Thursday, November 6, 2014

CORI/BOP/CJIS Hit Alone Cannot Justify A Bypass

Certain things can automatically justify a bypass, such as a felony conviction for example. You can now strike “an arrest” from that list. Following a clear trend over the past two years, the Commission held in Gore v. DOC, G1-13-272, that a report of an arrest on a BOP (Board of Parole) report, a CORI (Criminal Offender Record Inquiry) check, or a CJIS (Criminal Justice Information System) check cannot automatically disqualify a candidate from the appointment process. Instead, appointing authorities are required to conduct a “reasonably thorough review” of the facts and circumstances of the arrest. 

In Gore, the appellant had been arrested for carrying a firearm without a license. The charge was later dismissed. The arrest was uncovered during the DOC’s background investigation on a CJIS report and Gore was removed from the process and subsequently bypassed. The Commission, pointing to the DOC’s failure to conduct a review of what happened or even notify Mr. Gore about the report, granted the appeal and placed Mr. Gore at the top of the list until he is appointed or bypassed. 

While this is good news for individuals bringing appeals, it should not be over-read. This does not mean that an arrest cannot justify a bypass. It can, even if it doesn’t lead to a conviction. What an arrest cannot do is allow an appointing authority to automatically disqualify a candidate without looking into the matter further.

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