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Detroit Lions Failed Background Checks 101

According to recently published report in the The Detroit News, the newly hired coach of the Detroit Lions, Matt Patricia, was arrested for aggravated assault in 1996. Patricia was on spring break in South Padre Island, when Patricia and another fraternity brother “burst” into an upscale hotel room and sexually assaulted a woman. Patricia and his fraternity brother were arrested and later indicted for aggravated sexual assault, but the two men never stood trial and the case was later dismissed.

As an investigator who has conducted thousands of “deep dive” investigations of high-profile individuals, this particular case caught my eye for a number of reasons.

How could the Lions not be aware of this? Was this criminal record readily available in public records or was this information brought to the attention of The Detroit News by a source? What can be done to prevent publicly embarrassing things such as this in the future?

Let’s tackle these questions.

Why weren’t the Lions aware of this?

When initially contacted by The Detroit News to comment on Patricia’s arrest, the team president said, “I don’t know anything about this.”

How is it possible that a multimillion-dollar business, with seemingly unlimited resources, could not know about this? Was the arrest something that was buried so deep that it would be nearly impossible to find? Or was this a failure to do any type of meaningful background check?

The Lions told The Detroit News the arrest “eluded them during a background check that only searched for criminal convictions.”

“We did a complete background check,” said Wood, the Lions’ president. “Our background check was limited to employment matters only and does not disclose any criminal matters that don’t result in a conviction or a plea agreement.”

There are a couple of things going on here that need some additional explanation.

For one, I searched for Patricia’s name in a national criminal record database that many investigators use, and easily found the record. It took me all of two seconds to find that a record existed and another two minutes to pull up some docket information on the Cameron County website.

Matt Patricia Criminal Record

While there are cases in which indiscretions are buried so deep they are nearly impossible to find without some sort of whistleblower or source, this is not one of those cases.

I won’t bore you with the details, but the vast majority of readily available criminal record databases and court records searches are for convictions only. To the layman, that means that criminal record databases typically only include records that resulted in some sort of verdict.

So, for example, if you were arrested but not charged or arrested, or indicted but the case was thrown out, those records will not be part of the criminal court records and cannot be easily identified in a background check. The only way to potentially get that record would be to submit a Freedom of Information Act request to the police department.

In this case, Patricia was not convicted. In a typical situation, this record would not be easily available. But in this case, it was. I don’t have a good explanation for this other than to say that this record happened to be digitized (many records over 20 years old are buried in a court card catalog), and it happened to be in a place where they report non-convictions.

In summary, there are certain states that also provide information on arrests and charges that do not result in a conviction. So, for example, if this were to have happened in New York, it would have been significantly more difficult to find, if not impossible. An investigator would have probably had to file a Freedom of Information Act request in every city that Patricia has ever been known to live in or visit; even then, it might not have been found. In this case, the arrest was across the country.

So how could the Lions not have known about this if they did a “complete background check”?

Technically, the Lions’ “background check” primarily includes criminal convictions, because most records are for conviction only. But even though this case did not result in a conviction, whoever was doing this background check should have been able to catch this arrest since it was in a widely used national criminal database ( “national” criminal records are a bit of a misnomer).

Let’s just forget the fact that the firm the Lions hired to do a background check did a shitty background investigation. Should the firm have known about this?

If you are hiring someone who is going to be publicly scrutinized, you have to ask difficult questions. Or make them fill out some type of questionnaire or form that asks them difficult questions. Anything that may come up that would publicly embarrass the organization. Or could potentially impede his ability to do his work properly.

It may not need to be at the level of the 127-page questionnaire for national security positions, but anything is better than nothing.

What’s particularly interesting about this case is that these types of indiscretions, arrests, etc., may not be found, even in a “complete” background investigation. While it’s pretty clear that the background check should have found something in Patricia’s case, there are other situations where such an event may not come up, since non-conviction records are hard to come by. Also, criminal record searches are filed county-by-county and typically focus on the counties where a person has lived or worked. Makes sense, right?

But in this case, Patricia was arrested in a place he was just visiting. Unless you knew that he spent some time there, you wouldn’t necessarily search in that county.

So were the Lions just following the letter of the law?

The Lions’ president seemed to be alluding to state and federal laws in the article when he said:

“We did a complete background check. Our background check was limited to employment matters only and does not disclose any criminal matters that don’t result in a conviction or a plea agreement.”

Let’s break this down.

So, if they did a “complete background check,” how was this missed? I guess complete means different things to different people. I’ve spent hundreds of hours doing background investigations on some folks, which included one-on-one conversations with past elementary school classmates. If that was “complete,” this hardly qualifies.

Granted, the Lions or other firms may not think it’s necessary to spend tens of thousands of dollars scrutinizing somebody’s background. In many cases, they are probably right. But you have to do enough poking around so something embarrassing like this doesn’t happen.

But it’s the second part of that quote that bothers me, that the background check was “limited to employment matters” and did “not disclose any criminal matters that don’t result in a conviction or a plea agreement.”

So they wouldn’t care if he was robbing banks as long as he could craft a good defensive scheme against Aaron Rodgers?

In fairness, state labor laws (which vary from state to state) and federal labor laws protect employers from making hiring decisions based solely on criminal records. According to the article:

Michigan employers are allowed by law to ask prospective employees about arrests for felonies, but not misdemeanors. In Massachusetts, where Patricia worked for the Patriots from 2004 until earlier this year, state law bars employers from asking about arrests that did not end in a conviction.

You will have to ask someone much smarter than me, but does this really apply to someone like Patricia? They’re hiring someone who is the public face of a very public organization and will be scrutinized to death, but they can’t ask prospective employees about past indiscretions?

I think you can make a very good argument that it doesn’t make sense.

How to prevent this in the future

First, I am a private investigator, not a labor attorney, so do not take this as any sort of legal advice. These suggestions are about high-level public positions or executive-level hires; they do not apply for your average employee hire.

1) Do a “complete” background check.

That does not necessarily mean sending a written request to every police department across the country to find out if there are any criminal arrests. Or flying around the country interviewing everyone that the person has ever met. But it does mean doing comprehensive criminal record research and civil record searches as well as deep public record research and open source research.

2) Develop a background check questionnaire.

Work with your attorney to develop a background check questionnaire. The 127-page National Security Position questionnaire may be a bit of an overkill, but it’s a start. At the very least, you should be asking about basic history, whether or not they have had any criminal past, civil litigation, bankruptcies or arrests.

3) Conduct interviews!

Any type of “complete” background check should include some form of human intelligence, or interviews. Public record searches, open source searches and a review of social media can tell you a lot, but interviews with adversaries, friends or former subordinates might be illuminating.

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17 replies
  1. Rodney Gagnon
    Rodney Gagnon says:

    Great post. In a prior life I was involved in the criminal record research business, so I’d like to respond to the statement “…if you were arrested but not charged or arrested, or indicted but the case was thrown out, those records will not be part of the criminal court records and cannot be easily identified in a background check. The only way to potentially get that record would be to submit a Freedom of Information Act request to the police department..”

    That is true for statewide search. In some states, like the courts in New England, the statewide reports sold by the state don’t report nol-prossed or dismissed cases. To get around this, there are county record checkers that are used by the national background screening industry that will search the indexes that are at the Court and find ALL cases records that haven’t been sealed. You will almost always find more with a county search, although the cost of searching every county the subject lived in could exceed the cost for a statewide report. Even worse, if the background searching requirements only require a statewide search, some clients will save the money and not do local court searches. It’s dependable in Court as a ‘best practice’.

    The dirty secrets about that industry is that its about 1.) what they have bid per search and not about doing a thorough job. 2.) None of the national screening companies employ local court searches…it’s all contracted out to locals. 3.) Those locals are held to a brutally low per-search-budget. And 4.) Some of the national screening companies are using national databases (as you pointed out) and not actually using local court researchers. The good news is that if the clients tested for a ‘hit rate’ it would reveal this…but the fox isn’t going to share that info with the chicken that’s paying the bill.

    Keep up the good work Brian! I love a good discussion.

    • Brian Willingham
      Brian Willingham says:

      Thanks for chiming in Rodney and for some insight. A lot of that work is driven exclusively by price, so I guess it’s not all that surprising that corners are cut. I think the big overarching point I am trying to make here is that in a situation such as this, corners should not be cut.

  2. Ryan
    Ryan says:

    Great articles and commentary Brian. While I’m not a PI, yet, I thought I was up on the FCRA. No idea on the $75k threshold. I’m curious if companies check a box for that when having a firm do a background check. I’ve never seen that in an application.

  3. Neil Caddell
    Neil Caddell says:

    Brian,

    Great article and as usual you are on point. In regard to the Lions and their most recent hire and the lack of a quality background, I too give them a failing grade. Forget about all of the state regulations and deal in facts that can readily be found in databases that only take a quick search that costs less than $5. Thank you for a great blog story.

    Neil Caddell

  4. hal humphreys
    hal humphreys says:

    Brian,

    I started to craft a deep-dive reply, but just don’t have the energy.

    Great blog post. As usual, well reasoned and well articulated.

    What can I say? Haters gonna hate.

    Keep doing that thing you do.

    Hal Humphreys

  5. Jay
    Jay says:

    I appreciate your articles, transparency, willingness to post a comment that isn’t positive, your replies to such comments are polite and dignified.

    I especially this one: “FCRA clearly states that employees making over $75,000 are exempt from the seven years. Matt Patricia is clearly making over $75,000, so that is neither applicable nor pertinent in this situation.”

    https://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf

    Also, we are talking about the NFL. The players are held to strict morality clauses in their contracts, and as I understand it, anyone associated with the NFL is held to a higher standard of conduct. I know this has most often been seen with players, but their personal conduct policy (I believe) does state anyone associated with the NFL is held to a higher standard of conduct.

    Thank you for your articles. I enjoy them immensely and always learn something.

    • Brian Willingham
      Brian Willingham says:

      Thanks Jay! Appreciate your kind words. Any agree with you 100%. People in the NFL, as well as other public positions, should be held to a higher standard. Especially when an organization can face significant backlash.

  6. Grant
    Grant says:

    You failed to mention anything regarding the Fair Credit Reporting Act (FCRA) and the illegality of reporting non-convictions after seven years. The Detroit Lions clearly hired a background screening firm to conduct Patricia’s check, which is considered a Credit Reporting Agency and governed by the FCRA. As a result, reporting Patricia’s non-conviction would have violated the FCRA because it exceeded the seven year limit, and the firm could have been sued. No doubt the background screening firm found his record, but they could not legally report it, so they didn’t. The best way to avoid the FCRA would have been for the Detroit Lions to conduct an in-house check, instead of hiring an outside firm. But to your point, they could have (and should have) done a better check. As for your questionnaire idea,there are very clear laws on what companies can ask regarding an applicant’s criminal history, and/or when they can ask about it. As “Ban the Box” laws continue to increase across the country, companies are having to follow new rules with respect to criminal records, or they face discrimination lawsuits. As for the questionnaire you mentioned for National Security positions, these are exempt from the FCRA and “Ban the Box” laws because of their nature; all federal law enforcement positions are exempt as well. It’s also worth noting that although Patricia was arrested, he was never convicted of a crime. Thousands of people are arrested every day in the U.S. and never charged and/or convicted because there’s a very low standard for arrests (probable cause). In other words, just because an arrest was made does not mean he was guilty of anything. In addition, I’d be more concerned with a pattern of arrests, than one isolated arrest from over 20 years ago. Patricia does not appear to have a history of repeated arrests. One final point, although sending FOIA requests to individual police departments can be effective, arrest reports and criminal cases are often sealed and expunged, which would make it impossible for those records to be located. In Patricia’s case, he should have had that record expunged to avoid detection (including the arrest report and court case).
    I have to wonder if the NFL has become so “used” to criminal misconduct by its players and other personnel that they really aren’t all that concerned with thorough background checks?

      • Grant
        Grant says:

        You may want to check Michigan’s most recent FCRA-related legislation, as well as the city of Detroit’s legislation. But I’m sure you’re an expert on that, too. And thank you for posting a copy of the FCRA–you may want to take a closer look at that, as well as the $75,000 threshold. In order for that to apply, the CRA would have needed to know the salary and position of Patricia–which was not disclosed to them prior to conducting the check (I suppose you knew that as well). The FCRA you posted is out of date (I’m sure you know that, too). The thing is Brian, you’re a P.I. who has zero law enforcement experience, and just enough to know what an actual “background check”–what they call a ‘wannabe’ in the LEO industry. Your articles come off as “know-all” with no humility or true substance, making you neither applicable nor pertinent in the background screening industry.
        P.S. Don’t even get me started on the “national database” searches you use for your “investigations”. But again, you probably know all about Section 613 letters, the Adverse Action process, and other requirements under the federal FCRA and applicable state and municipal FCRA-related legislation.

  7. Rose
    Rose says:

    You repeat yourself a lot and I’m not sure I like the superiority and arrogant tone that’s in your writings. “We would do it better, these people are idiots and incompetent”’seems to be the message throughout all your articles. I think I’m going to stop even looking at these.

Comments are closed.