Speaking of politicians with a conviction history...

I know nothing about Jackson City, Tennessee or the laws of that state regarding political rights of people with conviction history.  According to an article in The Jackson Sun, however, "a state law [requires] felons to petition a circuit court for their citizenship rights to be restored before they can hold elected office."  A former Jackson City Councilman Johnny Dodd, who also worked as a substitute teacher with the Jackson-Madison County school system until very recently, is in trouble for giving what seems to be a false answer on his applications for the substitute teacher job, as well as for not having his citizenship rights restored before running for his City Councilman position.

In response to these revelations, the school district terminated Mr. Dodd's employment and changed their policy to "prohibit[] people with felony records from working in the district."

There are 2 separate issues here.  One is that of his "dishonest" answer.  Again, I know nothing about Tennessee laws, but I note that, if it were in California, Mr. Dodd would've been entitled to answer "no" to those questions regarding his convictions if he had set aside and dismissed under Cal. Pen. Code § 1203.4 or 1203.4a.  The other is the matter of his convictions themselves.  The articles linked to above refer to a 1987 felony conviction for grand larceny and a 1999 misdemeanor conviction for disorderly conduct.

The 1987 grand larceny conviction, according to one of the articles, stems from an accusation that he stole various items from the store he was working at, including "a basketball goal, a television, a VCR, and two radar detectors."  The 1999 disorderly conduct conviction involves an incident where he "told a crowd of 100 to 150 people to ignore police orders to disperse" at a night club where he was the disc jockey.

After this lengthy description of the facts as reported in the articles, I have a couple of thought.  The first is that the school district's policy change likely runs afoul of Title VII of the Civil Rights Act of 1964, which, according to EEOC, makes "an absolute bar to employment based on the mere fact that an individual has a conviction record... unlawful."  This particular jurisprudence on Title VII disparate impact theory mandates that an employer show "business necessity" for using a conviction record before making an adverse employment decision based on it.

The second point is more of a general observation--something I've noted before but bears repeating here--that a long history of rehabilitation seems to count for naught.  Granted, we have what appears to be an act of dishonesty on Mr. Dodd's part, if in fact it turns out that he really lied on his applications.  Even so, it is understandable why he would feel it necessary to deny his past convictions.  As Mr. Dodd himself put, "What do I have to do to put this behind me?"  The answer that the Jackson-Madison School District gave him is: there's nothing you can do.

I'll end this post with a statement from a former superintendent of the school district, Roy Weaver: "Weaver said Dodd's community activism, his work with the Boys and Girls Club, serving as a city councilman and his support of education made him a good role model for students. Dodd had served on the council since 1999."

Politicians with a conviction history?

According to Wikipedia, the town of Rehoboth in the State of Massachusetts has an open town meeting run by a board of selectmen.  This Monday night, 384 of its 10,172 residents attended and voted down a petition proposed by the board to do a criminal background check on candidates running for a local office.  And I am pleasantly surprised (though "surprised" may be too mild a term here) to read that:

[A selectman arguing for doing a criminal background check on political candidates] was booed for his statement while several residents and other town officials who spoke against the article received hoots and hollers of approval.

Seriously, what is going on here?  I suspect some unusual local politics going on here, not reported in the news article above.  Why did the board of selectmen propose the article?  Was there someone running for office in the recent election that they didn't like and had a criminal record?  Was this person well-liked by the citizens of Rehoboth?  What's going on here?  It's not every day that we see "booing" for those tough background-check-everybody-and-their-cousin folks.  And it's certainly unheard of that we see those working to limit background checks receive "hoots and hollers of approval."

But this episode dovetails well with what a "guest" at the All of Us or None meeting last night mentioned, i.e. that we need a champion for our cause.  We need to work to elect into a political position an individual(s) with personal experiences of facing barriers due to his/her conviction history.  It's an obvious point.  And it should be done.  When I heard it, however, I thought it unlikely that it'll happen in my lifetime.  Well, then again, something like this thing at Rehoboth comes around to make me think.... Maybe it will.

SHRM survey & presentation on "Background Checking: Conducting Criminal Background Checks"

I was alerted by a listserv email to a recent study of background check practices among employers, conducted by Society for Human Resource Management (SHRM).  An informative read.  This being a self-reported survey, I'm skeptical how accurately it reflects the reality of employer policy vis-a-vis criminal background check; however, this is the first time I've ever seen any survey of this type, so I'm very much interested in its findings.  Among them are:

1. 73% of all responding ERs conduct background check for everyone, while only 19% do so for selected job candidates;
2. The perceived severity of a crime is highly relevant to whether it will materially impact an applicant's employment prospect (81% finding that it's "very influential" in their decision NOT to extend a job offer);
3. Employee safety (61%) and concern for negligent hiring (55%) are the 2 most important reasons for conducting a background check; and
4. The vast majority of ERs (63%) claim to allow job candidates to explain the results of criminal background check prior to making an adverse decision.

Right away, I notice that, perhaps because of the framing of the survey question, ERs consider the severity of the crime more relevant (81%) than the crime's relevance to the position applied for (73%).  Well, a simple narcotics possession under California Health & Safety § 11360 is a non-reducible straight felony, whereas battery under California Penal Code § 242-243 is most often a misdemeanor.  Well, you tell me who's less likely to be violent just based on the type and "severity" of crime.  To be fair, the existing EEOC guideline on Title VII does mention both the nature and gravity of an offense as a factor to consider.  Still, there's no reason why the increasingly arbitrary felony/misdemeanor distinction in criminal law should dictate employment policies of a private organization.

U.S. Census

Over the last year or so, I've been seeing a steady flow of clients who are denied employment from the U.S. Census Bureau due to their criminal record. There's precious little I can help them with. (Judging by the widespread complaint among attorneys on various reentry listservs, I'm not alone in feeling frustrated by the Bureau's wall of silence.) Nowhere in their communication to the applicants does it show what criteria they're using to disqualify people, whether there's an appeal process to show rehabilitation or lack of nexus between the job and the conviction, or even what the disqualifying offense/arrest is! And all of this, based solely on the FBI background check, known to have over 50% error rate (e.g. mismatched names, records with no disposition, etc.)

Today's NY Times ran an editorial about this very issue (aptly-titled "We can't tell you why") reporting on a class action filed against the Bureau by the lead counsel, Outten & Golden, along with a group of community orgs, which alleges that the Bureau's actions violate Title VII of the 1964 Civil Rights Act. The NY Times editorial explains the concept of Title VII well enough.

The class action complaint alleges that, according to the Bureau's director, Robert Groves, its "concealed policy" is in fact to disqualify people with a prior conviction or pending charge for:

(1) Certain categories of crime, such as murder, sex offenses, robbery, voter fraud, or other crimes that suggest a threat to safety or the integrity of census data, or

(2) Crimes of dishonesty, burglary, theft, or vandalism

Except when the person conclusively demonstrates that he or she does not present a current threat.

Now, I first learned about this "policy" about a month ago from a listserv posting of an attorney who had corresponded successfully (unlike me and many other attorneys who ran into a bureaucratic goose-chase and gave up) with the Bureau. And I just laughed with disbelief. Like I said before, the Bureau does not make this information available to anyone or even hints at its existence in the dismissive termination letters sent to affected applicants. I have a lot of problem with this so-called "policy" itself, but actually following it would be an huge improvement over the present situation.

Anyway, upon learning of this "hidden" policy, I've been advising my clients to act as if it is in fact followed. I'm arguing nexus and negation in all my letters to the Bureau on behalf of my clients. And I'm asking for a hearing or some way to make the case that my clients do not pose any threat to "safety or the integrity of census data." So far, no luck. This is tilling at the windmills par excellence. FYI, this is what President Obama said about reentry and employment while campaigning for presidency.

America is facing an incarceration and post-incarceration crisis in urban communities. Today, nearly 2 million children have a parent in a correctional facility. In the U.S. Senate, Obama has worked to provide job training, substance abuse and mental health counseling, and employment opportunities to ex-offenders. In addition to signing these important programs into law, Barack Obama and Joe Biden will create a prison-to-work incentive program, modeled on the successful Welfare-to-Work Partnership to create ties with employers and third-party agencies that provide training and support services to ex-offenders, and to improve ex-offender employment and job retention rates. Obama and Biden will also work to reform correctional systems to break down barriers for ex-offenders to find employment.

I don't know how he's gonna do all that, if his administration denies even temporary employment to people with decades-old arrests.

Background check from your iPhone?

My Google news filter brought to my attention this gem about Intelius' bold leap into the 21st century. In short, Intelius has released an iPhone app to instantly check a person's background, including his/her criminal records. From a technology point of view, this isn't much of a feat. But it does remind me how these "consumer reporting agencies" are fast replacing traditional sources of interpersonal information, such as character references from former employees, friend, and family members--setting aside legal implications of this app and Intelius' practice vis-a-vis ICRAA and Information Practices Act of 1977, for the time being.

Update II: Expansion of the LA County's background check

On Tuesday, by unanimous vote, the Los Angeles County Board of Supervisors passed a resolution authorizing the County to perform an FBI background check for employment purposes, potentially for everyone working for and through the County. (See my previous posts about the resolution here and here.) A couple of year ago, I did an extensive survey and found that Las Vegas, Indianapolis, and Jacksonville are the only cities among the U.S. cities with population over 500,000 that do this.

So what did the County decide to do? Immediately, they will start doing an FBI check for everyone in the top 3 level positions, including directors, deputy directors, and their assistants. And they will also start looking into how to expand this check for everyone, including current employees. According to what I heard from Supervisor Ridley-Thomas' office, the only hold-up there seems to be the union's consent. Judging by the union's lukewarm support for the King Drew employees that were disciplined post facto for their criminal past, I am not hopeful that the union will stick up for its members that have a criminal history this time around either.

Stay tuned. We lost a battle, but the war goes on. And the next battleground will be the actual implementation of this background check. My goal is to get the County to conduct a comprehensive overview of its hiring policy regarding people with criminal records to find whether the policy is reasonably implemented (it isn't, in case you're wondering) and whether it unduly deters people with criminal records from applying for a position at the County (it does).

Expansion of the LA County's background check

At the end of the last month, the LA County CEO William Fujioka asked the Board of Supervisors to exercise the authority required to expand the County's check of its employees' criminal history and include the FBI national database. The request was placed on the agenda (Item 11) for this morning but was continued until next week.

Although the applicable law, California Penal Code § 11105(b), states that the provided FBI records must be vetted by the California DOJ to comply with the requirements of California Labor Code 432.7, several problems remain.

1. The FBI records are incomplete and inaccurate, as admitted by the US Attorney General's Office in its 2006 report to the Congress. See page 3.
2. The California DOJ has had a track record of releasing inaccurate reports, including those from the FBI, which is understandable, given the volume of requests they receive each day.
3. In the last 2 years or so, the California DOJ has been trying to comply with the requirements of the California Labor Code, but this too often results in a significant delay in the release of a report to the requesting agency, which in turn results in a negative consequence for the individual whose background is checked. For example, after waiting for a month or two, the agency would simply go ahead and hire the next person.

Obviously, my hope is that the County delay giving a go-ahead to this request by the CEO until and unless these problems are adequately addressed--either by the DOJ or the County. Meanwhile, though, one wonders why prompted the request in the first place?

It's hard to tell from the CEO's letter to the Board, but I infer that it's because the County is concerned about hiring people with criminal records through the South Bay WIB's ARRA implementation, because (initially, at least) the expanded background search will include only volunteers and non-union employees. If so, it wouldn't be surprising. The County is made of people, most of whom share an irrational fear and bias against people with criminal records. And why would it be surprising when their collective bias shows through at a time of change like this?