Selection Requirements FAQs

REGULATION 9050: SELECTION REQUIREMENTS – PEACE OFFICER


Q.Are all peace officers in California required to meet POST selection standards?
A.No. POST Regulations apply only to peace officers [as defined by California Penal Code (PC) § 830] who are appointed by POST-participating departments. For those departments in the POST program, the POST selection standards carry the force of law (PC § 13510). Note, however, that the use of POST guidance documents, such as the POST Background Investigation Manual or the Medical Screening Manual, is discretionary.

Q.If an agency is not in the POST program, are there any selection standards that apply to their peace officer candidates?
A.Yes. State law - California Government Code (GC) § 1031 - establishes the minimum selection standards for all California peace officers. These standards cover statutory minimums on age, citizenship, education, and legal history, as well as mandates for a pre-employment background investigation, and medical and psychological evaluations. Additionally, there are other applicable statutes (e.g., GC §§ 1029-1031.5) that apply to all peace officers, including those who are employed by agencies that are not in the POST program.

Q.The same selection standards apply to reserve officers, “regular” officers, or any other peace officer classification. Why?
A.The POST peace officer selection standards apply equally to all peace officer candidates, given the purpose of these regulations: to ensure that all officers selected– regardless of rank or Penal Code classification - are physically, mentally and morally capable of successfully performing the duties of a peace officer. Differences in the job functions of peace officers should be addressed in agency-specific requirements consistent with additional job functions and responsibilities.

Q.If a peace officer seeks a transfer from another agency and has a POST Basic Certificate, does s/he still need to be screened against these selection requirements?
A.Yes. POST peace officer training requirements (Commission Regulations 1005 and 1007) are separate and independent from peace officer selection requirements. The screening requirements in Regulations 9050-9055 must be met even by those who possess a POST academy completion certification and/or a POST Basic Certificate.

Q.If an individual successfully completed a Basic Course or the Basic Course waiver process, does s/he need to meet these POST selection requirements?
A.Yes. The screening requirements in Regulations 9050-9055 must be met even by those who possess a POST academy completion certification or a POST Basic Course Waiver.

§ 9050 (b) PEACE OFFICER CANDIDATE DEFINITION

Q.Are all peace officers in a POST-participating program subject to all of these selection standards, regardless of classification, previous experience, or other circumstances of employment?
A.Yes, POST selection standards apply to all individuals who are being hired as peace officers. This includes candidates who have no previous peace officer experience (new hires), those who have previous peace officer experience either within or outside of California (laterals), and those who are returning to the same agency where they were previously employed as peace officers (rehires/reappointments). This also includes all levels of reserve officers. These standards apply to full-time, part-time, seasonal, permanent and temporary personnel who are designated as peace officers by the POST-participating department.

Q.Is there a “grace period” for officers who voluntarily leave the department and then want to return?
A.No. A peace officer who returns after separating from the department for any length of time is considered by POST to be a “reappointment” and as such is required to satisfy all applicable selection requirements. For the purpose of the regulations, a “separation” occurs when the department submits a Notice of Appointment/ Termination (NOAT - POST 2-114) indicating that the officer was separated. Any subsequent NOAT submitted by the department for that individual indicating “New” under “Appointment Type” will require these standards to be re-satisfied, no matter how little time has elapsed.

Q.If an officer decides to return to a department after even a very brief separation, must the department conduct another new background investigation on him/her?
A.Not entirely. Under certain circumstances, a background investigation “update,” rather than a complete new background investigation, may be conducted for officers seeking reappointment. The background investigation update provision is intended to eliminate unnecessary duplication of effort involved in re-collecting the same information on individuals that the department already maintains and is not subject to change (e.g., birth certificate). Background update eligibility and procedural requirements are discussed in Regulation 9053(f).

Q.If an officer is out on IOD or maternity leave, must s/he be re-evaluated against the POST selection requirements upon coming back to the department?
A.No. Unless the department submitted a Notice of Appointment/Termination (NOAT - POST 2-114) indicating that the officer was separated from the department, there are no POST re-screening requirements.

Q.If an officer is reinstated after an involuntary separation, must s/he be re-evaluated against the POST selection requirements?
A.As specified in Regulation 9050(c)(2), the NOAT submitted for peace officers who are mandatorily reinstated should indicate a “correction to record.” Therefore, these officers are not considered new appointments for the purposes of these regulations. The specific re-screening requirements for reinstated officers are detailed in Regulation 9050(c)(2).

Q.If a PC § 830.6 peace officer is promoted to a PC § 830.1 peace officer in the same department, must s/he be re-screened per these selection requirements?
A.No. Although promotions, demotions or any departmental reclassifications of peace officers necessitate the submittal of a new NOAT, the officer would not be considered a new appointment unless s/he had a break in service. Therefore, the re-establishment of the selection standards is not required. However, the agency must have retained the original background investigation, and it must have been conducted according to all currently applicable selection standards.

Q.Must seasonal peace officers be re-screened each time the department seeks to use their services?
A.It depends. If the department has filed an NOAT with POST following the conclusion of the seasonal/temporary peace officers’ services indicating a separation, their subsequent reappointments will be considered as new appointments. However, if the department kept these officers “on the books” and did not file a NOAT with POST, then no separation occurred, and re-appointment is not necessary under these regulations. [Note: if a department keeps seasonal/temporary peace officers on the books, continuing professional training requirements continue to apply – POST Regulation 1005(d)].

Q.Is a reserve peace officer under Penal Code § 830.6 subject to the same POST selection standards as a full-time peace officer under § 830.1?
A.Yes. POST selection standards no longer draw any distinction between classes of peace officers according to Penal Code designations.

Q.Would a PC § 830.1 Deputy Sheriff of the County be regarded as a new appointment if, without any separation from the department, s/he retired from the Sheriff’s Department and became a PC § 830.2 District Attorney’s Investigator for that same County?
A.Yes. The County Sheriff’s Department and the District Attorney’s Office are considered separate employers; therefore, this would be considered a new appointment and subject to these regulations. This would be no different than, for example, a California Highway Patrol officer seeking appointment as an Investigator with the State Alcoholic Beverage Control, even though both are peace officers under Penal Code § 830.2, and both are employees of the State of California. NOTE: Under certain circumstances, a background investigation update, rather than a complete new background investigation, may be conducted for officers who are transferring departments within the same city, county, state or district. Update eligibility and procedural requirements are discussed in Regulation 9053(f).

§ 9050 (c) EXCEPTIONS

Q.If a reserve officer wants to become a regular officer with the same department, does the reserve officer need to undergo a new background investigation, medical, and psychological evaluation?
A.No, provided that the department has documentation verifying that the officer has previously met the current minimum selection requirements and s/he has worked continuously for the department since the time of initial appointment.

Q.If a POST-participating agency is absorbed by another department, are the absorbed officers considered new appointments?
A.Yes, in some cases. Peace officers in a department that is entirely absorbed by another department are not seen as new appointments if both the absorbing department and the absorbed department are within the same city, county, state or district. For example, if a municipal airport police department was entirely absorbed by a municipal police department in the same city, the hiring authority has the discretion as to whether to re-screen the absorbed peace officers (assuming that documentation is available verifying that the officers were initially hired in accordance with the POST requirements in effect at that time). However, if a county sheriff’s department were to absorb a municipal police department, the absorbed officers would be considered new appointments of the absorbing department, and therefore subject to all applicable selection requirements.

Q.If a reinstated officer does not “clear” one or more of the checks required by 9050(c)(2), would the department be found to be out of POST compliance if it retained the officer?
A.No. Completion of the steps and checks specified in 9050(c)(3) is all that is required for POST compliance. It is the hiring department – not POST – who confers peace officer status and authority. However, specific statutory requirements (Government Code Sections 1029, 1030 and 1031.5) must be met in order for a peace officer to exercise that authority.

Q.Is a department prohibited from conducting any checks or assessments beyond those specified in 9050(c)(2)?
A.No. POST regulations do not preclude a department from conducting other inquiries or assessments to establish that the reinstated officer continued compliance with statutory or departmental requirements. For example, a department may require a reinstated officer to comply with reporting requirements or other applicable personnel policies and rules of conduct that were in effect at the time of discharge, covering the period of separation from the department. The application of this and any other personnel practice is the sole purview and responsibility of the department, as is the responsibility for ensuring that the reinstated officer meets the ongoing training requirements.

§ 9050 (d) ADOPTION OF ADDITIONAL REQUIREMENTS AND/OR HIGHER STANDARDS

Q.Why would it be necessary for a department to impose additional screening requirements beyond those required by POST?
A.Given marked differences in peace officer job functions, responsibilities and demands both within and across departments, it is incumbent upon departments to determine the necessary, job-related requirements associated with each of their peace officer classifications/positions. This may include imposing additional, agency-specific screening requirements and/or higher standards.
Examples of agency-specific requirements could include physical ability tests, detection of deception examinations, and civil service examinations. Examples of higher standards could include requiring candidates to be 21 (vs. 18) years of age, or requiring candidates to have an A.A. degree (vs. high school minimum). Note that, since POST does not evaluate additional or enhanced departmental requirements, departments are responsible for ensuring that their enhanced requirements are defensible as job-relevant and consistent with business necessity.

Q.Are reserve peace officer candidates required to meet these reading and writing ability requirements?
A.Yes, reserve officer candidates are now required to demonstrate the ability to read and write.

Q.Is the POST test the only acceptable measure of reading and writing ability?
A.No, the POST Entry-Level Law Enforcement Battery is not the only acceptable measure of reading and writing ability; any other professionally developed and validated test of reading and writing ability can suffice.

Q.Can the reading and writing requirement ever be waived?
A.The reading and writing requirement cannot be waived, per se. However, successful completion of the Basic Course (Regular or Specialized Investigators’) or receipt of a Basic Course Waiver serves as proof of the ability to read and write.

Q.Is there a passing score on the POST test?
A.There is no required minimum achievement score for the POST test; each department should establish a score that represents acceptable reading and writing ability for their operation. POST has established a recommended range of scores within which that minimum score should be set. Details on that and other aspects of the test are discussed on the POST Website at http://www.post.ca.gov/FAQ/Program_Specific/Entry_Level/Agency.asp.

Q.Must candidates retake the POST test if they apply to a different department?
A.Not for the purposes of satisfying POST requirements. Departments who use the POST test are required by the POST Security Agreement to provide candidates with a letter indicating their t-score. Other departments have the discretion of accepting this letter as evidence that the candidate has met the POST reading and writing standard, if the candidate’s score is deemed acceptable by that department. Alternatively, departments may opt to administer another POST or alternative test to their candidates.

Q.If a peace officer candidate took the POST test several years ago, does he or she need to retake it again?
A.Not for the purpose of satisfying POST requirements. A score on the POST or other acceptable assessment of reading and writing ability has no shelf life; therefore, a candidate may submit the departmental letter from the previous administration to the prospective employer. However, individual departments have the discretion to establish their own acceptable time frames for the shelf life of a reading and writing test as they see fit.

REGULATION 9052: ORAL INTERVIEW – PEACE OFFICER

Q.Why is POST requiring that the oral interview be conducted prior to a conditional offer of employment?
A.The Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) both stipulate that, prior to the extension of a conditional offer of employment (COE), a candidate must have been determined to be “otherwise qualified.” To defer any part of the hiring process that does not involve disability-based inquiries jeopardizes the legitimacy of the COE.

Q.Would a department be out of compliance if they developed questions, administered the interview, or evaluated candidates in a manner different than what is advised in the POST interview manual?
A.The POST “Interviewing Peace Officer Candidates: Hiring Interview Guidelines” provides guidance, not standards, on the conduct of job-related, effective oral interviews; therefore, the use of the manual is discretionary. However, included in that guidance is information on ways to develop powerful interview questions and assess candidate responses. The manual also describes how departments can gain access to the POST oral interview question bank and interview rating criteria.

There is one section of the POST interview manual that is required: the POST Interview Factors. All peace officer interviews must include questions to evaluate the candidate on those POST factors as described in the manual: (1) Experience, (2) Problem Solving Ability, (3) Communication Skills, (4) Interest/Motivation, (5) Interpersonal Skills, and (6) Community Involvement/Awareness.

REGULATION 9053: BACKGROUND INVESTIGATION – PEACE OFFICER

§ 9053 (a) GOVERNMENT CODE MANDATE

Q.Do background investigators need to be POST-certified?
A.There is no special POST certification for background investigators. However, competent professional training of background investigators is the employer’s legal responsibility and will provide assurance that the investigations are lawful and effective. POST offers specific courses for background investigators; these are described in the POST Course Catalog.

Note: In California, third party background investigators (i.e., private contractors) must be licensed private investigators or attorneys (B&P 7520).

§ 9053 (b) BACKGROUND INVESTIGATION EVALUATION CRITERIA

Q.The regulation states that “the POST Background Investigation Dimensions shall be considered in the conduct of every peace officer background investigation?” What exactly does “considered” mean?
A.The dimensions are intended to serve as points of focus for the background investigation itself, as well as for issues to be considered when preparing the narrative report. However, it is not necessary for each background report to include a separate evaluation of the candidate on each of the ten dimensions.

Q.The same ten POST Background Dimensions are for evaluating both peace officers and public safety dispatchers. Given the significant differences between these two jobs, how can the same dimensions apply equally to both classifications?
A.The job of peace officer and public safety dispatcher do indeed involve very different duties, tasks and responsibilities. However, multiple job analyses have shown that both job classifications require many of the same worker attributes, such as integrity, stress tolerance, interpersonal skills, judgment, conscientiousness, and communication skills. Since these attributes are evaluated by investigating personal history, they form the basis of the pre-employment background investigation for both peace officers and public safety dispatchers.

§ 9053 (c) PERSONAL HISTORY STATEMENTS

Q.What constitutes an acceptable alternative form to the POST Personal History Statement?
A.Any alternative form to the POST Personal History Statement (2-251) must address the same ten major areas of inquiry: personal; relatives and references; education; residences; experience and employment; military experience; financial; legal; motor vehicle operation; and other topics related to moral character. The questions must require the candidate to provide the information necessary for the background investigator to complete a thorough investigation [i.e., cover all Areas of Investigation addressed in 9053(e)].

Q.Is it permissible to administer a modified version of the POST Personal History Statement? If so, is it possible to obtain a version of the PHS that can be modified?
A.Yes, it is acceptable to modify the POST PHS; departments that wish to do so can request an “unprotected” version of the form by e-mailing POST at publications.manager@post.ca.gov. The unprotected version will not be identified as nor considered a POST document. It is strongly recommended that any changes made to the personal history statement be submitted to the department’s legal counsel for review before adopting it for use.

§ 9053 (d) COLLECTION OF BACKGROUND INFORMATION: PRE AND POST CONDITIONAL OFFER OF EMPLOYMENT (COE).

Q.Regulation 9053(d) states that, “Nonmedical and nonpsychological background information may be collected after a conditional offer of employment (COE) is issued if it could not have been reasonably collected prior to the COE.” Doesn’t the background investigation have to be completed before a COE is extended?
A.The Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) separate the pre-employment hiring process into two phases, punctuated by the conditional offer of employment. Disability-related inquiries and assessments must be deferred until the post-offer stage. Also, for the offer to be considered valid, all non-disability related inquiries must be made prior to the offer.

Although the bulk of the background investigation does not involve issues of disability, there are background areas of inquiry that must be deferred until the post-offer stage. A few examples include inquiries related to the extent of past illegal drug use, the extent of past or current use of alcohol, use of sick leave, impulse control problems, etc.

To assist agencies in navigating through these laws while conducting background investigations in the most efficient manner possible, POST submitted a written request for information to the EEOC regarding what if any parts of the peace officer background investigation could be deferred to the post-offer stage. The request and the EEOC response is provided and discussed in POST Bulletin 2008-22(pdf).

Q.So which parts of the background investigation can be conducted post-offer?
A.Reflecting the EEOC’s response to this question, Regulation 9053(d)(1) specifies the following types of background information may collected post-offer if it could not have reasonably been collected prior to the COE:
“(A) official documents that cannot be obtained and evaluated in a timely manner during the pre-offer period, and,
(B) information derived from contacts and interviews with references.”
Note: Before implementing any change in the sequencing of the background investigation process, a formal opinion should be sought from the agency’s legal counsel.

Q.Why can’t we just extend a conditional offer of employment at the beginning of the background investigation process – like at the same time we direct the candidate to complete the Personal History Statement?
A.Because the legitimacy of the conditional job offer itself would be called into question (by the EEOC and/or the California Department of Fair Employment & Housing) if the entire background investigation was conducted post-offer. To be considered legitimate (i.e., “bona fide”) the conditional offer must only be extended after an employer has screened the candidate as much as possible (without venturing into medical/ psychological territory). It’s very difficult to argue that the completion of the PHS, or the request and in most cases the collection of birth certificates, transcripts, credit reports and other such documents can’t be done prior to the offer, since they’re not medical and they generally don’t take much time to acquire.

Q.How long must an agency wait for documents to be received before being able to extend a conditional offer of employment and continue with the background investigation?
A.There’s no exact answer to this question, but in their letter to POST, the EEOC stated, “An unreasonable delay may exist where a responding agency routinely takes several weeks or months to provide documents and waiting for these official documents will significantly increase the length of the entire hiring process.”

Q.What are the advantages of conducting parts of the background investigation post-offer?
A.First and foremost, when interviewing people post-offer, the background investigator is free to ask any questions – or follow-up on any volunteered information – as necessary, even if the topics turn to medical, psychological, or other disability-related issues (as long as the questions are job-related and consistent with business necessity). On the other hand, if the interview is being conducted pre-offer, the background investigator cannot continue or pursue this line of questioning. While this questioning can be resumed when/if the candidate reaches the post-offer stage, splitting the background investigation in this way can prove to be burdensome and inefficient.
For example, during the background interview, a candidate could reveal that he has a medical condition and could ask the investigator about his chances of passing the medical examination. If the interview is being conducted pre-offer, the investigator must defer any further discussion about the topic until the post-offer stage, no matter how relevant to the candidate’s suitability for the job.
However, if this same conversation occurred at the post-offer stage, the investigator could pursue this line of questioning. Furthermore, the investigator could decide to answer the candidate’s question by contacting the doctor directly, or even arranging for the candidate’s medical evaluation ahead of schedule – and before the continuation of the background investigation.

Q.Are there any risks or disadvantages of conducting parts of the background investigation post-offer?
A.Since medical and other related topics cannot be addressed until after a conditional offer is extended, it would be difficult for a candidate to argue that s/he was discriminated against on the basis of his/her disability if the background investigation was conducted pre-offer. If the candidate is disqualified on the basis of a background investigation that was conducted post-offer, the agency should be prepared to defend the decision against assertions of disability discrimination.

Q.Must parts of the background investigation now be conducted post-offer?
A.No. Agencies are free to revise or retain their current background investigation process, provided that medical or disability-related questions are deferred until the post-offer stage. The sequencing of the background investigation is not a POST issue, either.

Q.Can a polygraph examination be conducted pre-offer?
A.Yes, but if it is conducted pre-offer, no medical or disability-related questions can be included. For example, questions about extent of past illegal drug use or alcohol consumption are prohibited. The common practice of asking candidates if they are taking prescription medication prior to the polygraph examination is also impermissible if the examination is conducted pre-offer, even if certain medications may affect test results.

Q.Could a private background investigator ask disability-related questions during a pre-offer investigation, but refrain from sharing the responses with the department until the post-offer stage?
A.No. Third parties must abide by the same pre-offer inquiry prohibitions as the employers themselves.

Q.Can medical and psychological evaluations now be conducted pre-offer?
A.No. The medical and psychological evaluations must be conducted post-offer

Q.At the pre-offer stage, a background investigator learns that the candidate was previously taken into emergency, temporary custody pursuant to 5150 W & I. How should the investigator deal with this information, since it certainly sounds medical in nature?
A.What the investigator cannot do pre-offer is further inquire into any area that could reasonably lead to the disclosure of medical information (e.g., why was the action necessary, what treatment was prescribed, etc.). However, it is important to forward this information to the department’s psychologist/physician at the post-offer stage for follow-up, who will likely contact the candidate’s health care professional. Even at the pre-offer stage, it is permissible for the investigator to address other, non-disability related issues associated with this incident, such as: Did the candidate properly disclose having been taken into custody on the Personal History Statement? Is the candidate legally eligible to possess a firearm (if required for this position)?
Post-offer, however, job-relevant inquiries that are consistent with business necessity are permitted, as detailed below.

Q.At the post-offer phase, is it acceptable for the background investigator to collect medical or other information considered disability-related?
A.Yes. Although the evaluation of the candidate’s medical suitability rests with the screening physician, there are medical and disability-related issues that are more appropriately evaluated by the background investigator, such as issues related to illegal use of drugs, alcoholism, job performance issues that may be related to a protected disability (e.g., sick leave, behavioral problems, etc.), or any follow-up investigation requested by the screening physician or psychologist. For example, the screening physician may ask the background investigator to make inquiries of employers or neighbors about occurrences where the candidate was observed to be incapacitated or suffering from other altered states of consciousness in order to verify the completeness and accuracy of the candidate’s self-reports.

There are also occasions where a candidate may have withheld information which should have been disclosed at the pre-offer stage, but is now revealed in a post-offer inquiry (e.g., identifying an employer not previously listed and where a worker’s compensation claim was filed, or illegal use of drugs much more recently than previously claimed).

As a general rule, applicants are not permitted to lie or to withhold information which should have been lawfully disclosed. However, if the request for information was itself legally improper at the time asked, this “general rule” becomes less clear.

§ 9053 (e) AREAS OF INVESTIGATION

(1) Citizenship
Q.What constitutes acceptable proof of application for citizenship?
A.Acceptable proof of citizenship includes both a Permanent Resident Alien Card issued by Immigration and Customs Enforcement (ICE) as well as a copy of an official receipt from ICE showing that the candidate’s application for citizenship has been received. Note: “proof of mailing” from the Postal Service is not equivalent to a receipt issued by ICE.

Q.Does an application for citizenship ever expire?
A.Yes. Where an application for citizenship is not completed within three years, there is a presumption that the candidate is not cooperating with ICE. Any delays which push the application period beyond that three-year period must be the documented responsibility of ICE, rather than due to the failure of the candidate to complete the process.

Q.Why is a U.S. Passport not acceptable proof of citizenship?
A.Simply put, U.S. Passports can legitimately be issued to non-citizens such as U.S. Nationals and some others (who are not citizens).

(2) Age Verification
Q.Is a hospital birth record or baptismal record sufficient documentation of age?
A.No. Hospitals and churches do not issue official birth certificates; government agencies do. The city/county/state registrar of vital statistics issues birth certificates that are acceptable to POST.

Q.The applicant reports never having had a government-issued birth certificate. Now what?
A.Although increasingly rare, this circumstance is not unheard-of, especially in cases of home-birthing and overseas adoption. While care must be exercised to assure that the applicant in question is not simply misinformed, the appointing agency should contact their POST Regional Consultant to discuss alternatives.

(3) Criminal Records Checks
Q.An agency properly submitted fingerprints, but, due to circumstances outside of their control, the returns have not been received. Is the demonstration of effort sufficient for compliance inspections?
A.No. Compliance inspection requires a return showing that the candidate has no disqualifying felony conviction and is eligible to possess a firearm.

Q.If a peace officer candidate was previously fingerprinted by the department for a different classification of employment (e.g., C.S.O. or dispatcher), is it necessary for the department to fingerprint the individual again?
A.Yes, because peace officer applicants have unique reporting and disclosure requirements (as well as a firearms clearance requirement). Even if the individual has been in the department’s continuous employment since last having been fingerprinted, peace officer candidate fingerprints need to be submitted, requesting FBI, DOJ and Firearms Clearance checks.

Q.If a candidate was convicted of a felony as a juvenile, is he/she ineligible to become a peace officer?
A.In California, all felony-level “convictions” in juvenile court are considered misdemeanors, regardless of the nature of the offense. Exceptions would be where a juvenile is certified, tried, and convicted as an adult in California, or if the juvenile was convicted under the federal system. In the latter case, a Certificate of Rehabilitation from the U.S. Justice Department must have been granted to the candidate in order to vitiate the felony conviction.

Q.Must peace officer candidates disclose juvenile records that occurred after they were 15 years old if they have been sealed or expunged?
A.This remains a matter of interpretation, and one which has not been definitively resolved in the courts. While, as a matter of law, peace officer candidates are generally held to a higher standard of performance than applicants for non-peace officer positions and the courts have held that expungements are ineffective when considering a peace officer, this principle may not apply when a juvenile record has been sealed or expunged pursuant to Penal Code section 851.7.

Q.Why is there a difference between the peace officer PHS (2-251) and the dispatcher PHS (2-255) on questions about detentions, arrests, and convictions?
A.California Labor Code Section 432.7 prohibits prospective employers from considering a history of arrest (or detention) that did not result in a conviction; however, it exempts employers of peace officers and other criminal justice agency personnel from this prohibition. Therefore, criminal justice agency employers could require the same arrest history for their public safety dispatcher and peace officer candidates. However, there are a substantial number of public safety dispatcher employers in the POST program that are not criminal justice agencies as defined in the Penal Code. Creating two separate POST PHS forms for public safety dispatchers would have been confusing, so the dispatcher PHS that was created was designed to be lawful to administer to all public safety dispatchers, whether they are applying to a criminal justice agency or not.
With the concurrence of agency legal counsel, criminal justice agency employers of public safety dispatchers may consider amending the POST PHS to include inquiries about detentions or arrests that did not lead to convictions.

Q.Are there any differences between the criminal convictions that peace officer and public safety dispatcher candidates must disclose, even if they are both applying to a criminal justice agency?
A.Yes. Certain offenses carry with them the opportunity for diversion and even expungements (e.g. PC §§ 1000.4 and 1210). Peace officer candidates must, by statute, disclose these offenses, public safety dispatcher candidates may not be required to disclose them. It is one of the reasons why it is inappropriate to use the peace officer PHS (2-251) for non-peace officer positions.
Employing agencies must also recognize that non-peace officer applicants may also be legally entitled to deny specified criminal convictions pursuant to Labor Code 432.8 where such a conviction occurred more than two years ago.

Q.Are there arrests and/or convictions that need not be reported to a private employer, but that are required to be reported by peace officer or public safety dispatcher candidates?
A.Yes. Convictions set aside under PC § 1203.4 must be disclosed to a public agency employer, but do not have to be disclosed to a private employer. Both peace officer and public safety dispatcher candidates must provide information about their arrests/convictions that have been set aside under this provision of law.

(4) Education Verification
Q.The peace officer education requirements in Government Code 1031(e) were recently revised. What changes were made?
A.The January, 2009, revision to GC 1031(e) broadened the options for meeting the minimum educational standards for peace officers. Previously, a non-public high school must have been accredited by an association recognized by the U.S. Department of Education (DOE); however, the DOE focuses only on recognizing colleges, not high schools. As a consequence, peace officer candidates who received diplomas from bona fide private high schools were forced to take the GED. GC 1031(e) now recognizes four additional associations that oversee the accreditation of private institutions: the National Council for Private School Accreditation (NCPSA), the Commission on International and Trans-Regional Accreditation (CITA), the Council for American Private Education (CAPE), and the National Federation of Nonpublic School State Accrediting Associations (NFNSSAA). The revision to GC 1031(e) also recognizes advanced degrees (e.g., masters, doctorate) from accredited colleges and universities in addition to two and four year degrees.

Q.If a private school is listed on the California Department of Education (CDE) website does that mean it meets the GC1031(e) requirement of being an “accredited or approved” high school?
A.No. The CDE does not accredit or approve private schools; it merely lists those that have filed private school affidavits with the department. Therefore, to meet the requirements of 1031(e), a private school must be accredited or approved by a regional accrediting association or an association/organization holding full membership in the National Council for Private School Accreditation (NCPSA), the National Federation of Nonpublic School State Accrediting Associations (NFNSSAA), the Commission on International and Trans-Regional Accreditation (CITA) or the Council for American Private Education (CAPE). If the school does not meet the above criteria, the applicant will need to satisfy the education requirements in another way as outlined in GC1031(e).

Q.If a candidate was educated outside of the United States, does this create a problem?
A.There are a limited number of foreign schools that would meet the criteria stipulated in Government Code 1031(e). These would include overseas schools operated by the Department of Defense schools, foreign schools accredited by an association recognized by one of the accrediting agencies recognized by the Secretary of the United States Department of Education, or one of the four additional associations that oversee the accreditation of private institutions (i.e., NCPSA, CITA, CAPE, and NFNSSAA).

Q.A candidate reports that he graduated from a public high school in New Orleans, Louisiana in 2001, but the school was destroyed by Hurricane Katrina, and there are no records available. The candidate has a diploma and a picture is in the school’s yearbook. Is that enough?
A.Unfortunately, it is not. If official records are not available through any other source (e.g., the State of Louisiana), and this candidate does not have any of the other qualifications outlined in GC 1031(e), s/he will need to complete a GED.

Q.A candidate reports having been “home-schooled” outside of California. What documentation will be required?
A.This can be a very complicated process, since not all states regulate home-schooling. The individual will have to provide the equivalent of an official transcript recognized as proof of graduation by the state in which s/he was home-schooled, or meet the other educational requirement options outline in GC 1031(e).

(5) Employment History Checks
Q.The POST Personal History Statement asks peace officer candidates to list all employment, yet the regulations only require an investigation of employment history over the past 10 years. Why the discrepancy?
A.POST regulations require the investigation of a peace officer candidate’s past ten years of employment. There may be circumstances, however, where an agency feels the need to investigate beyond that ten year period because of answers furnished on the PHS, such as an indication of significant disciplinary problems, terminations, prior police experience, etc.

Q.Some past employers maintain records only for limited periods of time, others cease operations, and still others even decline to respond to those requests even if they are legally required to do so (i.e., GC § 1031.1). What does POST require the prospective employer to do in these instances?
A.To satisfy POST, every contact with a current or past employer, even an unsuccessful one, needs to be documented. The extent to which the department is willing to pursue remedies under the law to attempt to obtain this information is governed by the department and their legal counsel, not by POST.

Q.If a present or former employer of a peace officer candidate within the past ten years refuses to or is unable to provide information, can the agency opt not to appoint the candidate?
A.Satisfactory documentation of the effort to verify past employment is discussed above. It is up to the agency to decide the impact of its inability to obtain meaningful (or any) information from a present or former employer, and POST’s compliance responsibilities do not extend to candidates whom the agency chooses not to appoint.

(6) Relatives/Personal Reference Checks
Q.Must every contact listed on the Personal History Statement be contacted?
A.No. The number of contacts that are initiated is largely up to the common sense and good judgment of the investigators and their reviewing authorities. In general, more contacts are better than few, but investigators and their agencies are ultimately responsible for determining to what length an investigation must go. Every contact attempted should be documented.

Q.What happens when contacts do not respond?
A.Document even the unsuccessful attempts. Not every person or entity contacted will respond to a request for interview, return a phone call, or complete and mail back a questionnaire. The duty to cooperate with background investigations is a matter of public policy; however, except in very narrow circumstances, there is no legal obligation to do so.

(7) Dissolution of Marriage Checks
Q.Why is POST now requiring proof of dissolution of marital status even in instances where the candidate has not remarried?
A.Besides helping establish legal rights of survivorship or medical decision-making, dissolution documents can contain highly relevant information concerning a candidate’s character or financial well-being. Restraining orders, allegations of domestic violence, property settlements, and continuing financial obligations may be detailed in such documents.

(8) Neighborhood checks
Q.What constitutes a “neighborhood check?”
A.A neighborhood check is not merely a restatement of a candidate’s residential history. Rather, it includes contacting a sampling of neighbors (and landlords) to determine if any job-relevant behaviors can be identified and documenting those contacts.

The security provisions in some housing complexes will not permit neighbors to be canvassed. Committing a potential criminal trespass to accomplish a neighborhood check is not required, and information gleaned from the property owner may be all that is available.

(9) Military/Selective Service Checks
Q.Is willful failure to register with the Selective Service an automatic disqualifier?
A.Not for POST, but the prospective employer may make that determination. Federal law [Title 50a U.S. 622(g)] specifies that it is the grantor of the privilege (i.e., the employer) who determines the penalties (if any) for a willful failure to register.

Q.What should the investigator do if the candidate claims s/he never received a DD-214 long form?
A.With the exception of some “entry-level separations,” virtually anyone who enters the military will be issued discharge documents at their time of separation. If the candidate possesses a DD-214 “short form” (Copy 1), it is almost inconceivable that they were not issued a “long form” (Copy 4), as well (they are generally stapled together).

Currently, inquiries directed to the Army and Air Force generally produce less comprehensive replies. However, most recent veterans can obtain copies of their separation documents on-line. [Note: many military records issued prior to 1973 were destroyed in a catastrophic fire at the National Personnel Records Center, although the number of applicants facing that issue is rapidly declining].

(10) Credit Records Check
Q.Since the employment reports obtained in a typical credit check do not have things such as “credit scores,” how are these reports supposed to be assessed?
A.Credit scores generally have little to do with one’s suitability for employment; in fact, that is one of the reasons why the major Credit Reporting Agencies do not include those numbers on employment documents. Further, the unsettled economy and so-called “credit crunch” has had an impact on things such as credit scores and credit lines, even where an individual has a perfect payment record. Credit itself, or even the lack thereof, may have limited bearing on someone’s suitability for employment as a peace officer.

Instead, the background investigation should concern itself with issues such as whether the reported sources of income are lawful and fully accounted for, whether the candidate meets his/her obligations as agreed, and the reasons underlying any indications of credit problems (e.g., are the credit problems the fault/responsibility of the candidate, or are they related to the actions of others? Free-falling real estate values have placed many individuals in unanticipated hardship). Some candidates have no credit history at all, while others may have extraordinary resources.

Q.Can a candidate be disqualified on the basis of a recent bankruptcy?
A.Bankruptcy is a legal right and is protected by federal law (Title 11 U.S. Code). The mere fact that someone has undergone bankruptcy, even very recently, does not mean that they are disqualified. Investigators should inquire into the circumstances and behaviors which led to the bankruptcy filing, and what, if anything, it may indicate about the candidate’s integrity, impulse control, conscientiousness, or other aspects of candidate suitability.

§ 9053 (f) BACKGROUND INVESTIGATION UPDATES
Q.Isn’t a background update just an abbreviated background?
A.No. It is a supplement to the original background investigation in order to bring the original documentation up-to-date by accounting for changed circumstances or the passage of time. The update provision is intended to avoid requiring departments to engage in unnecessary, duplicative investigating.

Q.Why are there different background update requirements for appointments and departmental transfers?
A.If the department maintained all of the original background investigation information on officers who are being reappointed back to the same department, it is reasonable to focus the updated investigation to the period of time since the officer separated from the department. However, officers who are transferring to another department – even one within the same city, county, state or district – are nevertheless being selected by, and reporting to, a different hiring authority. Therefore, the updated information must cover the time period since the last background investigation.

Q: Commission Regulation 9053(f)(1)(A)(1) includes a provision for the conduct of an abbreviated (updated) background investigation for a peace officer candidate who is returning to the same department after a voluntary separation. Are there also abbreviated medical and psychological evaluations for officers who are returning to the same department?

A: No, there are no medical and psychological evaluation “updates.” The officer must undergo new evaluations.

Q: Commission Regulation 9053(f)(1)(A)(2) includes a provision for the conduct of an abbreviated (updated) background investigation for a peace officer candidate who is transferring, without a separation, to a different department within the same city that maintains a centralized personnel/background unit. Are there also abbreviated medical and psychological evaluations for officers transferring to another department within the same political subdivision?

A: No, there are no medical and psychological evaluation “updates.” The officer must undergo new evaluations.

Q: If a public safety dispatcher is a peace officer candidate for the same department, can the department conduct an updated background investigation?

A: Since the dispatcher was originally investigated for a non-sworn position, and the requirements are different for a sworn peace officer position, the dispatcher must undergo a new background investigation, including completing a peace officer personal history statement. However, areas of investigation that could not have changed since the previous background investigation need not be repeated (e.g., birth certificate, school transcripts, military records), and every area that may have new information (or that would be conducted differently for a peace officer vs. dispatcher) will need to be investigated, including fingerprints, DMV records, and credit checks, as well as a neighborhood check (even if the individual him/herself has not moved), contacts with supervisors, spouses, etc. All background information needs to be included in and/or appended to the peace officer background package. New medical and psychological evaluations are also required.


Q.Can a department still opt to undergo a complete background even if the circumstances allow for an “update?”
A.Yes. The “update” provision is expressly provided for POST-participating departments who have already conducted (and have retained) a complete background that demonstrates a candidate’s ability to meet all current and existing POST standards and statutory requirements, and, where the department does not feel the need to start all over. A department may, at its own discretion, desire to re-do the entire background.

Q.Will a background update be acceptable if the department no longer maintains the original background?
A.No. The department must still be in possession of the original background, and that background must demonstrate that the candidate meets all requirements in existence at the present time of appointment/reappointment. Together, the original background and the completed update must satisfy the applicable POST selection regulations and state law.

Q.Can supporting documents in an original background be used again for a background update?
A.Yes, in some cases. Some documents have no “shelf-life” (e.g., a birth certificate, high school transcripts after graduation, etc.) and therefore there is no need for the same department to collect this information again. Required documentation that is time-sensitive (e.g., criminal history checks, credit reports, driving records, etc.), must not be more than one year old.

Q.Will fingerprints have to be re-submitted during a background update?
A.If a candidate is seeking re-appointment to the same department and the department previously notified the Department of Justice that it was no longer interested in this individual, fingerprints will have to be repeated. Reprinting is also required for a candidate who was previously fingerprinted for a non-peace officer position, even for the same department, as DOJ/FBI reporting requirements may have been different.

Q.For an investigation update to be considered complete, is it necessary to re-contact the same individuals who were questioned during the original background investigation?
A.Yes, if, since the completion of the original background, circumstances have changed or sufficient time has elapsed to justify a new assessment (e.g., a spouse previously contacted may now be an ex-spouse, or an employer may have had sufficient time to form new opinions about a candidate’s suitability).

§ 9053 (g) DOCUMENTATION AND REPORTING

(1) Background Narrative Report
Q.Does POST require a specific format for the narrative report?
A.The precise format for the narrative report is at the discretion of the appointing authority; however, each POST-participating department must provide sufficient written documentation to demonstrate regulatory compliance.

(2) Retention
Q.Does POST regulate how long a department must retain the background reports of candidates who were not hired?
A.No. POST’s authority extends only to peace officer appointments. However, the California Government Code (and in some cases, the EEOC/DFEH) have specific record-keeping requirements associated with the applications of those who were not hired. As a general rule, nothing associated with a record of application may be destroyed in less than two years, and, if a department is notified of pending litigation regarding a background, no documentation should be excised from the file before resolution. Caution and consultation with the department’s legal counsel should be exercised before disposing of any personnel records.

Q.Must an investigator’s handwritten notes be preserved along with the rest of the background?
A.If an investigator’s notes are rough drafts of material faithfully and entirely reproduced in the background file, they do not have to be maintained. However, if the notes are the only record of information obtained, they would be subject to the same retention requirements as any other aspect of the background investigation.

(3) Information Access
Q.Must departments share background information with other departments?
A.Yes, under specified circumstances. California courts have held that there is a “duty to cooperate” with legally mandated backgrounds, and the Legislature has enacted specific statutes relating to this issue (i.e., Gov’t Code Section 1031.1). This is another area where the department’s legal counsel should be consulted for specific guidance.

Q.Must certain portions of a background investigation be withheld?
A.Yes. Local and state criminal history summaries, for example, may not be shared with private parties conducting backgrounds (Penal Code §§ 13302-13303), and DMV home address information may not be shared with anyone who does not have access to a CLETS Terminal (Vehicle Code § 1808.45). The ADA prohibits the release of medical information to other prospective employing departments [29 CFR 1630.14(b)(1)]. In other instances, a legally insufficient release form may bar the release of other information (e.g., credit records, education transcripts, etc.). This is yet another area where the involvement of the department’s legal counsel is critical.

Q.Does POST dictate what access candidates have to their own background reports?
A.No, this is a question which must be resolved by the department’s legal counsel, as both state and federal law may control some issues of disclosure.

REGULATION 9054: MEDICAL EVALUATION – PEACE OFFICER

§ 9054 (a) GOVERNMENT CODE MANDATE

Q.Can a qualified physician’s assistant or nurse practitioner be responsible for the medical evaluation?
A.No. California Government Code 1031(f) and POST Regulations stipulate that physical condition must be evaluated by a licensed physician and surgeon, whose signature must be on the medical evaluation report. While a physician’s assistant or nurse practitioner may be involved in obtaining the medical history and conducting the physical examination, a physician must be responsible for reviewing this information and making the determination of medical suitability.

Q.Can the medical evaluation be conducted by a chiropractic doctor?
A.No. A chiropractic license or certification is not sufficient.

Q.Does the medical evaluation have to be conducted by a board-certified doctor?
A.No. The pre-employment medical evaluator must be licensed, but need not be a board-certified medical specialist.

Q.Must the physician be licensed to practice medicine in California?
A.No. The physician’s medical license may be from any state.

Q.Can the medical evaluation be conducted by the candidate’s own medical doctor?
A.No. The pre-employment medical evaluation must be conducted by a physician who is acting as an agent of the hiring department, not the candidate.

Q.Can candidates be asked to pay for the medical evaluation since, if they want the job, they need to do what is asked to complete the process?
A.No. California Labor Code § 222.5 prohibits employers from requiring applicants to pay for routine screening conducted during the hiring process. [Note: second opinion evaluations are different in that respect [see § 9054 (f)].

§ 9054 (b) TIMING OF THE MEDICAL EVALUATION

Q.Commission Regulation 9054 (b) stipulates that medical screening must be completed within one year prior to the date of employment. If a department hires an individual as a “peace officer trainee” within one year of the medical but the trainee completes the academy and is appointed as a peace officer more than one year from the date of the medical, must the trainee undergo a new medical?
A.No. All requirements in Regulations 9050-9055 must be satisfied prior to an individual’s appointment as a peace officer. Some requirements – such as medical screening – have a one-year time limit for completion. However, the agency has the discretion of having the one-year clock stop at either the time of employment (hire) or the time of appointment. For example, some departments first classify their new hires as “peace officer trainees,” deferring their appointment until after completion of the Basic Academy (assuming that the trainees are enrolled in the next available Basic Academy). In these instances, POST allows the department to satisfy the one-year time requirement using either the date of hire as a peace officer trainee or the date of peace officer appointment.

Q.Can the medical evaluation be completed after the date of employment? For example, after the candidate is hired and placed in a training academy, but before graduation?
A.The medical evaluation (as well as all other components of the hiring process) must be satisfied prior to an individual’s appointment as a peace officer. However, before that appointment, departments can first opt to classify new hires as “peace officer trainees” and defer their peace officer appointment until after completion of the Basic Academy.

Q.Is a new medical evaluation required if an officer returns to the same department after a voluntary separation of less than one year?
A.Generally yes. Any time an officer is taken “off the books” (i.e., an NOAT is submitted to POST), a new medical evaluation is required if s/he returns to the same department, regardless of the length of the break in service.

§ 9054 (c) MEDICAL SCREENING PROCEDURES AND EVALUATION CRITERIA

Q.POST requires departments to establish their own medical screening procedures and evaluation criteria. Why doesn’t POST provide these to its member departments?
A.The POST medical screening requirements are largely procedural. While POST provides detailed examination and evaluation protocols in the POST Medical Screening Manual, the use of the Manual is discretionary. Each department has the discretion to adopt, adapt or substitute the POST guidelines to best fit the actual duties, responsibilities, working conditions and demands of their own peace officers.

Q.Must the same medical procedures and criteria be used for all levels of peace officers (e.g., Level III reserves)?
A.POST selection requirements do not distinguish between different classifications of peace officers. All individuals who are deemed as meeting POST medical screening requirements must be able to perform as a peace officer, regardless of their specific peace officer classification. However, as specifically sanctioned in Regulation 9050(d), it is within an individual department’s purview to impose additional requirements and standards - - including medical-related requirements - - over and above the minimums required by POST. These additional standards could apply to all peace officers, or just to those in specific assignments.

Q.We don’t have the resources to create medical evaluation procedures and criteria from scratch. Can’t we simply adopt the protocols in the POST Medical Screening Manual for use in screening our peace officer candidates?
A.Although its use is discretionary, departments are welcome and, in fact, encouraged to use the Manual as the basis for their specific medical requirements. However, because the examination and evaluation protocols in the Manual were developed specifically for relevance to the entry-level patrol officer position, it is imperative for each department (and their medical experts) to review these protocols and the assumptions about the job upon which they rest before adopting or adapting them for use in their department.

Q.By adopting the POST medical procedures and criteria, won’t a department be shielding itself from legal liability?
A.Although the POST medical screening protocols have been considered as the standard of practice in several court decisions, it is still incumbent upon individual departments to ensure that the assumptions about the job upon which the Manual’s protocols were based are sufficiently relevant to the peace officers in their operation, and to concur with the risk management guidelines offered in the Manual.

§ 9054 (d) REQUIRED SOURCES OF INFORMATION FOR THE MEDICAL EVALUATION

Q.What specifically is the department required to provide the physician in the way of job information?
A.At a minimum, the physician should be provided with a description of the department’s peace officer essential job functions. It may be necessary to augment this description with information of particular relevance to medical screening, such as specifics on peace officer physical activities, environmental factors, working conditions, etc., as well as the POST Medical Screening Manual, if adopted by the hiring authority. Some information can be provided to the physician at the onset; other information may need to be provided to the physician, as needed, on a case-by-case basis, depending upon the conditions and medical issues presented by candidates.

Q.Can the physician add questions to the POST Medical History Statement?
A.Yes. The POST Medical History Statement (or whatever alternative form is used) may be amended as deemed necessary and appropriate. However, all forms must include inquiries about past and current medical conditions and procedures, physical symptoms, limitations, restrictions and the use of medications and drugs. In addition, all medical inquiries must be job-related and consistent with business necessity.

Q.There are no questions on the POST Medical History Statement regarding the candidate’s current or past illegal drug use (including the use of legal drugs without a prescription). Why not?
A.A candidate’s past or current illegal use of drugs is considered more a matter of character than medical suitability. As such, it is assumed that inquiries of this nature can and should be addressed in the course of the background investigation and the psychological evaluation.

Q.Medical records from the candidate’s treating physician are now required if “warranted and obtainable.” Why?
A.The review of medical records by the screening physician can greatly increase the effectiveness of the medical evaluation in several ways. First, the review of medical records serves to verify that the medical history provided by the candidate is complete and accurate. Additionally, the review of medical records can provide more detailed, useful information than even the most cooperative candidate. Medical history is often the most important part of the medical evaluation, more so than either the physical examination or the medical testing. Therefore, the quality of the physician’s evaluation can rest in large part on the reliability of the medical history information, provided by both candidates and their physicians.

§ 9054 (e) MEDICAL EVALUATION REPORT

Q.Our screening physician’s report provides information on the findings of the examination; however, the doctor does not state whether those findings render the candidate medically suitable or unsuitable. Is that sufficient for POST’s purposes?
A.No. The physician’s report must include a determination of the candidate’s medical suitability for exercising the powers of a peace officer. During compliance reviews, POST looks for a signed document from the physician stating that the candidate was evaluated according to POST regulations and was found to be medically suitable.

Q.Doesn’t the decision regarding the candidate’s suitability rest with the hiring authority?
A.The ultimate hiring decision rests with the hiring authority, but it is the physician who determines whether the candidate is medically suitable. This determination should be based on input from the hiring authority, both in terms of defining the job demands and conditions, as well as the appropriate risk management criteria (i.e., the degree and type of limitations/risks deemed acceptable by the employer).

Q.Can the department disqualify a candidate if the physician determines that he/she is medically suitable?
A.POST authority does not extend to candidates who are not hired. However, the authority of the Equal Employment Opportunity Commission and the California Department of Fair Employment & Housing does include all applicants. Therefore, if the hiring authority were to disqualify a candidate for medical reasons, despite a screening physician’s determination that the candidate is medically suitable, the department should be prepared to defend that decision as lawful in the eyes of the ADA and FEHA.

Q.If the candidate reveals something to the doctor that he/she failed to tell the background investigator, can that be grounds for disqualification?
A.Yes, but with important caveats. First, deliberate misstatements or omissions should not be the basis for a medical disqualification; rather, such information should be forwarded to the background investigator and/or personnel department for disposition. Second, a candidate should not be penalized for failing to reveal medical or disability-related information prior to a conditional offer of employment, even in response to a direct inquiry. For example, a candidate may withhold the fact that he filed a worker’s compensation claim on his past job during a (pre-offer) background investigation, since questions about worker’s compensation are considered medical in nature (although the candidate would still be obligated to list the employer where the worker’s compensation claim was filed at the pre-offer phase).

Q.Included in our physician’s report are details of the medical examination procedures and findings. Can the entire report be included in the candidate’s background file?
A.No. To comply with the confidentiality requirements of state and federal law, details of the medical examination and other medical information must be maintained as a confidential medical record, separate from the candidate’s background investigation file.

Q.Can information from the screening physician regarding job-relevant limitations and recommendations for reasonable accommodation be included in that part of the Medical Examination Report that is maintained in the candidate’s background investigation file, or must this information be kept confidential?
A.This will need to be handled on a case-by-case basis and with careful consultation with the department’s legal counsel and risk managers. If the information is not directly disability-related, it may be acceptable to include it in the background investigation file. In general, however, the only information resulting from the medical evaluation that is necessary to keep in the background file is the Medical Evaluation Report described in 9054(e)(1).

Q.Can the screening physician report the presence of tattoos or evidence of tattoo removal to a background investigator?
A.Yes, particularly if the tattoos signify membership in, or affiliation with, a criminal enterprise, street gang, or other group that advocates violence against individuals because of their race, religion, political affiliation, ethnic origin, gender, sexual preference, or disability. Other tattoos not usually visible are of questionable relevance.

Q.Can the screening physician communicate directly with the screening psychologist when he/she becomes aware of psychological issues during the medical exam?
A.Absolutely. Communication among evaluators is not only sanctioned, but encouraged, per Regulation 9053(d)(2): “…background investigators, examining physicians, examining psychologists and others involved in the hiring decision shall work cooperatively to ensure that each has the information necessary to conduct their respective investigations and/or assessments of the candidate.”

§ 9054 (f) SECOND OPINIONS

Q.Is the department obligated to pay if the candidate wants to get a second opinion?
A.Neither state law nor POST regulation requires departments to pay for a second opinion.

Q.Can the department require candidates to choose from a specified list of physicians if the candidate wants to get a second opinion?
A.No. Although the department may assist the candidate by offering a list of physicians who are experienced in pre-employment medical screening as a service to the candidate, the department cannot dictate who the rejected candidate goes to for a second medical opinion, or even the qualifications of that evaluator. However, findings from second opinion evaluators can be considered against the relevancy of the evaluator’s qualifications and experience.

Q.Does the candidate’s right to submit a second opinion expire after a certain period of time?
A.FEHA Regulation 2 CCR § 7294.0(d)(2), which provides the rejected candidate with the right to submit an independent medical evaluation before a final determination is made, does not specify a time limit within which the second opinion must be received. Consultation with the department’s legal counsel is advisable before establishing such a departmental policy.

Q.Can a department hire a candidate based on the findings of the second opinion evaluator, given that 9054(a) states that, “the physician shall conduct the evaluation on behalf of and for the benefit of the employing department”?
A.As stated in 9054(f), “The means for resolving discrepancies in evaluations is at the discretion of the department, consistent with local personnel policies and/or rules.” In other words, it is the department’s right and responsibility to arrive at a resolution to the discrepant medical determinations, based on a policy that gives due consideration to findings of both the departmental and the second opinion physician [per FEHA Regulation - 2 CCR § 7294.0(d)(2)]. Regardless of whether it was created by the departmental physician or the second opinion evaluator, a Medical Evaluation Report indicating that the candidate was determined to be medically suitable for exercising the powers of a peace officer must be included in the background file of the peace officer.

REGULATION 9055: PSYCHOLOGICAL EVALUATION – PEACE OFFICER

§ 9055 (a) GOVERNMENT CODE MANDATE

Q.POST regulations no longer refer to psychological suitability as a judgment that the candidate is free from “job-relevant psychopathology, including personality disorders.” Isn’t that the purpose of the evaluation?
A.The psychological evaluation includes, but is not necessarily limited to, the detection of mental or emotional disorders. In practice, the scope of the evaluation often includes the assessment of personality traits and any other psychological concerns that could lead to counterproductive job performance and/or an inability to withstand the psychological demands of the position. The regulation language was changed to reflect that the psychological evaluation can go beyond the detection of psychological disorders.

Q.Can the psychological evaluation be conducted by a qualified psychologist assistant or clinical social worker?
A.No. California Government Code 1031(f) and POST Regulations stipulate that those who conduct the psychological evaluation, and whose signature is on the psychological evaluation report, must possess a license to practice psychology and the equivalent of five years of experience in the diagnosis and treatment of emotional and mental disorders, including the equivalent of three years accrued post-doctoral.

Q.Can the evaluation be conducted by the candidate’s own psychologist?
A.No. The psychological evaluation must be conducted by an evaluator who is acting as an agent of the hiring department, not the candidate.

Q.Must the psychologist/psychiatrist possess a California license?
A.Yes. However, California B&P Code § 2912 does allow psychologists licensed in another state to offer psychological services in California for up to 30 days in any calendar year.

Q.Regulation 9055(a)(2) references “POST education and training requirements developed for the conduct of pre-employment psychological screening of peace officers.” What are these requirements?
A.POST is currently in the process of developing these requirements in concert with the publication of the revised Psychological Screening Manual. Until that time, there are no additional education and training requirements beyond the licensure and experience requirements.

Q.Can candidates be asked to pay for the psychological evaluation since, if they want the job, they need to do what is asked to complete the process?
A.No. California Labor Code § 222.5 prohibits employers from requiring applicants to pay for routine screening conducted during the hiring process. [Note: second opinion evaluations are different in that respect [see § 9055 (f)].

§ 9055 (b) TIMING OF THE PSYCHOLOGICAL EVALUATION

Q.Commission Regulation 9055 (b) stipulates that the psychological evaluation must be completed within one year prior to the date of employment. If a department hires an individual as a “peace officer trainee” within one year of the psychological evaluation but the trainee completes the academy and is appointed as a peace officer more than one year from the date of the evaluation, must the trainee undergo a new psychological?
A.No. All requirements in Regulations 9050-9055 must be satisfied prior to an individual’s appointment as a peace officer. Some requirements – such as psychological evaluation – have a one-year time limit for completion. However, the agency has the discretion of having the one-year clock stop at either the time of employment (hire) or the time of appointment. For example, some departments first classify their new hires as “peace officer trainees,” deferring their appointment until after completion of the Basic Academy (assuming that the trainees are enrolled in the next available Basic Academy). In these instances, POST allows the department to satisfy the one-year time requirement using either the date of hire as a peace officer trainee or the date of peace officer appointment.

Q.Can the psychological evaluation be completed after the date of employment? For example, after the candidate is hired and placed in a training academy, but before graduation?
A.The psychological evaluation (as well as all other components of the hiring process) must be satisfied prior to an individual’s appointment as a peace officer. However, before that appointment, departments can first opt to classify new hires as “peace officer trainees” and defer their peace officer appointment until after completion of the Basic Academy.

Q.Our department conducts personality assessments pre-offer, is that OK?
A.Yes. However, the psychological evaluation as required by Government Code 1031(f) and POST Regulation 9055 must be conducted at the post-offer phase.

Q.Is a new psychological evaluation required if an officer returns to the same department after a voluntary separation of less than one year?
A.Generally yes. Any time an officer is taken “off the books” (i.e., an NOAT is submitted to POST), a new psychological evaluation is required if s/he returns to the same department, regardless of the length of the break in service. However, in the very atypical situation where an officer returns to the same department within one year of his/her psychological evaluation from that same department, the officer would not be required to undergo a new evaluation.

§ 9055 (c) PSYCHOLOGICAL SCREENING PROCEDURES AND EVALUATION CRITERIA

Q.What is the purpose of the POST Psychological Screening Dimensions?
A.The POST psychological screening dimensions provide validated, behaviorally-defined peace officer psychological attributes. Each dimension includes a job-related, behaviorally-based definition and a list of associated positive and counterproductive peace officer work behaviors, based on the input of numerous subject matter experts in the field of law enforcement and psychology. The dimensions provide common terminology for psychologists and hiring authorities in evaluating the psychological suitability of peace officer candidates.

Q.What is the recommended way to evaluate peace officer candidates against the POST Psychological Screening Dimensions?
A.The dimensions should be reviewed by the hiring authority and the screening psychologist. The hiring authority may want to annotate, tailor or embellish these dimensions – especially the examples of positive and counterproductive work behaviors – to better reflect the conditions, demands and experiences in their department. The dimensions can provide a shared understanding between the hiring authority and the evaluator regarding the focus and criteria of the department’s psychological evaluation. The attributes and behaviors included in the dimensions can also provide a useful way for evaluators to “translate” their clinical findings into job-related concerns and issues.

Q.Must the same psychological procedures and criteria be used for all levels of peace officers (e.g., Level III reserves)?
A.POST selection requirements do not distinguish between different classifications of peace officers. All individuals who are deemed as meeting POST psychological screening requirements must be able to perform as a peace officer, regardless of their specific peace officer classification. However, as specifically sanctioned in Regulation 9050(d), it is within an individual department’s purview to impose additional requirements and standards over and above the minimums required by POST. These additional standards could apply to all peace officers, or just to those in specific assignments.

§ 9055 (d) REQUIRED SOURCES OF INFORMATION FOR THE PSYCHOLOGICAL EVALUATION

Q.What specifically is the department required to provide the evaluator in the way of job information?
A.At a minimum, the psychologist should be provided with a description of the department’s peace officer essential job functions and the POST Psychological Screening Dimensions. As discussed above, it may be advisable to augment this with more information of particular relevance to psychological screening, such as specifics on peace officer psychologically-relevant job demands, working conditions, stressors, past problems, etc.

Q.The regulation now requires that the psychologist review personal history information. Why was this additional requirement added?
A.Personal history information is as critical a source of information for the screening psychologist as it is for the background investigator. That information can be based on the psychologist’s review of the background investigation report and/or the administration of a separate personal history questionnaire tailored to the psychological screening evaluation.

Q.Psychological records from the candidate’s treating mental health professional are now required if “warranted and obtainable.” Why?
A.The review of psychological records by the evaluator can greatly increase the effectiveness of the psychological evaluation by verifying that the history offered by the candidate is complete and accurate, and by providing more complete, objective information than even the most cooperative candidate.

§ 9055 (e) PSYCHOLOGICAL EVALUATION REPORT

Q.Our screening psychologists rate candidates on a scale from A-F, but they do not state whether the findings render the candidate psychologically suitable or unsuitable. Is that sufficient for POST’s purposes?
A.No. The psychological evaluation report must include a determination of the candidate’s psychological suitability for exercising the powers of a peace officer. During compliance reviews, POST looks for a signed document from the psychologist stating that the candidate was evaluated according to POST regulations and was found to be psychologically suitable.

Q.Doesn’t the decision regarding the candidate’s suitability rest with the hiring authority?
A.The ultimate hiring decision rests with the hiring authority, but it is the psychologist who determines whether the candidate is psychologically suitable. This determination should be based on input from the hiring authority, both in terms of defining the job demands and conditions, as well as the appropriate risk management criteria (i.e., the degree and type of limitations/risks deemed acceptable by the employer).

Q.Can the department disqualify a candidate if the psychologist determines that he/she is psychologically suitable?
A.POST authority does not extend to candidates who are not hired. However, the authority of the Equal Employment Opportunity Commission and the California Department of Fair Employment & Housing does include all applicants. Therefore, if the hiring authority were to disqualify a candidate for “medical” (including psychological) reasons, despite the screening psychologist’s determination that the candidate is suitable, the department should be prepared to defend that decision as lawful in the eyes of the ADA and FEHA.

Q.Included in our psychologist’s report are details of the evaluation procedures and findings. Can the entire report be included in the candidate’s background file?
A.No. To comply with the confidentiality requirements of state and federal law, details of the psychological examination and other “medical” information must be maintained as a confidential record, separate from the candidate’s background investigation file.

Q.Can information from the screening psychologist regarding job-relevant limitations and recommendations for reasonable accommodation be included in that part of the Psychological Evaluation Report that is maintained in the candidate’s background investigation file, or must this information be kept confidential?
A.This will need to be handled on a case-by-case basis and with careful consultation with the department’s legal counsel and risk managers. If the information is not directly disability-related, it may be acceptable to include it in the background investigation file. In general, however, the only information resulting from the psychological evaluation that is necessary to keep in the background file is the Psychological Evaluation Report described in 9055 (e)(2).

Q.Can the screening psychologist communicate directly with the screening physician/background investigator when he/she becomes aware of medical/background issues during the psychological exam?
A.Absolutely. Communication among evaluators is not only sanctioned, but encouraged, per Regulation 9053(d)(2): “…background investigators, examining physicians, examining psychologists, and others involved in the hiring decision shall work cooperatively to ensure that each has the information necessary to conduct their respective investigations and/or assessments of the candidate.”

§ 9055 (f) SECOND OPINIONS

Q.Is the department obligated to pay if the candidate wants to get a second opinion?
A.Neither state law nor POST regulation requires departments to pay for a second opinion.

Q.Can the department require candidates to choose from a specified list of psychologists if the candidate wants to get a second opinion?
A.No. Although the department may assist the candidate by offering a list of psychologists who are experienced in pre-employment psychological screening as a service to the candidate, the department cannot dictate who the rejected candidate goes to for a second opinion, or even the qualifications of that evaluator. However, findings from second opinion evaluators can be considered against the relevancy of the evaluator’s qualifications and experience.

Q.Does the candidate’s right to submit a second opinion expire after a certain period of time?
A.FEHA Regulation 2 CCR § 7294.0(d)(2), which provides the rejected candidate with the right to submit an independent evaluation before a final determination is made, does not specify a time limit within which the second opinion must be received. Consultation with the department’s legal counsel is advisable before establishing such a departmental policy.

Q.Can a department hire a candidate based on the findings of the second opinion evaluator, given that 9055(a) states that, “the evaluator shall conduct the evaluation on behalf of and for the benefit of the employing department”?
A.As stated in 9055(f), “The means for resolving discrepancies in evaluations is at the discretion of the department, consistent with local personnel policies and/or rules.” In other words, it is the department’s right and responsibility to arrive at a resolution to the discrepant psychological determinations, based on a policy that gives due consideration to findings of both the departmental and the second opinion evaluator [per FEHA Regulation - 2 CCR § 7294.0(d)(2)]. Regardless of whether it was created by the departmental evaluator or the second opinion evaluator, a Psychological Evaluation Report indicating that the candidate was determined to be psychologically suitable for exercising the powers of a peace officer must be included in the background file of the peace officer.

REGULATION 9056: SELECTION REQUIREMENTS – PUBLIC SAFETY DISPATCHER

Q.Are all public safety dispatchers in California required to meet POST selection standards?
A. No. POST Regulations apply only to public safety dispatchers who are appointed by agencies that participate in the POST Public Safety Dispatcher program. For those departments in the POST program, the POST selection standards carry the force of law (PC § 13510). Note, however, that the use of POST guidance documents, such as the POST Background Investigation Manual, is discretionary.

Q.If an agency is not in the POST public safety dispatcher program, are there any selection standards that apply to their public safety dispatcher candidates?
A.There are no state laws (as in the case of peace officers); however, there are procedural requirements that govern persons who have access to CLETS or other confidential databases. Public safety dispatchers must also be legally eligible for employment in the U.S.

Q.If a public safety dispatcher seeks to move to another agency and has a POST Dispatcher Certificate, does s/he still need to be screened against these selection requirements?
A.Yes. POST public safety dispatcher training requirements (POST Regulation 1018) are separate and independent from the public safety dispatcher selection requirements.

Q.If an individual successfully completed a POST Public Safety Dispatcher Basic Course, does s/he need to meet these POST selection requirements?
A.Yes. The screening requirements in Regulations 9055-9060 must be met even by those who have completed the POST Public Safety Dispatcher Course.

§ 9056 (b) PUBLIC SAFETY DISPATCHER CANDIDATE DEFINITION

Q.Are all public safety dispatchers employed by departments that participate in POST’s public safety dispatcher program subject to these selection standards?
A.Yes. POST selection standards apply to all public safety dispatcher candidates who are being hired by a POST-participating department. This includes candidates who have no previous public safety dispatcher experience (new hires), those who have previous public safety dispatcher experience (laterals), and those who are returning to the same agency where they were previously employed as public safety dispatchers (rehires/reappointments). It includes all full-time, part-time, seasonal, permanent and temporary personnel who are designated as a public safety dispatcher by the POST-participating department.

Q.Is there a “grace period” for dispatchers who voluntarily leave the department and then want to return even after only a brief separation?
A.No. A public safety dispatcher who returns after separating from the department for any length of time is considered by POST to be a “reappointment” and as such is required to satisfy all applicable selection requirements. For the purpose of the regulations, a “separation” occurs when the department submits a Notice of Appointment/Termination (NOAT- POST 2-114) indicating that the dispatcher was separated. Any subsequent NOAT submitted by the department for that individual indicating “new” under “Appointment Type” must undergo, at a minimum, another background investigation and a new medical evaluation.

Q.If a dispatcher decides to return to a department after even a very brief separation, must the department conduct another new background investigation on him/her?
A.Not entirely. Under certain circumstances, a background investigation “update,” rather than a complete new background investigation, may be conducted for dispatchers seeking reappointment. The background investigation update provision is intended to eliminate unnecessarily duplication of effort involved in re-collecting the same information on individuals that the department already maintains and is not subject to change (e.g., high school transcript). Background update eligibility and procedural requirements are discussed in Regulation 9059(f).

Q.If a dispatcher is on IOD or maternity leave from a department, must s/he be re-evaluated against the POST selection requirements upon returning to service?
A.No. Unless the department submitted a Notice of Appointment/Termination (NOAT - POST 2-114) indicating that the dispatcher was separated from the department, there are no POST re-screening requirements.

Q.Must seasonal, temporary, or part-time public safety dispatchers be re-screened each time the department seeks to use their services?
A.It depends. If the department has filed an NOAT with POST following the conclusion of the seasonal/temporary public safety dispatchers’ services indicating a separation, their subsequent reappointments will be considered as new appointments. However, if the department kept these dispatchers “on the books” and did not file a NOAT with POST, then no separation occurred, and re-screening is not necessary under these regulations. [Note: if a department keeps seasonal/temporary public safety dispatchers on the books, continuing professional training requirements – per POST Regulation 1018 - continue to apply].

Q.Is a temporary, part-time, or seasonal public safety dispatcher subject to the same POST selection standards as a full-time public safety dispatcher?
A.Yes. POST selection standards draw no distinction between public safety dispatchers according to work schedules/assignments.

§ 9056 (c) EXCEPTIONS

Q.If a POST-participating agency is absorbed by another department, are the absorbed dispatchers considered new appointments?
A.Yes, in some cases. Public safety dispatchers in a department that is entirely absorbed by another department are not seen as new appointments if both the absorbing department and the department being absorbed are within the same city, county, state or district and if documentation is available verifying the dispatchers previously met POST requirements. However, when one POST-participating public safety dispatch agency absorbs another by contractual agreement or by the creation of a joint powers agency, the absorbed public safety dispatchers would be considered new appointments of the absorbing department, and therefore subject to all applicable selection requirements.

Q.For a dispatcher who is reinstated, is a department prohibited from conducting any checks or assessments beyond those specified in 9056(c)(2)?
A.No. POST regulations do not preclude a department from conducting other inquiries or assessments to establish that the reinstated dispatcher continued compliance with statutory or departmental requirements. For example, a department may require a reinstated dispatcher to comply with reporting requirements or other applicable personnel policies and rules of conduct that were in effect at the time of discharge, covering the period of separation from the department. The application of this and any other personnel practice is the sole purview and responsibility of the department, as is the responsibility for ensuring that the reinstated dispatcher meets the ongoing training requirements.

Q.If a peace officer is assigned to dispatcher duties in the same POST-participating agency, must s/he be re-screened per these selection requirements?
A.No. Since peace officers have already been subjected to an extensive screening process, no additional screening is required if the peace officer is assigned to dispatcher duties in the same department, whether temporary or permanent.

§ 9056 (d) ADOPTION OF ADDITIONAL REQUIREMENTS AND/OR HIGHER STANDARDS

Q.Why would it be necessary for a department to impose additional screening requirements beyond those required by POST?
A.The right of individual departments to establish additional and/or higher selection standards is explicit in PC § 13510(d): “Nothing in this section shall prohibit a local agency from establishing selection and training standards that exceed the minimum standards established by the Commission.”

Departments can and often do set additional standards beyond the POST minimums. Examples of additional departmental standards include detection of deception examinations, psychological screening, civil service examinations, or educational requirements. Since POST does not evaluate additional or enhanced departmental requirements, departments are responsible for ensuring that their enhanced requirements are defensible as job-relevant and consistent with business necessity.

REGULATION 9057: VERBAL, REASONING, MEMORY AND PERCEPTUAL ABILITIES ASSESSMENT – PUBLIC SAFETY DISPATCHER

Q.Is the POST Entry-level Dispatcher Selection Test Battery the only acceptable measure of verbal, reasoning, memory and perceptual abilities?
A.No. Other job-related tests of verbal, reasoning, memory and perceptual abilities are acceptable.

Q.Can the dispatcher test requirement ever be waived?
A.The assessment of Verbal, Reasoning, Memory, and Perceptual abilities cannot be waived, per se. However, a valid POST Public Safety Dispatcher Basic Certificate, or successful completion of a (80-hour minimum) POST-certified Public Safety Dispatcher Course and previous completion of probation as a public safety dispatcher are sufficient to indicate that the candidate has demonstrated job-related verbal, reasoning, memory and perceptual abilities.

Q.What is the passing score on the POST Dispatcher test?
A.There is no required minimum achievement score for the POST Dispatcher test; each department has the discretion to establish a passing score for its department. POST has established a recommended range of scores within which that minimum score should be set. Details on that and other aspects of the test are discussed in the POST Public Safety Dispatcher Selection Test Battery User’s Manual (pdf) and the POST Entry-Level Public Safety Dispatcher Test Battery FAQs.

Q.Must candidates retake the POST Dispatcher test if they apply to a different department?
A.No. POST does not require candidates to retake the POST Dispatcher (or alternative) test each time they apply to another POST-participating department. Departments who use the POST test are required by the POST Security Agreement to provide candidates with a letter indicating their t-score. Another department may accept this letter as evidence that the candidate has met the POST standard, assuming that the candidate’s score is deemed acceptable by that department.

Q.Must seasonal, temporary, or part-time public safety dispatchers be re-screened each time the department seeks to use their services?
A.It depends. If the department has filed an NOAT with POST following the conclusion of the seasonal/temporary public safety dispatchers’ services indicating a separation, their subsequent reappointments will be considered as new appointments. However, if the department kept these dispatchers “on the books” and did not file a NOAT with POST, then no separation occurred, and re-screening is not necessary under these regulations. [Note: if a department keeps seasonal/temporary public safety dispatchers on the books, continuing professional training requirements – per POST Regulation 1018 - continue to apply].

Q.If a candidate took the POST Dispatcher test several years ago, does he or she need to retake it again?
A.Not for the purpose of satisfying POST requirements. A score on the POST dispatcher or alternative test has no expiration date; therefore, a candidate may submit the departmental letter from the previous administration to the prospective employer. However, individual departments have the discretion to establish their own acceptable time frames for the shelf life of the test.

REGULATION 9058: ORAL COMMUNICATION ASSESSMENT – PUBLIC SAFETY DISPATCHER

Q.Is it acceptable for a department to use the guidance in the POST “Interviewing Peace Officer Candidates: Hiring Interview Guidelines” for conducting public safety dispatcher interviews?
A.The POST Interview Manual provides guidance on the conduct of job-related, effective oral interviews for peace officers. However, included in that guidance is information on ways to develop powerful interview questions and assess candidate responses regardless of the position being sought. In addition, the POST peace officer interview factors - Experience, Problem Solving Ability, Communication Skills, Interest/Motivation, Interpersonal Skills, and Community Involvement/Awareness – are of relevance to public safety dispatchers.

REGULATION 9059: BACKGROUND INVESTIGATION – PUBLIC SAFETY DISPATCHER

§ 9059 (a) REQUIREMENT

Q.Do background investigators need to be POST-certified?
A.There is no special POST certification for background investigators, either for public safety dispatcher or peace officer candidates. However, competent professional training of background investigators is the employer’s legal responsibility and will provide assurance that the investigations are lawful and effective. POST offers specific courses for background investigators; these are described in the POST Course Catalog. Note: In California, third party background investigators (i.e., private contractors) must be Licensed Private Investigators or attorneys (B&P § 7520).

§ 9059 (b) BACKGROUND INVESTIGATION EVALUATION CRITERIA

Q.The regulation states that “the POST Background Investigation Dimensions shall be considered in the conduct of every public safety dispatcher background investigation?” What exactly does “considered” mean?
A.The dimensions are intended to serve as points of focus for the background investigation itself, as well as for issues to be considered when preparing the narrative report. However, it is not necessary for each background report to include a separate evaluation of the candidate on each of the ten dimensions.

Q.The same ten POST Background Dimensions are for evaluating both peace officers and public safety dispatchers. Given the significant differences between these two jobs, how can the same dimensions apply equally to both classifications?
A.The job of public safety dispatcher and peace officer do indeed involve very different duties, tasks and responsibilities. However, the results of multiple job analyses has shown that both classifications require many of the same worker attributes, such as integrity, stress tolerance, interpersonal skills, judgment, conscientiousness, and communication skills. Since these attributes are evaluated by investigating personal history, they form the basis of the pre-employment background investigation for public safety dispatchers as well as for peace officers.

§ 9059 (c) PERSONAL HISTORY STATEMENTS

Q.What constitutes an acceptable alternative form to the POST Personal History Statement?
A.Any alternative form to the POST Personal History Statement (2-255) must address the same ten major areas of inquiry: personal; relatives and references; education; residences; experience and employment; military experience; financial; legal; motor vehicle operation; and other topics related to moral character. The questions must require the candidate to provide the information necessary for the background investigator to complete a thorough investigation [i.e., cover all Areas of Investigation addressed in 9059(e).

Q.Rather than create an entirely new form, is it possible to obtain a version of the POST Personal History Statement that can be modified?
A.Yes, it is acceptable to modify the POST PHS; departments that wish to do so can request an “unprotected” version of the form by e-mailing POST at publications.manager@post.ca.gov. The unprotected version will not be identified as nor considered a POST document. It is strongly recommended that any changes made to the personal history statement be submitted to the department’s legal counsel for review before adopting it for use.

§ 9059 (d) COLLECTION OF BACKGROUND INFORMATION: PRE AND POST CONDITIONAL OFFER OF EMPLOYMENT (COE)

Q.Why did POST add regulations covering the timing of the background investigation relative to the Conditional Offer of Employment (COE)?
A.The Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) separate the pre-employment hiring process into two phases, punctuated by the conditional offer of employment. Disability-related inquiries and assessments must be deferred until the post-offer stage. Also, for the offer to be considered valid, all non-disability related inquiries must be made prior to the offer.

Although the bulk of the background investigation does not involve issues of disability, there are background areas of inquiry that must be deferred until the post-offer stage. A few examples include inquiries related to the extent of past illegal drug use, the extent of past or current use of alcohol, use of sick leave, impulse control problems, etc.

Whether and how to partition the background investigation into pre and post offer phases is a decision that each department must make based on careful consideration of the pre-offer prohibitions of the ADA and FEHA, and with the involvement of their legal counsel. The intent of Regulation 9059(d) is to reinforce the lawful application of those statutory restrictions to the specific conduct of the POST-mandated dispatcher background investigation.
Q.If there are background investigation topics and areas that are disability-related, why not just conduct the entire investigation post-offer?

A.Because the legitimacy of the conditional job offer itself would be called into question (by the EEOC and/or the California Department of Fair Employment & Housing) if the entire background investigation was conducted post-offer. To be considered legitimate (i.e., “bona fide”) the conditional offer must only be extended after an employer has screened the candidate as much as possible (without venturing into medical/psychological territory). It’s very difficult to argue that the completion of the PHS, or the request and in most cases the collection of birth certificates, transcripts, credit reports and other such documents can’t be done prior to the offer, since they’re not medical and they generally don’t take much time to acquire.

The EEOC published a useful resource on pre and post offer inquiries: “Enforcement Guidance: Pre-employment Disability-Related Questions & Medical Examinations]” (10/10/95)

Q.Since the background investigation required for a public safety dispatcher candidate is now very similar to that required for a peace officer candidate, why don’t the same rules apply about COE’s?
A.As in some other areas, the Legislature has drawn some specific differences between peace officer candidate backgrounds and those of other candidates in law enforcement (i.e., GC 1031.2). Employing agencies must always keep this fact in mind, even where substantial similarities exist in other areas (e.g., the background dimensions).

Q.Can a polygraph examination be conducted pre-offer?
A.Yes, but if it is conducted pre-offer, no medical or disability-related questions can be included. For example, questions about extent of past illegal drug use or alcohol consumption are prohibited. The common practice of asking candidates if they are taking prescription medication prior to the polygraph examination is also impermissible if the examination is conducted pre-offer, even if certain medications may affect test results.

Q.Could a private background investigator ask disability-related questions during pre-offer investigation, but refrain from sharing the responses with the department until the post-offer stage?
A.No. Third parties must abide by the same pre-offer inquiry prohibitions as the employers themselves.

Q.A background investigator learns that the candidate was previously taken into emergency, temporary custody pursuant to 5150 W & I. How should the investigator deal with this information, since it certainly sounds medical in nature?
A.What the investigator cannot do pre-offer is further inquire into any area that could reasonably lead to the disclosure of medical information (e.g., why was the action necessary, what treatment was prescribed, etc.). Instead, the investigator should forward this information to the department’s medical evaluator at the post-offer stage for follow-up. At the pre-offer stage, the investigator can look into other, non-disability related issues associated with this incident, such as, did the candidate properly disclose having been taken into custody on the Personal History Statement?

Q.At the post-offer phase, is it acceptable for the background investigator to collect medical or other information considered disability-related?
A.Yes. Although the evaluation of the candidate’s medical suitability rests with the screening physician, there are medical and disability-related issues that are more appropriately evaluated by the background investigator. Examples include issues related to illegal use of drugs, alcoholism, job performance issues that may be related to a protected disability (e.g., sick leave, behavioral problems, etc.), or any follow-up investigation requested by the screening physician (or psychologist, if used).

There are also occasions where a candidate may have withheld information which should have been disclosed at the pre-offer stage, but is now revealed in a post-offer inquiry (e.g., identifying an employer not previously listed and where a worker’s compensation claim was filed, or illegal use of drugs much more recently than previously claimed).

§ 9059 (e) AREAS OF INVESTIGATION

(1) Employment Eligibility

Q.Why isn’t there a citizenship requirement for public safety dispatchers?
A.Unlike peace officers, state law has established no citizenship requirements for public safety dispatches, and federal law (8 U.S. Code 1324a) precludes discrimination against work eligible aliens. Proof of U.S. citizenship or a Resident Alien Card is sufficient for establishing employment eligibility.

(2) Criminal Records Checks

Q.An agency properly submitted fingerprints, but, due to circumstances outside of their control, the returns have not been received. Is the demonstration of effort sufficient for compliance inspections?
A.No. Compliance inspection requires a return showing that the candidate’s fingerprints have been submitted to and returned by both DOJ and the FBI.

Q.If a public safety dispatcher candidate was previously fingerprinted by the department for a different classification of employment (e.g., correctional officer, records clerk, or CSO), is it necessary for the department to fingerprint the individual again?
A.As long as the individual has been in the department’s continuous employment since last having been fingerprinted, it is not necessary to request DOJ and FBI fingerprints.

Q.Is there a “felony disqualification rule” for public safety dispatchers, similar to that for peace officers?
A.There is no explicit state law or POST Regulation prohibiting the employment of convicted felons. However, restrictions may be imposed by other agencies (i.e., DOJ) regarding such things as CLETS access.

Q.Peace officer candidates must disclose some juvenile records that occurred after they were 15 years old, but public safety dispatcher candidates do not. Why is there a difference between these two classifications?
A.Even the requirements pertaining to peace officers remains a matter of interpretation, and one which has not been definitively resolved. However, as a matter of law, peace officer candidates are generally held to a higher standard of performance than applicants for non-peace officer positions.

Q.Why is there a difference between the peace officer PHS (2-251) and the dispatcher PHS (2-255) regarding questions on detentions, arrests, and convictions?
A.California Labor Code Section 432.7 prohibits prospective employers from considering a history of arrest (or detention) that did not result in a conviction; however, there is an exemption for employers of peace officers and other criminal justice agency personnel. Therefore, criminal justice agency employers could require the same arrest history for their public safety dispatcher and peace officer candidates; however, a substantial number of public safety dispatcher employers in the POST program are not criminal justice agencies as defined in the Penal Code. It was decided that creating two separate POST public safety dispatcher forms – one for criminal justice agencies and one for other agencies - would be confusing. As a result, the POST dispatcher PHS was designed to be lawful for all public safety dispatcher employers.

With the concurrence of agency legal counsel, criminal justice agency employers of public safety dispatchers may opt to amend the POST PHS to include inquiries about detentions or arrests that did not lead to convictions.

Q.Are there any differences between the criminal convictions that peace officer and public safety dispatcher candidates must disclose (even if they are both applying to a criminal justice agency)?
A.Yes. Certain offenses provide an opportunity for diversion or expungement (e.g., PC §§ 1000.4 and 1210). Public safety dispatcher candidates do not have to disclose these offenses. This is one reason why it is inappropriate to administer the peace officer PHS (2-251) to non-peace officer candidates.

Q.Are there differences between public safety dispatcher candidates and those applying for jobs with private employers in terms of reporting arrest and conviction history?
A.Yes. Although arrests and convictions set aside under PC § 1203.4 need not be reported to a private employer, they must be disclosed to a public agency employer. Public safety dispatcher candidates must provide information about their arrests/convictions that have been set aside under this provision of law.

(3) Driving Records Checks

Q.Since the job of public safety dispatcher rarely (if ever) requires them to drive, why is it necessary to check their driving history?
A.Aside from assessing a candidate’s adherence to the law, CLETS and NLETS have long required inspection of a public safety dispatcher candidate’s driving record.

(4) Education Verification

Q.If a candidate was educated outside of the United States, does this create a problem?
A.Neither state law nor POST regulations impose any minimum education requirements. However, an employing agency is entitled to impose job-related educational requirements that are consistent with business necessity. The educational background claimed by the candidate should also be verified.

(5) Employment History Checks

Q.The POST Personal History Statement asks public safety dispatcher candidates to list employment history over the past 10 years. Some past employers maintain records only for limited periods of time, others cease operations, and still others even decline to respond to those requests. What does POST require the prospective employer to do in these instances?
A.This is one of the areas that has been substantially changed from prior POST standards. To satisfy this requirement, every contact with an employer over the past 10 years - including unsuccessful contacts – must be documented. The extent to which the hiring agency is willing to pursue remedies under the law to attempt to obtain this information is a matter of agency policy. Note that, in contrast to employers of peace officer candidates, employers of public safety dispatcher candidates do not have the same legal duty to respond to such inquiries.

(6) Relatives/Personal Reference Checks

Q.Must every contact listed on the Personal History Statement be contacted?
A.No. This is another of the areas substantially changed by these regulations; the number of contacts that are initiated is largely up to the judgment of investigators and their reviewing authorities. In general, more contacts are better than few, but investigators and their agencies are ultimately responsible for making that determination. Every contact that is attempted should be documented.

Q.What happens when contacts do not respond?
A.Document even the unsuccessful attempts. Not every person or entity contacted will respond to a request for an interview, return a phone call, or complete and mail back a questionnaire. The duty to cooperate with background investigations is a matter of public policy; however, except in very limited circumstances, there is no legal obligation to do so.

(7) Dissolution of Marriage Checks

Q.Why is POST now requiring proof of dissolution of marital status even in instances where the candidate has not remarried?
A.Besides helping establish legal rights of survivorship or medical decision-making, dissolution documents can contain highly relevant information concerning a candidate’s character or financial well-being. Restraining orders, allegations of domestic violence, property settlements, and continuing financial obligations may be detailed in such documents.

(8) Neighborhood checks

Q.What constitutes a “neighborhood check?
A.A neighborhood check is not merely a restatement of a candidate’s residential history. It must include contacting a sampling of neighbors (and landlords) to determine if any job-relevant behaviors can be identified and documenting the contacts.

The security provisions in some housing complexes will not permit neighbors to be canvassed. Committing a potential criminal trespass to accomplish a neighborhood check is not required, and information gleaned from the property owner may be all that is available.

(9) Military/Selective Service Checks

Q.Is willful failure to register with the selective service an automatic disqualifier?
A.Not for POST. Federal law [Title 50a U.S. 622(g)] specifies that it is the grantor of the privilege (i.e., the employer) who determines the penalties (if any) for a willful failure to register.
Q.What should the investigator do if the candidate claims s/he never received a DD-214 long form?
A.With the exception of “entry-level separations,” virtually anyone who enters the military will be issued discharge documents at their time of separation. If the candidate possesses a DD-214 “short form,” (Copy 1), it is highly unlikely that they were not issued a “long form” (Copy 4), as well (they are generally stapled together).

Currently, inquiries directed to the Army and Air Force generally produce less comprehensive replies. However, most recent veterans can obtain copies of their separation documents on-line. [Note: many military records issued prior to 1973 were destroyed in a catastrophic fire at the National Personnel Records Center].

(10) Credit Records Check

Q.Since the employment reports obtained in a typical credit check do not have things such as “credit scores,” how are these reports supposed to be assessed?
A.Previous POST screening standards for public safety dispatchers did not require any type of credit check, and credit scores may have little to do with one’s suitability for employment. In fact, that is one of the reasons why the major Credit Reporting Agencies do not include those numbers on employment documents. Credit itself, or even the lack thereof, may have limited bearing on someone’s suitability for employment as a public safety dispatcher.

Instead, the background investigation should concern itself with issues such as whether the reported sources of income are lawful and fully accounted for, whether the candidate meets his/her obligations as agreed, and the reasons underlying any indications of credit problems (e.g., are the credit problems the fault/responsibility of the candidate, or are they related to the actions of others?). Some candidates have no credit history at all, while others may have extraordinary resources.

Q.Can a candidate be disqualified on the basis of a recent bankruptcy?
A.Bankruptcy is a legal right and is protected by federal law (Title 11 U.S. Code). The mere fact that someone has undergone bankruptcy, even very recently, does not mean that they are disqualified. Investigators should inquire into the circumstances and behaviors which led to the bankruptcy filing, and what, if anything, it may indicate about the candidate’s integrity, impulse control, conscientiousness, or other aspects of candidate suitability.

§ 9059 (f) BACKGROUND INVESTIGATION UPDATES

Q.Isn’t a background update just an abbreviated background?
A.No. It is a supplement to the original background investigation in order to bring the original documentation up-to-date by accounting for changed circumstances or the passage of time. The update provision is intended to avoid requiring departments to engage in unnecessary, duplicative investigating.

Q.Why are there different background update requirements for appointments and departmental transfers?
A.If the department maintained all of the original background investigation information on dispatchers who are being reappointed back to the same department, it is reasonable to focus the updated investigation to the period of time since the dispatcher separated from the department. However, dispatchers who are transferring to another department – even one within the same city, county, state or district – are nevertheless being selected by, and reporting to, a different hiring authority. Therefore, the updated information must cover the time period since the last background investigation.

Q.Can a department still opt to undergo a complete background even if the circumstances allow for an “update?”
A.Yes. The “update” provision is expressly provided for POST-participating departments who have already conducted (and have retained) a complete background that demonstrates a candidate’s ability to meet all current and existing POST standards and where the department does not feel the need to start all over. A department may, at its own discretion, desire to re-do the entire background.

Q.Regulation 9056(c) exempts from re-screening public safety dispatchers who are employed by a department that, through reorganization, is absorbed by another department within the same city, county, state or district. Why does POST offer this allowance for dispatchers who transfer due to “absorption,” yet require dispatchers who undergo a similar transfer as an individual to submit to an updated background and a new medical evaluation?
A.Public safety dispatchers who are employed by a department that is absorbed have not voluntarily changed jobs; nor in most cases will their job change as a result of the absorption. On the other hand, dispatchers who voluntarily transfer to another department are in fact changing jobs, supervisors, assignments and possibly job duties.

Q.Will a background update be acceptable if the department no longer maintains the original background?
A.No. The department must still be in possession of the original background, and that background must demonstrate that the candidate meets all requirements currently in effect (many of which have been substantially expanded). Together, the original background and the completed update must satisfy the current applicable POST selection regulations.

Q.Can supporting documents in an original background be used again for a background update?
A.Yes, in some cases. Some documents have no “shelf-life” (e.g., a birth certificate, high school transcripts after graduation, etc.) and therefore there is no need for the same department to collect this information again. Required documentation that is time-sensitive (e.g., criminal history checks, credit reports, driving records, etc.), must not be more than one year old.

Q.Will fingerprints have to be re-submitted during a background update?
A.If a candidate is seeking re-appointment to the same department and the department previously notified the Department of Justice that it was no longer interested in this individual, fingerprints will have to be repeated.

Q.For an investigation update to be considered complete, is it necessary to re-contact the same individuals who were questioned during the original background investigation?
A.Yes, if, since the completion of the original background, circumstances have changed or sufficient time has elapsed to justify a new assessment (e.g., a spouse previously contacted may now be an ex-spouse, or an employer may have had sufficient time to form new opinions about a candidate’s suitability).

§ 9059 (g) DOCUMENTATION AND REPORTING

(1) Background Narrative Report

Q.What must the background narrative report include?
A.The precise format for the narrative report is at the discretion of the appointing authority; however, the report must provide sufficient written documentation to demonstrate regulatory compliance.

(2) Retention
Q.How long must a department retain the background reports of candidates who were not hired?
A.POST’s authority extends only to public safety dispatcher appointments, not to candidates who were not selected. However, the California Government Code (and in some cases, the EEOC/DFEH) have specific record-keeping requirements associated with the applications of those who were not hired. As a general rule, nothing associated with a record of application may be destroyed in less than two years, and, if a department is notified of pending litigation regarding a background, no documentation should be excised from the file before resolution. Caution and consultation with the department’s legal counsel should be exercised before disposing of any personnel records.

Q.Must an investigator’s handwritten notes be preserved along with the rest of the background?
A.If an investigator’s notes are rough drafts of material faithfully reproduced in the background file, they do not have to be maintained. However, if the notes are the only record of information obtained, they would be subject to the same retention requirements as any other aspect of the background investigation.

(3) Information Access

Q.Must departments share background information with other departments?
A.Yes, under specified circumstances. California courts have held that there is a “duty to cooperate” with legally mandated backgrounds. This is another area where the department’s legal counsel should be consulted for specific guidance.

Q.Must certain portions of a background investigation be withheld?
A.Yes. Local and state criminal history summaries, for example, may not be shared with private parties conducting backgrounds (Penal Code §§ 13302-13303), and DMV home address information may not be shared with anyone who does not have access to a CLETS Terminal (Vehicle Code § 1808.45). Further, if the investigator is representing a non-criminal justice agency (e.g., a joint powers authority), information concerning detentions and arrests which did not result in a conviction may also have to be withheld. The ADA also prohibits the release of medical information to other prospective employing departments [29 CFR 1630.14(b)(1)]. In other instances, a legally insufficient release form may bar the release of other information (e.g., credit records, education transcripts, etc.). This is yet another area where the involvement of the department’s legal counsel is critical.

Q.Does POST dictate what access candidates have to their own background reports?
A.No, this is a question which must be resolved by the department’s legal counsel, as both state and federal law may control issues of disclosure.

Q.Can a qualified physician’s assistant or nurse practitioner be responsible for the medical evaluation?
A.A licensed physician must sign the medical evaluation report indicating responsibility for the evaluation.

Q.Can the medical evaluation be conducted by a chiropractic doctor?
A.No. A chiropractic license or certification is not sufficient.

Q.Must the physician be licensed to practice medicine in California?
A.No. The physician’s medical license may be from any state.

Q.Can the medical evaluation be conducted by the candidate’s own medical doctor?
A.No. The pre-employment medical evaluation must be conducted by a physician who is acting as an agent of the hiring department, not the candidate.

Q.Can candidates be asked to pay for the medical evaluation since, if they want the job, they need to do what is asked to complete the process?
A.No. California Labor Code § 222.5 prohibits employers from requiring applicants to pay for routine screening conducted during the hiring process. [Note: second opinion evaluations are different in that respect [see § 9060 (f)].

§ 9060 (b) TIMING OF THE MEDICAL EVALUATION

Q.Is a new medical evaluation required if a dispatcher returns to the same department after a voluntary separation of less than one year?
A.Generally yes. Any time a dispatcher is taken “off the books” (i.e., a NOAT is submitted to POST), a new medical evaluation is required if s/he returns to the same department, regardless of the length of the break in service.

§ 9060 (c) MEDICAL SCREENING PROCEDURES AND EVALUATION CRITERIA

Q.Can the POST Medical Screening Manual for California Law Enforcement be used in conducting dispatcher medical evaluations?
A.No. The medical examination and evaluation protocols in the POST Medical Screening Manual were developed and are intended for peace officers. Since the responsibilities, working conditions and demands of peace officers and dispatchers are significantly different, the same medical evaluation procedures and criteria will not apply. However, the methodology used to create the manual - analyzing the job from a medical suitability standpoint, involving appropriate medical experts, establishing risk management criteria – can be followed in creating medically job-relevant procedures and criteria for a department’s public safety dispatchers.

§ 9060 (d) REQUIRED SOURCES OF INFORMATION FOR THE MEDICAL EVALUATION

Q.What specifically is the department required to provide to the physician in the way of job information?
A.At a minimum, the physician should be provided with a copy of the department’s public safety dispatcher job description and essential job functions. It may be necessary to augment this description with other information of relevance to medical screening, such as specifics on dispatcher physical activities and requirements, environmental factors, and working conditions. Other information about the job may need to be provided to – and discussed with - the physician, as needed, on a case-by-case basis, depending upon the conditions and medical issues presented by the candidate.

Q.Can the physician add questions to the POST Medical History Statement?
A.Yes. The POST Public Safety Dispatcher Medical History Statement – POST 2-264 (or alternative form) may be amended as deemed necessary and appropriate. However, all forms must include inquiries about past and current medical conditions and procedures, physical symptoms, limitations, restrictions and the use of medications and drugs. In addition, state law (FEHA) stipulates that all medical inquiries must be job-related and consistent with business necessity.

Q.There are no questions on the POST Medical History Statement regarding the candidate’s current or past illegal drug use (including the use of legal drugs without a prescription). Why not?
A.A candidate’s past or current illegal use of drugs is considered more a matter of character than medical suitability. As such, it is assumed that inquiries of this nature can and should be addressed in the course of the background investigation and the psychological evaluation, if conducted.

Q.Medical records from the candidate’s treating physician are now required if “warranted and obtainable.” Why?
A.The review of medical records by the screening physician can greatly increase the effectiveness of the medical evaluation in several ways. First, review of medical records serves to verify that the medical history provided by the candidate is complete and accurate. Additionally, the review of medical records can provide more detailed, useful information than even the most cooperative candidate. Medical history is often the most important part of the medical evaluation, more so than either the physical examination or the medical testing. Therefore, the quality of the physician’s evaluation can rest in large part on the reliability of the medical history information, provided by both candidates and their physicians.

§ 9060 (e) MEDICAL EVALUATION REPORT

Q.Our screening physician’s report provides information on the findings of the examination; however, the doctor does not state whether those findings render the candidate medically suitable or unsuitable. Is that sufficient for POST’s purposes?
A.No. The physician’s report must include a determination of the candidate’s suitability to perform dispatcher duties. During compliance reviews, POST looks for a signed document from the physician stating that the candidate was evaluated according to POST regulations and was found to be medically suitable.

Q.Doesn’t the decision regarding the candidate’s suitability rest with the hiring authority?
A.The ultimate hiring decision rests with the hiring authority, but it is the physician who determines whether the candidate is medically suitable. However, this determination should not only be based upon the job demands and conditions as defined and provided by the department, but also upon the risk management criteria established by the hiring authority (i.e., the degree and type of limitations/risks deemed acceptable).

Q.Can the department disqualify a candidate if the physician determines that s/he is medically suitable?
A.POST’s authority does not extend to candidates who were not hired. However, the authority of the U.S. Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) does include all applicants. Therefore, if the hiring authority were to disqualify a candidate for medical reasons, despite a screening physician’s determination that the candidate is medically suitable, the department should be prepared to defend that decision as lawful according to the ADA and FEHA.

Q.If the candidate reveals something to the doctor that s/he failed to tell the background investigator, can that be grounds for disqualification?
A.Yes, but with important caveats. First, deliberate misstatements or omissions should not be the basis for a medical disqualification; rather, such information should be forwarded to the background investigator and/or personnel department for disposition. Second, a candidate should not be penalized for exercising his/her rights under ADA/FEHA by withholding medical or disability-related information prior to a conditional offer of employment, even in response to a direct inquiry. For example, a candidate may withhold the fact that he filed a worker’s compensation claim on his past job during a (pre-offer) background investigation, since questions about worker’s compensation are considered medical in nature (although the candidate would still be obligated to list the employer where the worker’s compensation claim was filed at the pre-offer phase).

Q.Included in our physician’s report are details of the medical examination procedures and findings. Can the entire report be included in the candidate’s background file?
A.No. To comply with the confidentiality requirements of state and federal law, details of the medical examination and other medical information must be maintained as a confidential medical record, separate from the candidate’s background investigation file.

Q.Can information from the screening physician regarding job-relevant limitations and recommendations for reasonable accommodation be included in that part of the Medical Examination Report that is maintained in the candidate’s background investigation file, or must this information be kept confidential?
A.This will need to be handled on a case-by-case basis and with careful consultation with the department’s legal counsel and risk managers. If the information is not directly disability-related, it may be acceptable to include it in the background investigation file. In general, however, the only information resulting from the medical evaluation that is necessary to keep in the background file is the Medical Evaluation Report described in 9060(e)(1).

§ 9060 (f) SECOND OPINIONS
Q.Is the department obligated to pay if the candidate wants to get a second opinion?
A.Neither state law nor POST regulation requires departments to pay for a second opinion.

Q.Can the department require candidates to choose from a specified list of physicians if the candidate wants to get a second opinion?
A.No. Although the department may assist the candidate by offering a list of physicians who are experienced in pre-employment medical screening as a service to the candidate, the department cannot dictate who the rejected candidate uses for a second medical opinion, or even the qualifications of that evaluator. However, findings from second opinion evaluators can be considered against the relevancy of the evaluator’s qualifications and experience.

Q.Does the candidate’s right to submit a second opinion expire after a certain period of time?
A.FEHA Regulation 2 CCR § 7294.0(d)(2), which provides the rejected candidate with the right to submit an independent medical evaluation before a final determination is made, does not specify a time limit within which the second opinion must be received. Consultation with the department’s legal counsel is advisable before establishing such a departmental policy.

Q.Can a department hire an applicant based on the findings of the second opinion evaluator, given that 9060(a) states that, “the evaluation shall be conducted on behalf of and for the benefit of the employing department”?
A.As stated in 9060(f), “The means for resolving discrepancies in evaluations is at the discretion of the department, consistent with local personnel policies and/or rules.” In other words, it is the department’s right and responsibility to arrive at a resolution to the discrepant medical determinations, based on a policy that gives due consideration to findings of both the departmental and the second opinion physician (per FEHA Regulation § 7294). Regardless of who conducted the evaluation, a Medical Evaluation Report indicating that the applicant was determined to be medically suitable for performing as a public safety dispatcher must be included in the background file.

Q.POST’s medical selection standards do not appear to include a requirement for psychological screening. Is that correct?
A.That is correct. Current POST regulation imposes no requirement for psychological screening of public safety dispatcher candidates. But as stated previously, POST-participating agencies are free to establish higher standards that can be shown to be job-relevant and consistent with business necessity.