Commission Regulation 1959
COMMISSION REGULATION 1959: BACKGROUND INVESTIGATION – PUBLIC SAFETY DISPATCHER
§ 1959 (a) REQUIREMENT
Do background investigators need to be POST-certified?
There is no special POST certification for background investigators, either for public safety dispatcher or peace officer candidates. However, competent professional training of background investigators is the employer's legal responsibility and will provide assurance that the investigations are lawful and effective. POST offers specific courses for background investigators; these are described in the POST Course Catalog. Note: In California, third party background investigators (i.e., private contractors) must be Licensed Private Investigators or attorneys (B&P § 7520).
§ 1959 (b) BACKGROUND INVESTIGATION EVALUATION CRITERIA
The regulation states that "the POST Background Investigation Dimensions shall be considered in the conduct of every public safety dispatcher background investigation?" What exactly does "considered" mean?
The dimensions are intended to serve as points of focus for the background investigation itself, as well as for issues to be considered when preparing the narrative report. However, it is not necessary for each background report to include a separate evaluation of the candidate on each of the ten dimensions.
The same ten POST Background Dimensions are for evaluating both peace officers and public safety dispatchers. Given the significant differences between these two jobs, how can the same dimensions apply equally to both classifications?
The job of public safety dispatcher and peace officer do indeed involve very different duties, tasks and responsibilities. However, the results of multiple job analyses has shown that both classifications require many of the same worker attributes, such as integrity, stress tolerance, interpersonal skills, judgment, conscientiousness, and communication skills. Since these attributes are evaluated by investigating personal history, they form the basis of the pre-employment background investigation for public safety dispatchers as well as for peace officers.
§1959 (c) PERSONAL HISTORY STATEMENTS
What constitutes an acceptable alternative form to the POST Personal History Statement?
Any alternative form to the POST Personal History Statement (2-255) must address the same ten major areas of inquiry: personal; relatives and references; education; residences; experience and employment; military experience; financial; legal; motor vehicle operation; and other topics related to moral character. The questions must require the candidate to provide the information necessary for the background investigator to complete a thorough investigation [i.e., cover all Areas of Investigation addressed in 1959(e).
Rather than create an entirely new form, is it possible to obtain a version of the POST Personal History Statement that can be modified?
Yes, it is acceptable to modify the POST PHS; departments that wish to do so can request an "unprotected" version of the form by emailing POST. The unprotected version will not be identified as nor considered a POST document. It is strongly recommended that the personal history statement, whether using the POST form or a modified version, be submitted to the department's legal counsel for review before adopting it for use.
§1959 (d) COLLECTION OF BACKGROUND INFORMATION: PRE AND POST CONDITIONAL OFFER OF EMPLOYMENT (COE)
Why did POST add regulations covering the timing of the background investigation relative to the Conditional Offer of Employment (COE)?
The Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) separate the pre-employment hiring process into two phases, punctuated by the conditional offer of employment. Disability-related inquiries and assessments must be deferred until the post-offer stage. Also, for the offer to be considered valid, all non-disability related inquiries must be made prior to the offer.
Although the bulk of the background investigation does not involve issues of disability, there are background areas of inquiry that must be deferred until the post-offer stage. A few examples include inquiries related to the extent of past illegal drug use, the extent of past or current use of alcohol, use of sick leave, impulse control problems, etc.
Whether and how to partition the background investigation into pre and post offer phases is a decision that each department must make based on careful consideration of the pre-offer prohibitions of the ADA and FEHA, and with the involvement of their legal counsel. The intent of Commission Regulation 1959(d) is to reinforce the lawful application of those statutory restrictions to the specific conduct of the POST-mandated dispatcher background investigation.
If there are background investigation topics and areas that are disability-related, why not just conduct the entire investigation post-offer?
Because the legitimacy of the conditional job offer itself would be called into question (by the EEOC and/or the California Department of Fair Employment & Housing) if the entire background investigation was conducted post-offer. To be considered legitimate (i.e., "bona fide") the conditional offer must only be extended after an employer has screened the candidate as much as possible (without venturing into medical/psychological territory). It's very difficult to argue that the completion of the PHS, or the request and in most cases the collection of birth certificates, transcripts, credit reports and other such documents can't be done prior to the offer, since they're not medical and they generally don't take much time to acquire.
The EEOC published a useful resource on pre and post offer inquiries: "Enforcement Guidance: Pre-employment Disability-Related Questions & Medical Examinations]" (10/10/95)
Since the background investigation required for a public safety dispatcher candidate is very similar to that required for a peace officer candidate, why don't the same rules apply about COE's?
As in some other areas, the Legislature has drawn some specific differences between peace officer candidate backgrounds and those of other candidates in law enforcement (i.e., GC 1031.2). Employing agencies must always keep this fact in mind, even where substantial similarities exist in other areas (e.g., the background dimensions).
Can a polygraph examination be conducted pre-offer?
Yes, but if it is conducted pre-offer, no medical or disability-related questions can be included. For example, questions about extent of past illegal drug use or alcohol consumption are prohibited. The common practice of asking candidates if they are taking prescription medication prior to the polygraph examination is also impermissible if the examination is conducted pre-offer, even if certain medications may affect test results.
Could a private background investigator ask disability-related questions during pre-offer investigation, but refrain from sharing the responses with the department until the post-offer stage?
No. Third parties must abide by the same pre-offer inquiry prohibitions as the employers themselves.
A background investigator learns that the candidate was previously taken into emergency, temporary custody pursuant to 5150 W & I. How should the investigator deal with this information, since it certainly sounds medical in nature?
What the investigator cannot do pre-offer is further inquire into any area that could reasonably lead to the disclosure of medical information (e.g., why was the action necessary, what treatment was prescribed, etc.). Instead, the investigator should forward this information to the department's medical evaluator at the post-offer stage for follow-up. At the pre-offer stage, the investigator can look into other, non-disability related issues associated with this incident, such as, did the candidate properly disclose having been taken into custody on the Personal History Statement?
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. Examples include issues related to illegal use of drugs, alcoholism, job performance issues that may be related to a protected disability (e.g., sick leave, behavioral problems, etc.), or any follow-up investigation requested by the screening physician (or psychologist, if used).
There are also occasions where a candidate may have withheld information which should have been disclosed at the pre-offer stage, but is now revealed in a post-offer inquiry (e.g., identifying an employer not previously listed and where a worker's compensation claim was filed, or illegal use of drugs much more recently than previously claimed).
§ 1959 (e) AREAS OF INVESTIGATION
(1) Employment Eligibility
Why is there not a citizenship requirement for public safety dispatchers?
Unlike peace officers, state law has established no citizenship requirements for public safety dispatches, and federal law (8 U.S. Code 1324a) precludes discrimination against work eligible aliens. Proof of U.S. citizenship or a Resident Card is sufficient for establishing employment eligibility.
(2) Criminal Records Checks
An agency properly submitted fingerprints, but, due to circumstances outside of their control, the returns have not been received. Is the demonstration of effort sufficient for compliance inspections?
No. Compliance inspection requires a return showing that the candidate's fingerprints have been submitted to and returned by both DOJ and the FBI.
If a public safety dispatcher candidate was previously fingerprinted by the department for a different classification of employment (e.g., correctional officer, records clerk, or CSO), is it necessary for the department to fingerprint the individual again?
As long as the individual has been in the department's continuous employment since last having been fingerprinted, it is not necessary to request DOJ and FBI fingerprints.
Is there a "felony disqualification rule" for public safety dispatchers, similar to that for peace officers?
There is no explicit state law or POST Regulation prohibiting the employment of convicted felons. However, restrictions may be imposed by other agencies (i.e., DOJ) regarding such things as CLETS access.
Peace officer candidates must disclose some juvenile records that occurred after they were 15 years old, but public safety dispatcher candidates do not. Why is there a difference between these two classifications?
Even the requirements pertaining to peace officers remains a matter of interpretation, and one which has not been definitively resolved. However, as a matter of law, peace officer candidates are generally held to a higher standard of performance than applicants for non-peace officer positions.
Why is there a difference between the peace officer PHS (2-251) and the dispatcher PHS (2-255) regarding questions on detentions, arrests, and convictions?
California Labor Code Section 432.7 prohibits prospective employers from considering a history of arrest (or detention) that did not result in a conviction; however, there is an exemption for employers of peace officers and other criminal justice agency personnel. Therefore, criminal justice agency employers could require the same arrest history for their public safety dispatcher and peace officer candidates; however, a substantial number of public safety dispatcher employers in the POST program are not criminal justice agencies as defined in the Penal Code. It was decided that creating two separate POST public safety dispatcher forms – one for criminal justice agencies and one for other agencies - would be confusing. As a result, the POST dispatcher PHS was designed to be lawful for all public safety dispatcher employers. With the concurrence of agency legal counsel, criminal justice agency employers of public safety dispatchers may opt to amend the POST PHS to include inquiries about detentions or arrests that did not lead to convictions.
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 provide an opportunity for diversion or expungement (e.g., PC §§ 1000.4 and 1210). Public safety dispatcher candidates do not have to disclose these offenses. This is one reason why it is inappropriate to administer the peace officer PHS (2-251) to non-peace officer candidates.
Are there differences between public safety dispatcher candidates and those applying for jobs with private employers in terms of reporting arrest and conviction history?
Yes. Although arrests and convictions set aside under PC § 1203.4 need not be reported to a private employer, they must be disclosed to a public agency employer. Public safety dispatcher candidates must provide information about their arrests/convictions that have been set aside under this provision of law.
(3) Driving Records Checks
Since the job of public safety dispatcher rarely (if ever) requires them to drive, why is it necessary to check their driving history?
Aside from assessing a candidate's adherence to the law, CLETS and NLETS have long required inspection of a public safety dispatcher candidate's driving record.
(4) Education Verification
If a candidate was educated outside of the United States, does this create a problem?
Neither state law nor POST regulations impose any minimum education requirements. However, an employing agency is entitled to impose job-related educational requirements that are consistent with business necessity. The educational background claimed by the candidate should also be verified.
(5) Employment History Checks
The POST Personal History Statement asks public safety dispatcher candidates to list employment history over the past 10 years. Some past employers maintain records only for limited periods of time, others cease operations, and still others even decline to respond to those requests. What does POST require the prospective employer to do in these instances?
This is one of the areas that has been substantially changed from prior POST standards. To satisfy this requirement, every contact with an employer over the past 10 years - including unsuccessful contacts – must be documented. The extent to which the hiring agency is willing to pursue remedies under the law to attempt to obtain this information is a matter of agency policy. Note that, in contrast to employers of peace officer candidates, employers of public safety dispatcher candidates do not have the same legal duty to respond to such inquiries.
(6) Relatives/Personal Reference Checks
Must every contact listed on the Personal History Statement be contacted?
No. This is another of the areas substantially changed by these regulations; the number of contacts that are initiated is largely up to the judgment of investigators and their reviewing authorities. In general, more contacts are better than few, but investigators and their agencies are ultimately responsible for making that determination. Every contact that is attempted should be documented.
What happens when contacts do not respond?
Document even the unsuccessful attempts. Not every person or entity contacted will respond to a request for an interview, return a phone call, or complete and mail back a questionnaire. The duty to cooperate with background investigations is a matter of public policy; however, except in very limited circumstances, there is no legal obligation to do so.
(7) Dissolution of Marriage Checks
Why is POST now requiring 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.
(8) Neighborhood checks
What constitutes a "neighborhood check?
A neighborhood check is not merely a restatement of a candidate's residential history. It must include contacting a sampling of neighbors (and landlords) to determine if any job-relevant behaviors can be identified and documenting the contacts. The security provisions in some housing complexes will not permit neighbors to be canvassed. Committing a potential criminal trespass to accomplish a neighborhood check is not required, and information gleaned from the property owner may be all that is available.
(9) Military/Selective Service Checks
Is willful failure to register with the selective service an automatic disqualifier?
Not for POST. Federal law [Title 50a U.S. 622(g)] specifies that it is the grantor of the privilege (i.e., the employer) who determines the penalties (if any) for a willful failure to register.
What should the investigator do if the candidate claims s/he never received a DD-214 long form?
With the exception of "entry-level separations," virtually anyone who enters the military will be issued discharge documents at their time of separation. If the candidate possesses a DD-214 "short form," (Copy 1), it is highly unlikely that they were not issued a "long form" (Copy 2 or 4), as well (they are generally stapled together). Currently, inquiries directed to the Army and Air Force generally produce less comprehensive replies. However, most recent veterans can obtain copies of their separation documents online. [Note: many military records issued prior to 1973 were destroyed in a catastrophic fire at the National Personnel Records Center].
(10) Credit Records Check
Since the employment reports obtained in a typical credit check do not have things such as "credit scores," how are these reports supposed to be assessed?
Previous POST screening standards for public safety dispatchers did not require any type of credit check, and credit scores may have little to do with one's suitability for employment. In fact, that is one of the reasons why the major Credit Reporting Agencies do not include those numbers on employment documents. Credit itself, or even the lack thereof, may have limited bearing on someone's suitability for employment as a public safety dispatcher. Instead, the background investigation should concern itself with issues such as whether the reported sources of income are lawful and fully accounted for, whether the candidate meets his/her obligations as agreed, and the reasons underlying any indications of credit problems (e.g., are the credit problems the fault/responsibility of the candidate, or are they related to the actions of others?). Some candidates have no credit history at all, while others may have extraordinary resources.
Can a candidate be disqualified on the basis of a recent bankruptcy?
Bankruptcy is a legal right and is protected by federal law (Title 11 U.S. Code). The mere fact that someone has undergone bankruptcy, even very recently, does not mean that they are disqualified. Investigators should inquire into the circumstances and behaviors which led to the bankruptcy filing, and what, if anything, it may indicate about the candidate's integrity, impulse control, conscientiousness, or other aspects of candidate suitability.
§ 1959 (f) BACKGROUND INVESTIGATION UPDATES
Isn't a background update just an abbreviated background?
No. It is a supplement to the original background investigation in order to bring the original documentation up-to-date by accounting for changed circumstances or the passage of time. The update provision is intended to avoid requiring departments to engage in unnecessary, duplicative investigating.
Why are there different background update requirements for appointments and departmental transfers?
If the department maintained all of the original background investigation information on dispatchers who are being reappointed back to the same department, it is reasonable to focus the updated investigation to the period of time since the dispatcher separated from the department. However, dispatchers who are transferring to another department – even one within the same city, county, state or district – are nevertheless being selected by, and reporting to, a different hiring authority. Therefore, the updated information must cover the time period since the last background investigation.
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 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.
Commission Regulation 1956(c) exempts from re-screening public safety dispatchers who are employed by a department that, through reorganization, is absorbed by another department within the same city, county, state or district. Why does POST offer this allowance for dispatchers who transfer due to "absorption," yet require dispatchers who undergo a similar transfer as an individual to submit to an updated background and a new medical evaluation?
Public safety dispatchers who are employed by a department that is absorbed have not voluntarily changed jobs; nor in most cases will their job change as a result of the absorption. On the other hand, dispatchers who voluntarily transfer to another department are in fact changing jobs, supervisors, assignments and possibly job duties.
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 currently in effect (many of which have been substantially expanded). Together, the original background and the completed update must satisfy the current applicable POST selection regulations.
Can supporting documents in an original background be used again for a background update?
Yes, in some cases. Some documents have no "shelf-life" (e.g., a birth certificate, high school transcripts after graduation, etc.) and therefore there is no need for the same department to collect this information again. Required documentation that is time-sensitive (e.g., criminal history checks, credit reports, driving records, etc.), must not be more than one year old.
Will fingerprints have to be re-submitted during a background update?
If a candidate is seeking re-appointment to the same department and the department previously notified the Department of Justice that it was no longer interested in this individual, fingerprints will have to be repeated.
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).
§ 1959 (g) DOCUMENTATION AND REPORTING
(1) Background Narrative Report
What must the background narrative report include?
The precise format for the narrative report is at the discretion of the appointing authority; however, the report must provide sufficient written documentation to demonstrate regulatory compliance.
How long must a department retain the background reports of candidates who were not hired?
POST's authority extends only to public safety dispatcher appointments, not to candidates who were not selected. However, the California Government Code (and in some cases, the EEOC/DFEH) have specific record-keeping requirements associated with the applications of those who were not hired. As a general rule, nothing associated with a record of application may be destroyed in less than two years, and, if a department is notified of pending litigation regarding a background, no documentation should be excised from the file before resolution. Caution and consultation with the department's legal counsel should be exercised before disposing of any personnel records.
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 reproduced in the background file, they do not have to be maintained. However, if the notes are the only record of information obtained, they would be subject to the same retention requirements as any other aspect of the background investigation.
(3) Information Access
Must departments share background information with other departments?
Yes, under specified circumstances. California courts have held that there is a "duty to cooperate" with legally mandated backgrounds. This is another area where the department's legal counsel should be consulted for specific guidance.
Must certain portions of a background investigation be withheld?
Yes. Local and state criminal history summaries, for example, may not be shared with private parties conducting backgrounds (Penal Code §§ 13302-13303), and DMV home address information may not be shared with anyone who does not have access to a CLETS Terminal (Vehicle Code § 1808.45). Further, if the investigator is representing a non-criminal justice agency (e.g., a joint powers authority), information concerning detentions and arrests which did not result in a conviction may also have to be withheld. The ADA also prohibits the release of medical information to other prospective employing departments [29 CFR 1630.14(b)(1)]. In other instances, a legally insufficient release form may bar the release of other information (e.g., credit records, education transcripts, etc.). This is yet another area where the involvement of the department's legal counsel is critical.
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 issues of disclosure.