Uncategorized

Devin Patrick Kelley: Failure of a Single Source Database

devin-patrick-kelley.jpg

I am not a gambler, have never really gambled, and I tend to be a guy who likes checks and balances in my life.  When I leave on vacation, I always have a jump starter in case the vehicle battery dies, a can of tire flat, and an extra set of keys in my wife’s purse in case I lose a set. I like backup plans.

Maybe that goes back to my years as a Violent Crime Detective.  Serving a warrant on a violent felon does not always go the way you plan.  I learned very quickly, after a fellow officer was killed trying to serve a warrant, that the felon plays a huge part in how this goes.

Regardless, I have spent my career working in law enforcement and then the past 20 years as a Violence Prevention Consultant and owner of a background screening firm and visitor management company. There is very little room for error in these careers.  Checks and balances are critical.

For the past 13 years as the CEO of Safe Hiring Solutions, I have provided testimony and guidance to lawmakers on the best practices in background screening.  What I have learned is that policymakers at the state and federal level rely heavily on the advice of law enforcement, and that their first inclination is to mandate a fingerprint background check solution.

I started Safe Hiring Solutions in 2004 because of the failure of a state background check system.  Two sex offenders were hired by a large metropolitan school district in Indiana after having been cleared in the state criminal database.

An audit of the state screening program found that many courts were not sending their conviction data to the state even though state law required them to.

What we learned is that the state was at the mercy of the courts to send the data, and if they did not send the data, then it did not exist in the database.

There were several flaws with the government background screening database:

  1. Single source. The source of the data was not sending the data to the state.  This is the inherent problem with government background screening databases.  No checks & balances.
  2. Contained only convictions for Class A Misdemeanors and above.
  3. Accurate final dispositions.
  4. Relied on state and local law enforcement to submit.

I launched Safe Hiring Solutions to provide a solution to this problem.  The first thing we focused on was the problem with single source criminal databases.  We created a background screening process that contained multiple solutions and checks and balances that included:

  • Solutions to Identify
  • National Criminal Database
  • National Sex Offender Registry
  • Federal District Courts
  • County Criminal Searches

The package we created removed the single source failures.  The case study above with the 2 sex offenders was solved.  A convicted sex offender should appear 3 times in the private background check:

  • National Criminal Database
  • National Sex Offender (if required to register)
  • County Criminal Search

Therefore, if any of the sources fail, there are backups in place.

The argument made by law enforcement is always that without a fingerprint, you cannot conduct a thorough background check.  This simply is not true.

I recently explained to a group of policymakers that I had gone through the process to obtain a gun permit and could have easily exploited the fingerprint process.  How?  Well, let’s assume I had a prohibitive felony or misdemeanor (I don’t).  I registered online and selected a date, time, and location to submit my fingerprints.  I could have easily handed my ID to my brother, who looks much like me, and sent him in to submit a set of fingerprints.

How do I know that would have worked?  Because it was the government issued ID that was my source of ID - not the fingerprints.  The person collecting the fingerprints glanced at my ID for 2 seconds.  She had someone coming in every 15 minutes.  A quick glance at the BMV photo and my brother would have raised no red flags.

The fingerprint process does not pop up and say, “This is Mike McCarty!”  No, the system looks for my fingerprints in a database that are attached to a criminal record.  If there are no fingerprint matches with a criminal record, then the report is clear.

The shooting this past Sunday in Texas has brought into question the NCIC and government system of background checks.  What we now know about Devin Patrick Kelley:

  • He was convicted in the military of a prohibitive crime e.g. domestic violence.
  • The Air Force did not send the conviction to the FBI.

With a single source database, Devin Kelley was allowed to purchase an AR-556 in San Antonio.  Why?

  1. The conviction in the military was not sent to FBI; AND
  2. The unstable Devin Kelley did NOT self-disclose and check a box acknowledging that he had a prohibitive conviction. How many criminals would have the integrity to admit to their criminal history?  Self-disclosure systems are ludicrous.

Over the week, I have heard so many in Congress put forth ideas to quickly solve the issue:

  • Call a voice vote to mandate all data providers send their information to the FBI. Was this not a requirement before?
  • Universal background checks. How do universal background checks solve the problem of Kelley being able to buy a handgun?  NCIC was already clear.  That is the problem, you could check NCIC a hundred times and if the data is not there, it is not there.

I took a call while writing this article from a friend who works in federal law enforcement, and we were discussing the incident.  That’s what law enforcement officers do.  Look at the evidence and determine what we can learn to prevent or minimize the occurrence of another incident like this.

Then he asked me the magic question. “Could your background checks have flagged this?”  In all honesty I explained that there is much we don’t know, and I have not run Devin Kelley’s name through our screening process.

I also told him that we don’t do background checks for gun permits because that requires NCIC; however, a comprehensive private background check using a myriad of available solutions might have flagged him:

  • Something caused TX to refuse the gun permit - something other than NCIC.
  • County criminal searches may have revealed arrests.
  • An ITRV (Income Tax & Employer Verification) would have revealed his military history and prompted a search of his military records. This was the most likely way of flagging Kelley without an honest self-disclosure.
  • A Civil search may have found a protective order if one had been issued which is very common in domestic violence cases.
  • DCS Index Checks. These can be conducted in TX, not in NM, but a check could have revealed issues with child abuse that could have lead to a criminal case.

Understand that all of this is hypothetical and intended to simply show a small snapshot of how private screening firms might approach a background check like this.  It is the layers of checks and balances that provide the comprehensive nature of a thorough search.

At the end of the day, we do not need more gun laws.  We have laws prohibiting Kelley from purchasing guns.

We do not need laws requiring reporting to NCIC (I am sure they exist), but we need a larger debate on whether private screening firms can play an active role in the background screening process.  We need to have healthy engagement in Congress and in the states where private firms are being excluded even though they can provide comprehensive screening solutions that are often times faster and much more cost effective.

Join us for a webinar on best practices in background screening & making your voice heard to policymakers.  Register.  Limited to 100 each session.

How Did the Criminal Background Check Come Back Clear?

Several times over the past 13 years, I have taken a phone call from a disgruntled applicant for a volunteer or employment criminal background check whose chief complaint was that this was the first time the criminal record had shown up.  I love these calls.  It goes something like this: “Mr Candidate, are you disputing the accuracy of our report?”

“I am upset because I have done background checks through state police and federal agencies, and this has never shown up before.”

“I understand, Mr. Candidate.  So you are not saying the criminal record is not yours. Correct?  You are upset that we reported it?”

This is an important distinction because if a candidate is disputing the accuracy of our information then we have to initiate a re-investigation.  However, if they are only disputing the fact that we found a criminal history that exists but had never before been reported, then the conversation is over. I am always tempted to add:

“Mr. Candidate, can we add your dispute to our marketing materials?”

However, it frequently happens that a prospective client will contact us about our services and will eventually ask a question about a background screening report they had received from their current provider that came back clear when the applicant had a criminal record.  How could that be?

A screening firm acting like a used car salesman might say, “Because your current provider does not know what they are doing.”  That, however, is NEVER my response.  I list the following reasons that a criminal background check might come back clear when there is, in fact, a criminal record.  This allows the prospective client to determine if there was a legal justification, or if instead, their current provider was cutting corners that could place them at risk.

Here are the six main reasons a criminal background check comes back clear when the candidate has a criminal history:

    1. Scope of search limited.
      • The background screening industry as a whole operates on a 7 year rule.
      • Relying on incomplete criminal databases.
    2. Alias Name Not Searched.
      • It is not uncommon for a screening company to neglect searching alias names i.e. other names your candidate has been known by such as former married, maiden, etc.
      • They charge additional fees to search other names.
    3. Expungement or Sealed Record.
      • Most states and the federal government offers some form of expungement. This allows a person with a criminal history to petition the court to have the record removed.
      • Expungement erases the criminal record and it is NO longer reportable.
    4. Federal or State Law.
      • The federal Fair Credit Reporting Act restricts reporting of non-convictions to 7 years (unless the salary of the position is $75,000 or more).
      • States can further restrict what is allowed to be reported.
    5. Age of the Record.
      • State courts’ archive records- vary from state to state.
      • Some states like VA destroy misdemeanor records after 10 years.
    6. Screening Package is Too Narrow. This is very common and most troubling.
      • Only searching county criminal records in county of residence.
      • Not searching alias names.
      • Relying on incomplete databases or state repositories.

If the reason the report came back clear was # 3, #4 or #5, then this is based on legal issues that cannot be prevented; however, if it is because of #1, #2, or #6, then your background screening provider is providing a low-quality product and service, and we need to evaluate your screening program.

Please email us or call to setup a FREE evaluation of your background screening program:  

Sales@safehiringsolutions.com

Toll Free 866-434-0002

Why Are Employment Background Checks Considered Consumer Reports?

That is a great question, and we can thank the federal government for making the language surrounding employment background checks so confusing. The quick answer is, “YES!” Employment Background Checks are considered a consumer report under the Federal Fair Credit Reporting Act if:

  • You partner with a consumer reporting agency (background screening firm); and
  • They compile background screening reports on consumers; and
  • You pay them a fee to do this.

Since I launched Safe Hiring Solutions in 1994, we have consistently heard from candidates and clients that they wanted to run criminal background checks NOT a consumer report. The belief is that a consumer report is synonymous with a credit report.

That is understandable since a credit report is probably the most recognizable type of consumer report; however, any report on a consumer compiled by a background screening firm is also considered to be a consumer report.

I agree the language is a confusing.  Let me provide a few key definitions so we can better understand what all of this means.

  • Consumer Reporting Agency (CRA).  A CRA by federal definition is an organization that collects or assembles information on consumers for a fee.  A company that compiles criminal record data that sells that data for conducting employment background checks is a CRA.
  • Consumer Report.  A consumer report is a report prepared by a CRA that includes information on an applicant’s or employee’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living and is used or expected to be used for employment purposes.  A consumer report could include:
    • a Criminal Record Check
    • a Civil Record Check
    • a Motor Vehicle Record Check
    • Education Verifications
    • Employment Verifications

Investigative Consumer Report.  An Investigative Consumer Report is a special type of consumer report that is gathered from personal interviews of neighbors, friends, associates, or current and past employers that may have information bearing on the applicant’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living and is used or expected to be used for employment purposes. This means that an Investigative Consumer Report is NOT a Criminal Background Check but could be:

  • Personal Reference Checks
  • Professional Reference Checks

It is critical to understand the definitions because the FCRA has very specific requirements for employers who use Consumer Reports or Investigative Consumer Reports.

Would you like for us to audit your employment screening program?  You can email us at clientservices@safehiringsolutions.com or call toll free 866-434-0002.

Should You Be Conducting School Background Checks on Board Members?

As a former Violent Crime Detective, I was called upon to provide equal protection under the law.  What does that mean? Equal protection is a 14th Amendment protection that simply means that everybody receives equal protection under the law- no matter who they are.  This means nobody is above or below the law.

When I worked with victims of violent crime, sometimes the victims themselves were not always upstanding citizens.  Some of them were prostitutes, drug abusers, or alcoholics. Some of them had lengthy criminal records.  Guess what?  They deserved the same equal protection, under the law, as any law abiding victim.

As a detective, I was also tasked with investigating police officers who abused their spouse or partners.  This abuse could range anywhere from pushing and shoving to murder/suicide.  Investigations were even more complicated because during the early 1990’s, there was still a strong adherence to the “blue wall”. Police departments often operated under the belief that “cops take care of their own”.

Believe me, police officers survive by taking care of each other.  I have been on calls where a simple disagreement turned into a gun battle. Shots were fired with people being seriously hurt.  One of my friends, a fellow officer, was killed as we served a warrant.

But for me, a child, grandchild, cousin, brother, and husband of a police officer (active and retired), once a police office abused a spouse, partner, or child, a line was crossed placing them clearly on the other side of the law.  I always did my job with pride ensuring that violators were successfully prosecuted.

This is an example of equal protection under the law   Nobody, even officers themselves, are above the law.

So when I was recently asked about whether a school corporation should conduct school background checks on board members, my response was simple-  absolutely!

Why should an administrator or school board member be exempted from the school employment background check policy?  That sounds suspiciously like being above the law and a clear example of unequal protection.

“Unequal protection” in law enforcement is when groups of people are unfairly exempted from a policy.  For example, many states have mandatory arrest laws for domestic violence.  Yet, if a police officer does not make an arrest when it is another police officer, that is unequal protection. Unequal protection exposes the department to possible liability as well as the victim to increased danger. Obviously, the danger of continuing abuse increases when there is a lack of consequences and accountability.

When a school board member is excluded from the background check policy, it creates a flawed policy, reflects poorly with the rank and file, and increases the possibility of future embarrassment, even criminality.  It sends the message that those who approve policy are above it.

We have all witnessed elected officials who have fallen from grace.  A former Speaker of the U.S. House of Representatives, Dennis Hastert, was released from prison less than two months ago after being convicted of sexually abusing kids  while a wrestling coach and teacher before he was elected to office.

In the past few weeks, I have witnessed school board members in different parts of the country that have caused embarrassment for their school districts after being arrested.  In the Southwest, a new school board member resigned soon after taking his seat because of financial problems, bankruptcies,  etc.

In the Midwest, a large metropolitan school district was hit by partners in crime.  Two school board members, a husband and wife, were recently arrested after stealing a shopping cart full of merchandise.  It was later revealed that this was not the first criminal record for theft for one of the duo.

Thankfully, these last two examples of lack of oversight primarily resulted in embarrassment to the respective school corporations; however, what if the board members had been violent criminals or even sophisticated white collar criminals? The consequences of allowing unequal protection could have been much greater.

The bottom line is that whether elected or appointed, school board members have huge responsibilities and oversight and need to be held to the same background screening standard as all other school employees.

For more information on implementing a school board screening program, please contact us.  We provide this services for hundreds of school districts.