Peace Officer Selection Requirements

Commission Regulation 1950 - Selection Requirements

COMMISSION REGULATION 1950: SELECTION REQUIREMENTS – PEACE OFFICER

1. Are all peace officers in California required to meet POST selection standards?

   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.

2. If an agency is not in the POST program, are there any selection standards that apply to their peace officer candidates?

   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, education, legal history, and the legal authorization to work in the U.S. under federal law, as well as mandates for a pre-employment background investigation, and medical and psychological evaluations. Additionally, there are other applicable statutes (e.g., GC §§ 1029-1031.4) that apply to all peace officers, including those who are employed by agencies that are not in the POST program. GC § 1031.4 establishes additional age requirements for specified peace officers.

3. The same selection standards apply to reserve officers, "regular" officers, or any other peace officer classification. Why?

   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 PC 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.

4. If a peace officer seeks a transfer from another agency and has a POST Basic Certificate, do they  still need to be screened against these selection requirements?

   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.

5. If an individual successfully completed a Basic Course or the Basic Course waiver process, do they  need to meet these POST selection requirements?

   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

1. 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?

   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)).

2. Is there a "grace period" for officers who voluntarily leave the department and then want to return?

   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 GC sections 1031 and 1031.4. With limited exceptions, all other peace officers returning after a separation must meet the requirements set forth in Commission Regulations 1951-1955. Any peace officer returning from a voluntary separation within, or more than 180 days, should be reviewed for compliance with GC § 1029.

3. If an officer decides to return to a department after even a very brief separation, must the department conduct another new background investigation on them?

   It depends. If the peace officer is returning within 180 days of a voluntary separation, then the officer is exempt from POST requirements and the department's sole responsibility in determining what assessments are necessary. At a minimum, compliance with GC § 1029 should be reviewed. 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 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).

4. If an officer is out on injured on duty (IOD) leave or maternity-related leave, must they be re-evaluated against the POST selection requirements upon coming back to the department?

   No. As long as the officer was not separated from the department, there are no POST re-screening requirements.

5. If an officer is mandatorily reinstated after an involuntary separation, must they be assessed against the POST selection requirements?

   The peace officer shall be assessed by the department as specified in Commission Regulation 1950(c)(2). Peace officers in this section are not considered new candidates for the purposes of these regulations.

6. If a PC § 830.6 peace officer is promoted to a PC § 830.1 peace officer in the same department, must they be re-screened per these selection requirements?

   No. Although promotions, demotions or any departmental reclassifications of peace officers necessitates an update to the POST Electronic Data Interchange (EDI), the officer would not be considered a new appointment unless they 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.

7. Must seasonal peace officers be re-screened each time the department seeks to use their services?

   It depends. If the department reported the separation in the POST EDI 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 update the POST EDI, 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 assessments are required. At a minimum, compliance with GC § 1029 should be reviewed.)

8. Is a reserve peace officer under PC § 830.6 subject to the same POST selection standards as a full-time peace officer under pc § 830.1?

   Yes. POST selection standards no longer draw any distinction between classes of peace officers according to PC designations.

9. Would a PC § 830.1 deputy sheriff of the county be regarded as a new appointment if they left the sheriff's department to become a PC § 830.2 district attorney's investigator for that same county?

   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 California Alcoholic Beverage Control, even though both are peace officers under PC § 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

1. 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?

   No, provided that the department has documentation verifying that the officer has previously met the current minimum selection requirements and they have worked continuously for the department since the time of initial appointment.

2. If a POST-participating agency is absorbed by another department, are the absorbed officers considered new appointments?

   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 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.

3. If an officer returns to a department after a brief separation, do they have to meet POST requirements?

   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 GC §§ 1029, 1031, and 1031.4. With limited exceptions, all other peace officers returning after a separation must meet the requirements set forth in Commission Regulations 1951-1955.

4. Is a department prohibited from conducting any checks or assessments beyond those specified in 1950(c)(2)?

   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

1. Why would it be necessary for a department to impose additional screening requirements beyond those required by POST?

   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 have a two-year degree (vs. high school minimum). 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

1. Are reserve peace officer candidates required to meet these reading and writing ability requirements?

   Yes, reserve officer candidates are required to demonstrate the ability to read and write.

2. Is the POST test the only acceptable measure of reading and writing ability?

   No, the POST Entry-Level Law Enforcement Test Battery (PELLETB) 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.

3. Can the reading and writing requirement ever be waived?

   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.

4. Is there a passing score on the POST test?

   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 Entry-level POST Entry-level Law Enforcement Test Battery Agency FAQs.

5. Must candidates retake the POST test if they apply to a different department?

   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. NOTE: Candidates must wait 30 days before re-taking the PELLETB exam.

6. If a peace officer candidate took the POST test several years ago, does he or she need to retake it again?

   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

1. Why is POST requiring that the oral interview be conducted prior to a conditional offer of employment (COE)?

   The Americans with Disabilities Act and the California Fair Employment and Housing Act both stipulate that, prior to the extension of a 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.

2. 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?

   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 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 the POST factors as described in the manual:
   1. Experience
   2. Problem Solving
   3. Communication Skills
   4. Interest/Motivation
   5. Interpersonal Skills
   6. Community Involvement/Awareness

Commission Regulation 1953 - Background Investigation

COMMISSION REGULATION 1953: BACKGROUND INVESTIGATION – PEACE OFFICER

§ 1953(a) GOVERNMENT CODE MANDATE

1. Do background investigators need to be POST-certified?

   Yes. Effective July 1, 2023, every background investigator shall satisfactorily complete POST-certified background investigation training prior to conducting investigations. NOTE: In California, third party background investigators (i.e., private contractors) must be licensed private investigators or attorneys (Business and Professions Code § 7520). These background investigators are also required to complete the background investigation training before conducting investigations.

§ 1953(b) BACKGROUND INVESTIGATION EVALUATION CRITERIA

1. The regulation states that the POST Background Investigation Dimensions "shall be considered in the conduct of every peace officer background investigation." What exactly does "considered" mean?

   The dimensions are intended to serve as points of focus for the background investigation itself, as well as for issues to be considered when preparing the narrative report. However, it is not necessary for the background narrative report to include a separate evaluation of the candidate on each of the ten dimensions, rather it should identify those that are relevant to the candidate personal history. All issues, including positive or negative behavior and/or potential biases, should be considered.

2. The same ten POST Background Dimensions are for evaluating both peace officers and public safety dispatchers. Given the significant differences between these two jobs, how can the same dimensions apply equally to both classifications?

   The job of peace officer and public safety dispatcher do 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.

3. The regulation states that relevant sections of the Bias Assessment Framework "shall be considered in the conduct of every peace officer background investigation." What are the relevant sections?

   The relevant sections of the Bias Assessment Framework (framework) are the personal history sections, including biased behaviors and bias-relevant traits and attributes. Chapter 2 of the Background Investigation Manual explains the framework and provides examples of this relevant personal history information. 

§ 1953(c) PERSONAL HISTORY STATEMENTS

1. Can agencies use an alternative form to the POST Personal History Statement (PHS)?

   There is no alternative to the POST PHS. Effective July 1, 2024, the PHS shall be the Personal History Statement -- Peace Officer, POST 2-251 (1/2024), or an electronic PHS that is an exact replication of the questions contained in the POST 2-251.

2. Can agencies develop a supplemental questionnaire to be used in addition to the required post phs?

   Yes. In addition to using the required POST PHS, agencies may develop a supplemental questionnaire.

§ 1953(d) COLLECTION OF BACKGROUND INFORMATION: PRE AND POST CONDITIONAL OFFER OF EMPLOYMENT (COE).

1. Commission Regulation 1953(d) states, "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?

   In accordance with the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), no medical or other disability-related inquiries may be made during a background investigation that is conducted prior to a COE (pre-offer). Disability-related inquiries and assessments must be deferred until the post-offer stage. 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 (e.g., 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). Government Code section (GC) § 1031.2 provides for the collection of background information after after a COE if the information could not have been reasonably collected prior to the COE.

2. So which parts of the background investigation can be conducted post-offer?

   Commission Regulation 1953(d)(1) specifies non-medical and non-psychological background information may collected after a COE is issued if it could not have reasonably been collected prior to the COE, This may include:
   1. Official documents that cannot be obtained and evaluated in a timely manner during the pre-offer period, and,
   2. 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.

3. Why can we not just extend a COE at the beginning of the background investigation process – like at the same time the candidate is directed to complete the PHS?

   Because the legitimacy of the conditional job offer itself would be called into question (by the EEOC and/or the California Civil Rights Department) if the entire background investigation was conducted post-offer. To be considered "bona fide" (i.e., real), employers must evaluate all relevant non-medical information that they reasonably can obtain and analyze prior to extending the offer. It is 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 cannot be done prior to the offer, since they are not medical and they generally do not take much time to acquire.

4. How long must an agency wait for documents to be received before being able to extend a COE and continue with the background investigation?

   There is no exact answer to this question, but where an unreasonable delay may exist and 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.

5. Are there any risks or disadvantages of conducting parts of the background investigation post-offer?

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

6. Must parts of the background investigation now be conducted post-offer?

   No. Agencies are able 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 requirement.

7. Can a polygraph examination be conducted pre-offer?

   Yes, but if it is conducted pre-offer, no medical or disability-related questions can be included. For example, questions about the 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.

8. Could a third party background investigator ask disability-related questions during a pre-offer investigation, but refrain from sharing the responses with the department until the post-offer stage?

   No. Third party background investigators must abide by the same pre-offer inquiry prohibitions as the employers.

9. Can medical and psychological evaluations now be conducted pre-offer?

   No. The medical and psychological evaluations must be conducted post-offer.

10. At the pre-offer stage, a background investigator learns that the candidate was previously taken into emergency, temporary custody pursuant to 5150 W & I. How should the investigator deal with this information, since it certainly sounds medical in nature?

    What the investigator cannot do pre-offer is further inquire into any area that could reasonably lead to the disclosure of medical information (e.g., why was the action necessary, what treatment was prescribed). 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 (e.g., Did the candidate properly disclose having been taken into custody on the PHS?; 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.

11. At the post-offer phase, is it acceptable for the background investigator to collect medical or other information considered disability-related?

    Yes. Although the evaluation of the candidate's medical suitability rests with the screening physician, there are medical and disability-related issues that are more appropriately evaluated by the background investigator, such as issues related to illegal use of drugs, alcoholism, job performance issues that may be related to a protected disability (e.g., sick leave, behavioral problems), 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 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, illegal use of drugs much more recently than previously claimed). As a general rule, applicants are not permitted to lie or to withhold information which should have been lawfully disclosed. However, if the request for information was itself legally improper at the time asked, this "general rule" becomes less clear.

§ 1953(e) AREAS OF INVESTIGATION

(1) Employment Eligibility

1. What constitutes acceptable proof of employment eligibility?

   Proof of employment eligibility is any documentation identified as acceptable on the Form I-9, Employment Eligibility Verification, issued by the U.S. Citizenship and Immigration Services (USCIS). Employers can find additional information about the Form I-9 on the USCIS website.

2. Can a hiring department require citizenship?

   Yes. GC § 1031(a) states peace officers be legally authorized to work in the U.S. under federal law, but GC § 1031(g) and Commission Regulation 1950 permit the adoption of additional and/or higher standards.

3. Can the same documents be used for proof of age?

   If the documents provided for employment eligibility include date of birth information, they can also be used to verify age. If the documents produced for employment eligibility cannot verify age, then other official documents must be produced.

(2) Age Verification

1. Is a hospital birth record or baptismal record sufficient documentation of age?

   No. Hospitals and churches do not issue official birth certificates; government agencies do. The city/county/state registrar of vital statistics issues birth certificates that are acceptable to POST.

2. The applicant reports never having had a government-issued birth certificate. Now what?

   Although increasingly rare, this circumstance is not unheard-of, especially in cases of home-birthing and overseas adoption. While care must be exercised to assure that the applicant in question is not simply misinformed, the appointing agency should contact their POST Regional Consultant to discuss alternatives.

(3) Criminal Records and Other Qualifications Checks

1. An agency properly submitted fingerprints, but, due to circumstances outside of their control, the returns have not been received. Is the demonstration of effort sufficient for compliance inspections?

   No. The compliance inspection requires a return showing that the candidate has no disqualifying felony conviction or other disqualifying criminal history, and is eligible to possess a firearm. 

2. If a peace officer candidate was previously fingerprinted by the department for a different classification of employment (e.g., community service officer, dispatcher), is it necessary for the department to fingerprint the individual again?

   Yes, because peace officer applicants have unique reporting and disclosure requirements (as well as a firearms clearance requirement). Even if the individual has been in the department's continuous employment since last having been fingerprinted, peace officer candidate fingerprints need to be submitted, requesting Federal Bureau of Investigation, Department of Justice, and Firearms Clearance checks.

3. If a candidate was convicted of a felony as a juvenile, are they ineligible to become a peace officer?

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

4. Must peace officer candidates disclose juvenile records that occurred after they were 15 years old if they have been sealed or expunged?

   This remains a matter of interpretation, and one which has not been definitively resolved in the courts. While, as a matter of law, peace officer candidates are generally held to a higher standard of performance than applicants for non-peace officer positions and the courts have held that expungements are ineffective when considering a peace officer, this principle may not apply when a juvenile record has been sealed or expunged pursuant to Penal Code (PC) § 851.7.

5. Why is there a difference between the peace officer PHS (2-251) and the dispatcher PHS (2-255) on questions about detentions, arrests, and convictions?

   California Labor Code (LC) § 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 PC. 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.

6. Are there any differences between the criminal convictions that peace officer and public safety dispatcher candidates must disclose, even if they are both applying to a criminal justice agency?

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

7. Are there arrests and/or convictions that need not be reported to a private employer, but that are required to be reported by peace officer or public safety dispatcher candidates?

   Yes. Convictions set aside under PC § 1203.4 must be disclosed to a public agency employer, but do not have to be disclosed to a private employer. Both peace officer and public safety dispatcher candidates must provide information about their arrests/convictions that have been set aside under this provision of law.

8. On the verification of Qualification for Peace Officer Appointment (Form 2-355), it indicates a National Decertification Index (NDI) query needs to be confirmed. Is this for all applicants?

   No. The NDI query is a request that is specific to applicants with previous peace officer experience only. It is submitted to identify if there are any pending negative actions or complaints against an officer.

9. Where in the Background Narrative Report does the NDI query results need to be located?

   In the Background Narrative Report, the NDI query results must be inserted under Criminal and Other Qualification Records Checks - Local, State, and National. In the background file, documentation must be located in Tab C.

(4) Driving Record Check

1. What documentation is required from the Department of Motor Vehicles (DMV)?

   POST requires a written driving record history from the DMV or another official driving record. To request an official DMV record, the applicant will need to complete a DMV INF 1125 and submit it by mail or by visiting a DMV office. The online driving record is not acceptable. Law enforcement may request the driving record using the DMV INF 252. The record shall be dated not more than one year prior to the date of employment.
2. Is the DMV kiosk printout an official driver record?
   
   No. The kiosk does not provide an official driver record. Due to the lack of ability to verify the identity of the person using the kiosk, certain information is not included on the printout.

3. What is included on the DMV driver record?

   Driver records include all reportable information, as required by California Vehicle Code (VC) § 1808. As a general rule, in California, infractions/accidents remain on a record for three years, misdemeanor offenses/two-point incidents for seven years, and driving under the influence and hit-and-run incidents for ten years.

(5) Education Verification

1. What if the applicant is not a high school graduate?

   An equivalency test is acceptable proof of meeting the high school graduation requirement. The California Department of Education website provides a list of alternative equivalency tests. The Test Assessing Secondary Completion (TASC) was offered as an alternative until January 2020. As such, it would still be acceptable as proof of high school completion, if it was completed prior to that date.

2. If a private school is listed on the California Department of Education (CDE) website does that mean it meets the GC § 1031(e) requirement of being an "accredited or approved"high school?

   No. The CDE does not accredit or approve private schools; it merely lists those that have filed private school affidavits with the department. Therefore, to meet the requirements of GC § 1031(e), a private school must be accredited or approved by a regional accrediting association or an association/organization holding full membership in the National Council for Private School Accreditation (NCPSA), the National Federation of Nonpublic School State Accrediting Associations (NFNSSAA), AdvancED (or Cognia), or the Council for American Private Education (CAPE). If the school does not meet the above criteria, the applicant will need to satisfy the education requirements in another way as outlined in GC §1031(e).

3. If a candidate was educated outside of the U.S., whether it be high school or college, does this create a problem?

   There are a limited number of foreign schools that would meet the criteria stipulated in Government Code § 1031(e). These would include overseas schools operated by the Department of Defense, foreign schools accredited by an association recognized by one of the accrediting agencies recognized by the Secretary of the U.S. Department of Education, or one of the four additional associations that oversee the accreditation of private institutions (i.e., NCPSA, Cognia (formerly AdvancED), CAPE, and NFNSSAA).

4. A candidate reports that he graduated from a public high school in New Orleans, Louisiana in 2001, but the school was destroyed by Hurricane Katrina, and there are no records available. The candidate has a diploma and a picture is in the school's yearbook. Is that enough?

   Unfortunately, it is not. If official records are not available through any other source (e.g., the State of Louisiana), and this candidate does not have any of the other qualifications outlined in GC § 1031(e), they will need to complete a GED or other approved high school equivalency test.

5. A candidate reports having been "home-schooled" outside of California. What documentation will be required?

   This can be a very complicated process, since not all states regulate home-schooling. The individual will have to provide the equivalent of an official transcript recognized as proof of graduation by the state in which they were home-schooled or meet the other educational requirement options outlined in GC § 1031(e). In general, individuals who are home-schooled in California do not meet the high school graduation requirement and would have to meet the educational requirements through other means outlined in the GC.

6. 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 GC § 1031(e)

   No. Having a transcript evaluated for equivalency does not meet the education requirements outlined in GC § 1031(e). The educational institution itself must be accredited or approved by one or more of the recognized accrediting bodies.

(6) Employment History Checks

1. The POST PHS asks peace officer candidates to list all employment, yet the regulations only require an investigation of employment history over the past ten years. Why the discrepancy?

   POST regulations require the investigation of a peace officer candidate's past ten years of employment. There may be circumstances, however, where an agency feels the need to investigate beyond that ten-year period because of answers furnished on the PHS, such as an indication of significant disciplinary problems, terminations, prior police experience, etc.

2. Some past employers maintain records only for limited periods of time, others cease operations, and still others even decline to respond to those requests even if they are legally required to do so (i.e., GC § 1031.1). What does POST require the prospective employer to do in these instances?

   To satisfy POST, every contact with a current or past employer, even an unsuccessful one, needs to be documented. The extent to which the department is willing to pursue remedies under the law to attempt to obtain this information is governed by the department and their legal counsel, not by POST.

3. If a present or former employer of a peace officer candidate within the past ten years refuses to or is unable to provide information, can the agency opt not to appoint the candidate?

   Satisfactory documentation of the effort to verify past employment is discussed above. It is up to the agency to decide the impact of its inability to obtain meaningful (or any) information from a present or former employer, and POST's compliance responsibilities do not extend to candidates whom the agency chooses not to appoint.

(7) Relatives/Personal Reference Checks

1. Must every contact listed on the PHS be contacted?

   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 attempt should be documented.

2. What happens when contacts do not respond?

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

(8) Dissolution of Marriage Checks

1. Why does POST require proof of dissolution of marital status even in instances where the candidate has not remarried?

   Besides helping establish legal rights of survivorship or medical decision-making, dissolution documents can contain highly relevant information concerning a candidate's character or financial well-being. Restraining orders, allegations of domestic violence, property settlements, and continuing financial obligations may be detailed in such documents.

(9) Neighborhood checks

1. What constitutes a neighborhood check?

   A neighborhood check is not merely a restatement of a candidate's residential history. Rather, it includes contacting a sufficient sampling of neighbors (and landlords), both past and current, to determine if any job-relevant behaviors can be identified and documenting those contacts. A neighborhood check must be conducted regardless of the length of time the candidate has resided in the neighborhood. (Please note that security provisions in some housing complexes may not permit neighbors to be canvassed. Therefore, information gleaned from the property owner may be all that is available.)

(10) Military/Selective Service Checks

1. Is willful failure to register with the Selective Service an automatic disqualifier?

   Not for POST, but the prospective employer may make that determination. Federal law (Title 50a U.S. 622(g)) specifies that it is the grantor of the privilege (i.e., the employer) who determines the penalties (if any) for a willful failure to register.

2. What should the investigator do if the candidate claims they never received a DD-214 long form?

   With the exception of some entry-level separations, virtually anyone who enters military service will be issued discharge documents at their time of separation. If the candidate possesses a DD-214 "short form", it is almost inconceivable that they were not issued a "long form", as well (they are generally stapled together). Currently, inquiries directed to the Army and Air Force generally produce less comprehensive replies. However, most recent veterans can obtain copies of their separation documents online. (NOTE: Reserves who are/were not part of active military service may not receive a DD-214 upon separation. Rather, they will receive different separation documents.)

(11) Credit Records Check

1. Since the employment reports obtained in a typical credit check do not have things such as credit scores, how are these reports supposed to be assessed?

   Credit scores generally have little to do with one's suitability for employment; in fact, that is one of the reasons why the major credit reporting agencies do not include those numbers on employment documents. A credit check is performed to determine a candidate's credit standing with lenders, as an indication of the candidate's dependability and integrity. Although an important area of investigation, the evaluation of a candidate's behavior regarding the handling of finances must be careful and judicious. In some instances, outwardly negative information may involve legal rights an even factors that are completely outside of the candidate's control. Financial opportunities can be limited as much by race, gender, marital status, and even geography as by the willful acts of the candidate. It is therefore critically important to understand the full circumstances surrounding any apparently negative financial information.

2. Can a candidate be disqualified based on a recent bankruptcy?

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

§ 1953(f) BACKGROUND INVESTIGATION UPDATES

1. Is a background update just an abbreviated background?

   No. It is a supplement to the original background investigation to bring the original documentation current 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.

2. Commission Regulation 1953(f)(1)(A)(1) includes a provision for the conduct of an abbreviated (updated) background investigation for a peace officer candidate who is returning to the same department after a voluntary separation. Are there also abbreviated medical and psychological evaluations for officers who are returning to the same department?

   No, there are no medical and psychological evaluation "updates." The officer must undergo new evaluations.

3. Commission Regulation 1953(f)(1)(A)(2) includes a provision for the conduct of an abbreviated (updated) background investigation for a peace officer candidate who is transferring, without a separation, to a different department within the same city that maintains a centralized personnel/background unit. Are there also abbreviated medical and psychological evaluations for officers transferring to another department within the same political subdivision?

   No, there are no medical and psychological evaluation updates. The officer must undergo new evaluations. This would apply to interim chiefs transferring between departments as well.

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

   Since the dispatcher was originally investigated for a non-sworn position, and the requirements are different for a sworn peace officer position, the dispatcher must undergo a new background investigation, including completing a peace officer PHS. 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). However, 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 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.

5. Can a department still opt to undergo a complete background even if the circumstances allow for an update?

   Yes. The "update" provision is expressly provided for POST-participating departments who have already conducted (and have retained) a complete background that demonstrates a candidate's ability to meet all current and existing POST standards and statutory requirements, and, where the department does not feel the need to start all over. A department may, at its own discretion, desire to conduct an entire new background.

6. Will a background update be acceptable if the department no longer maintains the original background?

   No. The department must still be in possession of the original background, and that background must demonstrate that the candidate meets all requirements in existence at the present time of appointment/reappointment. Together, the original background and the completed update must satisfy the applicable POST selection regulations and state law.

7. Can supporting documents in the original background be used again for a background update?

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

8. Will fingerprints have to be re-submitted during a background update?

   If a candidate is seeking re-appointment to the same department and the department previously notified the DOJ 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 are different.

9. For an investigation update to be considered complete, is it necessary to re-contact the same individuals who were questioned during the original background investigation?

   Yes, if, since the completion of the original background, circumstances have changed or sufficient time has elapsed to justify a new assessment (e.g., a spouse previously contacted may now be an ex-spouse, or an employer may have had sufficient time to form new opinions about a candidate's suitability).

§ 1953(g) DOCUMENTATION AND REPORTING

(1) Background Narrative Report

1. Does POST require a specific documentation and reporting format for the narrative report?

   Yes. The background investigator shall summarize the background investigation results in a narrative report that includes sufficient information for the reviewing authority to extend, as appropriate, a conditional offer of employment. The report shall include sections that summarize relevant Background Investigation Dimensions and any findings of behaviors, traits and/or attributes that may be relevant to bias per the Bias Assessment Framework. A sample template (Sample D.1) and sample complete narrative report (Example D.1) are available.
    
2. Must investigators use the POST-developed Background Narrative Report template?
   
   Use of the template is not required, rather it is to serve as a guide for the sequencing of the narrative report. Commission Regulation 1953(g)(1) mandates the order of the narrative report which includes separate sections for the background investigation dimensions and the bias assessment information, followed by the 12 areas of investigation as sequenced in the regulation. The template format follows Commission Regulation 1953 and provides descriptions of the information that should be included in the sections. This is to provide consistency across background investigation reports to ensure that all areas of investigation are being addressed ad that department heads, psychologists, and POST consultants have access to all relevant narrative information in a single, cohesive narrative report. The template is available in editable Microsoft Word format with the sample background investigation forms on the POST website.
    
3. Can additional sections be added to the Background Narrative Report, such as a candidate biographical section?
   
   The template provides the 14 mandated areas that must be included sequentially in the narrative report, per the regulation. It does not prohibit including additional relevant information. For example, investigators may wish to add a candidate biographical section at the beginning of the background narrative report or include a miscellaneous section at the end addressing other areas that may be relevant, such as agency-specific information. A supplemental candidate information template has been developed as a complement to the background narrative report. If desired, this information could be added to the larger background narrative report and/or included as a supplemental page to the report. As with the Background Narrative Report template, the Candidate Information template is provided in editable Microsoft Word format with the background investigation samples on the POST website.
    
4. Why is the format of the narrative report not the same as the POST background investigation tab order?
   
   The POST background investigation tabs are not mandated, nor are they a replacement for the narrative report. The tabs are intended as a background organization tool. As such, each tab serves a specific purpose. Tab A is where the comprehensive background narrative report would be placed. The remaining tabs contain the documentation that supports the information obtained in the narrative.

(2) Retention

1. Does POST regulate how long a department must retain the background reports of candidates who were not hired?

   No. POST's authority extends only to peace officer appointments. However, the GC (and in some cases, the EEOC/California Civil Rights Department) have specific record-keeping requirements associated with the applications of those who were not hired. Per GC 12946, any and all applications, personnel, membership, or employment referral records shall be kept for a minimum of four years after the files are initially created or received or action taken. 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.

2. Must an investigator's handwritten notes be preserved along with the rest of the background?

   If an investigator's notes are rough drafts of material faithfully and entirely reproduced in the background file, they do not have to be maintained. However, if the notes are the only record of information obtained, they would be subject to the same retention requirements as any other aspect of the background investigation.

(3) Information Access

1. Must departments share background information with other departments?

   Yes. As stated in Regulation 1953, information must be furnished to those conducting background investigations of peace officer candidates on behalf of other law enforcement departments except as provided by statute (i.e., GC § 1031.1). This information shall only be utilized for investigative leads and the information shall be independently verified by the prospective department to determine the suitability of the peace officer candidate.

2. Must certain portions of a background investigation be withheld?

   Yes. Local and state criminal history summaries, for example, may not be shared with private parties conducting backgrounds (PC §§ 13302-13303), and DMV home address information may not be shared with anyone who does not have access to a California Law Enforcement Telecommunications System terminal (VC § 1808.45). The ADA prohibits the release of medical information to other prospective employing departments (Title 29, Code of Federal Regulations § 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). This is an area where the involvement of the department's legal counsel should be consulted for guidance.

3. Does POST dictate what access candidates have to their own background reports?

   No. This is a question which must be resolved by the department's legal counsel, as both state and federal law may control some issues of disclosure.

Commission Regulation 1954 - Medical Evaluation

COMMISSION REGULATION 1954: MEDICAL EVALUATION – PEACE OFFICER

§ 1954(a) GOVERNMENT CODE (GC) MANDATE

1. Can a qualified physician's assistant or nurse practitioner be responsible for the medical evaluation?

   No. GC § 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.

2. Can the medical evaluation be conducted by a chiropractic doctor?

   No. A chiropractic license or certification is not sufficient.

3. Does the medical evaluation have to be conducted by a board-certified doctor?

   No. The pre-employment medical evaluator must be licensed, but need not be a board-certified medical specialist.

4. Must the physician be licensed to practice medicine in California?

   No. The physician's medical license may be from any state.

5. Can the medical evaluation be conducted by the candidate's own medical doctor?

   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.

6. 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?

   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 Commission Regulation 1954(f)).

§ 1954(b) TIMING OF THE MEDICAL EVALUATION

1. 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?

   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.

2. 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?

   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.

3. Is a new medical evaluation required if an officer returns to the same department after a voluntary separation of less than one year?

   Generally yes. Any time an officer is taken "off the books" (i.e., the separation is reported in POST Electronic Data Interchange), a new medical evaluation is required if they return 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 one year of their reappointment, it is not necessary to conduct a new evaluation; 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

1. POST requires departments to establish their own medical screening procedures and evaluation criteria. Why doesn't POST provide these to its member departments?

   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.

2. Must the same medical procedures and criteria be used for all levels of peace officers (e.g., Level III reserves)?

   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.

3. We do not have the resources to create medical evaluation procedures and criteria. Can't we simply adopt the protocols in the POST Medical Screening Manual for use in screening our peace officer candidates?

   Although its use is discretionary, departments may 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.

4. By adopting the POST medical procedures and criteria, will a department be shielding itself from legal liability?

   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. It is recommended that departments review the "Background Information" chapters of the Manual prior to adopting any protocols.

§ 1954(d) REQUIRED SOURCES OF INFORMATION FOR THE MEDICAL EVALUATION

1. What specifically is the department required to provide the physician in the way of job information?

   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.

2. Can the physician add questions to the POST Medical History Statement?

   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.

3. 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 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 during the background investigation and the psychological evaluation.

4. Medical records from the candidate's treating physician are now required if "warranted and obtainable." Why?

   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 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

1. 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?

   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 the POST-mandated Medical Suitability Declaration (2-363) form, signed by the evaluating physician stating that the candidate was evaluated according to POST regulations and was found to be medically suitable.

2. Can the POST Medical Suitability Declaration (2-363) form be signed by anyone besides the physician?

   No. Regulation 1954(e)(1) indicates the physician shall make a determination of the candidate's suitability and provide a completed and signed form.

3. Does the decision regarding the candidate's suitability rest with the hiring authority?

   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). The candidate must be found medically suitable prior to appointment.

4. Can the department disqualify a candidate if the physician determines that they are medically suitable?

   POST authority does not extend to candidates who are not hired. However, the authority of the Equal Employment Opportunity Commission and the California Civil Rights Department (CRD) 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 American Disabilities Act and CRD.

5. If the candidate reveals something to the doctor that they failed to tell the background investigator, can that be grounds for disqualification?

   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).

6. 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?

   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 physician-completed POST-mandated Medical Suitability Declaration (2-363) form should be in the candidate's background file.

7. Can information from the screening physician regarding job-relevant limitations and recommendations for reasonable accommodation be included in the candidate's background investigation file, or must this information be kept confidential?

   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).

8. Can the screening physician report the presence of tattoos or evidence of tattoo removal to a background investigator?

   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. This information should be reported to the department and background investigator for further review. Other tattoos not usually visible are of questionable relevance.

9. Can the screening physician communicate directly with the screening psychologist when they become aware of psychological issues during the medical exam?

   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

1. Is the department obligated to pay if the candidate wants to get a second opinion?

   Neither state law nor POST regulation requires departments to pay for a second opinion.

2. Can the department require candidates to choose from a specified list of physicians if the candidate wants to get a second opinion?

   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.

3. Does the candidate's right to submit a second opinion expire after a certain period of time?

   CRD Regulations (Title 2 of the California Code of Regulations (CCR) § 11071(b)(2)) provide 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.

4. 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"?

   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 2 CCR § 11071(b)(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.