WILMINGTON — Potential and current employees could all be subject to criminal background checks when applying for City of Wilmington positions and while employed with the city, per changes to city code approved Tuesday. The matter will return for a final vote at the next city council meeting.
The city’s current practice is to only conduct criminal background checks on certain positions, including both police and fire and roles that require regular interaction with children. Background checks also will be conducted on city vendors who will be interacting with youth or “vulnerable populations.”
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The ordinance is proposed to include three new stipulations:
- Criminal background checks will be required for all applicants upon issuance of a conditional offer of employment
- Criminal background checks will be required for current employees if they apply for a new position within the city
- Random criminal background checks will be performed on current employees using a computerized system
The changes passed on first reading 5-2, with Mayor Pro Tem Kevin Spears and council member Chakema Clinton-Quintana dissenting. Both expressed concerns about building barriers to city employment.
“I just want to ensure that we’re not creating policies that unintentionally push otherwise excellent employees out the door,” Clinton-Quintana said.
At the behest of council member Cassidy Santaguida, the vote included a commitment that council would review the entire ordinance at a future date; the May 19 conversation unearthed concerns about the ordinance beyond the proposed changes. This includes when the city disqualifies candidates based on criminal convictions, how the city uses credit histories and drug testing practices in an age of commonly used THC-infused products.
Another issue Spears had with the proposal: its timing. The ordinance amendments came before council earlier this month and were described as part of City Attorney Meredith Everhrt’s project to incrementally modernize the entire city code. After city council expressed concerns and confusion, the matter was rescheduled for last week’s meeting with a full presentation.
Spears questioned why the city attorney’s updates didn’t go in order, starting at chapter one, whose changes were approved already, and skipping to chapter eight, where the criminal background requirements are.
“To me this just indicates that we’re being a little surgical about some people that we can cut out,” Spears said.
City Manager Becky Hawke stepped in to explain. She said section eight was deemed a priority because one city employee “walked off the job” and allegedly committed several crimes within days of doing so. The city had not conducted a background check on the individual, but if the city had the report would have shown the person was a “violent convicted felon.”
“We must keep all of our staff safe,” Hawke said. “We must keep all of our community safe, and we have an obligation to know who we are hiring and understand the entire picture before they become ours.”
Spear replied her thinking created a “slippery slope” and argued the city wasn’t responsible for crimes employees commit outside of work. He then repeatedly questioned if the employee had been violent on the job. In frustration, Hawke said she didn’t know because she wasn’t with him every moment of the day.
“I am not going to apologize for wanting to run criminal background checks on our employees,” Hawke said.
Spears said he wasn’t looking for one, just answers to his questions.
Everhart explained if the person had committed a crime while working and the city didn’t do a background check, the city would be blamed for the incident.
Clinton-Quintana chimed in.
“Good people commit crimes too; their backs are pushed against the wall, and they walk off jobs and they do crazy things, and may have a past or may not have a past … this person could have been a good person, could have been a bad person, it could happen to anyone,” she said.
In response to concerns over discouraging people to apply to the city, Everhart clarified the proposed expansions to the criminal background checks won’t prevent anyone from applying for any city position. The city doesn’t ask for criminal history on its initial paperwork as part of its commitment to the national “Ban the Box” initiative. It encourages employers to remove the checkbox indicating a criminal history on hiring paperwork.
The city’s background checks would only be conducted once a candidate received a conditional offer of employment. If the candidate was flagged, only certain offenses trigger automatic disqualification under the city’s current rules:
- Misdemeanor assault within the last seven years
- Homicide or kidnapping at any point in their adult life
- Any crime committed against or involving a child at any point in their adult life
Examples of crimes against or with children include sex offenses, child abuse, child abduction, assault on a child under 12, child pornography and indecent exposure.
These crimes are automatic disqualifiers, but only for certain positions including the Wilmington Police Department, Wilmington Fire Department, parks maintenance, positions involving youth or director or deputy directors supervising those positions, vendors and performers for city-sponsored events, anyone reporting directly to the city manager, city clerk or city attorney.
Additionally, financial crimes drudged up through the criminal background process may exclude someone from employment in a position involving money. These include:
- Misdemeanor within seven years involving theft, fraud, worthless check, misappropriation or concealment
- Felony financial crime at any time in their adult life
- Homicide or manslaughter at any time in their adult life
Also per the city’s current policy, credit checks are conducted on employees that handle finances or money.
If a candidate is flagged, the city manager has the authority to allow the person to be hired if their crime was a misdemeanor or if their felony was non-violent, such as drug offenses, or financial. Everhart explained the hiring team would have a conversation with the person to ensure the accuracy of the report, understand the circumstances of the crime and learn about any mitigating actions the candidate has undertaken.
What the city manager does not have the authority to do is hire someone with a violent crime conviction or parole sentence served within the last seven years.
Though the provisions on who would be excluded from employment are not new, Spears questioned both Everhart and Hawke on whether they could wait seven years to restart their life with employment.
“If I was convicted of a violent felony offense, it is likely that I wouldn’t be able to be off of probation or out of prison within that length of time, and that’s who these are really, that’s who those prohibitions are targeted to,” Everhart said.
Spears also suggested he was uncomfortable with the city manager having final, subjective say on whether a non-violent offender was hired, though this has been the city’s practice before the proposed ordinance changes Tuesday.
Speaking to current practice as well, Clinton-Quintana raised issues with the city’s credit check practice.
“Many people experience a financial hardship at some point in their lives, whether it’s medical, divorce, caregiving responsibilities, things of that nature that causes them to go in debt, including student loan debt — it’s not because they want to,” she said.
Mayor Bill Saffo sees both the necessity of the background checks from staff’s perspective and his council members’ concerns. He also had a question of his own.
“So if somebody goes to one of these vape shops and smokes something that is legally sold on the streets in this state, and then they get a random drug test and then it’s flagged, how do we deal with that?
Everhart explained the concentrations in a legal THC product should not trigger a “positive” response on the drug test, as the test only measures a certain level, not any trace amounts. If a city employee — though not all employees are subject to randomized drug testing — was consuming the product on a regular basis, however, it would run the risk of triggering the test, even if the substance was legally sold.
Clinton-Quintana suggested council deny the proposed criminal background changes and direct staff to come back with amendments based on council suggestions. However, noting she supported the universality of the proposed ordinances but wanted to explore the other components of the ordinance, Santaguia motioned to pass the amendments and review at a later, though unspecified, date.
“This process of cleaning up the city’s ordinances, I think, is instructive for not just us, but everybody in the community,” Santaguida said.
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