A Deep Dive — Public Safety Background Investigations

In a previous Siren Call article, we discussed the timing of hiring practices. In this edition, we are doing a deep dive regarding public safety (law enforcement and fire) background investigations. Any policy governing public safety background investigations should include references to the relevant Oregon Administrative Rules, objective standards for discretionary topics, and roles and responsibilities of agency personnel. Both law enforcement and fire personnel have requirements for background investigations. First, we’ll discuss law enforcement background investigations and requirements. It should be noted; the law enforcement-related OARs use the language of “public safety officer.” OAR 259-008-005 (Definitions) reads, “’Public Safety Professional,’ ‘Public Safety Personnel’ and ‘Public Safety Officer’ include corrections officers, emergency medical dispatchers, parole and probation officers, police officers, certified reserve officers, reserve officers, telecommunicators and regulatory specialists."

Oregon Administrative Rules and DPSST — Law Enforcement

OAR 259-008-0015 requires a pre-employment background investigation prior to hiring or utilizing an applicant as a public safety officer. A background investigation must include the following areas:

1. Criminal History and Arrests;

2. DPSST Regulatory Records Check;

3. Drug and Alcohol Use;

4. Education;

5. Employment History. When an applicant’s employment history includes prior public safety or private security employment, the investigation must include a review of complaints, personnel investigations, and disciplinary actions against the public safety officer or private security provider;

6. Finances;

7. Memberships and Associations. This includes but is not limited to the applicant’s membership or participation in hate groups, racial supremacist organizations, or militant groups, or the applicant’s display of symbols of racism or racial supremacy;

8. Military History;

9. Motor Vehicle Records;

10. References. This must include three or more personal or professional references provided by the applicant that were interviewed by the hiring agency;

11. Residential History;

12. Work Eligibility; and

13. Other Records as Needed. These may include, but are not limited to, out-of-state records, police records, district attorney records, court records, open sources, or social media as permitted by law.

There are additional requirements to be aware of:

• The agency must conduct an interview of the applicant conducted in conjunction with the background investigation.

• The applicant must complete a signed declaration acknowledging under penalty of perjury that the information provided by the applicant for the background investigation and the personal history questionnaire is true and correct to the best of the applicant’s knowledge.

• The applicant must complete a signed release that allows the applicant’s background investigation information to be shared with other public or private safety agencies with which the applicant may become affiliated.

Lastly, this OAR also contains information regarding psychiatric or psychological evaluations and other requirements for documenting the background investigation. Agencies should be prepared to share their documentation of a background investigation with DPSST upon request. DPSST provides a background checklist and an applicant personal history questionnaire (APHQ) available for agency use. Here are some helpful links:

• DPSST Background Webpage: Department of Public Safety Standards and Training: Backgrounds: Criminal Justice: State of Oregon

• DPSST Agency Background and Psychological Evaluation Reference Guide: BackgroundPsychReferenceGuide.pdf

• Background Investigations Administrative Rule: OAR 259-008-0015

Oregon Administrative Rules and DPSST — Fire

OAR 259-009-0015 (Background Investigation) covers fire programs and requires that “a background investigation must be conducted by a fire service agency on each individual being considered for employment or utilization as a fire service professional to determine if applicant is of good character.” Additional administrative rules specific to fire service professionals can be found at the following link: OAR Chapter 259, Division 9.

Similar to law enforcement background investigation requirements, the background investigation must include, but is not limited to, an investigation into the following:

1. Criminal history and arrests;

2. Department of Motor Vehicles (DMV) records;

3. Drug and alcohol use;

4. Education verification;

5. Employment history;

6. Military history verification;

7. Personal and professional references. Personal and professional references may include, but are not limited to, friends, associates, family members, and neighbors;

8. Personal Interview. The personal interview may occur before or after the investigation and may be used to clarify discrepancies in the investigation;

9. Records check, which may include, but are not limited to:

   1. Police records, district attorney, court and Oregon Judicial Information Network (OJIN) records;

   2. Open sources or social media, as permitted by law;

   3. Financial information, as permitted by law; and

   4. Department of Public Safety Standards and Training Professional Standards records.

10. J. Residential history; and

11. K. Work eligibility.

Also similar to the law enforcement requirement, there are additional requirements to be aware of:

• Each individual being considered for employment or utilization as a fire service professional must provide a personal history statement. The statement must include, but is not limited to:

  • Verification of the background information referred to in section (2) of OAR 259-009-0015;

  • A complete list of all fire service agencies an individual has applied with; and

  • A signed release allowing background investigation information to be shared with other public or private safety agencies with which the applicant may become affiliated.

Consistent with OAR 259-009-0015(4), “Results of the background investigation on all fire service professionals must be retained by the fire service agency in accordance with the Secretary of State’s Record Retention Schedule and must be available for review at any reasonable time by the Department.” The DPSST Fire Program page regarding background investigation requirements can be found at the following link: Department of Public Safety Standards and Training: Background Check Information: Fire Programs: State of Oregon.

One of the most common questions CIS receives is whether volunteers are also subject to these background investigation requirements. According to DPSST, “All fire service professionals, career and volunteer, being considered for employment or affiliation after December 29, 2014 must be subjected to a background investigation prior to employment or affiliation with a public safety agency."

Did They Pass?

There are clear standards by which an applicant will be denied public safety certification (See: OAR 259-008-0010, 259-008-0011, 259-008-0025, 259-008-290, and 259-008-0300) or fire certification (See: OAR 259-009-0059, 259-009-0062, and 259-009-0120).

But what about those things discovered during a background investigation that do not automatically disqualify the applicant from public safety or fire certification (if required by the hiring agency)? In those cases, it is important for the agency to establish a standard by which they evaluate whether the applicant has passed the background investigation. Driving, for example, is an area where there can be some latitude. The CIS Sample Fleet Kit available on the CIS website offers some guidance regarding a standard, which could be employed when evaluating an applicant’s driving history:

1. No major violations in the previous three years.

2. No more than two minor violations in the previous three years. Minor violations include:

   1. Failure to obey a traffic control device or signal

   2. Improper lane change

   3. Failure to signal

   4. Failure to yield the right of way

   5. Speed greater than ten mph over the posted speed limit

   6. Failure to use seatbelt

   7. Distracted (cell phone use) driving, etc.

3. No at-fault vehicle accidents in the previous three years.

Of course, the employing agency should evaluate the relative risk in all discretionary areas based on their own agency circumstances. In any case, agencies should ensure the evaluation of a background investigation is consistent to defend against claims of disparate treatment based on any number of protected classes including, but not limited to: Age, Veteran Status, Physical or Mental Disability, Family Relationship, Injured Worker Status, and Gender. The Oregon Bureau of Labor and Industries (BOLI) publishes additional information regarding protected classes at the following website: BOLI: Discrimination at Work: For Workers: State of Oregon.

Risky Business

Background investigations can be viewed as a great risk-management tool for our members. I’ve heard Gordon Graham say, “Predictable is preventable,” and this is truly the case when evaluating the past performance and behavior of applicants. Although a background investigation has a financial cost, whatever that cost is pennies on the dollar compared to a claim that occurs when behavior that was identified (or should have been identified) during a background investigation shows up in employee performance and conduct.

And beyond the fiscal impact to your organization, the prudent organization should also consider the reputational damage and cost when something goes wrong. Reputational damage can show up in recruiting, retention, and community support. When an agency does not complete a background investigation or completes an incomplete investigation, they are assuming tremendous risk and operating outside of the above referenced rules. There can be real pressure to fill vacancies in our public- safety agencies, which requires intentionality in recruiting and hiring — and making solid risk-centric hiring decisions based on the information you are entitled and required to obtain.

The CIS Employment Risk Services Team and Public Safety Team are here to support you and eager to help.