Judges: WINSTON BRYANT, Attorney General
Filed Date: 10/28/1991
Status: Precedential
Modified Date: 7/5/2016
The Honorable Gus Wingfield State Representative P.O. Box 239 Delight, Arkansas 71940-0239
Dear Representative Wingfield:
This is in response to your request for an opinion on the following questions:
1. Can a local Civil Service Commission demand that city employees submit to a credit check and subsequently fire, remove his/her name from promotion list or reprimand the employee for refusing that credit check?
2. Is it lawful for a Civil Service Commission to operate or manage a local office or agency? If the answer to this question is "no," would the practice stated above not be considered day-to-day management?
We have received an addendum to your request from Representative Jodie Mahony, who adds the following question:
3. Does the Civil Service Commission have the authority to include in an officer's personnel file a note stating that the officer has refused to release his credit report?
You do not state to what use the "credit checks" will be put. You ask merely whether they can be required and whether employees may be terminated, not promoted, or reprimanded for failing to submit.
It is my opinion that the answer to your first question is "no." A civil service commission cannot fire, refuse to promote, or reprimand an existing employee for refusing to submit to a credit check. Although under federal law the city can obtain the information from a credit reporting agency without the employee's permission, it cannot, in my opinion, under our state civil service statutes and under constitutional principles, lawfully use the credit check against existing employees. It is therefore not necessary to the enforcement of the statutes, and as such a civil service commission has no authority to enact a rule requiring these credit checks. It is my opinion, additionally, that these "credit checks," if otherwise lawful, would not constitute the "day-to-day management" of the work force, and that the issue of placing a note in the employee's personnel file stating that the employee has refused to submit to a credit check has been mooted by my conclusion that a commission does not have authority to conduct such checks against existing employees.
Some clarification of your questions is necessary before outlining the basis of the above conclusions. The questions are couched in terms of employees agreeing to "submit" to credit checks. It should be noted in this regard that under the "Fair Credit Reporting Act,"
The disclosure of information to governmental agencies is limited to identifying type information . . . unless the governmental agency has obtained a court order or is a bona fide creditor, insurer, employer, or licensor. [Emphasis added.]
See also Hoke v. Retail Credit Corporation,
There are, however, some requirements that the employee be made aware of the request for the report and the contents thereof.See
Of course, if the city wishes to obtain the consent or cooperation of employees with regard to the credit check, nothing in the Fair Credit Reporting Act would preclude this. Seegenerally
With that point clarified, I may now address in detail your first question, which is whether the city may demand credit checks on its employees and fire or not promote employees who fail to submit. Initially, it should be noted that the authority of civil service commissions is set out in the Arkansas Code at A.C.A. §
Thus, it appears that the civil service commission could not lawfully use the results of a credit check when considering the promotion of existing employees. See however, Bradley v.Bruce, supra, (Hays J. dissenting). Therefore, such credit checks would not be "necessary" to carry out the statutes as to promotions of existing employees. As stated previously, the statutes seem to limit a commission's authority to promulgate rules and regulations to ones which are for "necessary enforcement" of the statutes. At the least, such rules should be adopted to implement the statutes.
The statutes do not address, however, the purposes for which a current civil service employee may be discharged. Could a local civil service commission lawfully need a credit check in enforcing the statutes as to the dismissal of current employees? That is, is it "necessary" to enforcement of the statutes as to the termination of employees? Would it be within the commission's authority to adopt rules governing its employees? The commission is free to prescribe rules and regulations of conduct for employees and to impose termination as a punishment for violation of these rules. Many of these rules may not be strictly "necessary" to enforce the statutes, but would be within the commissions authority. Cf. Ward v. City of Fort Smith,
It is unclear, in my opinion, whether the requirement and use of credit checks on existing civil service employees is "necessary" to carry out the civil service statutes. Historically such commissions are given broad authority to enact rules. It appears, however, in this instance that any use of the credit checks against existing employees might pose constitutional problems. If the commission requests and obtains the credit checks, it must be assumed that they intend to use them or consider them in some fashion, and if there are constitutional infirmities with the intended use of the credit checks, then they are perforce not "necessary" for or incident to the enforcement of the statutes. The question of whether a credit check criteria may be imposed upon existing employees under threat of termination thus becomes one of constitutional dimensions.
Potential constitutional challenges include a First Amendment Privacy argument, or a due process challenge. In my opinion, it is unlikely that a court would hold an interest in an employee's credit report protected by the First Amendment, where a federal law allows the dissemination of such information to individuals for limited purposes, in this case for employment purposes. Seeagain,
The resolution of this question may depend to a degree on what particular employees are involved. For example, checking the credit histories of civil service employees whose job involves the handling of money or the entrusting of other property or financial matters may be much more rationally related than for other employees. See, e.g., EEOC v. American National Bank, 1979 Westlaw 25, (E.D. Va. 1979) at 33. Although the test is a lenient one, and will only be applied if a property interest is found to exist in an Arkansas civil service position, in my opinion the question of whether there is an rational basis to check the credit of existing employees is a close one. Although the use of such credit checks might be more rational in the case of new prospective employees, as part of a background check or other reference gathering process, such a process would appear unnecessary with respect to existing employees. These employees have built up a work record with the department on which their qualifications for continued employment or promotion can be based. Requiring a credit check on employees who have built up this work record, some for many years, would in my opinion be irrational and arbitrary. In any event, it would not be "necessary" to carry out or adopted to implement the civil service statutes.
It is therefore my opinion that the answer to your first question is "no;" a civil service commission cannot fire, refuse to promote, or reprimand an existing employee for refusing to submit to a credit check. Although under federal law, it appears that the city can obtain the information from a credit reporting agency without the employee's permission, it cannot, in my opinion, under our state civil service statutes and under constitutional principles, lawfully use the credit check against existing employees. It is therefore not necessary to the enforcement of the statutes, and as such a civil service commission has no authority to enact a rule requiring these credit checks. Your first question does not appear to address the requirement of credit checks against prospective employees, and as such I express no opinion on the validity of that practice.
Your second question is whether it is lawful for a civil service commission to "operate or manage a local office or agency." To the extent you mean a local city "agency" employer whose employees are governed by a local civil service commission, the answer is "no." Although civil service commissions are given broad authority to make rules, their authority is more in the nature of personnel management, and not in the day-to-day management of the agency. See Civil Service Comm. v.McDougal,
The final question for resolution, posed by Representative Mahony is whether a note can be placed in an employee's personnel file stating that the employee has refused to submit to a credit check. This question has been mooted by my conclusion that such credit checks as to existing employees would be unlawful. If the use of such credit checks is unlawful, it is unnecessary to place a note in the employee's personnel file stating that he has refused to submit to it.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh
Virden v. Roper , 302 Ark. 125 ( 1990 )
Worth v. CIV. SERVICE COM'N OF EL DORADO , 294 Ark. 643 ( 1988 )
The Civil Service Comm'n of Fayetteville v. Cruse , 192 Ark. 86 ( 1936 )
Ward v. City of Fort Smith , 201 Ark. 1117 ( 1941 )
Civil Service Comm. of North L.R. v. McDougal , 198 Ark. 388 ( 1939 )
Norton v. Blaylock , 285 F. Supp. 659 ( 1968 )
Federal Trade Commission v. Manager, Retail Credit Company, ... , 515 F.2d 988 ( 1975 )
william-hogue-v-bill-clinton-governor-of-state-of-arkansas-kenneth , 791 F.2d 1318 ( 1986 )
Ruth Norton v. Len Blaylock and Russell Cooper, Charlene ... , 409 F.2d 772 ( 1969 )
Reginald O. Wallace v. Debron Corporation , 494 F.2d 674 ( 1974 )
Harold Reed Hoke, M.D. v. Retail Credit Corporation , 521 F.2d 1079 ( 1975 )
FTC v. Manager, Retail Credit Co., Miami Branch Office , 357 F. Supp. 347 ( 1973 )
Karr v. Townsend , 606 F. Supp. 1121 ( 1985 )
Mysinger v. Foley , 651 F. Supp. 328 ( 1987 )
Washington v. Davis , 96 S. Ct. 2040 ( 1976 )
Schalz v. McHenry County Sheriff's Department Merit ... , 113 Ill. 2d 198 ( 1986 )
Bishop v. Wood , 96 S. Ct. 2074 ( 1976 )
United States v. Puntorieri , 379 F. Supp. 332 ( 1974 )
United States v. City of Chicago , 385 F. Supp. 543 ( 1974 )