Commission Regulation 1953 - Background Investigation
COMMISSION REGULATION 1953: BACKGROUND INVESTIGATION – PEACE OFFICER
§ 1953 (a) GOVERNMENT CODE MANDATE
Do background investigators need to be POST-certified?
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).
§ 1953 (b) BACKGROUND INVESTIGATION EVALUATION CRITERIA
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?
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.
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?
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.
The regulation states that relevant sections of the Bias Assessment Framework "shall be considered in the conduct of every peace officer background investigation." What are the relevant sections?
The relevant sections of the Background Assessment Framework (framework) are the personal history sections, including biased behaviors and bias-relevant traits and attributes. Chapter 2 of the Background Investigation Manual explains the framework and provides examples of these relevant personal history information.
§ 1953 (c) PERSONAL HISTORY STATEMENTS
What constitutes an acceptable alternative form to the POST Personal History Statement?
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 and GC section 1029 disqualifiers. 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 Commission Regulation 1953(e)).
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?
Yes, it is acceptable to modify the POST PHS; departments that wish to do so can request an "unprotected" version of the form by emailing POST. The unprotected version will not be identified as, nor is considered, a POST document. It is strongly recommended that the personal history statement be submitted to the department's legal counsel for review prior to use.
§ 1953 (d) COLLECTION OF BACKGROUND INFORMATION: PRE AND POST CONDITIONAL OFFER OF EMPLOYMENT (COE).
Commission Regulation 1953(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?
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). Government Code section 1031.2 provides for the collection of background information subsequent to a conditional offer of employment (COE) if the information could not have been reasonably collected prior to the COE.
So which parts of the background investigation can be conducted post-offer?
Reflecting the EEOC's response to this question, Commission Regulation 1953(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:
- Official documents that cannot be obtained and evaluated in a timely manner during the pre-offer period, and,
- Information derived from contacts and interviews with references.
However, before implementing any change in the sequencing of the background investigation process, a formal opinion should be sought from the agency's legal counsel.
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?
Because the legitimacy of the conditional job offer itself would be called into question (by the EEOC and/or the California Civil Rights Department) 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.
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?
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."
What are the advantages of conducting parts of the background investigation post-offer?
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.
Are there any risks or disadvantages of conducting parts of the background investigation post-offer?
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.
Must parts of the background investigation now be conducted post-offer?
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.
Can a polygraph examination be conducted pre-offer?
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.
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?
No. Third parties must abide by the same pre-offer inquiry prohibitions as the employers themselves.
Can medical and psychological evaluations now be conducted pre-offer?
No. The medical and psychological evaluations must be conducted post-offer.
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?
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.
At the post-offer phase, is it acceptable for the background investigator to collect medical or other information considered disability-related?
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.
§ 1953 (e) AREAS OF INVESTIGATION
(1) Employment Eligibility
What constitutes acceptable proof of employment eligibility?
Acceptable proof of employment eligibility is any documentation identified as acceptable on the I-9, Employment Eligibility Verification form issued by the U.S. Citizenship and Immigration Services (USCIS).
Can a hiring department require citizenship?
Government Code section 1031(g) permits the adoption of additional and/or higher standards.
Can the same documents be used for proof of age?
If the documents provided for employment eligibility include date of birth information, they can also be used to verify age. If the documents produced for employment eligibility cannot verify age, then other official documents must be produced.
(2) Age Verification
Is a hospital birth record or baptismal record sufficient documentation of age?
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.
The applicant reports never having had a government-issued birth certificate. Now what?
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 and Other Qualifications Checks
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?
No. Compliance inspection requires a return showing that the candidate has no disqualifying felony conviction and is eligible to possess a firearm.
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?
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.
If a candidate was convicted of a felony as a juvenile, is he/she ineligible to become a peace officer?
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.
Must peace officer candidates disclose juvenile records that occurred after they were 15 years old if they have been sealed or expunged?
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.
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?
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.
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?
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.
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?
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) Driver License Check
The H6 (10 year) driver history record from DMV is no longer available, what report/record is required?
POST requires an official driver record from DMV, which must be obtained through completion of the DMV INF 252 (LE only) or DMV INF-1125 (individual). The forms are to be submitted in person to a DMV field office or mailed.
What is included on the DMV driver history?
Driver records include all reportable information, as required by California Vehicle Code section 1808. As a general rule, in California, infractions/accidents remain on a record for three years, misdemeanor offenses/two-point incidents for seven years, and DUIs and hit-and-run incidents for ten years.
(5) Education Verification
The peace officer education requirements in Government Code 1031(e) were recently revised. What changes were made?
California allows alternatives to the General Education Development (GED) test in meeting the high school equivalency exam. In addition to the GED, there is the High School Equivalency Test (HiSET). More information about these tests can be found on the California Department of Education website. The Test Assessing Secondary Completion (TASC) was offered as an alternative until January 2020. As such, it would still be acceptable as proof of high school completion, if completed prior to that date.
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?
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), AdvancED (or Cognia), 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 GC 1031(e).
If a candidate was educated outside of the United States, does this create a problem?
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, AdvancED, CAPE, and NFNSSAA).
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?
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 or other approved high school equivalency test.
A candidate reports having been "home-schooled" outside of California. What documentation will be required?
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). In general, individuals who are home-schooled in California do not meet the high school graduation requirement and would have to meet the educational requirements through other means outlined in the GC.
A candidate has had their educational transcript evaluated by a service indicating that the education is equivalent to U.S. standards. Will the evaluation meet the requirements of Government Code section 1031(e)?
No. Having a transcript evaluated for equivalency does not meet the education requirements outlined in GC 1031(e). The educational institution itself must be accredited or approved by one or more of the recognized accrediting bodies.
(6) Employment History Checks
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?
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.
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?
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.
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?
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.
(7) Relatives/Personal Reference Checks
Must every contact listed on the Personal History Statement be contacted?
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.
What happens when contacts do not respond?
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.
(8) Dissolution of Marriage Checks
Why does POST require proof of dissolution of marital status even in instances where the candidate has not remarried?
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.
(9) Neighborhood checks
What constitutes a "neighborhood check?"
A neighborhood check is not merely a restatement of a candidate's residential history. Rather, it includes contacting a sufficient sampling of neighbors (and landlords), both past and current, to determine if any job-relevant behaviors can be identified and documenting those contacts. A neighborhood check must be conducted regardless of the length of time the candidate has resided in the neighborhood. (Please note that security provisions in some housing complexes may 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.)
(10) Military/Selective Service Checks
Is willful failure to register with the Selective Service an automatic disqualifier?
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.
What should the investigator do if the candidate claims s/he never received a DD-214 long form?
With the exception of some "entry-level separations," virtually anyone who enters military service will be issued discharge documents at their time of separation. If the candidate possesses a DD-214 "short form", it is almost inconceivable that they were not issued a "long form", 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: Reserves who are/were not part of active military service may not receive a DD-214 upon separation. Rather, they will receive different separation documents.)
(11) Credit Records Check
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?
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.
Can a candidate be disqualified on the basis of a recent bankruptcy?
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.
§ 1953 (f) BACKGROUND INVESTIGATION UPDATES
Isn't a background update just an abbreviated background?
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.
Why are there different background update requirements for appointments and departmental transfers?
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. Interim chiefs being appointed to a different department may undergo an updated background investigation, if certain requirements are met. The required update is the same as for those who are transferring between departments.
Commission Regulation 1953(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?
No, there are no medical and psychological evaluation "updates." The officer must undergo new evaluations.
Commission Regulation 1953(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?
No, there are no medical and psychological evaluation "updates." The officer must undergo new evaluations. This would apply to interim chiefs transferring between departments as well.
If a public safety dispatcher is a peace officer candidate for the same department, can the department conduct an updated background investigation?
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.
Can a department still opt to undergo a complete background even if the circumstances allow for an "update?"
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.
Will a background update be acceptable if the department no longer maintains the original background?
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.
Can supporting documents in an original background be used again for a background update?
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.
Will fingerprints have to be re-submitted during a background update?
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.
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?
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).
§ 1953 (g) DOCUMENTATION AND REPORTING
(1) Background Narrative Report
Does POST require a specific format for the narrative report?
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.
Does POST regulate how long a department must retain the background reports of candidates who were not hired?
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.
Must an investigator's handwritten notes be preserved along with the rest of the background?
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
Must departments share background information with other departments?
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.
Must certain portions of a background investigation be withheld?
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.
Does POST dictate what access candidates have to their own background reports?
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.