(a) The OLSE is authorized to take appropriate steps to enforce and coordinate enforcement of this Article 142, including the investigation of possible violations of this Article. The OLSE shall not find a violation based on a Contractor or Subcontractor’s decision that an applicant or employee’s Conviction History is Directly-Related, but otherwise may find a violation of this Article, including if the Contractor or Subcontractor failed to conduct the individualized assessment as required under Section 142.4(f).
(b) An employee, applicant or other person may report to the OLSE any suspected violation of this Article 142. The OLSE shall encourage reporting pursuant to this subsection (b) by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee or person reporting the violation; provided, however, that with the authorization of such person, the OLSE may disclose his or her name and identifying information as necessary to enforce this Article or for other appropriate purposes.
(c) A Contractor or Subcontractor shall be deemed to have breached the provisions regarding the procedures for use of Conviction History in employment upon a finding by the OLSE that the Contractor or Subcontractor has willfully violated these provisions except as provided in the second sentence of subsection (f) of this Section 142.6.
(d) The Director of the OLSE shall establish rules governing the administrative process for determining and appealing violations of this Article 142. The rules shall include procedures for:
(1) providing the Contractor or Subcontractor with notice that it may have violated this Article;
(2) providing the Contractor or Subcontractor with a right to respond to the notice;
(3) providing the Contractor or Subcontractor with notice of the OLSE’s determination of a violation;
(4) providing the Contractor with an opportunity to appeal the OLSE’s determination to a hearing officer, who is appointed by the City Controller or his or her designee.
(e) If there is an appeal of the OLSE’s determination of a violation, the hearing before the hearing officer shall be conducted in a manner that satisfies the requirements of due process. In any such hearing, the OLSE’s determination of a violation shall be considered prima facie evidence of a violation, and the Contractor or Subcontractor shall have the burden of proving, by a preponderance of the evidence, that the OLSE’s determination of a violation is incorrect. The hearing officer’s decision of the appeal shall constitute the City’s final decision.
(f) This subsection (f) applies to violations occurring during the term of a Contract entered into prior to the effective date of the ordinance in Board of Supervisors File No. 171170 amending this Article 142. For a first violation, or for any violation during the first twelve months following the operative date of this Article, the OLSE must issue warnings and notices to correct, and offer the Contractor or Subcontractor technical assistance on how to comply with the requirements of this Article. Upon a subsequent finding of a violation of this Article, the awarding authority shall notify the Contractor or Subcontractor that unless the Contractor or Subcontractor demonstrates to the satisfaction of the OLSE within such reasonable period as the OLSE shall determine, that the violation has been corrected, action will be taken as set forth in this subsection (f) and subsections (h) through (j) of this Section 142.6. For a second violation, the awarding authority may deduct from the amount payable to the Contractor or Subcontractor by the City under any Contract subject to this Article, or the OLSE may impose upon the Contractor or Subcontractor, a penalty of $50 for each employee, applicant or other person as to whom the violation occurred or continued. Thereafter, for subsequent violations, the penalty may increase to no more than $100, for each employee or applicant whose rights were, or continue to be, violated. Such funds shall be allocated to the OLSE and used to offset the costs of implementing and enforcing this Article. If multiple employees or applicants are impacted by the same procedural violation at the same time (e.g. all applicants for a certain job opening are asked for their conviction history on the initial application), the violation shall be treated as a single violation rather than multiple violations.
(g) This subsection (g) applies to violations occurring during the term of a Contract entered into on or after the effective date of the ordinance in Board of Supervisors File No. 171170 amending this Article 142. For a first violation, the awarding authority may deduct from the amount payable to the Contractor or Subcontractor by the City under any Contract subject to this Article, or the OLSE may impose upon the Contractor or Subcontractor, a penalty of $500 for each employee, applicant or other person as to whom the violation occurred or continued. For a second violation, the awarding authority may deduct from the amount payable to the Contractor or Subcontractor by the City under any Contract subject to this Article, or the OLSE may impose upon the Contractor or Subcontractor, a penalty of no more than $1,000 for each employee, applicant or other person as to whom the violation occurred or continued. Thereafter, for subsequent violations, the awarding authority may deduct from the amount payable to the Contractor or Subcontractor by the City under any Contract subject to this Article, or the OLSE may impose upon the Contractor or Subcontractor, a penalty of no more than $2,000, for each employee or applicant whose rights were, or continue to be, violated. The administrative penalties for each violation shall be paid to the employee or applicant as to whom the violation occurred or continued. If multiple employees or applicants are impacted by the same procedural violation at the same time (e.g. all applicants for a certain job opening are asked for their Conviction History on the initial application), the violation shall be treated as one violation for each impacted employee or applicant.
(h) In addition to any other penalties provided for the violation of this Article, the Contract or Property Contract may be terminated or suspended, in whole or in part, by the awarding authority upon the basis of a finding under this Section 142.6 that the Contractor or Subcontractor has violated the provisions of this Article, and all moneys due or to become due hereunder may be forfeited to, and retained by, the City.
(i) A violation of the provisions of this Article during the performance of a Contract or Property Contract shall be deemed by the City to be a material breach of contract and the basis for determination by the awarding authority that the Contractor or Subcontractor is an irresponsible bidder as to all future contracts for which such Contractor or Subcontractor may submit bids. Such Contractor or Subcontractor shall not for a period of up to two years thereafter, be allowed to act as a Contractor or Subcontractor under any Contract or Property Contract. This subsection (i) shall be governed by the procedures set forth in Chapter 28.
(j) Nothing contained in this Article shall be construed in any manner so as to prevent the City from pursuing any other remedies that may be available at law, equity or under any Contract or Property Contract.
(k) The Director of OLSE shall have authority to adopt regulations or guidelines that implement the provisions of this Article. Regulations or guidelines shall be adopted only after consultation with the Director of OCA. Regulations or guidelines that relate to provisions of general import or applicability in Police Code Article 49 shall be adopted only after consultation with the Director of HRC and the Mayor’s Office of Housing and Community Development. A designee of the Director of OLSE shall not have the authority to adopt regulations or guidelines under the first sentence of this subsection (k); but at the discretion of the Director of OLSE a designee of the Director of OLSE shall have the authority to conduct hearings leading to the adoption of regulations or guidelines, and to consult with the Director of HRC, the Mayor’s Office of Housing and Community Development, and the Director of OCA as specified in this subsection (k).
(l) OLSE shall maintain a record of the number and types of complaints it receives alleging a violation of this Article, and the resolution of those complaints. This information shall be compiled on an annual calendar year basis and reported to the Board of Supervisors by January 31 of each year.
(Added as Administrative Code Sec. 12T.6 by Ord. 17-14, File No. 131192, App. 2/14/2014, Eff. 3/16/2014, Oper. 8/13/2014; amended by Ord. 54-18, File No. 171170, App. 4/13/2018, Eff. 5/14/2018, Oper. 10/1/2018; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
(Former Administrative Code Sec. 12T.6 added by Ord. 3-02, File No. 011796, App. 1/18/2002; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)