Commission Regulation 1950 - Selection Requirements
COMMISSION REGULATION 1950: 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 Commission Regulations 1950-1955 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 Commission Regulations 1950-1955 must be met even by those who possess a POST academy completion certification or a POST Basic Course Waiver.
§ 1950 (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. [NOTE: There are some exemptions, including peace officers returning after 180 days of a voluntary separation - Commission Regulation 1950(c)]
Q. Is there a "grace period" for officers who voluntarily leave the department and then want to return?
A. It depends. A peace officer who returns within 180 days of a voluntary separation is exempt from these requirements. The department has sole discretion in determining what, if any, assessments are necessary and to ensure that the peace officer continues to meet the statutory requirements of Government Code sections 1029, 1031 and 1031.5. With limited exceptions, all other peace officers returning after a separation must meet the the requirements set forth in Commission Regulations 1951-1955.
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. It depends. If the peace officer is returning within 180 days of a a voluntary separation, then the officer is exempt from POST requirements and the department's sole responsibility in determining what, if any, assessments are necessary. With limited exceptions, all other peace officers returning to the department after a separation, must meet the requirements set forth Commission Regulations 1951-1955. These officers may undergo a background investigation "update," rather than a complete new background. 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 Commission Regulation 1953(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 mandatorily reinstated after an involuntary separation, must s/he be re-evaluated against the POST selection requirements?
A. As specified in Commission Regulation 1950(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 Commission Regulation 1950(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 – Commission Regulation 1005(d). A seasonal peace officer returning within 180 days of a voluntary separation is exempt from POST requirements. The department has sole discretion in determining what, if any, assessments are required.].
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 s/he left the Sheriff's Department to become 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 Commission Regulation 1953(f).
§ 1950 (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 an officer returns to a department after a brief separation, do they have to meet POST requirements?
A. It depends. A peace officer who returns within 180 days after a voluntary separation is exempt from POST requirements. The department has sole discretion in determining what, if any, assessments are necessary and to ensure that the peace officer continues to meet the statutory requirements of Government Code sections 1029, 1031 and 1031.5. With limited exceptions, all other peace officers returning after a separation must meet the requirements set forth in Commission Regulations 1951-1955.
Q. If a reinstated officer does not "clear" one or more of the checks required by 1950(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 Commission Regulation 1950(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 1950(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.
§ 1950 (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 two-year 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.
Commission Regulation 1951 - Reading and Writing
COMMISSION REGULATION 1951: READING AND WRITING ABILITY ASSESSMENT – PEACE OFFICER
Q. Are reserve peace officer candidates required to meet these reading and writing ability requirements?
A. Yes, reserve officer candidates are 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.
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.
Commission Regulation 1952 - Oral Interview
COMMISSION REGULATION 1952: 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.
Commission Regulation 1953 - Background Investigation
COMMISSION REGULATION 1953: BACKGROUND INVESTIGATION – PEACE OFFICER
§ 1953 (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).
§ 1953 (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.
§ 1953 (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 Commission Regulation 1953(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 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).
Q. 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?
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). 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.
Q. So which parts of the background investigation can be conducted post-offer?
A. 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:
"(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."
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.
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.
§ 1953 (e) AREAS OF INVESTIGATION
Q. What constitutes acceptable proof of application for citizenship?
A. Acceptable proof of citizenship includes both a Permanent Resident Card issued by U.S. Citizenship and Immigration Services (USCIS) as well as a copy of an official receipt from USCIS 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 USCIS.
Q. Does an application for citizenship ever expire?
A. Yes. Where an application for citizenship is not completed within three years (Government Code section 1031.5), there is a presumption that the candidate is not cooperating with USCIS. Any delays which push the application period beyond that three-year period must be the documented responsibility of USCIS, rather than due to the failure of the candidate to complete the process.
Q. Are U.S. Passports acceptable as proof of citizenship?
A. Yes, with the exception of those issued to individuals from American Samoa, Swains Islands or Northern Mariana Islands (see Bulletin 2017-24 (pdf)).
(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. California allows alternatives to the General Education Development (GED) test in meeting the high school equivalency exam. In addition to the GED, there are currently two additional tests that would meet this requirement. Those tests are the High School Equivalency Test (HiSET) and the Test Assessing Secondary Completion (TASC). More information about these tests can be found on the California Department of Education website.
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), AdvancED, 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).
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, AdvancED, 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 or other approved high school equivalency test.
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).
Q. 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)?
A. 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.
(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 does POST require 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 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.)
(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 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.]
(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.
§ 1953 (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. 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.
Q: 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?
A: No, there are no medical and psychological evaluation "updates." The officer must undergo new evaluations.
Q: 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?
A: 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.
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).
§ 1953 (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.
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.
Commission Regulation 1954 - Medical Evaluation
COMMISSION REGULATION 1954: MEDICAL EVALUATION – PEACE OFFICER
§ 1954 (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 suitability declaration. 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 § 1954 (f)].
§ 1954 (b) TIMING OF THE MEDICAL EVALUATION
Q. Commission Regulation 1954 (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 Commission Regulations 1950-1955 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. There are a couple of exceptions: 1) if the officer's medical evaluation was conducted within a year of his reappointment, it is not necessary to conduct a new evaluations; 2) if the officer is returning to the same department after a voluntary separation of not more than 180 days, the department has the discretion to require a medical evaluation.
§ 1954 (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 Commission Regulation 1950(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.
§ 1954 (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.
§ 1954 (e) MEDICAL EVALUATION REPORTING REQUIREMENTS
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 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 medical suitability declaration 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. Only the medical suitability declaration should be in the candidate's background 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 Suitability Declaration described in Commission Regulation 1954(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 Commission Regulation 1953(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."
§ 1954 (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 § 11071(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 Commission Regulation 1954(a) states that, "the physician shall conduct the evaluation on behalf of and for the benefit of the employing department"?
A. As stated in Commission Regulation 1954(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 § 11071(d)(2)]. Regardless of whether it was created by the departmental physician or the second opinion evaluator, a medical suitability declaration 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.
Commission Regulation 1955 - Psychological Evaluation
COMMISSION REGULATION 1955: PSYCHOLOGICAL EVALUATION – PEACE OFFICER
§ 1955 (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 conditions. 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 reflects 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 suitability declaration, 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. Commission Regulation 1955(b) references "POST Continuing Professional education." What are these requirements?
A. To meet the education and training requirements of GC 1031(f), screening evaluators (psychologists) must complete six hours of POST-approved continuing professional education (CPE) prior to conducting evaluations. Subsequently, psychologists are required to complete 12 hours of CPE every two years based on their license renewal cycle.
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 § 1955 (g)].
§ 1955 (b) CONTINUING PROFESSIONAL EDUCATION (CPE)
Q. How many hours of CPE must be completed and by when?
A. There is an initial six (6) hour requirement prior to conducting screening of candidates. Subsequently, the psychologist must complete 12 hours of POST-approved CPE every two years. The 12 hour requirement coincides with the psychologist's biennial license renewal date and is prorated .5 hours/month.
Q. Since licensed psychologists are already required to take continuing education courses, why is this new requirement necessary?
A. Although the California Board of Psychology requires licensed psychologists to take 36 hours of approved continuing education (CE) biennially, there is no further requirement specifying the content or topics that must be covered (besides mandatory hours in ethics). As such, there is no assurance that peace officer screening psychologists devote their CE hours to courses directly relevant to this purpose. The new POST regulation ensures that 12 of these 36 CE hours will involve instruction and education of direct relevance to this specialization.
Q. What criteria will POST use to approve courses and who will be making these decisions?
A. POST-approved CPE is training that has met two specific criteria: course quality and relevance. Course quality is determined by prior approval by the California Psychological Association (CPA) or American Psychological Association (APA) for continuing education, as well as other bona fide organizations. These pre-approved CE courses will have met the quality requirement for POST approval. The main focus of POST review will be on the content of instruction. To be POST-approved, CPE courses must address one or more of the competency areas described in in Chapter 3 of the POST Peace Officer Psychological Screening Manual. POST has assembled a panel of subject matter experts, consisting of leaders in the field of pre-employment psychological screening. This panel, along with POST staff, will evaluate the proposed courses.
Q. Who will have to pick up the costs of these courses; the agency, the psychologist, or POST?
A. Psychologists normally absorb the cost of CE courses, given that they are required to maintain their license. Therefore, it is assumed that psychologists will continue to pay for the cost of courses required to satisfy the new POST requirement.
Q. How do I submit my information to ensure that I meet the POST requirement?
A. POST's online CPE Tracking System has a profile page specifically for psychological evaluators. Evaluators will be asked to provide contact information (this can be the same information provided to BOP for licensure), license number, as well as completed course information, including associated documentation. At their discretion, evaluators may also upload a CV or resume. You can access the evaluator profile page here: https://post.ca.gov/psychological-evaluator-profile.
Q. Is the evaluator information public?
A. Yes. As with the California Board of Psychology license verification system, the information provided by screening evaluators is available on the POST Website. However, evaluators will be able to maintain some of their information as private (e.g., phone number, email). Additionally, course completion verification information (e.g., certificates of completion, rosters) will not be available to the public. Maintaining an online list of psychological evaluators allows for the tracking of both evaluator information and CPE courses. It also provides a resource for law enforcement agencies seeking the services of psychological evaluators who have chosen peace officer screening as one of their specialties.
Q. How are courses submitted for approval?
A. Providers – as well as others – may submit courses for approval through the online CPE tracking system. The submitted information will be reviewed to determine if it meets the required quality and content criteria. If approved, it will be added to the list of POST-approved courses.
Q. How do I find POST-approved CPE training?
A. POST-approved CPE courses are listed on the POST Website.
Q. What responsibility will an agency have meeting this requirement?
A. POST has an online list of psychologists who have submitted verification of CPE in order to meet this requirement. Agencies can access this list to ensure that their psychologists are in compliance. However, an agency's responsibility will be the same as that for ensuring that their psychologists meet current requirements of Government Code 1031(f) and POST Regulation 1955. Agencies should also take into consideration the depth and breadth of experience and training completed by the psychologist in this specialty area. To assist agencies with this requirement, POST provides a sample Peace Officer Screening Psychologist Questionnaire in Appendix A of the POST Peace Officer Psychological Screening Manual.
§ 1955 (c) TIMING OF THE PSYCHOLOGICAL EVALUATION
Q. Commission Regulation 1955 (c) 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 Commission Regulations 1950-1955 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 Commission Regulation 1955 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. It depends. For officers returning to the same department within 180 days of a voluntary separation, the agency has the discretion to determine what, if any, assessments must be conducted. Additionally, 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. With limited exceptions, all other officers returning to a department must undergo a new psychological evaluation.
§ 1955 (d) 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 Commission Regulation 1950(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.
§ 1955 (e) 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, the POST Psychological Screening Dimensions, background narrative report and any other relevant background information. 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, supplemental background information and 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 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.
§ 1955 (f) PSYCHOLOGICAL EVALUATION REPORTING REQUIREMENTS
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 suitability declaration 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 Suitability Declaration described in Commission Regulation 1955 (f)(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 Commission Regulation 1953(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."
§ 1955 (g) 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. However, if there is a determination that the candidate is psychologically suitable and the department chooses to hire the individual, the psychologist must have met the requirements of Government Code section 1031(f) and Commission Regulation 1955.
Q. Does the candidate's right to submit a second opinion expire after a certain period of time?
A. FEHA Regulation 2 CCR § 11701(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 Commission Regulation 1955(a) states that, "the evaluator shall conduct the evaluation on behalf of and for the benefit of the employing department"?
A. As stated in Commission Regulation 1955(g), "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 § 11071(d)(2)]. Regardless of whether it was created by the departmental evaluator or the second opinion evaluator, a Psychological Suitability Declaration 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.