well. While we would not expect a bank to hire an applicant with an unresolved bank robbery arrest in the last year, we would not want bogus, insubstantial charges which are not prosecuted to deny employment, either.
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So Mr. Chairman, I think it's a good bill that may be improved with some relatively minor tweaking, with eventually becoming part of a more uniform system of criminal background checks that we may ask the Attorney General to develop.
And in that vein, Mr. Chairman, I think since there's a consensus that we'd like the bill to be adopted, I would hope that the witnesses spend much of their time telling us which records should be available and how to make those records available and I yield back.
Mr. COBLE. I thank the gentleman.
We're also pleased to have with us the distinguished gentleman from Florida and the distinguished gentleman from Ohio, Mr. Feeney and Mr. Chabot.
Today we have four distinguished witnesses, one from the Federal Government, one from local government, one from the private sector, and the final witness from a public interest group serving worker rights.
Our first witness is Mr. Michael Kirkpatrick, Assistant Director of the Federal Bureau of Investigation. Mr. Kirkpatrick is in charge of the FBI's Criminal Justice Information Services Division in Clarksburg, West Virginia, the largest division within the FBI. Mr. Kirkpatrick has over 21 years of service in the FBI and has served at FBI posts in New Orleans, Pocatello, San Antonio, Cleveland, and Kansas City, Missouri. In his long and distinguished career he has investigated or supervised investigations relating to counterterrorism, counterintelligence, civil rights, applicant investigations, and white collar crime matters. Mr. Kirkpatrick is a certified public accountant and a graduate of Purdue University in West Lafayette, Louisiana.
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Our second witness is the honorable Jeanine Pirro, district attorney for Westchester County, New York. Ms. Pirro was first selected to serve as the chief law enforcement officer for Westchester County in 1993. Immediately prior to that she served as a county court judge after serving in the district attorney's office in many distinguished positions for over 15 years. Ms. Pirro is the author of two books, several articles, and is a frequent commentator on national television. She has brought criminal justice issues to the people by hosting and producing two local cable television shows. Ms. Pirro has received numerous awards, including most recently the Distinguished Women in Law Enforcement Award from the New York Law Enforcement Foundation. She holds a bachelor's degree from the University of Buffalo and a Juris Doctorate from the Albany School of Law.
Our next witness is Mr. Don Walker. Mr. Walker serves as chairman of Securitas Security Services, U.S.A., Inc., a subsidiary of the Securitas Group. With over 120,000 security officers and over $3 billion in revenues, Securitas is one of the world's largest and most respected international security companies.
Mr. Walker has held numerous executive positions with Pinkerton's, Inc., including chairman, CEO, and president. He is past president of the American Society for Industrial Security and currently co-chairs their Commission for Security Guidelines. He's also a member of the board of directors of the National Association of Security Companies and a member of the International Association of Chiefs of Police. Mr. Walker is a former special agent of the Federal Bureau of Investigation and holds a bachelors degree from the University of Louisville and a Juris Doctorate from the Nashville School of Law.
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Our final witness is Mr. Louis Maltby, founder and president of the National Work Rights Institute. Mr. Maltby is a nationally recognized expert on human rights in the workplace and was an original founder of the National Workplace Rights Office of the American Civil Liberties Union. Mr. Maltby holds a Bachelor of Arts degree and a Juris Ddoctorate from the University of Pennsylvania.
I apologize to you all for my lengthy introduction, but I think it's important that all of us recognize the background and the expertise that these witnesses do bring to the witness table.
Lady and gentlemen, as you all have been previously advised by us, I hope that you can confine your oral testimony to the 5-minute mark, and we impose the 5-minute mark against us, as well, when we examine you all. Your 5 minutes will be up when you see the red light illuminated on that little panel on your desk, and when the amber light illuminates, you will know that you'd better start scurrying because it'll soon be red.
Thanks to all of you for being here, and Mr. Kirkpatrick, we will start with you.
STATEMENT OF MICHAEL KIRKPATRICK, ASSISTANT DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, CRIMINAL JUSTICE INFORMATION SERVICES DIVISION, DEPARTMENT OF JUSTICE
Mr. KIRKPATRICK. Good afternoon, Mr. Chairman and Members of the Committee. Thank you for the opportunity to appear before you this afternoon to discuss the FBI's fingerprint identification program. I have provided a written statement for the record but I would like to make just a few comments.
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Since 1924, the FBI's been the national repository for fingerprints and related criminal history data. Today our fingerprint holdings are divided into two categories: criminal and civil. The FBI's master criminal fingerprint file contains the records of approximately 47 million individuals while our civil file contains the records of approximately 31 million individuals.
The civil file primarily contains fingerprints of people who have served or are serving currently in the U.S. military or in the Federal Government. A civil fingerprint card may also be submitted regarding an individual who is seeking employment for a position of trust, such as Federal employment, adopting a child, seeking U.S. citizenship, or serving as a volunteer. Civil fingerprint checks are submitted to the FBI based upon a specific Federal law authorizing such a check or based upon a State or municipal statute which authorizes such a check in compliance with Public Law 92-544.
Every day the FBI receives, as you pointed out, nearly 50,000 fingerprint submissions. During the last fiscal year we received a total of almost 18 million fingerprint submissions. Of this amount, approximately 48 percent or 8.6 million of those fingerprint submissions were civil submissions. Our response goal for civil fingerprint cards electronically submitted to the FBI is to process and provide a response within 24 hours. Today we are meeting this goal 99 percent of the time and, in fact, our average response time is approximately 2 hours.
So what is the benefit of conducting civil fingerprint background checks? Our statistics show that an average hit rate of 12 percent for civil fingerprint checks. This equates to approximately 900,000 checks every year being identified to individuals with existing criminal history records.
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In addition to the fingerprint check, all civil background checks undergo a name-based search against the wanted person file and the terrorist watch list that are located within the National Crime Information Center.
As Congress considers expanding the occupations and professions which require fingerprint-based background checks, I would suggest that the need to develop a comprehensive national infrastructure to support such checks is vitally needed. Specifically, many law enforcement agencies, which typically are the starting point for the capture of civil fingerprints, are either not equipped to do so in an efficient manner or do not have the personnel resources to do so.
State identification bureaus, which also play a key role in this process, are likewise often underequipped and understaffed. This limits the ability to conduct a thorough and timely check for those who are applying for positions of responsibility and trust and could ultimately result in the need to institute some type of prioritization of such checks as the existing infrastructure become overloaded.
While the answers to the needs I have just raised are currently undetermined, the FBI, Department of Justice and our partners are in the process of finalizing the feasibility study required under section 108(d) of the Protect Act, Public Law 108-21. This study will begin to answer many of the questions concerning how best to develop a national infrastructure to accommodate the growing demand for fingerprint-based background checks.
Mr. Chairman, I'd like to invite you and Members of the Committee to visit us in West Virginia and personally see the investment in our state-of-the-art fingerprint technology. Thank you again for the privilege to appear before you and I will obviously be available for any questions that you might have.
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[The prepared statement of Mr. Kirkpatrick follows:]
PREPARED STATEMENT OF MICHAEL D. KIRKPATRICK
GOOD MORNING MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE. I AM MICHAEL D. KIRKPATRICK AND I AM THE ASSISTANT DIRECTOR IN CHARGE OF THE CRIMINAL JUSTICE INFORMATION SERVICES DIVISION OF THE FBI. I THANK YOU FOR THE OPPORTUNITY TO APPEAR BEFORE THIS COMMITTEE IN ORDER TO DISCUSS THE FBI'S FINGERPRINT IDENTIFICATION PROGRAM.
SINCE 1924, THE FBI HAS BEEN THE NATIONAL REPOSITORY FOR FINGERPRINTS AND RELATED CRIMINAL HISTORY DATA. AT THAT TIME, 810,188 FINGERPRINT RECORDS FROM THE NATIONAL BUREAU OF CRIMINAL IDENTIFICATION AND LEAVENWORTH PENITENTIARY WERE CONSOLIDATED TO FORM THE NUCLEUS OF THE FBI'S FILES. OVER THE YEARS, THE SIZE OF OUR FINGERPRINT FILES HAS GROWN AND THE DEMAND FOR THE PROGRAM'S SERVICES HAS STEADILY INCREASED. OUR FINGERPRINT HOLDINGS ARE DIVIDED INTO TWO CATEGORIES—CRIMINAL AND CIVIL. TODAY, THE FBI'S MASTER CRIMINAL FINGERPRINT FILE CONTAINS THE RECORDS OF APPROXIMATELY 47 MILLION INDIVIDUALS, WHILE OUR CIVIL FILE REPRESENTS APPROXIMATELY 30.7 MILLION INDIVIDUALS. THE CIVIL FILE PREDOMINANTLY CONTAINS FINGERPRINTS OF INDIVIDUALS WHO HAVE SERVED OR ARE SERVING IN THE U.S. MILITARY OR HAVE BEEN OR ARE EMPLOYED BY THE FEDERAL GOVERNMENT.
A CRIMINAL CARD IS EXACTLY AS THE NAME IMPLIES. IT IS THE FINGERPRINTS OF AN INDIVIDUAL WHO HAS BEEN ARRESTED AND CHARGED WITH A CRIME. A CIVIL CARD IS SUBMITTED REGARDING AN INDIVIDUAL WHO IS SEEKING EMPLOYMENT IN CERTAIN POSITIONS, SUCH AS FEDERAL EMPLOYMENT, THE MILITARY, OR THE BANKING/SECURITIES INDUSTRY; OR IS ADOPTING A CHILD; SEEKING U.S. CITIZENSHIP; OR SERVING AS A VOLUNTEER (E.G., AT A CHILD OR SENIOR DAY CARE CENTER) AND REQUIRES A NATIONAL FINGERPRINT BACKGROUND CHECK AS PART OF THE SCREENING PROCESS. CIVIL FINGERPRINT CHECKS ARE SUBMITTED TO THE FBI BASED UPON A SPECIFIC FEDERAL LAW AUTHORIZING A NATIONAL FINGERPRINT BACKGROUND CHECK, OR BASED UPON A STATE STATUTE OR A MUNICIPAL ORDINANCE, IF AUTHORIZED BY A STATE STATUTE, AUTHORIZING A NATIONAL BACKGROUND CHECK IN COMPLIANCE WITH PUBLIC LAW 92–544.
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FOR ITS FIRST 75 YEARS OF EXISTENCE, THE PROCESSING OF INCOMING FINGERPRINT CARDS BY THE FBI WAS PREDOMINANTLY A MANUAL, TIME CONSUMING, LABOR INTENSIVE PROCESS. FINGERPRINT CARDS WERE MAILED TO THE FBI FOR PROCESSING AND A PAPER-BASED RESPONSE WAS MAILED BACK. IT WOULD TAKE ANYWHERE FROM WEEKS TO MONTHS TO PROCESS A FINGERPRINT CARD.
HOWEVER, THAT ALL CHANGED ON JULY 28, 1999, WITH THE IMPLEMENTATION OF THE INTEGRATED AUTOMATED FINGERPRINT IDENTIFICATION SYSTEM, OR IAFIS. THE IAFIS WAS THE DAWN OF A NEW ERA FOR THE FBI'S FINGERPRINT IDENTIFICATION PROGRAM AS IT PERMITS THE PROCESSING OF ALL INCOMING FINGERPRINT SUBMISSIONS IN A TOTALLY ELECTRONIC ENVIRONMENT.
EVERY DAY, THE FBI RECEIVES NEARLY 50,000 FINGERPRINT SUBMISSIONS, WHICH ARE SENT TO US IN EITHER AN ELECTRONIC FORMAT OR PAPER-BASED. THE PAPER-BASED SUBMISSIONS ARE CONVERTED TO AN ELECTRONIC FORMAT PRIOR TO PROCESSING ON THE IAFIS. DURING FISCAL YEAR 2003, THE FBI RECEIVED A TOTAL OF 17,736,541 FINGERPRINT SUBMISSIONS. OF THIS TOTAL, 48 PERCENT, OR APPROXIMATELY 8.6 MILLION, WERE CIVIL FINGERPRINT SUBMISSIONS. OF THE NEARLY 8.6 MILLION CIVIL SUBMISSIONS, 73 PERCENT, OR SLIGHTLY MORE THAN 6.2 MILLION, WERE SENT TO US ELECTRONICALLY.
IN ADDITION TO THE ELECTRONIC OR PAPER-BASED METHODS OF SUBMITTING FINGERPRINTS TO THE FBI, THERE ARE TWO PATHS A CIVIL FINGERPRINT MAY TRAVEL. THE MOST COMMON METHOD STARTS WITH THE FINGERPRINTING OF AN INDIVIDUAL AT A BOOKING STATION. THE PRINTS ARE FORWARDED TO THE AUTHORIZED STATE AGENCY FOR A CHECK AGAINST STATE RECORDS. THE STATE AGENCY THEN FORWARDS THE PRINTS TO THE FBI FOR A NATIONAL BACKGROUND CHECK. THIS METHOD COMPLIES WITH PUBLIC LAW 92–544 AND PROVIDES A MORE COMPLETE BACKGROUND CHECK.
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THE SECOND PATH INVOLVES THE USE OF A CHANNELING AGENCY, SUCH AS THE AMERICAN BANKERS ASSOCIATION, ABA, OR THE OFFICE OF PERSONNEL MANAGEMENT, OPM. THE ABA AND THE OPM, FOR EXAMPLE, SERVE AS A SINGLE POINT FOR FORWARDING CIVIL FINGERPRINT CHECKS DIRECTLY TO THE FBI. UNDER THIS METHOD, ONLY A NATIONAL BACKGROUND CHECK IS CONDUCTED.
OUR GOAL FOR CIVIL FINGERPRINT CARDS ELECTRONICALLY SUBMITTED TO THE FBI IS TO PROCESS AND PROVIDE A RESPONSE WITHIN 24 HOURS. TODAY, WE ARE MEETING THIS GOAL 99 PERCENT OF THE TIME, AND OUR AVERAGE RESPONSE TIME IS APPROXIMATELY TWO HOURS. ONCE PAPER-BASED SUBMISSIONS ARE RECEIVED BY THE FBI THEY ARE CONVERTED TO AN ELECTRONIC FORMAT, INJECTED INTO THE IAFIS FOR PROCESSING, A PAPER-BASED RESPONSE IS GENERATED, AND THAT RESPONSE IS THEN MAILED TO THE CONTRIBUTOR. IT TAKES BETWEEN FIVE AND TEN BUSINESS DAYS FROM THE TIME A PAPER-BASED CIVIL CARD IS MAILED TO THE FBI AND A RESPONSE IS RECEIVED BY THE CONTRIBUTOR.
SO, WHAT IS THE BENEFIT OF CONDUCTING CIVIL FINGERPRINT BACKGROUND CHECKS? OUR STATISTICS SHOW AN ANNUAL HIT RATE OF 12 PERCENT. THIS EQUATES TO APPROXIMATELY 900,000 CHECKS PER YEAR BEING IDENTIFIED TO INDIVIDUALS WITH EXISTING CRIMINAL HISTORY RECORDS. IN ADDITION TO THE FINGERPRINT CHECK, ALL CIVIL SUBMISSIONS UNDERGO A NAME-BASED SEARCH OF THE SUBJECT AGAINST THE WANTED PERSON FILE AND THE TERRORIST WATCH LIST LOCATED WITHIN THE NATIONAL CRIME INFORMATION CENTER.
THE FBI CHARGES A FEE FOR PROCESSING CIVIL FINGERPRINT SUBMISSIONS. OUR FEE FOR THIS SERVICE RANGES FROM $16 TO $22 DEPENDING ON THE TYPE OF SERVICE REQUESTED. THE FBI USES THIS MONEY TO OFFSET THE OVERHEAD AND OPERATIONAL COSTS OF PROVIDING THIS SERVICE, AND FOR MAINTENANCE AND TECHNOLOGICAL REFRESHMENTS TO OUR NATIONAL COMPUTERIZED DATABASES.
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AS CONGRESS CONSIDERS EXPANDING THE OCCUPATIONS AND PROFESSIONS WHICH REQUIRE FINGERPRINT-BASED BACKGROUND CHECKS, I BELIEVE IT MUST ALSO CONSIDER THE VITAL NEED TO DEVELOP A COMPREHENSIVE NATIONAL INFRASTRUCTURE TO SUPPORT SUCH CHECKS, INCLUDING THE MEANS OF COLLECTING THE REQUIRED FINGERPRINTS, AND PROCESSING THE CHECKS. SPECIFICALLY, MANY LAW ENFORCEMENT AGENCIES, SUCH AS POLICE DEPARTMENTS AND JAIL FACILITIES, WHICH TYPICALLY ARE THE STARTING POINT FOR THE CAPTURE OF FINGERPRINTS, DO NOT HAVE THE RESOURCES TO CAPTURE THE PRINTS FOR A SIGNIFICANTLY HIGHER VOLUME OF NEW CIVIL CHECKS, EITHER ELECTRONICALLY OR MANUALLY. IN ADDITION, FOR MOST OF THESE NON-CRIMINAL JUSTICE CHECKS, A LAW ENFORCEMENT AGENCY IS NOT THE MOST APPROPRIATE VENUE FOR COLLECTING THE PRINTS. STATE IDENTIFICATION BUREAUS, WHICH ALSO PLAY A KEY ROLE IN THIS PROCESS, ARE LIKEWISE OFTEN UNDER-EQUIPPED AND UNDER-STAFFED. THIS LIMITS THE ABILITY TO CONDUCT A THOROUGH AND TIMELY CIVIL CHECKS AND COULD EVENTUALLY RESULT IN THE NEED TO INSTITUTE SOME TYPE OF PRIORITIZATION OF SUCH CHECKS AS THE EXISTING INFRASTRUCTURE BECOMES OVERLOADED.
WHILE THE ANSWERS TO THE QUESTIONS I HAVE JUST RAISED ARE CURRENTLY UNDETERMINED, THE FBI, DEPARTMENT OF JUSTICE, AND OUR PARTNERS ARE IN THE PROCESS OF FINALIZING THE FEASIBILITY STUDY REQUIRED BY SECTION 108(D) OF THE ''PROTECT ACT,'' PUBLIC LAW NO. 108–21, LEGISLATION ENACTED LAST YEAR TO PROVIDE NEW INVESTIGATIVE AND PROSECUTORIAL REMEDIES AND OTHER TOOLS TO COMBAT THE EXPLOITATION OF CHILDREN. THIS STUDY IS REQUIRED TO ADDRESS FOURTEEN SPECIFIC AREAS, SUCH AS ''THE COST OF DEVELOPMENT AND OPERATION OF . . . THE INFRASTRUCTURE NECESSARY TO ESTABLISH A NATIONWIDE FINGERPRINT-BASED AND OTHER CRIMINAL BACKGROUND CHECK SYSTEM.'' THE STUDY WILL BEGIN TO ANSWER MANY OF THE QUESTIONS CONCERNING HOW BEST TO DEVELOP SUCH A NATIONAL INFRASTRUCTURE TO ACCOMMODATE THE INCREASING DEMAND FOR FINGERPRINT-BASED BACKGROUND CHECKS.
IN CLOSING, I WOULD LIKE TO INVITE THE MEMBERS OF THE COMMITTEE TO VISIT THE FBI WEST VIRGINIA COMPLEX AND PERSONALLY SEE OUR DYANAMIC FINGERPRINT PROGRAM AND STATE-OF-THE-ART FACILITIES. I AGAIN THANK YOU FOR THE PRIVILEGE TO APPEAR BEFORE THIS COMMITTEE. I AM AVAILABLE FOR ANY QUESTIONS YOU MAY HAVE.
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Mr. COBLE. Thank you, Mr. Kirkpatrick. And we have been joined by the distinguished gentleman from Virginia, Mr. Goodlatte, and the distinguished gentleman from Wisconsin, Mr. Green.
Ms. Pirro, you're recognized for 5 minutes.
STATEMENT OF THE HONORABLE JEANINE PIRRO, DISTRICT ATTORNEY, WESTCHESTER COUNTY, NY
Ms. PIRRO. Thank you. Mr. Chairman and Members of the Committee, I wish to thank you for inviting me to speak this afternoon and I've come here to urge you to implement safeguards that employers desperately need in order to make informed hiring decisions. After more than 25 years in law enforcement I have learned that the first order of Government is the protection of its citizens and Government fails when it does not give employers the right to know who they are hiring and when the Government allows individuals with ulterior motives to fake their identifications, to apply for jobs without verification of who they truly are.
I come from a county of almost 1 million people and we prosecute almost 35,000 cases every year. I have seen virtually every kind of violation of the law in my work as both a judge and a prosecutor and what I know is that every day individuals seek employment in communities around this country for sensitive positions, positions of trust, and a history of maintaining or violating the laws of our society are essential factors to be weighed by prospective employers before making a hiring decision.
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The public policy objective is self-evident. Employers deserve access to public information regarding those who seek their trust, yet our laws do not provide a uniform mechanism for most employers to access what is perhaps the most telling information about an individual—a person's criminal record.
There are many things about our lives that we are entitled to keep private. Criminal convictions are not among them. Criminal convictions are a matter of public record and if Government fails to even assist in securing the safety of its citizens it is abrogating its most essential duty.
You have the means to provide broad access to these records and I would argue the obligation to do so. The lack of uniformity in our statutes across the country has led to the hiring of individuals who misrepresent themselves and their past in order to obtain a job. In an age of identity theft, even the documentation an applicant might supply is potentially suspect. And in the post-9/11 era when we restrict legitimate employers from finding out critical information about job applicants, we do so at the risk of public safety.
A piecemeal approach to this issue is not the answer. By selectively identifying careers that will allow employers to seek access to public records containing criminal histories, we effectively preclude other equally desiring employers from the same access. It is time for Congress to act and to do so with recognition that it is in the best interest not only of business but of our nation to craft a statute that allows for inclusive rather than exclusive access to these already public records.
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Allow me to give you a couple of examples of how piecemeal efforts at the State level have resulted in far too many holes. In Westchester County we are entitled to know if someone is working in a day care facility whether that individual has a previous criminal record and yet private individuals who hire someone to care for their children at home are not entitled to that very same information. And it was only when a 10-year-old was thrown against a wall in Westchester and killed—a 10-month-old; excuse me—that we decided that we should change the law to give parents access to information of prior criminal histories. In that case the individual had a prior history, criminal history, that the parent was not allowed to access.
Most employers have no way of knowing who they're hiring. Just 2 weeks ago I addressed the American Campers Association when I heard an outcry from camp directors that their efforts to run background checks on prospective employees are stymied by lax or nonexistent State statutes. The reality for them is that they're forced to rely on individuals who simply want the job, putting their campers and their business and reputation at risk.
Our laws are a disjointed hodgepodge of narrow provisions enacted one at a time on a position-by-position basis with no attempt to rationalize why one sensitive position is subject to a criminal history check while a different comparably sensitive position is not.
On school buses in New York there are often two adults in close confinement with our children—the bus driver and the monitor. The bus drivers are subject to criminal background checks. The bus monitor is not. I cannot tell you how many monitors we've prosecuted in Westchester who would not have been hired had there been any information that could be verified regarding their criminal backgrounds.
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And after a case in which a public school teacher sodomized an 8- and 9-year-old boy in Westchester we found out that that individual had had three prior criminal convictions that the school could not access. The school was entitled to that information and those children should not have been subjected to that sodomy, which will forever affect their lives.
Those who affect children and work with children are but one example. The issue here is not whether someone with a criminal past should be disqualified from all employment. Those who've been punished for breaking our laws should have every reasonable opportunity to progress toward a normal law-abiding life. But when there is a relationship between their criminal history and the job, the employer should be allowed to make an informed decision.
Just this morning when I was at the airport coming here——
Mr. COBLE. Ms. Pirro, if you can wrap up?
Ms. PIRRO. I am.
Mr. COBLE. Your time has expired.
Ms. PIRRO. I'm right there.
Mr. COBLE. All right.
Ms. PIRRO. I was required to take off my shoes, my jacket, my coat, and be scanned. This is a privacy issue and I was more than willing to subject myself to that for national security and safety. And yet criminal histories that are already public records are not allowed to be accessed and I believe that we have an obligation to give to employers the right to know who it is they're hiring. Thank you.
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[The prepared statement of Ms. Pirro follows:]
PREPARED STATEMENT OF JEANINE FERRIS PIRRO
Mr. Chairman, Members of the Committee:
I first wish to thank the Committee for inviting me to speak this afternoon. I have come to Washington to urge you to implement safeguards employers desperately need in order to make informed hiring decisions.
Every day individuals seek employment in communities around the United States for sensitive positions—positions of trust. Histories of maintaining or violating the laws of society are essential factors to be weighed by prospective employers before making these hiring decisions. The public policy objective is self-evident: employers deserve access to public information regarding those who seek their trust.
Yet, our laws do not provide a uniform mechanism for most employers to access what is perhaps the most telling historical information about an individual—the person's criminal record. There are many things about our lives that we are entitled to keep private. Criminal convictions are not among them. Criminal convictions are matters of public record. If government fails to assist in securing the safety of its citizens, it is abrogating its most essential duty. You have the means to provide broad access to these records and, I would argue, an obligation to do so.
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This lack of uniformity in our statutes has lead to the hiring of individuals who have misrepresented their past in order to obtain their positions. In the age of identity theft, even the documentation an applicant might supply is potentially suspect. And in the post-9/11 era, when we restrict legitimate employers from finding out critical information about job applicants, we do so at the risk of safety and security.
A piecemeal approach to this issue is not the answer. By selectively identifying careers that will allow employers to seek access to public records containing criminal histories, we effectively preclude other equally deserving employers the same access. It is time for Congress to act and to do so with the recognition that it is in the best interest not only of business, but of our nation to craft a statute that allows for inclusive rather than exclusive access to these public records.
Allow me to give you a sense of how piecemeal efforts to solve this issue at the state level have resulted in far too many holes in the safety net.
In almost three decades of service to law enforcement, it has become abundantly clear to me that pedophiles are the most cunning, devious and deceptive of criminals. It is almost invariably the case that pedophiles will groom their intended victims before undertaking actual sexual contact. The most effective means of ensuring that their crimes are not uncovered is to establish themselves as respected and responsible members of society. Frequently, this involves finding employment that puts them in direct contact with children.
Employers are permitted by law to inquire if an applicant has ever been convicted of a crime, permitted to require a formal statement on a written application to this effect, permitted to deny employment if the listed criminal conviction bears a relationship with the job offered, and to discharge the employee if the written statement is false.
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But with selected exceptions, most employers have no way of determining whether the statement the employee has given is the truth, or is a lie. Just two weeks ago, I addressed the American Campers Association where I heard an outcry from camp directors that their efforts to run background checks on prospective employees are stymied by lax or non-existent state statutes. The reality for them is that they are forced to reply perhaps on the false assertions of an applicant, putting their campers and themselves at risk. And they are but one category of employers who want access to these public records—access which is denied.
The fact is that our laws in this area are a disjointed hodge-podge of narrow provisions, enacted one at a time on a position-by-position basis, with no attempt to rationalize why one sensitive position is subject to a criminal history check while a different, comparably sensitive position is not. At best, legislatures across this country are constantly closing the barn door after the horse has escaped: enacting legislation in the aftermath of a tragedy, limited to the singular situation that tragedy involved.
Under New York law, for example, child-care employees in a day care facility are subject to mandatory fingerprinting and criminal history checks. But in the early 1990's similar caregivers working in their employer's homes were not. As a result, when a family in my county hired a young woman as the nanny for their 10-month-old son Kieran, and attempted to conduct a criminal background check on her, they were told that New York law did not permit it. So they never knew of the woman's criminal past, which she indeed had. Not until it was too late. Not until after the woman hurled 10-month-old Kieran across the room, killing him.
As a result of this brutal homicide, working with Governor Pataki and the New York Legislature, in 1998, we passed ''Kieran's Law'' to remedy this situation. But ''Kieran's Law'' remedies only this situation. Scores of similar disparities continue to exist.
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For example, on school buses in New York, there are often two adults in close confinement with our children: the bus driver and the bus monitor. School bus drivers are subject to criminal background checks; school bus monitors are not.
After a case in which a public school teacher with a criminal history was convicted of sodomizing two young boys, New York enacted the ''Safe Schools Against Violence in Education'' Law which required fingerprinting and criminal background checks for all prospective public school teachers and public school employees and volunteers. But the law does not affect currently employed teachers, or teachers in private schools, or volunteers working in group homes, or camp employees, or the employees of private contactors. No, the unfortunate reality is that we will have to await the commission of future criminal acts before these criminal history problems will be addressed.
Those charged with the care of children are but one example. The necessity for employers' access to criminal record checks holds true for any number of prospective employers engaged in sensitive commerce. Must we wait until the employer's faith is betrayed by the applicant who repeats his crimes? What answer do we have for an employer who unwittingly hires an individual with a criminal history of violence? Can we afford to take the chance that a job applicant has told the truth when in fact her intent is to gain access, through this employment, to new victims? Are terrorists any different than pedophiles when it comes to hiding their past and, thus, their motives for obtaining employment?
The issue here is not whether someone with a criminal past should be disqualified from all employment. Those who have been punished for breaking our laws should have every reasonable opportunity to progress toward a normal, law-abiding life. But when there is a relationship between the employee's criminal history and the job, employers should be allowed to make informed decisions.
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We exist in a modern, mobile, Internet-connected society. This is the information age. Yet we provide the opportunity for prospective employees get away with lying because we deny employers the right to access public records in order to verify the information they have been given.
I ask the members of Congress to consider that a piecemeal approach to criminal history checks has created a flawed dragnet—catching some, while letting the rest pass through. We shouldn't wait until more tragedies occur to address this problem. And we shouldn't have to engage the laborious legislative process every time we realize that a criminal history check is appropriate in a specific situation.
I respectfully ask this Committee to recognize the importance of a standard, uniform procedure which can be utilized by all employers, whose foremost interest—like our own—is protection and security.
Mr. COBLE. Thank you, Ms. Pirro.
Mr. Walker?
STATEMENT OF DON WALKER, CHAIRMAN, PINKERTON SECURITY, EXECUTIVE MEMBER, AMERICAN SOCIETY OF INDUSTRIAL SECURITY, BOARD OF DIRECTORS, NATIONAL ASSOCIATION OF SECURITY GUARD COMPANIES
Mr. WALKER. Mr. Chairman, Members of the Subcommittee, I appreciate the opportunity to be here to testify on behalf of S. 1743 and urge the quick adoption by the U.S. House of Representatives. We badly need this legislation to ensure that persons who are convicted of serious crimes are identified before they are deployed to protect our citizens and their property.
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There are roughly 800,000 sworn law enforcement officers in the United States to protect a population of over 290 million people. Police agencies are called upon to deter and solve serious crimes while being engaged in a fight against potential terrorist attacks orchestrated from abroad. Unfortunately there is simply neither the public resources nor the personnel to do the job comprehensively, as we would like to see it done. Therefore in this era of increased demand for better protection, private security officers are being asked to fill the gap, fill the gap in homeland security.
Today the private security industry employs nearly 2 million people. Security personnel are on duty protecting America in places where our citizens are working, living, and playing. In addition, 85 percent of the nation's infrastructure is owned and operated by private industry and private security officers protect the vast majority of those assets.
Also, most of the first responders in the case of an attack or other emergency in an office building, manufacturing plant, public utility, shopping malls, and so forth are private security officers.
Generally the regulation for private security officers is left to the State. However, 10 States do not have laws regulating private security and less than one-half of the States require an FBI criminal history check before licensing.
Why should we care? I'd like to give you two examples. One is in the State of California. In 2003 there were over 69,000 applicants for a Guard Card. Of those applicants, 9,000 or more than 13 percent of the applicants were rejected after information was received from the FBI Criminal Information System and these individuals were denied a Guard Card. Interestingly, the three most common reasons for denial were one, sex-related crimes; two, battery and robbery; and three, burglary. Data also showed in California that registered sex of fenders frequently attempted to obtain a Guard Card.
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In my home State of Illinois a review of January 2004 records for applicants that applied for a guard position showed that the FBI criminal history check provided serious criminal information four times more frequently than the State-wide check within the State of Illinois.
Another problem within our industry is turnover and if you use a conservative 50 percent turnover rate there are more than 79,000 security officers that are being hired each month with less than one-half of those individuals being screened by an FBI check. That's over 300,000 people being employed since the Senate passed this bill in November.
Another factor which has been alluded to is the problem of fraud, applicant fraud and identify and identity theft.
Mr. Chairman, to the specifics of this bill, first of all, it's the product of a bipartisan group of senators who share the belief that Congress needs to act swiftly to prevent persons who have committed serious crimes from being hired into positions of trust to protect their constituents, their families, their homes, and places of employment. 1743 is not a panacea. It is an important and necessary tool for the security industry to keep the bad apples from being placed in positions of responsibility.
Finally, the bill covers three major objectives. One, the bill permits security companies to request an FBI fingerprint check regarding prospective employees. Two, the bill protects the individual's privacy by requiring that an applicant provide a written authorization to an employer requesting the FBI record check before such check is initiated. Further, the form and content of the information provided to the employer will be consistent with State laws and regulations. Finally, the bill does not impose any unfunded mandates on the States and employers may be assessed a fee to handle their requests. In addition, the States may opt out or decline to participate in the system.
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In summary, Mr. Chairman, passage of 1743 will be a much improved system and provide quality controls that will block the most serious offenders from gaining employment in the private security industry. The industry needs it but, more importantly, our nation needs it. Thank you very much.
[The prepared statement of Mr. Walker follows:]
PREPARED STATEMENT OF DON WILSON WALKER
Mr. Chairman and Members of the Subcommittee, I am Don Walker, Chairman of Securitas Security Services USA, Inc. Securitas is a world-wide leader in providing security services to individuals, businesses, government and private entities.
I appear today in my capacity as Chairman of the nation's largest employer of private security officers and as a former President of the ASIS International (ASIS), the security industry's largest professional membership organization with over 35,000 members. I am also co-chair of the ASIS Security Guidelines Commission.
I very much appreciate the opportunity to testify today in support of S. 1743, the ''Private Security Officer Employment Authorization Act of 2003,'' and to urge its quick adoption by the U.S. House of Representatives. We badly need this legislation to ensure that persons who are convicted of serious crimes are identified before they are deployed to protect our citizens and their property. Americans need to know that private security officers are part of the solution—not an impediment—to preventing harm from any foreign or domestic threat.
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By way of background, Securitas AB (Securitas), our parent company, is organized and headquartered in Sweden. Securitas acquired Pinkerton's, Inc. (Pinkerton) in 1999. Although we generally operate in the United States under the Securitas name, Pinkerton still operates in several localities. At the time of the acquisition, Pinkerton was the nation's oldest, largest and one of the most respected security officer companies. Indeed, Pinkerton remains one of the most recognizable brand names for any product or service around the globe.
Pinkerton has a rich history dating back to1850, when the legendary Allan Pinkerton, the ''original private eye,'' founded the company. Since its inception, the company has become synonymous with protecting the American public from an array of threats from outlaws, bandits and thieves. In 1861, Pinkerton achieved national recognition when he uncovered and foiled a threat to assassinate Abraham Lincoln. Later that year, Pinkerton formed the federal Secret Service, of which he became chief. Early in the company's history, Pinkerton apprehended some of the nation's most notorious train and/or bank robbers and started the interstate identification system to track bandits from State to State. In the time since, Pinkerton has been at the forefront of improving the screening, pay and training of security officers.
In 2000, Securitas acquired another legendary American private security company. Burns International was founded in 1909 by William J. Burns, who was known as ''the greatest detective the U.S. had produced.'' In 1921, he was appointed director of the newly formed Bureau of Investigation that later became the FBI. Like Allan Pinkerton, Burns' drive, determination and commitment to service helped his company grow from a small detective agency to the second largest security provider in the U. S.
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Long before the tragic events of September 11, Securitas and our predecessors called for higher standards and qualifications for private security officers. Our personnel and customers—your constituents—deserve no less.
I reference this history as a way of introducing the company's credentials as well as its long and proud tradition and experience of protecting the country's human and physical resources. I am proud to say that Securitas USA, as part of the global Securitas Group, remains committed to the principles of our founders. Securitas is built around a core set of values—Integrity, Vigilance and Helpfulness. Like other responsible employers in the U. S. security industry, we must constantly strive to improve the standards of our profession. Our people are the essence of Securitas and we believe in building relationships based on mutual respect and dignity with all our employees. To enable our people to carry out their professional duties, we constantly provide training programs and promote higher wages and industry standards.
Mr. Chairman, I would like to cite one simple but very important statistic that is at the heart of the debate today over whether to authorize a national system for criminal background checks for private security officers.
The fact is this: There are roughly 800,000 sworn law enforcement officers in the United States today to protect a population of over 290 million residents. Never in the history of the nation have law enforcement agencies been called upon to fulfill two fundamentally different and competing missions—to deter domestic crime while also being engaged in the fight against potentially new and devastating terrorist attacks orchestrated from abroad. Unfortunately, there are simply neither the public resources nor the personnel to do the job as completely or comprehensively as we all would like. Consequently, in this era of heightened need and demand for better security, private security officers are being asked to fill the gap.
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The role of private security was recently highlighted by Admiral James Loy, the Deputy Secretary of the Department of Homeland Security. He stated at a recent conference in Washington that, ''. . . unlike wars of the past . . . this is not going to be a situation where the federal government simply does it for the nation.'' We concur.
Today, private security companies collectively employ nearly two million security officers nationwide. As we speak, security personnel are on duty protecting American businesses, public offices, schools, shopping centers and housing communities. In addition, private security officers are stationed at many of the nation's critical infrastructure sites and facilities including nuclear plants, public utilities, oil pipelines, ports, bridges, tunnels and many other places where our citizens live, work and play.
Recent estimates indicate that 85% of the nation's infrastructure is owned and operated by private industry. Private security officers protect the vast majority of these assets. Similarly, the overwhelming majority of ''first responders,'' who are first on the scene in the case of an attack or other emergency situation in our manufacturing plants, office buildings, banks, public utilities, shopping malls, are, more often than not, private security officers.
Mr. Chairman, a 2003 Presidential report entitled, ''The National Strategy for the Physical Protection of Critical Infrastructure and Key Assets,'' noted . . . ''the private sector generally remains the first line of defense for its own facilities.'' Further, the report states that the [Strategy] ''provides a foundation for building and fostering the cooperative environment in which government, industry and private citizens can carry out their respective protection responsibilities more effectively and efficiently.'' The legislation under discussion today is but one of many key elements that are required in order to fulfill our responsibilities as providers of reliable security services.
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Clearly, private security is an integral part of our homeland security. In times of crisis and disaster, businesses rely on private security to protect people and property. And yet, with so much at risk, and so much being protected by private security forces, there is little in the way of federal oversight or regulation of the people we employ.
For the most part, regulation of the private security officers is left to the States. Only forty (40) States have laws on their books regulating security officers. Of the forty (40) States with licensing requirements, thirty-one (31) States either permit or require an applicant to undergo a FBI fingerprint check for prior criminal history. However, in those thirty-one (31) states, an FBI fingerprint/background check is permitted but not required in some jurisdictions, and required in seven (7) states when the person is applying for an armed guard position only. Thus, more than half the States do not automatically subject applicants to some type of background check. (See Attachments 1 and 2.)
Why should we care? What does it matter? Here's why Congress needs to act.
In 2003, in the State of California, there were over 69,000 ''Guard Card'' applicants. Of those applicants, almost 18,000 had an FBI ''rap'' sheet indicating some sort of a prior criminal history. Thanks largely to a new law that went into effect in California in 2003, over 9,000 or 51% of those applicants with a rap sheet were denied a guard card. Prior to the implementation of the law, security officers could have been employed on a temporary basis for three months or longer. Interestingly, the three most common reasons for denial were for sex related offenses, burglary/robbery and battery convictions. Data also showed that registered sex offenders frequently attempted to obtain a guard card.
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Although most states do not keep the type of statistics as provided by California, limited information from other States tell a similar story. In States such as Virginia and Florida, the rejection rate due to FBI records checks is estimated by the states to range from about 1% to 4% of all security officer applicants.
In my home State of Illinois, a review of January, 2004 applicants showed that the FBI criminal history records check eliminated four times as many applicants as the Illinois State Police check for crimes committed within the State. Put another way, Illinois State Police clear 87% of all applicants while the FBI check clears only 64%—a 23% difference.
Equally important is the turnover rate among security officers. The security industry records one of the highest ''drop out'' rates of employees. On average, companies suffer between a 20–70% turnover in security officers. However, some studies suggest a rate ranging between 100–300%. A more conservative estimate is 50%. Thus, at that rate, there are 79,000 new private security officers being hired each month based on the current 1.9 million workforce—and only a relatively few of these applicants are undergoing an FBI criminal history background check because they are employed in states that have not authorized these checks.
Another factor that we must contend with is applicant fraud and identity theft.
I am sure it will come as no surprise to the members of the Subcommittee when I say that people are not always entirely truthful when they fill out a job application. In a word, they lie—who they are, where they live, where they worked, whether they have a criminal conviction history, whether they are living legally in the country and so on. Similarly, the incidence of identity theft has been made easier by computers. Crooks, today, are increasingly sophisticated and are able to manufacture fake documents such as licenses, social security and immigration cards that are near perfect matches to the real thing. Identity theft is rampant throughout the country and afflicts not just our industry but individuals and businesses everywhere.
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Consider this example. In Illinois, applicants for a security officer position can complete an application at one of our local offices. If they present some form of identification that appears legitimate, we forward the application to the State Police for a background check. A fingerprint check is automatically conducted in the State and subsequently sent to the FBI. As the statistics cited above demonstrate, the State Police clear a large percentage of applicants (87%). However, if that individual had committed a crime in neighboring states, such as Wisconsin, Iowa, Missouri or Indiana, the State Police check alone would not uncover those crimes. Nor would the check reveal whether the applicant had disclosed his/her true identity. Only a nationwide fingerprint search would ascertain the true identity and background of an applicant.
These are but a few examples of the kinds of situations security companies are facing each day.
Mr. Chairman, let me turn now to the specifics of the legislation under consideration today.
S. 1743 can trace its origins to legislation (S. 1258) introduced in 1991 by then Senator Al Gore. His bill would have required the General Services Administration to promulgate rules establishing standards for the hiring of Federal and private security officers. The bill also mandated that security officers be subject to a criminal background check as a pre-condition of employment. Funds would have also been provided to States to develop a regulatory scheme that mirrored the GSA's standards. In a statement that accompanied the bill, Senator Gore said that, ''. . . People naturally believe that security officers are screened and trained with the same diligence as law enforcement officers. In fact, that is not always the case . . . the potential for damage by unfit security officers is obvious. The need for screening is critical.'' Unfortunately, the bill never gained much support and it died when Congress adjourned at the end of 1992.
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Subsequent efforts likewise failed. In 1993, Representatives Martinez and Owens introduced H.R. 1534. Two years later, in 1993, then-Representative Don Sundquist sponsored H.R. 2656. Neither of these bills received much attention. However, in 1996, Representatives Barr and Martinez teamed up and introduced H.R. 2092 the, ''Private Security Officer Quality Assurance Act,'' which would have provided for background checks of individuals seeking a license as a security officer. This bill passed the House on September 26, 1996 but the Senate did not act prior to adjournment that year. In 1997, Representative Barr sponsored H.R. 103, which passed the House on July 28, 1997, but the Senate did not act on the bill. (See Attachment 3 for a legislative history of S. 1743.)
Mr. Chairman, S. 1743 is the product of a bipartisan group of Senators who share the belief that Congress needs to act swiftly to prevent persons who commit serious crimes from being hired to protect their constituents, their families, their homes and places of employment. Sponsors of the original Senate bill (S.2238) included Senators Carl Levin, Fred Thompson, Joe Lieberman and Mitch McConnell. When the bill was first introduced in 2002, Senator Levin said that ''. . . this legislation will enhance the Nation's security. As an adjunct to our Nation's law enforcement officers, private security guards are responsible for the protection of numerous critical components of our Nation's infrastructure, including power generation facilities, hazardous materials manufacturing facilities, water supply and delivery facilities, oil and gas refineries and food processing plants—it is imperative that we provide access to information that might disclose who is unsuitable for protecting these resources.''
Nothing has changed in the time that has elapsed since the bill's introduction in 2002. In fact, just the opposite is true. The threat of attack by America's enemies persists and grows. Personnel and resources are strained to the limit. The bombings in Spain have further caused authorities to enhance security measures for rail passengers. From whom and where the next target will emerge is uncertain. All of this contributes to our collective sense of vulnerability that our leaders seek to address on a daily basis. We share that responsibility and we take our mission seriously.
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Mr. Chairman, S. 1743 is a good bill. It is certainly not a panacea. It is merely an important and necessary tool that the security industry needs to keep the bad apples from being placed in positions of responsibility. Former Senator Warren Rudman, who co-chaired the U.S. Commission on National Security/21st Century, underscored the importance of this legislation in a letter to this Committee. In his December 2003 letter, Mr. Rudman stated, ''The legislation's enabling of a review of the criminal history records of prospective private security officers is exactly the sort of public-private cooperation that the Commission viewed as essential to promoting U.S. homeland security.'' He further stated that ''. . . S. 1743 deserves expedited treatment based on the critical gap that it fills in our nation's homeland security.''
In its current form, we believe the bill strikes an important and appropriate balance between the interests of applicants, employers and the public.
Essentially, the bill accomplishes three major objectives.
First, the bill permits security companies to request a criminal background check on prospective employees. Requests must be forwarded through the States' identification bureau or a comparable agency designated by the Attorney General of the United States. Employers will not under any circumstances be given direct access to FBI records. The States will serve as the conduit for receiving an employer's request, passing it on to the FBI and, in turn, receive back from the FBI a report as to the suitability of the applicant for employment as a security officer. States may charge a reasonable fee for this service.
Second, the bill protects an individual's privacy by requiring an applicant to provide written authorization to an employer to request a check before such a background check may be initiated. Further, the form and content of the information provided to an employer will be consistent with State laws and regulations governing the qualifications of individuals to be security officers. In those States where there are no standards, employers will only be notified as to whether an applicant has been convicted of a felony or a violent misdemeanor or a crime of dishonesty within the past 10 years.
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Finally, the bill does not impose any unfunded mandates on the States. Employers may be assessed a fee to handle these requests. In addition, States may opt out of this regime at any time.
Mr. Chairman, insofar as I am aware, this bill faces no major opposition from any affected interest. It passed the Senate unanimously. The Administration as well as law enforcement officials agree with the scope and intent of the measure. In addition, I would like to include in the hearing record letters from the National Association of Security Companies (NASCO) and ASIS International. (See attachments 4 and 5.) Each of these organizations endorses enactment of this bill. I would add, parenthetically, that responsible members of NASCO and ASIS International have worked tirelessly over the years to improve the security profession. In addition, ASIS has recently published a draft Private Security Officer Selection and Training Guideline that, among other things, encourages States to enact licensing standards and to require FBI criminal history records checks as part of the licensing process.
As noted above, in the four months that have elapsed since the Senate passed the bill, security firms have hired over 300,000 new guards. Only a certain percentage of these individuals have been thoroughly screened. More people are added to employment rolls each day. Most are fit for duty. However, some are not. This bill will plug that hole through which some unqualified candidates have slipped through in the past.
In summary, Mr. Chairman, passage of S. 1743 will establish a much improved system and quality controls that will block the most serious offenders from gaining employment as security officers. The industry will benefit from this legislation and, more importantly, so will our nation. We urge its speedy adoption.
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Thank you again for the opportunity to testify on this critical legislation. I will be glad to respond to any question you, or other Members of the Subcommittee, may have.
ATTACHMENT 1
Walker1.eps
ATTACHMENT 2
Walker2.eps
ATTACHMENT 3
Walker3.eps
Walker4.eps
Walker5.eps
Walker6.eps
Walker7.eps
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Walker8.eps
ATTACHMENT 4
Walker9.eps
ATTACHMENT 5
Walker10.eps
Mr. COBLE. Thank you, Mr. Walker.
Mr. Maltby?
STATEMENT OF LEWIS MALTBY, PRESIDENT, NATIONAL WORK RIGHTS INSTITUTE
Mr. MALTBY. Thank you, Mr. Chairman. Let me be clear from the outset that the two critical points the other witnesses have made are absolutely correct. Employers are entitled to relevant criminal information in making hiring decisions and secondly, it is too hard today for employers to get relevant criminal background information. I've been a private employer myself. I've run an HR department. I know from my own experience that it's too hard to get the information you need.
So I agree with the other witnesses on those points and I think what the Committee and the bill are attempting to do is very important, but there's another national objective that's equally important that I don't believe is getting enough consideration in this context, and that is the absolutely imperative need to rehabilitate criminal offenders.
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Every year 600,000 people come out of jail in America. There are 13 million people in America today who have been in jail at some point in their lives and it's absolutely imperative that these people become productive citizens again, not just for their own sake but for our sake, because if they can't become rehabilitated they're going to become criminals again and that's going to hurt everyone just as much as putting a bad apple in a guard position.
The most important part of being rehabilitated, and any professional in the field will tell you that, is getting a job. If you have to feed yourself and perhaps your kids, if you can't get a job you know what's going to happen—they're going to become criminals again.
So what our law needs to do is to strike a very careful balance. On the one hand we have to make sure that bad apples don't get into the security guard business. That's imperative. But it's equally imperative that we don't stand in the way of good people who are not going the be a risk as a security guard, who are trying to rehabilitate themselves, by blocking them from employment. That hurts innocent people and the public just as much. We have to get the balance right.
In one respect I believe 1743 does take an important step toward the balance and that is by restricting convictions to a 10-year period. At least a 20-year conviction is not going to come back to haunt someone who's in their middle age and get in the way of them getting a job. It's not relevant and the bill wisely takes it out.
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But there are other balancing issues that need more attention. One of them is the definition of an offense that gets reported. Under the bill as written, any offense involving physical force or the attempt to use physical force comes under this bill. That means, to put it simply, if two people are sitting in a bar watching Monday Night Football and they get into an argument because they've both been drinking too much and somebody shoves the other guy or takes a swing at the other guy and misses, that's a criminal offense and it's covered by this bill and now this I'm sorry to say relatively trivial event is going to hang around for 10 years getting in the way of this person getting a job.
I don't think that that's what people intended when they drafted this bill but that's what it says and I think it's clear that we're all concerned about serious offenses when we talk about qualifications to be a security guard, not a pushing match between two guys who got mad at each other after a fender-bender and we need to be a little more careful about refining the definition of what the offenses are that are covered by this bill.
The definition of security officer I think needs some attention, too. Right now what the bill says is anyone who is responsible for the safety or another person or protecting another person's property is a security officer. That means the parking lot attendant where I parked my car to go to the train this morning is a security officer. If I'd had time to go to the Monocle today the person who took my coat in the coat room would have been a security officer.
I don't think that's what we had in mind. I don't think whoever owns the Monocle needs Federal legislation to tell them how they should hire the coat check person. That's not what we're trying to do but it's what we do. I think that definition needs a little more attention, as well.
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And mostly what I'm trying to say is this. America's scared today for good reason. We've all seen 9/11. I lost friends and neighbors in 9/11. My post office in my home town was closed for a month because it was contaminated with anthrax. I'm scared, too. The question is how do we react when we're scared?
A lot of employers are reacting understandably but wrong. Nineteen percent of all companies in America today will not hire anyone who's been convicted of anything at any time in their life. That includes giant companies like Eli Lily. Albert Einstein couldn't work for Eli Lily as a research chemist if he had been convicted of shoplifting as a teenager.
The country needs guidance from Congress on how to respond to the situation with judgement and not by panicking in our fear and making overbroad rules. I would like to see 1743 passed but we need to strike the balance a little more carefully. State legislatures have been working on this for years. They may not have solved the problem but there's a lot of good thinking that's going on at the State level about how to strike this balance and we should look to some of that and do some more thinking ourselves and make sure we get it right before we pass this law. Thank you.
[The prepared statement of Mr. Maltby follows:]
PREPARED STATEMENT OF LEWIS MALTBY
The National Workrights Institute is a not-for-profit organization dedicated to expanding human rights in the workplace.
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The Institute supports the objectives of S. 1743. Private security officers frequently occupy positions of responsibility and it is in the public interest to ensure that individuals serving as security officers have the character and integrity to use this responsibility properly.
There are many situations in which a prior criminal conviction makes it inappropriate for an individual to serve as a private security officer. This is especially true when the position requires carrying a firearm. No one wants to see a person who has been convicted of armed robbery serving as a bank security guard and carrying a gun.
S. 1743, by making it easier for employers to obtain information that will help them to hire only qualified people as security officers, is a positive development.
In determining who is qualified to serve as a security guard, it is also important to consider other national priorities. One of these is encouraging the rehabilitation of individuals who have committed criminal offenses. Every year, 600,000 people are released from prison in America. It is vitally important to these individuals, their families, their communities, and our entire society that they rehabilitate themselves and become law abiding responsible citizens. A critical part of rehabilitation is employment. It is virtually impossible for a person to rehabilitate themselves if they cannot get a job. In making rules for the employment of people with criminal records, we must take care not to unnecessarily deny employment to ex-offenders. A criminal conviction must not become a scarlet letter than follows a person for life.
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It is vitally important that we strike this balance correctly. If we allow the wrong people to become security officers, these officers will commit or tolerate crime and innocent people will suffer. If we deny employment to people who have rehabilitated themselves we push them back into a life of crime and innocent people will suffer. We cannot play it safe by making the qualifications for serving as a security officer so high that most people can't qualify. We have to do the hard, unglamorous, work of getting into the details and getting the balance right.
S. 1743 contains constructive provisions to strike this balance. For example, section 4(a)(4)(B) (i)(I) provides that only convictions within the last 10 years are to be reported. This protects people from being denied employment because of old convictions that indicate little or nothing about a person's current character.
Additional steps are required to strike the right balance. For example, as drafted, S. 1743 covers all offenses involving ''dishonesty'' or ''physical force''. This covers virtually the entire criminal code. Moreover, there is no minimum. Any conviction involving force is covered. It need not be a felony. It need not even be a misdemeanor. A person who got into a shoving match following a traffic accident and was fined $25 by a magistrate would be covered by S. 1743.
This needs to be modified. While a person who has used unlawful force on another will often be unqualified to be a security officer, not everyone who has used force should be disqualified. Some minimum level of offense or harm should be required.
The breadth of the definition of ''security officer'' also raises concerns. It applies to anyone whose job is to ''protect people or property''. This sweeping definition includes school crossing guards, parking lot attendants, receptionists, and coatroom attendants. Do we really need an act of Congress to make sure the owner of the Monocle hires the right coatroom attendant?
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Technically, of course, the bill doesn't set qualification standards for security officers. It only makes it easier for employers to get certain kinds of criminal history. But a Congressional statement that certain information must be made available to employers who hire security officers will quickly turn this information into de facto qualification standards.
America is afraid of crime. We are especially afraid of terrorism, and with good reason. I lost friends and neighbors on 9/11. My post office was closed for several weeks because it was contaminated with anthrax. I'm scared too.
Employers are afraid. Employers have increased their use of criminal records so fast that the record providers can barely keep up with the demand. Some of this development is healthy. But employers' fear is starting to get the best of their good judgment. A large and growing number of employers now refuse to hire anyone with a criminal record—no matter how minor the offense, how long ago it occurred, and no matter how the person has behaved since the offense. Eli Lilly, one of the world's largest pharmaceutical companies, is one such employer. You could have won the Nobel prize in chemistry, but you can't work at Eli Lilly if you were caught shoplifting as a teenager.
Eli Lilly is not alone in its misguided policy. The Congressional Office of Technology Assessment found that, even before 9/11, 19% of employers refused to hire anyone with a criminal record, even though such policies are in violation of Title VII.
If this trend continues, the economic implications for America are frightening. Approximately 43 million Americans have criminal records. Over 13 million Americans have been in jail at some point in their lives. If this many people become unable to work, our gross domestic product will suffer the greatest drop in our lifetimes and our welfare system will go bankrupt.
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Congress needs to provide leadership to employers on the use of criminal records. It needs to show by its own actions that criminal records should be used in the employment process, but used carefully. We need to create guidelines that prevent violent and dishonest people from becoming security officers without casting the net so wide that we undermine the criminal justice systems' efforts to rehabilitate former offenders or damage our economy.
We can meet this challenge. The Institute would welcome the opportunity to help.
Mr. COBLE. Thank you, Mr. Maltby. We appreciate all of you being with us.
We were joined by the distinguished gentleman from Massachusetts, Mr. Meehan, but I think he has since departed.
I recognize myself for 5 minutes.
Mr. Walker, in your statement you indicate that the States will serve as a conduit for receiving an employer's request, passing it on to the FBI. Is it the State or the FBI that determines the applicant's suitability for employment as a security officer?
Mr. WALKER. It would be the State that would make the determination.
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Mr. COBLE. Ms. Pirro, you indicate on your website, the Westchester County District Attorneys' website to be specific, that ''While our job is to prosecute crimes, our goal is crime prevention.'' Tell us in some detail what role do background checks play in effective crime prevention?
Ms. PIRRO. Very simply, Mr. Chairman, if we know that someone is a pedophile or has a prior criminal history for the sexual abuse of children, then we will prevent that individual from having access to children because a pedophile will insinuate himself in any employment where he has access to another child. If we can identify who these people are, recognize the high recidivism rate, then in essence we are protecting our children.
Mr. Chairman, there's one thing that I think is very important to note here and that is that criminal histories are public information. Anyone in this room can go into their county courthouse and access a person's criminal record, so this is not information that we're not entitled to.
The issue is whether or not we're going to require employers to go to every courthouse in every State in this country to find out who's applying for a job. In this age of technology we should be able to do that in one step.
Mr. COBLE. Thank you.
Mr. Kirkpatrick, your resources have no doubt been significantly stretched since 9/11. Have your financial and personnel resources expanded commensurately?
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Mr. KIRKPATRICK. Mr. Chairman, no, they haven't. To date we have been able to keep up with this significantly expanded demand for our services with efficiency gains brought about through automation. Additionally, as it was noted in my written statement, we have the ability to charge for these checks and that user fee revenue that these checks generate have been used to keep up with the demand for these services.
Mr. COBLE. Mr. Maltby, elaborate for me if you will on any civil liability issues that might arise if employers were not to conduct background checks.
Mr. MALTBY. Mr. Chairman, there are probably situations—I think some of the litigation has occurred already—where an employer in a very sensitive position, perhaps running a day care center, had the opportunity to conduct a criminal record check and failed to do so and that's probably appropriate. If you're running a critical situation like a day care center or running a trucking company, there are certain criminal convictions you ought to be concerned about that ought to be disqualifying events.
Mr. COBLE. Now in your hypothetical when you used the Monocle, what if the owner of the Monocle wanted to do a background check on his employees, his coat check worker, for example? Should he be able to access criminal history records?
Mr. MALTBY. The owner of the Monocle or any other employer ought to be able to access and easily access relevant criminal history but not irrelevant criminal history and the challenge facing all of us is to define what is relevant and what's not relevant. There's no point—the public is not served by streamlining the ability of employers to get irrelevant information.
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Mr. COBLE. Mr. Walker, you indicated that the security officer industry records one of the highest dropout rates of employees, and I think you furthermore said that a conservative figure would be 50 percent turnover, which is drastic. What is the industry doing or what can you do to promote employee retention?
Mr. WALKER. Thank you, Mr. Chairman. Yes, 50 percent is very high but that's a conservative estimate. Some of the estimates range anywhere from 100 percent to 300 percent.
Various companies—there are a lot of companies that are members of NASCO, the National Association of Security Companies, who have been working on this problem for years and the responsible organizations have worked to increase wages, which is one of the issues that we talk about in trying to attract better people, to increase wages, and I can tell you what we do in our own company. We have what we call a living wage program that we've implemented in 1999 and we have a rigorous screening program to use the resources that we have available.
We try to sell our wages and benefits to our clients at above market rates. We provide training programs and other opportunities for employees to improve themselves and we also try to promote from within so that we have a number of security officers that started as security officers that are promoted through the ranks of the organization up into top management.
Mr. COBLE. Thank you.
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My time has expired. We have been joined by the distinguished lady from Texas, Ms. Sheila Jackson Lee. Good to have you with us, Ms. Jackson Lee.
The Chairman recognizes the Ranking Member, the gentleman from Virginia.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Kirkpatrick, what information gets into the database that's checked?
Mr. KIRKPATRICK. The information that we maintain is fingerprint-based arrests and then the related dispositions of those arrests, whether it be a conviction, a dismissal or an acquittal.
Additionally, as I mentioned, we also conduct name-based checks of the wanted persons file to see if that individual's a fugitive, as well as the terrorist file to see if that person is a known or suspected terrorist.
Mr. SCOTT. And what information is released if someone does a check, send you fingerprints for a check? What information do they get back?
Mr. KIRKPATRICK. The information that we send back is what we would call a criminal history. It's probably more commonly known as a rap sheet on that individual that would show the arrests and the related dispositions of those arrests.
Mr. SCOTT. So if a person had been acquitted, you would show that they had been arrested.
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Mr. WALKER. That's correct, yes.
Mr. SCOTT. Ms. Pirro, is this the information that the parents would get if they did one of those checks?
Ms. PIRRO. The acquittal information?
Mr. SCOTT. Right.
Ms. PIRRO. Probably not. They would get the conviction information. The acquittal would most probably be sealed. There would be a sealing order on that under the New York State criminal history check.
Mr. SCOTT. Well, Mr. Kirkpatrick, do parents do background checks that you're aware of?
Mr. KIRKPATRICK. I'm not aware of any situation that we deal with where an individual parent has the ability to request a national background check, no, sir.
Mr. SCOTT. Ms. Pirro, if a parent does one of these background checks what database do they access?
Ms. PIRRO. It goes to New York State under Kieren's Law in New York State, which is a law that passed as a result of the woman with the prior criminal history throwing the 10-month-old against the wall. It gives employers of individuals who work in their home to care for their children the ability to ask an employee whether or not they can get permission, whether they'll give them permission. In that circumstance they can get a prior criminal conviction from NISIS.
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Mr. SCOTT. And the prospective employer would ask who? The FBI?
Ms. PIRRO. No. In New York under Kieren's Law—you see, this is exactly the problem. Every State has kind of a hodgepodge of who can ask for what and from whom. That's why we need a central database and a registry that gives everyone the ability to access the same information because that parent in New York who is doing a background check on the person coming to work in their home to care for their children will not get information about a prior conviction in Connecticut, which can be three miles away from Westchester because it's a different State. They can only access the New York State database.
Mr. SCOTT. So if they've got Federal convictions it wouldn't show up.
Ms. PIRRO. No.
Mr. SCOTT. Hmm.
Well, Mr. Kirkpatrick, you give everything so there's no screening of what comes out.
Mr. KIRKPATRICK. That's correct. We send back the information we have on file to a recognized agency within the State or to a recognized agency that's listed in the legislation that authorizes the background check and that agency then makes a fitness determination on that prospective person.
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Mr. SCOTT. Based on what they get.
Mr. KIRKPATRICK. That's correct.
Mr. SCOTT. Okay, Mr. Walker, when you do a background check who do you call?
Mr. WALKER. Currently we would go to the county of residence or county of employment where the applicant has worked or lived for the last 7 years and we would do a court-house-by-courthouse record check.
Mr. SCOTT. So if they were convicted in the adjoining jurisdiction, you wouldn't see that?
Mr. WALKER. We'd have no way of knowing it unless it was reported in that particular courthouse. There have been instances where people have lived in areas that they did not disclose and we had no way to know that and unfortunately it's not a good situation. That's what we're trying to correct.
Mr. SCOTT. And if the bill passes what would you get?
Mr. WALKER. If the bill passes then the State agency that requested the information would get the rap sheet and make a determination as to whether or not the individual was suitable for employment.
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Mr. SCOTT. You said the State agency would get——
Mr. WALKER. Yes. Like, for example, in Illinois it might be the Illinois State Police and they would tell the licensing bureau whether or not that person had a significant criminal history and the licensing bureau would tell us that the person is either eligible or not eligible for hire.
Mr. SCOTT. But you wouldn't get the rap sheet?
Mr. WALKER. No, we don't want the rap sheet.
Mr. SCOTT. Thank you.
Mr. COBLE. Ms. Pirro, let me revisit Mr. Scott's question. Mr. Scott is a prospective employer of mine. I apply for a job. I have been prosecuted and convicted. Now he would get that information.
Ms. PIRRO. Well, depending on——
Mr. COBLE. Let me give you a two-part question. I'm prosecuted and acquitted. Now as I understood from your response to his question, he would be beneficiary or someone would be beneficiary of the conviction, but the acquittal would not surface.
Ms. PIRRO. That would not surface. The arrest that results in an acquittal would not surface. The information——
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Mr. COBLE. In New York.
Ms. PIRRO. In New York. Only in New York. And every State has a different approach to it.
Mr. COBLE. That seems sort of anomalous is why I wanted to bring it up. You'd think that would be equally important, the acquittal as opposed to a conviction. Just curious.
Mr. Goodlatte, the gentleman from Virginia.
Mr. GOODLATTE. Mr. Chairman, thank you. I don't have any questions.
Mr. COBLE. The gentlelady from Texas, Ms. Sheila Jackson Lee, is recognized for 5 minutes.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman and Ranking Member.
I may ask questions that may have been covered in your testimony and I ask your indulgence, since I was held in another meeting and not able to hear the complete testimony, but I have a line of questioning that I would like to pursue.
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First of all to Mr. Maltby, maybe you indicated this; maybe there are no problems and I think you're representing the workers association, if I understand it correctly?
Mr. MALTBY. Close enough, ma'am.
Ms. JACKSON LEE. That's a description, not the title. You're involved with those who are employed and working; is that my understanding or representing——
Mr. MALTBY. Our mission is to protect the human rights of people in the workplace, yes.
Ms. JACKSON LEE. All, right, that's what I thought it was. Why don't you give me your concerns about either this legislation or the idea of being able to secure this information.
Mr. MALTBY. Ma'am, I have no concern about employers being able to get relevant information and I think it's worth stating again, and thanks for giving me the opportunity to say so—it is too hard for employers to get that information today. It needs to be streamlined.
The question is what information do we give employers? And what I've been trying to stress is that we don't want to give employers irrelevant information that could cause someone to lose a job for which they should not be disqualified.
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And I raise that particularly from the standpoint of our nation's commitment to rehabilitate former offenders. Everyone in America agrees that it's the right thing to do. Everyone agrees it's important. President Bush has joined hands with some people he doesn't usually join hands with to stress the need for former offenders to become rehabilitated so they won't commit another crime. And if you can't get a job you're not going to be successfully rehabilitated. And it's vitally important that if someone is trying to become rehabilitated that they not be denied a job as a security officer or anything else for a trivial offense that really isn't relevant.
And what I'm urging the Committee to do is to reexamine the nature and the breadth of the offenses that this will considers to be relevant because I believe it to be somewhat overbroad.
Ms. JACKSON LEE. Doesn't the aspect, as I recall, of the informing of the employee and getting their permission to secure the information and then allowing them to see it, how do you respond to that?
Mr. MALTBY. Well, ma'am, consent may be very important in the eyes of the law but as a practical matter it really doesn't amount to much because when you need a job and the employer says please consent to this form or we're going to take your employment application and throw it in the waste basket, what choice does the person have but to sign it?
It's really misleading to call it consent. Signing the form is a condition of employment and we can't get around the problem of deciding what's relevant information and what isn't by relying on employee consent.
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Ms. JACKSON LEE. Is the information from your understanding to be pulled up would include criminal offenses and civil acts, such as bad credit?
Mr. MALTBY. No, ma'am. I think the bill, to its credit, is very clear that it only involves criminal convictions, not civil problems, not arrests without a conviction, except if they're within the last year. But virtually every criminal conviction is covered. If two gentlemen get into a fender-bender on the beltway and somebody shoves the other guy and a police officer comes and someone becomes convicted for simple assault or disorderly conduct, that is covered by this bill and I'm concerned that someone who's an ex-offender, who's trying to become a good citizen again, is going to be denied a job opportunity because of a little shoving accident after a traffic accident and that's not what we're trying to accomplish here.
Ms. JACKSON LEE. Well, I hope you won't be swayed by being in this great and august room, Members of the Judiciary Committee, that we are not concerned about rehabilitation. I happen to be very concerned about that. In fact, I have a good time legislative initiative to address nonviolent offenders.
But what I would ask from you and I'm going to ask Mr. Walker a question to follow up, what kind of fire wall would you suggest that would be included in legislation like this to take into account circumstances that you have mentioned, which are altercations at best? You would not think that they would be threatening to homeland security or threatening to anyone's life and limb but they have had some past record. Do you have a suggestion of any kind of language or process that could be utilized?
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Mr. MALTBY. Ma'am, if I were smart enough to come in here and tell you I know the precise definition for how to strike the balance between serious offenses and the ones that we shouldn't be concerned about, I'd be a much smarter person than I am.
But I do believe that that definition can be worked out. I don't think it's impossible and I would very much appreciate the opportunity to work with the Committee and the other concerned parties to try to find the right language that includes the serious offenses but doesn't suck people into the system and cost them job opportunities because of minor offenses.
Ms. JACKSON LEE. Mr. Walker, you represent the private security industry?
Mr. WALKER. That's correct.
Ms. JACKSON LEE. What is your thought about that in terms of having at least some respect for people who have minimal offenses in the past and working in your industry, using this legislation?
Mr. WALKER. Certainly we have a tremendous amount of respect for individuals and the individuals' rights and we work hard to protect that, but there are three points I'd like to make here.
One is arrest records and conviction records currently are public records and everything—if you check a local courthouse for a criminal record you get every piece of information they have in that particular courthouse.
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Second of all, under the Fair Credit Reporting Act, if you use an outside agency to do an investigation for you you have to get the employee's consent to do that investigation.
And thirdly, even what may appear to be a minor incident, if it shows the individual has a hot temper and gets into altercations, that person may not be fit for duty to be a security officer.
Under this current legislation that we're looking at today, the protections are actually built in to a greater degree than they currently exist because we would get—as an employer, we would get nationwide criminal history information but only having that information go to a State agency, a law enforcement agency, an agency of the State government, which would tell us would could either license that person within the State or not. So I think the legislation actually builds in some protections that we don't currently have.
Ms. JACKSON LEE. I thank the Chairman. Thank you.
Mr. COBLE. Thank you, Ms. Jackson Lee.
Mr. Feeney says he has no questions.
Mr. Keller?
Mr. KELLER. No questions, Mr. Chairman.
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Mr. COBLE. I know Mr. Scott has another question or two. Let me put one question to you, Mr. Kirkpatrick, and then I'll yield to Mr. Scott.
It is my belief, Mr. Kirkpatrick, that fingerprints are currently probably the most reliable means of positively identifying an individual. Look into your crystal ball into the future and describe what is on the horizon with new technology and biometrics.
Well first of all, am I correct in my assumption about fingerprints?
Mr. KIRKPATRICK. Mr. Chairman, I believe that you are. Fingerprints have a more than 100-year history of positively identifying individuals. They have been proven to work to positively identify a single individual against an extremely large database of the magnitude that we're talking about, tens of millions of individuals.
This is a very good question and it's something that we deal with daily looking into the future on biometrics. We meet regularly with law enforcement leaders from not just this country but internationally. We meet with leaders of the biometrics industry and I would say that in the short and mid-term, which would be up to about 5 years out, certainly fingerprints are going to remain the gold standard for positive identification of individuals.
Looking beyond that time frame, I think that there's other technologies that are emerging, such as iris scans, facial recognition, things like that, that in that period of time will be improved upon and tested against very large populations.
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One of the problems with things like facial recognition and iris scans is that criminals do not leave their faces nor their irises behind at crime scenes. They do leave their fingerprints behind and we can take those latent crime scene fingerprints and match them up against our criminal database and find out who committed crimes as an ancillary benefit.
So I think mid-term, fingerprints are it. Looking beyond that there's the possibility that other biometrics will emerge.
Mr. COBLE. Thank you, sir.
The chair recognizes the gentleman from Virginia.
Mr. SCOTT. Thank you.
Mr. Kirkpatrick, let me go back. Did I understand you to say that the FBI includes local convictions in FBI files?
Mr. KIRKPATRICK. That's correct. The FBI fingerprint repository is a national repository and it works in such a way that State and local and Federal law enforcement all report their arrests to us so that it is, in fact, a national repository.
Mr. SCOTT. And Mr. Maltby, as I understand the bill, if a request is made in a State that has a State agency and guidelines and qualifications for security officers, then the agency—you apply to the agency and they get the information, compare the background check to their qualifications and just say whether the person is qualified under State guidelines or not. If there is no such State agency then you get felonies, convictions involving dishonesty or violence within 10 years or an unresolved arrest within the year.
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Mr. MALTBY. I believe that's correct, sir.
Mr. SCOTT. What's wrong with that?
Mr. MALTBY. What's wrong with that is that first, the definitions in this bill cover virtually the entire crimes code. I used to be a criminal defense attorney in my youth and almost every crime on the books involves force or theft or dishonesty. And to put it very concretely, I don't think that someone who tried to buy beer with a false ID at 18 ought to have that become an impediment to getting a job when they're 27. I just don't think that it's relevant, but this bill would provide it to employers and people who are ex-offenders who need to be rehabilitated, who we need to be rehabilitated, are not going to get a job because of this irrelevant information and they're going to be back on the streets committing another crime, which is the last thing anybody wants.
What I'm trying to say is that there are many situations where if you're trying to protect the public safety you just go a little too far. You throw the net real broad and what harm could it do but——
Mr. SCOTT. On the question where you have a State agency, you don't have a problem with that part of it?
Mr. MALTBY. Well, if the State has a real good definition of what's relevant and what's not relevant, then there would not be a problem, but most States don't really have a good definition and if the Federal Government is going to get into this field and try to fix the problem, it really needs to address the issue of what's relevant to employment to be a security officer and what isn't. That's the heart of the question.
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Mr. SCOTT. Thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
Mr. Green, did you have questions, Mr. Green?
Mr. GREEN. No questions.
Mr. COBLE. The gentlelady from Texas, Ms. Sheila Jackson Lee.
Ms. JACKSON LEE. Let me pursue a line of questioning that I was moving on with Mr. Walker and then Ms. Pirro.
You mentioned under New York law that you would surmise that acquittals would not be included in information either transmitted or utilized, so therefore if someone went through the judicial system and was acquitted it would not be included?
Ms. PIRRO. The arrest would not be included. As well, if it resulted in an acquittal that becomes a sealed record. So it's not as though there would be an arrest out there with no disposition where we just seal the acquittal.
So that would not be——
Ms. JACKSON LEE. Arrest and possibly acquittal.
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Ms. PIRRO. Right, right. But I think what's important here is that we keep hearing an example of someone who throws a punch and misses. In virtually every State that is not a crime. That is a violation if there isn't any injury. And in New York State specifically there would be no rap sheet or criminal history that would reflect anything less than a crime. So that a violation, a pushing or a shoving, would not be on the rap sheet to begin with.
Ms. JACKSON LEE. Give us an example of what you might expect that this bill would be able to cull from States around the nation.
Ms. PIRRO. I'm not really in a position to do that in terms of the security industry. I guess my position is a more generic one, and that is this is public information that everyone is entitled—that employers should be entitled to know because we're assuming that the person applying for the job under the scenarios that we keep hearing are people who are in good faith in trying to rehabilitate themselves.
There are people who are not acting in good faith and when there is a history and a record and a conviction beyond a reasonable doubt, that should be able not just to people in the security business but to employers who are hiring individuals who have access to our children or who work in power plants or hospitals or at oil refineries or at any one of a number of manufacturing companies.
Ms. JACKSON LEE. In your personal history as a district attorney, do you note in a particular segment, in this instance private security officers, any unique criminal problems or more unique criminal activity of these private security agents before this kind of system would be put in place? Has there been difficulty in hiring private security officers and finding that they have criminal backgrounds?
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Ms. PIRRO. It is difficult to identify those individuals who have a criminal history from another State in New York. That is the problem and just recently in Westchester there were several security guards that my office indicted for sexual assault of students who had criminal histories in other States that we had no way of knowing and that the schools had no way of knowing.
Ms. JACKSON LEE. Mr. Kirkpatrick, is this legislation helpful to your system? Or your system in terms of participating in this, is this a comfortable fit between legislation like this and what you do?
Mr. KIRKPATRICK. Well, it is. We service a number of different private sector industries and occupations in terms of licensing and employment checks and our stance on this has always been that if there is an appropriate law passed for a particular industry or occupation, we'll do the checks and we will send the results of those checks back to the authorized agency to review those records and make a determination as to whether or not that particular individual meets the qualifications for that employment situation in that particular locality.
Ms. JACKSON LEE. And in this instance the State entity would be fine with you?
Mr. KIRKPATRICK. That fits in with our model as we currently do business, yes, ma'am.
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Ms. JACKSON LEE. Mr. Walker, we know that across the board the private security industry has had its ups and its downs. It has been a place of refuge for individuals who have done themselves well by being hired, as I understand, but maybe in the past have had some interaction with the law.
I know to be a certified peace officer, to carry a weapon, it may be that you're prohibited having a criminal record but I know that officers who do not have or individuals that are private security guards who do not carry weapons in certain States have had records in the past.
In your industry have you noted that individuals with those kinds of pasts—and I'm not suggesting a violent criminal record but some interaction—have been able to be successful officers?
Mr. WALKER. I'm not aware of a situation where we in our own company have employed individuals that had a criminal history that became successful officers. In fact——
Ms. JACKSON LEE. And are yours certified peace officers? Do they carry weapons or——
Mr. WALKER. We have some armed security officers, yes, only 1 percent of our workforce.
Ms. JACKSON LEE. And the rest are unarmed.
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Mr. WALKER. Yes. And in those cases, in the States where there is legislation, they would not get a license or if they did get a temporary license their license would be revoked and we would have to terminate their employment. But we do a background investigation prior to hiring the individual and we make those local county record checks and we certainly would not employ anyone who had a serious criminal history.
Ms. JACKSON LEE. And do you know of companies within your industry that have done so? And you said serious and I was not saying serious. I said some form of altercation, maybe a juvenile record.
Mr. WALKER. Juvenile records are generally sealed and not available to us.
Ms. JACKSON LEE. So you don't get that.
Mr. WALKER. We do not get that, anyway. And minor misdemeanors are not something that would be a knock-out factor, if you will. In fact——
Ms. JACKSON LEE. That's what I'm trying to get at.
Mr. WALKER. Right. A statistic from Illinois, I think, we very interesting to me. The Illinois State Police, in doing their test in January, had a hit rate where they hit on a rap sheet within the State of like 8 percent and when they went to the FBI the hit rate increased. So the FBI reported back 214, I believe it was, arrests and convictions. The State then did a manual review, an override, and 132 of those conviction records were thrown out as not being relevant to the licensing of a security guard.
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So there are safeguards in effect at the State level that would prohibit discrimination against individuals who should be given an opportunity to become rehabilitated and work in the workplace.
Ms. JACKSON LEE. Thank you.
Mr. COBLE. I thank the lady.
Prior to adjournment I want to remind our Members that we have a mark-up that will be conducted to commence shortly after we adjourn. We'd appreciate your remaining for that.
We thank the witnesses for your testimony today. The Subcommittee appreciates your contribution.
This concludes the legislative hearing on S. 1743, the ''Private Security Officer Employment Authorization Act of 2003.'' Thank you for your cooperation. The Subcommittee stands adjourned.
[Whereupon, at 2:38 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
QUESTIONS AND RESPONSES FOR THE RECORD FROM MICHAEL KIRKPATRICK
QUESTIONS AND RESPONSES FOR THE RECORD FROM THE HONORABLE JEANINE PIRRO
QUESTIONS AND RESPONSES FOR THE RECORD FROM DON WALKER
PREPARED STATEMENT OF IRA A. LIPMAN
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PREPARED STATEMENT OF WILLIAM C. WHITMORE, JR.
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PREPARED STATEMENT OF CECIL HOGAN
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Mr. Chairman, and Members of the Subcommittee. The National Burglar & Fire Alarm Association (NBFAA) appreciates the opportunity to participate in discussions on issues relating to private security employment authorization. NBFAA is a national trade association that represents more than 2,400 companies throughout the fifty states and four U.S. territories. Our members are engaged in the manufacture, sale, installation, service and/or monitoring of electronic life safety & security systems. Since 1948, NBFAA has been dedicated to raising the level of professionalism within the industry to the benefit of the consumers, public safety organizations and the electronic systems profession.
While NBFAA is encouraged by this legislation and the timely efforts of you and your colleagues, we believe this bill would be more effective and more strongly supported if its scope were increased. One of the main functions of NBFAA is to encourage the implementation of laws at both the state and federal levels with the primary purpose to promote professionalism of security systems companies, to maintain the operational reliability and proper use of physical and electronic security systems and to ensure a minimum level of training.
According to STAT Resources, Inc., Americans spent an estimated $18.7 billion on professionally installed electronic security products and services in 2001 (this figure includes monthly monitoring fees). This number was up from $17.5 billion in 2000 and $16.2 billion in 1999. While all agree that this number has significantly increased over the past three years, with the tragic events of September 11th, estimates on the amount of this increase are staggering.
In 2001 alone, an average of approximately 10,000 businesses nationwide were classified as ''alarm installing entities'' and spending on electronic security products and services is growing at an estimated 8.6 percent per year. Further, in the United States, crimes against commercial establishments have reached epidemic proportions. Each year, business losses due to crime exceed $100 billion.
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While NBFAA and others have had success at establishing licensing of the electronic life safety and security industry at the state level, a good deal of work remains. Although 37 states have some sort of state license requirements for our industry, only 20 of those require background checks as part of that license. Just as this legislation illustrates the vital nature of the private security officers work in the new era of homeland security, so to is the vital work of the individuals and companies that provide the infrastructure for that work. However, at this time, many of our members do not have the ability to effectively screen their applicants and better ensure the safety of their clients. NBFAA believes strongly that this must change.
States that do not offer the ability to conduct a background check through state licensing for the electronic life safety, security and systems industry include Pennsylvania, Ohio, Nevada, Wisconsin and many more. Our members in these states install security and life safety systems to commercial properties (i.e. shopping malls, movie theaters, office buildings) as well as residential properties including apartment buildings. NBFAA members provide services to critical infrastructure across the country as well as schools and other institutional entities. We install security systems, fire systems, CCTV, access control, and much more.
Simply analyzing the potential dangers surrounding unqualified private security employee installing an access control system in one of these critical infrastructures alone is enough to understand our push for inclusion into this legislation. While ensuring the qualifications of the private security officer is essential, ensuring that the infrastructure under which he operates has been installed by qualified professionals is imperative.
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In this new era of homeland security, the need for a partnership between the public and private security is important. Providing the resources and structure for this partnership is a role the federal government must play. While this legislation addresses the American public's need for the employment of qualified, well-trained private security personnel, it does not address that same need for the installers of the systems that protect their homes, their offices, their lives.
NBFAA appreciates the opportunity to submit this statement for the record.
PREPARED STATEMENT OF THE NATIONAL ASSOCIATION OF SECURITY COMPANIES
Mr. Chairman and Members of the Subcommittee,
The National Association of Security Companies (NASCO), a trade association, represents the major national and regional providers of contract security services in the United States. Our members collectively employ more than 400,000 private security officers nationwide.
NASCO companies' private security officers protect sites of all descriptions throughout America: shopping malls, office buildings, corporate campuses, hospitals, educational institutions, both conventional and nuclear power plants, utilities, financial institutions, water treatment and pumping stations, defense manufacturing facilities, chemical plants, communications centers, docks, warehouses, oil and gas production and transmission facilities, transportation hubs, government facilities, food manufacturing and processing plants, and bioresearch centers are among our members' clients.
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Regardless of where disaster next strikes, whether as an act of terrorism, a weather-related emergency, or as an accident, it is a near-certainty that private security officers will be nearby. In many instances, private security officers are truly first responders, already on the premises and familiar with the property, its layout and structures, persons on the premises, and other significant details important to both protecting lives and assisting law enforcement.
Protecting lives and other valuable assets at such a vast number of sites across the nation places a high level of responsibility and a fundamental role in Homeland Security on our private security officers. NASCO's members want to hire well qualified candidates into these positions. To do so, they routinely conduct their own internal background investigations on job applicants. Maximizing the effectiveness of that process, however, requires either state or federal statutory authorization for our applicants to undergo a fingerprint-based check against the database maintained by the Federal Bureau of Investigation. That database offers the best assurance that an applicant in one state does not have a prior record of felony convictions in a state other than the one in which application is being made. S. 1743 would provide us that access, and we urge you to adopt it as an important step toward enhancing the security of our homeland.
At present, the private security industry is regulated in 40 states. The specific requirements for private security officers in those 40 states vary significantly, even as to the extent of background investigation required for employment. Only 31 states call for FBI criminal history records checks, and at least 7 of those limit the FBI checks to applicants for armed security positions (who constitute a distinct minority of all private security positions). Also among those 31 state laws are other state regulatory statutes that appear to permit the FBI checks, but do not require them, leaving yet another gap for an out-of-state convicted felon or an identity thief to gain security employment at a sensitive site. These gaps open the door for the very types of criminal conduct that our employees are typically assigned to prevent. Good security requires that they be closed.
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As a federal bill, the impact of S. 1743 will be in the 10 states that lack private security regulation, the 9 regulated states that do not call for criminal records checks through the FBI, and the 7 states which routinely conduct FBI checks only for armed security applicants. It will also affect security applications in states which allow, but do not mandate, FBI checks. If S. 1743 is adopted, the decision to submit fingerprints for an FBI check could be made not only by the regulatory authority, but also at the request of an ''authorized employer''.
Mr. Chairman, NASCO has actively endorsed and supported prior bills intended to address these problems since the early 1990s. We offered testimony in support of H.R. 1534 in June 1993 when the House Subcommittee on Human Resources held two days of hearings, an earlier proposal sponsored by then-Congressman Matthew Martinez. Our support continued throughout the 1990s. We hoped that a solution was within reach when H.R. 2092, sponsored by then-Congressman Bob Barr, passed the House by a vote of 415–6 in 1996, and again when Congressman Barr's H.R. 103 passed the House by voice vote in mid-1997. Passage of S. 1743 by the Senate has again raised our hopes.
S. 1743 offers a more comprehensive proposal in response to our need for better background information access. It addresses not only the need for FBI checks in states that have already charged a specific agency with regulatory responsibility for private security without authorizing the federal background checks, but also offers a procedure by which background information can be obtained even in those states in which no regulatory body has yet been created.
Regardless of whether a state has a regulatory agency or not, no additional expense will be imposed on the government because the cost of processing the fingerprint records will be covered by user fees. Should a state object to participating in this Homeland Security-enhancing service for which the industry will absorb the cost, that state can exercise the ''opt-out'' option provided in the bill.
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Mr. Chairman and Members of the Subcommittee, NASCO thanks you for your attention in this security-critical matter. Please help us to provide better-screened security officers by passing S. 1743 now.
LETTER FROM WARREN B. RUDMAN
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