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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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The Wall Street Journal published an article the other day about why red flags were missed in background checks on a number of high-profile cases in which an employee’s “prior transgression or act of concealment embarrasses a well-known company or university.”

The article highlights a number of recent episodes in which executives at Yahoo, Veritas Software, and the U.S. Department of Homeland Security as well as a number of university administrators and coaches have been fired or forced to resign because they misrepresented their credentials.

The article also discusses Matthew Martoma, who was expelled from Harvard Law School for forging a transcript. Martoma changed his name, received an MBA from Stanford University, and went on to be a hedge fund manager at SAC Capital, then one of the most prestigious hedge funds in the world. He was convicted Thursday for his participation in the most lucrative insider trading case ever.

And it’s not just embarrassing misrepresentations. The Washington Navy Yard shooter, Aaron Alexis, who in September killed 12 people, was arrested on several occasions, but nonetheless held onto his security clearance.

So why did background investigations fail?

1There is no one-stop shop

Conducting a background investigation is not as simple as throwing a name into a computer that then spits out the data. For one thing, there are still quite a number of manual processes that need to be completed. But also, there are hundreds of sources of information and hundreds of data points that need to be researched and analyzed. Some firms rely on a single-source database for their background investigations, but the fact of the matter is that there is no single source that captures all the data.

2Technology gives false confidence

 A lawyer once joked that private investigators are just an expensive Google search. You ask other people, and they think Google has all the answers. It certainly may be able to help lead you to the all the answers, but until Google indexes all the world’s information (which Google has said will take 300 more years), it’s not even close.

3Low-budget background checks

The cost of a proper background investigation is something that most firms are reluctant to pay. The best and most specialized proprietary databases are expensive. What’s more, a significant amount of extremely valuable information, such as court records, is not available online and may require an in-person visit. Most firms aren’t willing to pay the expense of conducting a background check properly, which involves visiting courthouses or personally retrieving records.

4Finding “red flags” takes skill and analysis

Of course, anyone who misrepresents their credentials should be easy to spot by even the most basic of background investigations. But in the case of Martoma, his expulsion, his name change (he changed his name after leaving Harvard), and his reported litigation came up only in a comprehensive background investigation by a skilled investigator digging through mounds of records.

5False sense of security

 A large Midwestern investment firm recently contacted us about conducting comprehensive background investigations on their senior executives. Their new chief executive officer had just been fired, after five months on the job, when it was discovered that he had been involved in sexual relationships with at least four people in the office. The $15 background check they had done had given them false confidence that he was the right guy for the job, somehow missing the fact that he was a complete loser. Between salary, fees, moving costs, and everything else, the situation cost them about $100,000. It was only when they lost all that money that they decided to do anything about it, though.

In closing …

I gave a presentation to a local business owners a few years ago and asked the group if they conducted background checks on new employees. Several raised their hands and said that they “Googled” job candidates, or that they used one of the various online services and paid less than $50. One even said that they hired people from other big firms and relied on the background investigation that would have been done previously.

The fact is that the “Google” background investigation and the “background investigation that the other firm did” are not really background investigations at all. Neither are those $15 online “background checks.”

Which is why they fail.

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There are a number of things that are included in a background investigation that go beyond what is looked at in a typical background check.

While a background check typically includes criminal background checks, driving records (if the job demands the skill), verification of past employment, verification of academic degree and a credit check, a background investigation gathers information from various disparate sources to create a more accurate, comprehensive and complete picture of a person’s past.

Each investigative firm will have its own set of information that is researched, but in the most comprehensive forms of a background investigation, the following information should be included in a background investigation:

1Personal Identifier Verification – Identifiers such as a date of birth and Social Security number are key to linking criminal records, bankruptcy records and other public records to the subject of the extensive background check.

2Address History Verification – Knowing where the individual has lived is critical to determining which courts are necessary to search in order to identify any historical civil and criminal history, and to find information from other public records sources.

3Professional History Verification – A timeline of any employment affiliations, board memberships and nonprofit affiliations can show a history of affiliations with organizations riddled with scandals.

4News Media Review – Most people are under the false impression that all news media publications are easily accessible on the Internet. Historical and international comprehensive news media can identify past issues that can’t be found on the Internet.

5Internet Searches – With the explosion of social media and the perceived “anonymity” of the Web, some people will put just about anything on the Internet.

6Corporate Affiliation – U.S.-based corporations where the individual is a corporate officer or registered agent can identify businesses or hidden affiliations.

7Criminal Record History (State and Federal) – Checking local and state criminal records is one of the most important facets of a background investigation. It’s essential to conduct research at local courthouses or at other official government repositories of information.

8Civil Litigation (State and Federal) – As with criminal record history, it’s essential to conduct research at local courthouses, official government repositories, or proprietary databases that cover the jurisdictions in which the individual has lived. Records of civil litigation can identify disputes with previous business partners, harassment allegations or a history of litigiousness.

9Bankruptcy Records – A history of bankruptcy or financial issues could reveal critical financial details.

10U.S. Tax Court Records – U.S. Tax Court records can reveal unpaid taxes or disputes over taxes, which can lead to further information on income or assets.

11UCC Filings – Has the person been a creditor or debtor in any UCC filings? Did he or she pledge any assets as part of financing?

12Assets – Information relating to real property, motor vehicles, watercraft and aircraft records may show a pattern of living beyond one’s means.

13Judgment Filings – A history of judgment filings may identify a history of financial issues and/or litigiousness.

14Lien Filings – Similar to judgment filings, historical state or federal tax liens may show a history of financial trouble.

15Department of Motor Vehicle Records – A driving record request can identify traffic violations and, in most states, driving under the influence records, which some states consider a criminal record.

16Professional Licensing Verification – Records with local, state or federal regulatory bodies may reveal regulatory actions against professional licensees, such as a certified public accountant, doctor, nurse, an attorney or even a private investigator.

17Professional Affiliations – In addition to having a professional license, professionals typically are affiliated with organizations that award certain credentials or designations, but you don’t know if they are really part of the organization unless you check.

18Financial Regulatory Searches – Especially for individuals who have previously served in the banking or financial industry, searches of records belonging to financial regulatory bodies may identify previous violations or regulatory matters.

19Government Compliance Lists – A review of government compliance lists can identify sanctions from regulatory bodies or politically exposed persons around the world.

20Campaign Contributions – Political contributions may identify strong political ties or connections with polarizing political groups.

This post is part of a series of posts titled Background Investigations 101 – What You Need To Know

 

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Utilizing a professional private investigator to conduct a background check can cost you anywhere from a few hundred to several thousand dollars, depending on several important factors, most notably the depth of information that you are seeking to obtain.

As with any service, the more involved the project (in terms of both time and expenses), the more it is going to cost and typically, neither the cheapest nor the most expensive option is always the best choice.

To assist you in understanding the cost of a professional background check, we have listed some important questions to consider before engaging a private investigator to conduct your next background check.

How prominent is the subject of the investigation?

Conducting a comprehensive background check on Warren Buffett, a pharmacist in San Diego, is much different from profiling Warren H. Buffet, the Oracle of Omaha and founder of Berkshire Hathaway. The larger the footprint, the more public the person has been, the more  information a professional investigator must identify, locate and present to the client.

How much is YOUR potential loss?

Any potential investment carries with it a certain level of risk or loss. While the potential “loss” associated with hiring a nanny who has a criminal record or is a registered sex offender cannot easily be quantified, most people would not consider spending thousands of dollars conducting a background check on their potential child care provider. But there are also some who are hesitant to spend a few thousand dollars for a thorough review of a subject’s background before making a $5 million investment with a relatively unknown hedge fund operation. The key is to balance your potential risk.

What is the objective of the assignment?

Are you trying to find out if an individual can satisfy a $1,500 judgment against him, or is there something in a person’s past that could potentially discredit an expert witness? Logically speaking, it does not make financial sense to spend thousands of dollars to collect $1,500, but if you are seeking any piece of information to discredit someone, you may have to dig deep. Needless to say, the deeper you may want to go, the more expensive the search can get.

How common is the subject’s name?

Conducting background checks on someone with the name “John Smith” and someone named “Farique Noonsaby ” are two very different propositions. While most criminal records in the U.S. provide some sort of identification number (e.g., Social Security number, date of birth, etc.) to match identifying information to the right subject, the majority of other records available do not.

A comprehensive background check may require an in-depth review and analysis of every lawsuit identified, derogatory news article or social media posting about “John Smith,” which will be both time-consuming and more expensive in terms of out-of-pocket disbursements for the investigator.

What is your potential risk or exposure?

A CFO who has access to millions of dollars and an administrative assistant who is answering the phones have two totally different “exposure” profiles. The same thing goes for any investment opportunity; investing with a person or company with loose regulations and oversight (e.g., hedge funds, unregistered investment advisors, etc.) is much different from investing in a publicly traded company – although Enron, WorldCom and Tyco may have taught us otherwise. In the litigation arena, a comprehensive background check on a key witness in a high-stakes legal proceeding may be the only opportunity you will have to sway the case for your client.

Final Thought

Ultimately, what a background check should provide is peace of mind or a deeper understanding of someone so that you can confidently make an informed decision, something that an online background check, a low-cost background check or a private investigator who lacks experience conducting a background check cannot provide.

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