The Jury is Out on Criminal Background Checks

As happens pretty frequently, I had a fire chief call recently to ask for some advice on what has become a bit of an arresting matter in his volunteer fire department.

It appears that a prospective candidate for membership was being honest when they checked off the little box on their fire department application that asks whether or not they’ve been convicted of a felony or misdemeanor offense. Essentially, they were being honest about being dishonest — now that’s what I call irony.

What to do? Deny the application. Case closed. Simple as that. Right?

Not so fast there Perry Mason, Jack McCoy, Matlock, Michael Clayton or Ally McBeal. Like any situation involving legal or criminal information, things can get very complicated faster than you can bang a gavel and say “Court adjourned.”

Ask any firehouse lawyer what to do and they will solemnly swear that criminal background checks are a weak link in many a volunteer fire department’s application process. In this case, the department in question asks the question on the application — but doesn’t follow-up with a criminal background check completed by local, state or federal law enforcement.

Ask a police officer what questions should be asked under the bright light of the interrogation room to uncover the existence of a prospect’s criminal record and they’ll throw the book at you with a rap sheet of responses.

Ask a real lawyer what questions can legally be asked of the applicant and you’ll probably be answered with a question, like: “After you conduct a criminal history check and receive the potentially damaging results, what do you plan to do with the information?”

That is to say, given “Exhibit A” and armed with new information that your potentially next firefighter has a past they’d like to keep locked up in the past, what actions will you take or decisions will you make based on this info? Do you have thresholds for bad behavior clearly outlined in your department’s bylaws or codes of conduct? In this case, the fire department does not, thus creating quite a case of indigestion.

Does your application process even address previous criminal activity? Are you asking the right questions? Do you follow-up on the answers? Do you ask for personal and professional references or do you think that witness tampering will taint the evidence you collect?

Who conducts your background checks for your fire department and how deep do they dig? Do they only check and report on what’s on file locally, across the county, state or nationwide? If a person just moved to your community and your local police department only checks their local records and they’ve never been arrested in your community — does that leave any legal loopholes?

Are you only concerned with convictions or are arrests an issue too? Are you interested only in what they plead down to, or the original charge? Is a misdemeanor enough or does it take a felony to have their membership case dismissed?

What if it’s “just” a DWI? How many misdemeanors can you have before they over-rule a felony?  Did they serve hard time, probation or are they out on parole? How many criminal mischiefs add up to something that causes you to yell “I object!”?

What if they plead the fifth and decline to elaborate when you cross-examine them regarding their conviction? Do you consider that contempt or are they just protecting their civil liberties? Will you treat them as a hostile witness?

Does a criminal conviction automatically bar them from belonging or will you appeal the case to the “grand jury” of existing members for them to decide?

Here’s the verdict: I have no intention of answering any of this line of questioning for you, but I do encourage you to make your one phone call to your fire department attorney and local law enforcement to bail you out with some good counsel.

Regardless of process or procedure, the bigger question is this: What are you willing to risk for the potential of jeopardizing the public’s trust that you’ve worked so hard to gain and maintain? What does your risk analysis of this candidate report? Is their potential value really greater than the value you put on honoring and holding the trust of your community?

On my FireRECRUITER’s Cheat Sheet, I encourage the recruiter to “look for someone they would want to serve with, or be saved by.”

So you have to ask yourself, is a person who has committed a serious crime and violated the public’s trust someone who you would want saving you, serving with you or having your back when the heat is on? Are they someone you would trust with your life, your children, and your most valuable possessions? Would you invite them into your family’s home in the middle of the night at your most vulnerable moment? After all, isn’t that what our citizens do every time they call for our help?

What are the public relations implications of allowing a convict to join your organization? Do you really think that you’re the only one in your community who has done their homework on the case and is aware of the dark blot on that person’s record? How would they feel if they discovered that the people they trust most, may not be as trustworthy as they had expected? How will that headline read?

I’m sure you’ll have a few firehouse pundants argue that “They just made a mistake,” or “They’re really a good person at heart,” or “They deserve a second chance.”

We all need to remember that every “Firefighters behaving badly” headline puts another chink in our armor and diminishes our overall credibility. That’s tough to get back too.

Even if you object to the evidence I’ve presented here, at the very least, I strongly encourage you to take recess long enough to prepare a consistent, fair, thorough and well documented due-process to address these types of issues before they arise and you find yourself requesting a sidebar with the proper authorities.

My fire department’s application includes a signed release form allowing them to perform a criminal background check, a department of motor vehicles license check and an arson conviction check, which is required and authorized by New York State law.

Recommended practice says that your chief should process the arson background check first before even sharing the application with your membership committee. Should the results coming back indicate that there is a conviction on record, the chief can respond quickly with a standard boilerplate denial letter to the applicant, sharing details of the law and why they can’t legally be a member of a volunteer fire company. Case closed.

However, should the application pass to and through the membership committee to the membership for reading and/or voting, and then the arson check comes back positive (a conviction was found) — complications can arise in trying to explain why the application was denied prior to membership approval. And should you make the mistake of revealing the root cause to the membership, you could be at risk of violating that person’s legal rights.

I’m aware of more than one department that accepted a new member who came to them via court-mandated community service performed at their fire station. Are we that desperate for new volunteers that we’ll throw all the evidence out the window to increase our ranks by one? Which way will the scales of justice sway in your decision?

At the end of the deliberation, we have to ask ourselves what is the minimum standard for not only acceptance into our membership, but acceptance into such a highly regarded position in the community that comes with it? And when answering that question, we must first consider what’s right for the community — not necessarily what we think is right for our fire department at the time.

Each and every one of us has raised our right hand and taken the same oath to serve and protect. Protecting our community isn’t limited to just the act of fighting fires, it means we’re obligated to protect the trust they’ve put in us too. So, when we accept a “violator of the public trust” into our organization, doesn’t that violate our oath to protect too?

While we can attempt to put all possible safeguards into your application process to protect your organization, it’s really the public we should be trying to protect. National surveys indicate that the public trusts no other profession more than they trust firefighters. But that didn’t happen overnight, did it? It has taken hundreds of years to build, and it only takes one instance of reality or just perception to ruin it. And once the public’s trust is violated, it’s very difficult to recapture.

Is your volunteer fire department willing to risk losing everything they’ve worked so hard for in order to gain a single member?

Here’s my closing argument: Whatever your response, be prepared to back it up in the court of public opinion, and maybe even in a court of law.

I have no further questions.