Wednesday, August 27, 2008

“The biggest threat to public safety you can imagine”

That’s how Williamson County District Attorney, John Bradley described the continuing problems with the Texas DPS criminal database this week in an interview with the Dallas Morning News. Asset Control commends Mr. Bradley for his candor.

This is the second warning to Texas employers in just a few short years. According to the latest assessment, counties have submitted outcomes on just 69 percent of criminal charges – the same percentage as before. As the Dallas Morning News reported this week, “The state’s criminal database, riddled with holes four years ago, has just as many gaps today.”

The old adage “close enough for government work” seems to apply as far as the State of Texas is concerned. The state requires certain employers licensed by the state, such as nursing homes, assisted living facilities, child care agencies, and schools to use the DPS database. It’s called a “minimum standard”. But the minimum standard rule also prevents these agencies from using better alternatives such as social security number traces in conjunction with county criminal court record searches. There is a bottom line here says Bill Dolphin, Asset Control’s Compliance Officer. “The bottom line is the bottom line. The DPS pulls in significant revenue with their database. It benefits them to legislate their own client list.”

The end result is that students, the elderly, and other vulnerable populations are placed at risk every day because criminal records are missed by employers thinking they are doing the right thing. But there are other “victims” involved. According to Angie Klein, manager of the DPS Criminal History Records Bureau, “no one knows how many Texans didn’t get a job because an acquittal or dismissal wasn’t in the system.” Klein admits this is a growing issue. An increasing number of complaints from Texas job seekers, mostly angry because their acquittal, dismissal, or expungement wasn’t in the system, has forced DPS to double the size of their resolution unit to 20 employees explains Klein. Notwithstanding, the DPS points a finger at the counties for not following proper reporting procedures. While counties are required to report criminal data to the state, there are no penalties for non-compliance. Texas Senator Jane Nelson says that the state needs to be “sensitive to concerns about unfunded mandates.”

While the DPS and Texas counties fight this out, Asset Control recommends that employers not mandated by law to use the database avoid it. Since news about the flawed database has been extensively published, employers should consider themselves put on notice. If an employer obtains data from a source known to have incomplete and correct data, it could be held liable for lack of due process under the FCRA.

The DPS database was never intended for use as an employment screening tool. It was developed as a tool for use by law enforcement agencies. And as some in the law enforcement community admit, it is even failing those for whom it was intended.


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