By Todd Duncan, Law Enforcement and Safety Specialist
Disclaimer: The primary focus of this article is the liability associated with negligent hiring and retention of law enforcement officers (LEOs) as well as specific legal requirements for hiring set forth in Nebraska law. Comprehensive background checks, which agencies should complete on every applicant, go well beyond the minimum legal requirements outlined below.
The Role of Applicant Background Checks in Reducing Risk and Liability
Negligent hiring and retention in law enforcement refers to the failure of an agency to exercise due diligence in the selection and continued employment of officers, potentially leading to misconduct and legal liability. When an agency hires or retains an officer whom it either knew, or should have known, posed a risk due to past behavior or qualifications, it can in some circumstances be held liable for resulting harm.
Risks and Legal Liability
Employing officers without thorough background checks or ignoring prior misconduct can result in significant legal and financial repercussions for law enforcement agencies. Negligent retention occurs when an agency continues to employ an officer despite being aware of conduct that renders them unfit for duty. This negligence can lead to incidents of physical harm, violations of civil rights, and other forms of misconduct, which can result in lawsuits, financial settlements, and damage to the agency’s reputation. A recent report by the Dolan Consulting Group1 emphasizes that negligent hiring is fundamental to every aspect of law enforcement operations, both in the near future and in the long term.
Legal Requirements for Screening in Nebraska
Nebraska has enacted specific statutes to ensure the proper screening and hiring of law enforcement officers, aiming to mitigate the risks associated with negligent hiring and retention.
Nebraska Revised Statute 81-1414.15 requires agencies employing law enforcement officers to submit a Change in Status form (TC-001) to the Nebraska Law Enforcement Training Center (NLETC) upon an officer’s hiring, termination, or resignation. This form must include details such as the reason for termination or resignation, and whether it was in lieu of termination. Agencies are also required to maintain records of any misconduct that could lead to revocation or suspension for the duration of the officer’s employment and for ten years following separation. Failure to comply with this law constitutes neglect of duty.
Nebraska Revised Statute 81-1414.11 requires that persons seeking employment as law enforcement officers provide a signed waiver to the prospective employer upon receiving a conditional offer of employment. This waiver allows the prospective employer to contact the applicant’s former employer to obtain records related to any misconduct that could be grounds for revocation or suspension. The prospective employer must contact former law enforcement employers and obtain these records before hiring the applicant.
The purpose of these statutes is to create a process that prevents officers who have been terminated or who have resigned in lieu of termination for certain acts of serious misconduct from gaining employment as a law enforcement officer at another agency. But for this important process to work, there must be consistent adherence to Nebraska law enforcement officer hiring laws, interagency cooperation, and candid communication during the reference check stage.
Summary of Legal Requirements During the Hiring Process
- Prospective Employers:
- Check with the Nebraska Law Enforcement Training Center to determine if an applicant’s certification is “791 locked”. If the applicant is on the “791” list, they can’t be hired.
- Obtain a signed Authority to Release Information to Prospective Employer form/waiver (TC-919) from the applicant.
- Complete the background check process as outlined in the Nebraska Administrative Code Title 79, Chapter 8, Section 005.04B.
- As part of the background check, contact all known previous law enforcement employers, provide them with the Previous Law Enforcement Employment Reference Check form (TC-920) and waiver (TC-919), and obtain as much information as possible about the officer’s prior employment history and performance.
- Current/Former Employers
- Submit a Change in Status form (TC-001) to NLETC within seven days of the hiring, termination, or resignation of a law enforcement officer.
- Within ten calendar days after receipt of an Authority to Release Information to Prospective Employer form/waiver (TC-919), provide the prospective employer with the completed Reference Check form (TC-920) and access to or copies of any records regarding the
- Reason for, and circumstances surrounding, the former officer’s separation from the agency, and
- Officer’s conduct which could constitute grounds for revocation or suspension of a law enforcement certification.
Conclusion
When it comes to hiring, “an ounce of prevention is worth a pound of cure.” Law enforcement agencies must implement comprehensive screening processes and diligently maintain records to mitigate the risks associated with negligent hiring and retention. Adhering to Nebraska’s statutory requirements is essential in ensuring that only qualified and fit individuals serve as law enforcement officers, thereby protecting the agency and the public from potential harm.
For questions or more information on training opportunities, contact NIRMA’s Law Enforcement and Safety Specialist Todd Duncan at (402) 742-9220 or [email protected].