101 CMR, § 15.09 - Findings from CORI Investigation - Crimes Subject to Review

(1) If the CORI investigation reveals a conviction of a 101 CMR 15.15: Table A crime, regardless of when it occurred, or a pending 101 CMR 15.15: Table A crime, or a conviction of a 101 CMR 15.15: Table B crime within the five- and ten-year time periods referenced under 101 CMR 15.08(1), or a pending 101 CMR 15.15: Table B crime, the hiring authority will give careful consideration to the following factors in its decision to hire or not hire the candidate:

(a) time since the conviction or pending offense;

(b) age of the candidate at the time of the offense;

(c) nature and specific circumstances of the offense;

(d) sentence imposed and length of any period of incarceration;

(e) relationship of the criminal act to the nature of the work to be performed;

(f) number of offenses;

(g) whether offenses were committed in association with a dependence on drugs or alcohol, from which the candidate has since recovered;

(h) any relevant evidence of rehabilitation or lack thereof, such as information about compliance with conditions of parole or probation, including orders of no contact with victims and witnesses; and the individual's conduct and experience since the time of the offense, including but not limited to educational or professional certifications obtained; and

(i) any other relevant information, including information submitted by the candidate, or requested by the hiring authority.

(2) The hiring authority, using a form prescribed by EOHHS, will also make a written determination of its decision to hire or not hire such candidate. This form will document the factors considered and the rationale for the hiring authority's decision. A copy of such written determination will be maintained by the hiring authority in a secure location, together with the CORI and criminal record disclosure information that may have been requested under 101 CMR 15.06(1)(a). Completion of the written determination form will serve to confirm that the hiring authority has carefully reviewed the CORI and other relevant information, including information provided by the candidate, so that the vulnerable populations served by EOHHS agencies are protected and candidates with criminal histories are given a fair opportunity to be employed and to reintegrate successfully into the workforce.

(3)

(a) In addition, if the hiring authority decides to hire a candidate with a CORI showing a conviction of, or pending Table A crime, the hiring authority will submit the prescribed form to the EOHHS Secretary or the EOHHS agency Commissioner or their designees. The hiring authority will not proceed to hire the candidate for five business days from the date the EOHHS Secretary or the EOHHS agency Commissioner or their designees receive the form. During such time, the EOHHS Secretary or EOHHS agency Commissioner or their designees may disapprove the hire or request additional information. Notwithstanding the foregoing, a hiring authority may proceed to hire the candidate before the expiration of the five-day period if the EOHHS Secretary or EOHHS agency Commissioner or designee, after receiving the prescribed form, informs the hiring authority that he or she does not intend to disapprove the hire or request additional information.

(b) EOHHS or an EOHHS agency may require that the hiring authority's review include the following:

1. a review by the candidate's criminal justice official, including a determination in writing that the candidate, within the position sought, does not pose an unacceptable risk of harm to the clients; or

2. if the criminal justice official has been determined by the hiring authority to be unavailable or has indicated he or she has insufficient information to render an assessment, a written determination from a qualified mental-health professional that the candidate, within the position sought, does not pose an unacceptable risk of harm to the clients. The EOHHS agency or EOHHS, if EOHHS makes the request, will bear the cost of an assessment by a qualified mental-health professional of the candidate's risk of harm.

(4) If the hiring authority does not wish to hire a candidate with a 101 CMR 15.15: Table A crime, or a 101 CMR 15.15: Table B crime within the five- and ten-year time periods referenced under 101 CMR 15.08(1), the prescribed form will be completed as outlined in 101 CMR 15.09(2) and will be maintained on file in a secure location.

(5) Before any determination or hiring decision is made on the basis of the CORI, the hiring authority will comply with all requirements of DCJIS under 803 CMR 2.00: Criminal Offender Record Information (CORI) including:

(a) providing a candidate with a copy of his or her CORI, EOHHS CORI regulations, and DCJIS information concerning the process for correcting a criminal record;

(b) notifying the candidate of the potential adverse decision based on the CORI;

(c) informing the candidate what part of the criminal record appears to make him or her ineligible for the position;

(d) providing the candidate with an opportunity to dispute the accuracy and relevancy of the CORI; and

(e) upon receipt of any additional documentation received from the candidate or DCJIS, reviewing the information with the candidate and informing him or her of the decision.

Notes

101 CMR, § 15.09

Amended by Mass Register Issue 1337, eff. 4/21/2017. Amended by Mass Register Issue 1342, eff. 4/21/2017.