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SUMMARY
The Office of the Auditor General has conducted a performance
audit and sunset review of the Arizona Board of Fingerprinting (Board) pursuant
to a May 22, 2006, resolution of the Joint Legislative Audit Committee. This
audit was conducted as part of the sunset review process prescribed in Arizona
Revised Statutes (A.R.S.) §41-2951 et seq.
Created by the Legislature in 1999, the Board considers
applications for good cause exceptions from people who have been denied a
fingerprint clearance card (card) by the Department of Public Safety (DPS).
Arizona statutes require a fingerprint clearance card for several types of
professional licensure, certification, and state jobs, mainly those that involve
working with children or vulnerable adults. DPS must deny a card if an applicant
is subject to registration as a sex offender, has been convicted of or is
awaiting trial for certain crimes named in statute, or if it cannot determine
the outcome of an arrest for these crimes within 30 business days of receiving
the criminal records. The Board’s ability to grant a good cause exception is
designed to resolve those cases whose outcome could not be determined by DPS and
to allow convicted people to demonstrate that they have been successfully
rehabilitated.
The Board initially considers applications in a step called
“expedited review” when it determines whether to grant a good cause exception
immediately or to refer the case to a hearing. If more information is needed to
make a decision, the application for a good cause exception proceeds to a
hearing, which is generally conducted by the Board’s Executive Director. The
Board is to then receive the findings and recommendations from the hearing and
make the final decision. According to the Board’s database, the Board closed
1,769 appeals in fiscal year 2006, granting good cause exceptions in 1,148
instances.
Board should improve good cause exception decision
timeliness (see pages 9 through 15)
While the Board has improved the timeliness of its
decision-making process, as compared to the early 2000s, it has some delays at
the end of the process and it took longer to decide cases in fiscal year 2006
than it did in 2005. For applications that cannot be decided on at the expedited
review stage, the Board’s goals are to (1) conduct a hearing within 60 days
after the expedited review and (2) render a final decision no later than 90 days
after the hearing. However, a delay is occurring in making final decisions.
Based on a review of a sample of 31 cases that were still open more than 90 days
after a hearing, auditors found that those 31 applicants had waited from 5
months to 1 year after the hearing and still did not have the Board’s decision.
Further, the time needed to complete the process appears to be lengthening.
Auditors reviewed a random sample of 20 cases that went to a hearing in fiscal
year 2005 and found that 19 were decided within 120 days—well within the
combined 150-day goal for conducting the hearing and rendering the final
decision. By comparison, a review of a sample of 20 cases closed in fiscal year
2006 showed that 5 took longer than 150 days to be decided and only 3 took fewer
than 120 days. Completing the decision process as quickly as possible is
important for people requesting a good cause exception because their ability to
qualify for a job may depend upon it.
These timeliness problems have occurred mainly because the
Executive Director has been unable to write up the hearing findings and submit
them to the Board in a timely manner. The Executive Director has been conducting
40 to 60 hearings a month, but in June through August 2006 presented a 3-month
total of only 66 cases to the Board for a final decision. To address this
problem, the Board hired a full-time hearing officer in November 2006. However,
several additional actions would augment this step:
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Resolve concerns about using OAH—To reduce the
backlog that existed in previous years, the Board signed an interagency
agreement with the State’s Office of Administrative Hearings (OAH), which
conducts hearings for state agencies that need this service. Under this
agreement, the Board used OAH to handle about 100 hearings in fiscal year
2006. The agreement specifies that OAH’s administrative law judges will make
the final decision on these cases—a step taken to reduce the Board’s
workload. However, the Board has refrained from making greater use of this
option because of concerns about ceding its decision-making authority to the
administrative law judge. According to OAH’s Director, most agencies that
use OAH for hearings retain the right to accept, reject, or modify OAH’s
decisions. Although it would cost more, if timeliness continues to be a
problem even with a full-time hearing officer added, the Board should
consider revising the agreement with OAH so that the Board, and not the
administrative law judge, makes the final decisions, and then the Board
should make greater use of OAH.
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Expand monitoring of case status—Another step that
could help in addressing delays is expanding the Board’s monitoring of how
long it is taking to process cases. The Board’s existing case database lacks
some fields needed to better track timeliness. In addition, although the
Board receives aggregated, timeliness-related information such as the
average number of days to close cases and the percentage of applications
heard within 60 days of expedited review, these reports do not show how long
cases were waiting beyond 60 days. The Board should obtain regular reports
that provide such information.
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Establish processing time frames in statute—The
Board’s 150-day case processing goal does not exist in statute or policy.
Many Arizona boards have processing time frames for holding a hearing and
making a decision that are established in statute—something the Legislature
should consider in this instance as well. If the Legislature decides not to
act in this regard, the Board should establish time frames in policy.
Board needs to improve management and oversight
of decisions (see pages 17 through 20)
The Board needs to take several steps to improve its
management and oversight of good cause exception decisions. Board members
believe it is their responsibility to make the final decision on all
applications for good cause exceptions brought before the Board. However,
auditors identified a number of cases in which the case was closed without any
record that the Board made a final decision. The Board needs to develop and
implement better management control over these decisions. The Board is exempt
from Arizona’s Open Meeting Laws, which require that other boards keep minutes
of their actions. However, it should maintain records of its decisions. The
Board had discontinued, but resumed in September 2006, keeping audio recordings
of its meetings. The Board also recently began keeping detailed records of its
meetings, which will help keep track of decisions.
Board needs to ensure decisions comply with statute
(see pages 21 through 25)
The Board has inappropriately decided some cases and has also
asked for inappropriate information from applicants. Auditors found two cases
where the Board had denied a good cause exception to an applicant even though
the case file documentation appeared to show that the applicant had neither been
convicted of an offense nor was awaiting trial for it. Auditors discovered these
cases in a review of 40 cases heard by the Executive Director in fiscal years
2005 and 2006. In these cases, the Board went beyond the statutory criteria in
denying the applications. The Board needs to ensure that it follows statute when
granting or denying exceptions.
Further, the Board requires all applicants to report any
contact with Child Protective Services (CPS) and suspension or revocation of a
professional license or certification on its application. However, statutes do
not authorize the Board to consider CPS contact or professional
licensure/certification information in all cases when deciding whether to grant
a good cause exception. The Board should modify its application form so it no
longer requests this information from applicants who have not been convicted of
a precluding offense since statutes do not authorize the Board to obtain this
information in these cases. In addition, its application form should be modified
to ask for information about a substantiated CPS report or professional
license/certification suspension or revocation only when the information relates
to the type of offense the applicant was convicted of. Otherwise, the Board
would be treating applicants without convictions differently than they would be
treated by DPS.
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