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Background Investigations

ChecklistMAT THEW P. DOLAN

AT TORNEY

PUBLIC AGENCY TRAINING COUNCIL

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Background Investigations—Back to Basics

WHO is conducting the background investigation?

“Knocking on Doors” rather than relying solely on phone interviews.

Going beyond their references—speaking in person with acquaintances not referenced by the applicant.

Balancing the cost of a comprehensive, in-person background investigation against the profound responsibility of hiring someone as an officer.

Establishing the Background Investigations Checklist—

Are we all working from the same sheet of music?

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Factors That Cloud Judgment in Hiring

Political Considerations (broad category)

Political Considerations“We need and have budgeted for X number of cops by the end of the year”

“We need more ___________ cops as soon as possible”

Any other considerations that may take away the ability of “boots on the ground” investigators to identify toxicity

Hiring—From Freeze to Frenzy

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Risks Associated with a Hiring Frenzy

Balance the cost of leaving budgeted vacancies unfilled against

The risk of hiring individuals who have not been properly vetted/do not meet agency standards/are not supported by the “boots on the ground” investigators and interviewers

The “Nuts and Bolts” of Background Investigations

The Only Thing We All Have in Common is that We All Do Things a Little Differently

WHO Is Your Background Investigator?

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Who Is Your Background Investigator?

Have they ever conducted a personnel background investigation before?

Have they received any training?

Have they been provided with a checklist/outline/etc.?

Creating The Background Investigation Checklist

The make-up of the particular agency’s checklist depends on:

◦ Criteria for employment eligibility/hiring standards/automatic disqualifiers

◦ Priorities of the agency’s executive leadership or background investigator

◦ Agency resources—starting with the least expensive or time-consuming steps rather than running the risk of discovering them after more costly efforts have been made in other areas

Background Investigation ChecklistTemplate

Verify that all necessary application documents have been submitted including all necessary waivers and releases

Application Review to verify that there are no facially conflicting or false statements

Credentials Verification

Driving Record Checks

Criminal History Checks (including checks of all formers states of residency)

Credit Check (pursuant to FCRA requirements)

Check of National Database that registers de-certified officers (IADLEST)

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Social Media/Internet Search

Employment History (including interviewing past employers to the extent possible)

Personal References Interviews

Neighborhood Canvas and Interviews with Neighbors, Acquaintances, Co-Workers, etc.

Follow-up Reviews on Issues Generated During the Investigation

Background Investigation Summary/Report

Passing the Information on to the Executive, Proper Records Retention & Confidentiality

Background Investigation Summary

May require of checklist of its own for purposes of organization, efficiency and equal treatment of applicants.

Example:◦ Overall Summary (including any note-worthy issues of concern—including

those that are not automatic disqualifiers)

◦ Verification of Minimum Requirements◦ Criminal History◦ Employment History◦ Credit History◦ Driving History ◦ Alcohol and Drug Use/Knowledge◦ References (consider footnoting throughout the Summary and including

detailed sources of information in one location as the conclusion of the document)

Summaries When Clear Disqualifiers are Discovered

If we find a felony conviction, frequent instances of dishonesty, etc.—does it make sense to continue with the checklist OR should we be clearly noting the aforementioned disqualifiers, and move on to the next investigation?

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The National Crime Information Center—An

Imperfect ToolBy its own admission, the FBI’s NCIC databases should not be a resource that is overly-depended upon by agencies.

The absence of incriminating information on this database should NOT be taken to mean that there is a criminal history that exists but was not properly inputed; and

Apparently incriminating information should be verified before disqualifying an applicant

Is There Any Replacement For a County Courthouse

Search?Verification or exoneration purposes

Discovery of the existence of expunged criminal records

Civil matters that are relevant to character and fitness to serve in law enforcement

The Myth of Employer References

and DefamationTruthful, general opinion statements (“he is not re-hireable by this agency”) is not defamation.

Allowing access to personnel files pursuant to valid authorization, waiver and release is not defamation.

Failure to disclose certain dangerous propensities can result in liability for previous employer.

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Employer Immunity re: References

When requested to provide a reference on a former or current employee, an employer acting in good faith is immune from liability for comments about the former employee’s job performance. The immunity shall not apply when the reference information supplied was knowingly false or deliberately misleading, was rendered with malicious purpose or violated any civil rights of the former employee.

See N.M. Stat. Ann. § 50-12-1 (LEXIS 2014)

The Applicants are NOT the Only One’s Whose Honesty

Must be Scrutinized

Utilizing Social Media in Background Investigations

Most states do not have a prohibition on requesting applicant social media information and MOST that do have prohibitions that DO NOT APPLY to law enforcement.

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Utilizing Social Media in Background Investigations

If your state has a prohibition without a law enforcement exemption OR if legislation is pending, keep in mind�

(1) Publicly available content is not limited by social media privacy legislation.

(2) Furthermore, in states where only requiring the disclosure of passwords is prohibited, that prohibition does not extend to the requirement that the contents of the site be made available to the background investigator without the applicant disclosing the password.

What About Applicants for Non-Sworn Positions?

Will they have access to sensitive information?

Will they be in a position to jeopardize officer safety or the effectiveness of investigations?

Will they be in a position to diminish the public trust?

If the answer is yes to any of these questions—should we have an agency Background Investigation Checklist for Non-Sworn Personnel (though possibly more limited than those for sworn personnel)?

Defending the Decision Not to Hire due to Findings in the Background

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Defending Decisions Not to Hire based on the Background

InvestigationStandard form letter indicating decision not to hire.

Spreadsheet with all necessary information/ “paper trail” versusFormal internal summary of decision not-to-hire � Retain it

If applicant resigns the process � leave it at that in lieu of extreme circumstances (criminal, etc.)

Thank You!Matthew P. Dolan

Attorney

Public Agency Training Council

800-365-0119

mdolan@patc.com

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Upcoming In-Class Training

Recruiting, Hiring &

Background Investigations

Boise, ID 1/26/2015—1/27/2015

Greenville, SC 2/17/2015—2/19/2015

Las Vegas, NV 2/26/2015—2/27/2015

Denver, CO 3/2/2015—3/3/2015

New Braunfels, TX 3/24/2015—3/26/2015

http://www.patc.com/training/schedule.php

DID YOU KNOW?

PATC offers consulting services to agencies facing personnel

challenges. These services include an investigation of current

personnel policies in order to make Findings and Recommendations

and create agency-specific policies to fit your agency’s needs. Some

of these services include:

--Strategic Planning for Diversity in Recruiting and Hiring

--Terminations and Separation Agreements

--Recruiting, Hiring and Background Investigations

--Claims of Discrimination, Retaliation and Harassment

--Performance Evaluation Policies

Contact:

Matt Dolan

mdolan@patc.com

1-800-365-0119