Frequently Asked Questions
How do we join the Tribal Personnel Security Program?
If an individual that was employed with us was released due to an FBI Search Record, where do these individuals send court documents or other records that clears them of the record discovered? What type of documents do they receive in return?
Does the "scope of searching" vary between different organizations based on how far each organization wants to review the background check?
The minimum investigative scope required for positions having regular control over children is 5 (five) years. The minimum investigative scope required for law enforcement positions is 10 (ten) years. All other positions such as public trust are up to the discretion of the Tribe or Agency.
If you are doing a review for the past 10 years, does that mean that we only list the crimes committed in the past 10 years whether it was a felony or misdemeanor? Do felonies have to be listed on the ranking sheet despite how long ago it was committed?
When reviewing the findings of your investigation, you review all derogatory items found. It would be best to list all felony/misdemeanors identified in PL 101-630, i.e., violent crimes, sex crimes, crimes committed against persons and/or crimes against children regardless of how far they go back. Any other offenses do not necessary have to be listed if they are more than 10 years old because they become a non-issue after that timeline.
I need to go back 10 years on an applicant's search. If the applicant is 25, does that mean I search back to when she/he was 15 years old?
You would only have to search back through their 18th birthday.
I have an individual who has been charged and convicted of 2 simple assaults and 1 assault & battery. I wrote him a letter and per his explanation they were incidents with his ex-wife. Do these crimes make him unsuitable?
From what you have presented, it appears he has been convicted of at least two misdemeanor offenses of violent crimes. If this is the case, regardless of the date or circumstances he cannot work in a position that has regular contact or control over children. You will find this criteria in PL 101-630.
Is the charge of "Intimidation of States Witness" considered a 'crime of violence' or a 'crime against persons'? If either, wouldn't this be a statutory bar under PL 101-630?
It is the best practice to contact the jurisdiction in which the person was charged/convicted to ask how the offense in question is categorized, for example a crime against person, crime against property, crime against public order. Typically, "Intimidation of States Witness" is a crimes against persons because it typically involves: Harassment, Threats, Coercion, Bribery, Extortion, and/or Blackmail. Since you are determining employment suitability you really need to make sure with the jurisdiction.
To help you, the general definition is as follows: Intimidating a witness is a serious violation in the eyes of the courts, and the punishment for intimidating a witness is a Class B felony under most state intimidating a witness laws.
We are finding that there are some positions that fall under two of the position types--for example a firefighter would be considered a 'high risk public trust position, however they have regular access to children. How would you recommend we handle the background criteria to use?
According to policies of the BIA, when there was a High Risk Public Trust position that also had regular contact or control over children, both sets of criteria were applied when adjudicating. In any case where there was a conflict, meaning one criteria was stronger than the other, the criteria that was more strict was utilized.
How far back do we check on employees working with or have control over children?
It is the best practice to contact the jurisdiction in which the person was charged/convicted to ask how the offense in question is categorized, for example a crime against person, crime against property, crime against public order. Typically, criminal trespassing is a property type crime. If you are determining employment suitability you really need to make sure. To help you, the general definition is as follows:
While the precise definition can vary from state to state, a person commits the crime of "criminal trespass" when he/she enters or remains on another's property without the owner's consent. In some states, such as Tennessee, it's assumed that a trespasser knew he didn't have the owner's consent if the owner or someone with the authority to act on behalf of the owner personally communicates this fact to him, or if there's a fence around the property, or if there's a sign or other posting on the property that's likely to be seen by intruders.
Is an employee name check just as valid as the FBI check?
According to the regulations, (25 CFR Part 63) the answer would be "yes." When BIA was audited by the Inspector General they had to go back and reinvestigate all their existing employees that did not have documented proof that all of elements of the child care background investigation were completed.
Would a conviction for "non-support of a child" constitute a crime against a child?
Regarding your question regarding Non-Child Support of Children: Although the offense involves children, it appears the offense is codified under "Domestic Relations" rather than offenses committed against children.
Standard practice is to only list issues that are within the scope of the investigation and statutory bars on the ranking sheet. "Within the scope" equals how far back you investigated their background such as 5 years back, etc. Statutory bars are any offenses identified in PL 101-630, such as crimes against persons, violent crimes, sex crimes and crimes committed against children. The ranking sheet is a worksheet so you can utilize it to help you organize your case the best way you see fit.
Please note, the BIA Security Office was audited about a year ago and the auditors advised that they indicate all derogatory issues on their case summaries so that it is clear that the adjudicator reviewed all identified issues. Therefore, the BIA Security Office now identifies all identified derogatory issues. We have adopted this practice as well. A case summary is the official document you use to indicate that an adjudication was completed.
Would you consider "no contest to" of a crime to be the same as a "default judgment"?
I am not an expert in this area and have never been asked this question, however, the only default judgments I have seen have been related to civil cases, traffic cases and insufficient funds cases. I personally would not consider them the same.
The definition of No Contest is: Plea means that you do NOT wish to CONTEST the charge(s). The Court will then find you guilty. By entering a plea of No Contest, you neither admit nor deny the charge(s), rather you are choosing not to dispute the allegations. The effect is the same as a guilty plea, except that you are not admitting to any civil liability which may arise from the incident.
A Default Judgment is a failure to appear in Court, pay your forfeiture or enter a no-contest or guilty plea prior to your initial court date, will result in a default judgment entered against you with a plea of no contest, a finding of guilty and a forfeiture imposed. Once a Default Judgment is entered the subject can ask for the case to be reconsidered if they have a good reason to explain why they missed their court date.
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