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HomeMy WebLinkAbout#21 - JPA with MN BCA STAFF REPORT DATE: January 7, 2025 CONSENT TO: City Council FROM: Dustin Kalis, Fire Chief & Karissa Goers, Administrative Services Director AGENDA ITEM: Approve Joint Powers Agreement Between the State of Minnesota and the City of Lake Elmo for State and Federal Criminal Background History Information REVIEWED BY: Nicole Miller, City Administrator BACKGROUND: All entities and organizations that access state and federal criminal history record information [CHRI] through the Minnesota Bureau of Criminal Apprehension must have an executed non- criminal justice agency Joint Powers Agreement (NCJA JPA) with the BCA. The agreement details various requirements of state and federal law addressing the access, transfer, usage, safeguarding and destruction of criminal history data. This contract will bind both parties and is required for the City of Lake Elmo and the Lake Elmo Fire Department to obtain and use criminal history record information. ISSUE BEFORE COUNCIL: Should the City Council approve joint powers agreement between the State of Minnesota and the City of Lake Elmo for access to state and federal criminal history record information [CHRI] through the Minnesota Bureau of Criminal Apprehension? PROPOSAL DETAILS/ANALYSIS: An audit conducted in March 2024 by the Minnesota Bureau of Criminal Apprehension found the City was out of compliance with the MN Department of Public Safety BCA/FBI CJIS policy by not having a Joint Powers Agreement (JPA) for access to state systems for the purpose of obtaining Criminal History Record Information (CHRI). The BCA was in the process of updating their JPA procedures and indicated they would reach out to us in the future to complete this task. The BCA reached out last week to indicate their process was complete and to ask the City to enter into the attached JPA. FISCAL IMPACT: The Minnesota Bureau of Criminal Apprehension charges $33.25 for each criminal background check and $10.00 for fingerprint service. These are budgeted costs associated with the hiring of personnel. OPTIONS: 1) Approve joint powers agreement 2) Amend and then approve the joint powers agreement 3) Do not approve the joint powers agreement RECOMMENDATION: If removed from the consent agenda: Motion to approve joint powers agreement between the State of Minnesota and the City of Lake Elmo for access to state and federal criminal history record information? ATTACHMENTS: • Joint Powers Agreement between the State of Minnesota and the City of Lake Elmo for State and Federal Criminal Background History Information. DPS/BCA NCJA Federal Background Check JPA (Aug. 2024) 1 Joint Powers Agreement State of Minnesota Federal Background Checks ORI – NCJMN0150 SWIFT Contract # 260653 This Agreement is between the State of Minnesota, acting through its commissioner of Public Safety on behalf of the Bureau of Criminal Apprehension ("BCA"), and the City of Lake Elmo on behalf of its Fire Department ("Governmental Unit”). Recitals 1 Under Minnesota Statutes § 471.59, the BCA and Governmental Unit are empowered to engage in such agreements as are necessary to exercise their powers. 2 The BCA is the State Identification Bureau for the State of Minnesota and is responsible for fingerprint identification services including submission of civil, fingerprint-based background checks to the Federal Bureau of Investigation (“FBI”) subsequent to conducting Minnesota records checks. 3 The Governmental Unit has a state statute, Minnesota Statutes, § 299F.035, that has been approved by the United States Attorney General as compliant with Public Law 92- 544. 4 The Governmental Unit wants to access federal data in support of its duties to conduct background checks as provided by law. 5 The purpose of this Joint Powers Agreement is to memorialize the requirements for Governmental Unit to obtain access and the limitations that apply to the information that Governmental Unit obtains. Agreement 1 Term of Agreement 1.1 Effective Date. This Agreement is effective on the date the BCA obtains all required signatures under Minnesota Statutes § 16C.05, subdivision 2. 1.2 Expiration Date. This Agreement expires five years from the date it is effective. 2 Agreement Between the Parties 2.1 Request Submission. Governmental Unit agrees that it will collect fingerprints from those individuals for whom a Minnesota and federal fingerprint-based background check will be conducted. Governmental Unit will forward the fingerprints and other documentation to the BCA. The fingerprints will be captured so they meet the requirements of National Institute of Standards and Technology Special Publication 500-290. The Governmental Unit will ensure that all fields required on the fingerprint card are completed. Fingerprints received by Governmental Unit will be forwarded to the BCA using a secure method. 2.2 Request Processing. On receipt of fingerprints that conform to the requirements of Clause 2.1, the BCA will conduct a check of the Minnesota criminal history repository DPS/BCA NCJA Federal Background Check JPA (Aug. 2024) 2 for any records that match the fingerprints submitted. Any results of a fingerprint match in Minnesota will be returned to the Governmental Unit with the federal results. The BCA will also forward the fingerprints to the FBI for processing. The BCA will receive the response from the FBI, redact any data the Governmental Unit is not entitled to receive and forward the results to the Governmental Unit. 2.3 Policies. The FBI and BCA have laws and policies on access, use, audit, dissemination, screening (pre-employment), security, training, and use of the criminal history results. These FBI and BCA policies, as amended and updated from time to time, are incorporated into this Agreement by reference. The policies are available at https://bcanextest.x.state.mn.us//noncrim/launchpad/index.pl. Governmental Unit has created its own policies to ensure that Governmental Unit’s employees and contractors comply with all applicable requirements. Governmental Unit ensures this compliance through appropriate enforcement. 2.4 Limitations on Access. BCA agrees that it will comply with applicable state and federal laws when making information accessible. Governmental Unit agrees that it will comply with applicable state and federal laws when accessing, using, disseminating, and storing data. Each party is responsible for its own compliance with the most current applicable state and federal laws. 2.5 Requirement to Update Information. The parties agree that if there is a change to any of the information, whether required by law or this Agreement, the party will send the new information to the other party in writing within 30 days of the change. 2.6 Compliance with Personnel Security Requirements. Per Minnesota Statutes § 299C.46, employees of a Governmental Unit who review results of background checks will be required to take security awareness training and pass a federal, fingerprint-based background check. Any information technology staff who support the work of Governmental Unit and who have physical or logical access to criminal history information will also be required to take security awareness training and pass a federal, fingerprint-based background check and may need to sign a security addendum certification. All required training by Governmental Unit employees will be completed prior to reviewing or handling background checks. 3 Payment Governmental Unit will pay the BCA for all services performed under this Agreement. For each background check that is processed by BCA, Governmental Unit will pay the fee identified at https://dps.mn.gov/divisions/bca/Documents/Background-check-fees.pdf. There is an additional $10.00 fee if the fingerprints are taken at BCA. 4 Authorized Representatives BCA's Authorized Representative is the person below, or her successor: Name: Diane Bartell, Deputy Superintendent Address: Dept. of Public Safety; Bureau of Criminal Apprehension 1430 Maryland Avenue East Saint Paul, MN 55106 Telephone: 651.793.2590 Email Address: Diane.Bartell@state.mn.us Governmental Unit’s Authorized Representative is the person below, or his/her successor: Name: Dustin Kalis, Fire Chief Address: 3880 Laverne Ave N DPS/BCA NCJA Federal Background Check JPA (Aug. 2024) 3 Lake Elmo, MN 55042 Telephone: 651.747.3933 Email Address: dkalis@lakeelmo.gov 5 Assignment, Amendments, Waiver, and Agreement Complete 5.1 Assignment. Neither party may assign nor transfer any rights or obligations under this Agreement. 5.2 Amendments. Any amendment to this Agreement, except that described in Clause 2.5 above, must be in writing and will not be effective until it has been signed and approved by the same parties who signed and approved the original agreement, or their successors in office. 5.3 Waiver. If either party fails to enforce any provision of this Agreement, that failure does not waive the provision or the right to enforce it. 5.4 Agreement Complete. This Agreement contains all negotiations and agreements between the BCA and the Governmental Unit. No other understanding regarding this Agreement, whether written or oral, may be used to bind either party. 6 Liability The BCA and the Governmental Unit agree each party will be responsible for its own acts and behavior and the results thereof to the extent authorized by law and shall not be responsible or liable for the acts of any others and the results thereof. The BCA’s liability shall be governed by provisions of the Minnesota Torts Claims Act, Minnesota Statutes § 3.736, and other applicable law. The Governmental Unit’s liability shall be governed by the Minnesota Municipal Tort Claims Act, Minnesota Statutes Chapter 466, and other applicable law. 7 Audits 7.1 Under Minnesota Statutes § 16C.05, subdivision 5, the Governmental Unit’s books, records, documents, internal policies and accounting procedures and practices relevant to this Agreement are subject to examination by the BCA, State Auditor, or Legislative Auditor, as appropriate, for a minimum of six (6) years from the end of this Agreement. The examination shall be limited to the books, records, documents, and accounting procedures and practices that are relevant to this Agreement. 7.2 Under applicable state and federal law and policy, the Governmental Unit’s records are subject to examination by the BCA and the FBI to ensure compliance with laws, regulations and policies about access, use, and dissemination of data. 8 Government Data Practices 8.1 BCA and Governmental Unit. The BCA and Governmental Unit must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data accessible under this Agreement, and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Governmental Unit under this Agreement. The remedies of Minnesota Statutes §§ 13.08 and 13.09 apply to the release of the data referred to in this clause by either the BCA or the Governmental Unit. 9 Investigation of Alleged Violations; Sanctions For purposes of this clause, “Individual User” means an employee or contractor of Governmental Unit. 9.1 Investigation. Governmental Unit and BCA agree to cooperate in the investigation DPS/BCA NCJA Federal Background Check JPA (Aug. 2024) 4 and possible prosecution of suspected violations of federal law, state law, and policies and procedures referenced in this Agreement. When BCA becomes aware that a violation may have occurred, BCA will inform Governmental Unit of the suspected violation, subject to any restrictions in applicable law. When Governmental Unit becomes aware that a violation has occurred, Governmental Unit will inform BCA subject to any restrictions in applicable law. 9.2 Sanctions. 9.2.1 Under this Agreement, Governmental Unit must determine if and when an involved Individual User is disciplined due to inappropriate use of data. Governmental Unit may decide to suspend or terminate access and the decision must be made as soon as alleged violation is discovered, after notice of an alleged violation is received, or after an investigation has occurred. Governmental Unit must report the status of the Individual User’s access to BCA without delay. BCA reserves the right to temporarily suspend or eliminate an Individual User’s access to data and will notify Governmental Unit if an Individual User is affected. 9.2.2 If the BCA determines the Governmental Unit has jeopardized the integrity of the information, BCA may temporarily stop providing some or all the information under this Agreement until the failure is remedied to the BCA’s satisfaction. If Governmental Unit’s failure is continuing or repeated, Clause 11.1 does not apply and BCA may terminate this Agreement immediately. 10 Venue Venue for all legal proceedings involving this Agreement, or its breach, must be in the appropriate state or federal court with competent jurisdiction in Ramsey County, Minnesota. 11 Termination 11.1 Termination. The BCA or the Governmental Unit may terminate this Agreement at any time, with or without cause, upon 30 days’ written notice to the other party’s Authorized Representative. 11.2 Termination for Insufficient Funding. Either party may immediately terminate this Agreement if it does not obtain funding from the Minnesota Legislature, or other funding source; or if funding cannot be continued at a level sufficient to allow for the payment of the services covered here. Termination must be by written notice to the other party’s authorized representative. The Governmental Unit is not obligated to pay for any services that are provided after notice and effective date of termination. However, the BCA will be entitled to payment, determined on a pro rata basis, for services satisfactorily performed to the extent that funds are available. Neither party will be assessed any penalty if the agreement is terminated because of the decision of the Minnesota Legislature, or other funding source, not to appropriate funds. Notice of the lack of funding must be provided within 30 days of the affected party receiving that notice. 12 E-Verify Certification (In accordance with Minnesota Statutes § 16C.075) For services valued in excess of $50,000, Governmental Unit certifies that as of the date of services performed by the BCA, Governmental Unit and all its subcontractors will have implemented or be in the process of implementing the federal E-Verify Program for all newly hired employees in the United States who will perform work on behalf of the Governmental Unit. Governmental Unit is responsible for collecting all subcontractor certifications and may do so utilizing the E-Verify Subcontractor Certification Form DPS/BCA NCJA Federal Background Check JPA (Aug. 2024) 5 available at http://www.mmd.admin.state.mn.us/doc/EverifySubCertForm.doc. All subcontractor certifications must be kept on file with Governmental Unit and made available to the BCA upon request. 13 Continuing Obligations The following clauses survive the expiration or cancellation of this Agreement: 6. Liability; 7. Audits; 8. Government Data Practices; 9. Investigation of Alleged Violations; Sanctions; and 10. Venue. BCA and the Governmental Unit indicate their agreement and authority to execute this Agreement by signing below. GOVERNMENTAL UNIT Governmental Unit certifies that the appropriate person(s) has(have) executed this Agreement on behalf of the Governmental Unit and its jurisdictional government entity as required by applicable articles, laws, by-laws, resolutions, or ordinances. By and Title: _____________________________________________________ ______________ Governmental Unit Date By and Title: _____________________________________________________ ______________ Governmental Unit Date By and Title: _____________________________________________________ ______________ Governmental Unit Date By and Title: _____________________________________________________ ______________ Governmental Unit Date By and Title: _____________________________________________________ ______________ Governmental Unit Date DEPARTMENT OF PUBLIC SAFETY, BUREAU OF CRIMINAL APPREHENSION By and Title: _____________________________________________________ ______________ (with delegated authority) Date COMMISSIONER OF ADMINISTRATION As delegated to the Office of State Procurement By: _____________________________________________________________ ______________ Date