Introduction
Act 2173 of 2005 permits the Arkansas Development Finance
Authority ("ADFA") to request a criminal background check on applicants for
employment or programs or on employees. The following addresses ADFA's policy
with regard to criminal background checks for program participants. The
criminal background check on employees and applicants for employment will be
addressed in ADFA's employee handbook.
ADFA Programs
I.
A. An
allocation of state or federal low-income housing tax credits ("LIHTCs") or
tax-exempt private activity volume cap bonds ("Bonds") or HOME Investment
Partnership Program (HOME) funds will be denied to any applicant or recipient
due to the following:
1) A conviction of
those felonies listed below; or
2)
A conviction of certain felonies as described below of any principal of such
applicant or recipient; or
3) A
conviction of certain felonies as described below of any consultant, developer,
other development team member, or any principal of such consultant, developer,
or other development team member.
If the development team member is a partnership, association,
limited liability company, or corporation, "principal" shall include: its
general partner(s), managing member(s), or any person who has at least a ten
percent (10%) ownership interest in any ownership entity of such partnership,
association, limited liability company or corporation. HOME program
participants shall include any consultant, development team member or public
official affiliated with the HOME program application.
B. A borrower of ADFA's economic
development bond programs or direct loan/bond guaranty loan programs will be
denied program participation due to the following:
1) A conviction of those felonies listed
below; or
2) A conviction of
certain felonies as described below of any principal of such applicant or
recipient.
If the borrower is a partnership, association, limited liability
company, or corporation, "principal" shall include: its general partner(s),
managing member(s), or any person who has at least a ten percent (10%)
ownership interest in any ownership entity of such partnership, association,
limited liability company or corporation.
II. Each person listed in
Paragraph I (A) above, or their authorized representative, is
required to complete, execute and submit a "Criminal Background Disclosure Form
- Housing" (Attachment A) as provided by ADFA. Failure to submit a "Criminal
Background Disclosure Form -Housing" will result in a disqualification of the
application for the reservation of LIHTCs or Bonds or HOME funds.
Misrepresentations found in the "Criminal Background Disclosure Form - Housing"
can disqualify the application or, if applicable, result in a return of any
low-income housing tax credits or HOME funds allocated pursuant to the
application.
Each person listed in Paragraph I (B) above, or
their authorized representative, is required to complete, execute and submit a
"Criminal Background Disclosure Form - Economic Development" (Attachment B) as
provided by ADFA. Failure to submit a "Criminal Background
Disclosure Form - Economic Development" will result in a
disqualification of the application. Misrepresentations found in the "Criminal
Background Disclosure Form - Economic Development" can disqualify the
application.
III. Upon
information that any person listed in Paragraph I above may have
committed any felony or at the discretion of the ADFA President, ADFA, pursuant
to authority established by Ark. Code Ann. §
15-5-214, shall require such
person to apply, pay for and release for review by ADFA, criminal background
checks obtained through the Arkansas State Police and the Federal Bureau of
Investigation. Such person will be required to request the criminal background
check within 2 weeks of receiving notification from ADFA that such a request
must be made. ADFA will furnish a form, acceptable to the Arkansas State Police
and the Federal Bureau of Investigation, to such person for use in making the
request. Failure to make the request as required, or ensure for its payment or
release for the ADFA's consideration, will result in a disqualification of the
application or, if applicable, a return of LIHTCs, HOME funds or economic
development bond funds or direct loans.
IV. ADFA's President shall review the
criminal background checks and any written information submitted by such person
that she/he wants considered by the President. Unless the conviction has been
the subject of an official pardon, expungement, annulment, concealment, or
similar official treatment, the President may consider the following types of
convictions to be disqualifying or good cause for the return of LIHTCs, HOME
funds or economic development bond funds or direct loans:
1) Any felony conviction within the last 3
years, or
2) Any felony against a
person conviction within the last 10 years, or
3) Any felony involving the manufacture or
distribution of a controlled substance conviction within the last 10 years,
or
4) Any felony against property
conviction within the last 7 years.
V. The President shall have the authority to
waive a conviction, as disqualifying of an application or as good cause for the
return of LIHTCs, HOME funds or economic development bond funds or direct
loans, upon consideration of the following factors:
1) The age of such person at the time of the
offense;
2) The circumstances
surrounding the offense, particularly any extenuating or mitigating
matter;
3) The length of time since
the offense;
4) Subsequent
rehabilitated measures accomplished by such person, including whether such
person was the recipient of parole or probation;
5) The number of other convictions by such
person;
6) Subsequent work
history;
7) Employment
references;
8) Character
references; and
9) Any other
information authorized by the President.
Prior to the President's determination of disqualification or
return of LIHTCs, HOME funds or economic development bond funds or direct
loans, the President shall notify such person of:
1) Her/his opportunity to present written
evidence of the above factors listed in Paragraph V above;
and
2) Her/his right for a personal
appearance before the President regarding a request to waive a
conviction.
VI. Notwithstanding
Paragraphs IV and V
above, any conviction of the following offenses, or its equivalent if
convicted in some state or federal jurisdiction other than Arkansas, unless the
subject of an official pardon, expungement, annulment, concealment, or similar
official treatment, will result in disqualification of the application or the
return of LIHTCs, HOME funds or economic development bond funds or direct
loans:
1) Capital murder, as prohibited in
A.C.A. §
5-10-101;
2) Murder in the first degree and murder in
the second degree, as prohibited in A.C.A. §§
5-10-102 and
5-10-103;
3) Kidnapping, as prohibited in A.C.A. §
5-11-102;
4) Rape, as prohibited in A.C.A. §
5-14-103;
5) Sexual assault in the first degree and
second degree, as prohibited in A.C.A. §§
5-14-124 and
5-14-125;
6) Endangering the welfare of a minor in the
first degree and endangering the welfare of a minor in the second degree, as
prohibited in A.C.A. §§
5-27-203 and
5-27-204;
7) Incest, as prohibited in A.C.A. §
5-26-202;
8) Arson, as prohibited in A.C.A. §
5-38-301;
9) Endangering the welfare of an incompetent
person in the first degree, as prohibited in A.C.A. §
5-27-201;
10) Adult abuse that constitutes a felony, as
prohibited in A.C.A. §
5-28-103;
11) Theft of public benefits, a Class B
Felony, as prohibited in A.C.A. §§
5-36-202 and
5-36-203.
ATTACHMENT A CRIMINAL BACKGROUND AND
DISCLOSURE FORM - HOUSING
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ATTACHMENT B CRIMINAL BACKGROUND DISCLOSURE
FORM - ECONOMIC DEVELOPMENT
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