Department of Police Accountability applicant Michael Gray poses for a portrait. The San Francisco Police Department conducts background checks for hopeful DPA investigators because the DPA requires access to police databases, which can only be granted by the SFPD.

Investigators who scrutinize cops must pass SFPD background checks

When Michael Gray received an offer letter from San Francisco’s police watchdog agency in April, he expected the background check to be his final hurdle before becoming an investigator.

Instead, the Department of Police Accountability notified him that he had not passed the background check, and when he inquired as to why, an official said he’d have to ask the San Francisco Police Department. The Police Department, in turn, said Gray would have to talk to the DPA.

Thus began Gray’s confusing effort to find out what exactly had prevented him from being hired to work for the DPA.

“I feel it’s unfair. To this date, no one has definitively told me why I failed my background check. I’m still left to guess,” said Gray, 33, adding that he has been made to feel like a criminal.

Except for what he thought was an expunged wet and reckless driving conviction, he has no record and passed a background check to work for his current employer.

Gray’s case sheds light on a larger issue that some are calling a conflict of interest: Why do the police have a say over who is hired to investigate their misdeeds?

But the issue presents a more complicated conundrum. DPA investigators would not be able to do their jobs without full access to police databases, and that access can only come with a police background check.

The nearly four-decade-old DPA, formerly known as the Office of Citizen Complaints, is tasked with investigating reports of police misconduct. The DPA was recently given expanded powers to audit the Police Department and investigate all police shootings.

There are about two dozen investigators at the DPA. Staff attorneys and clerical staff make up the rest of the department.

All attorneys and investigators must pass a background check.

“Background investigations should be completed by an outside agency to avoid conflicts,” said Barbara Attard, a police accountability and oversight expert. “In my experience in Berkeley and San Jose, we hired independent investigators to conduct such pre-employment reviews. This best practice ensures that the law enforcement agency does not have authority over oversight hires.”

Gray is not the first investigator applicant rejected because of police background findings, but DPA officials said there has never been an issue with the practice.

“We’ve never done them ourselves,” said Ines Vargas Fraenkel, a senior staff attorney for the DPA. “We have no reason to believe that having the Police Department do deep backgrounds … has been a concern. We believe that they are doing a good job and getting background done.”

The Police Department, which charges no fee, does the background checks for the DPA, in part, because DPA employment gives investigators access to the California Law Enforcement Telecommunications System under the SFPD name, said Police Department spokesperson Officer Grace Gatpandan, who did not say if the department has a set of criteria for what makes someone fail or pass a background check.

That system includes a variety of state and national data sets used by police, and access can be granted by any other law enforcement agency, such as the San Francisco Sheriff’s Department.

Still, without police background checks, DPA employees would be barred from accessing the department’s internal police report system, the Crime Data Warehouse, said Gatpandan.

The Sheriff’s Department does not have access to the the Crime Data Warehouse, said Chief of Staff Eileen Hirst.

The SFPD is the only agency that can grant access to its internal system, where police reports are stored, Gatpandan said.

While DPA investigators have access to the database, they must request documents from the department whose lawyers must review those requests.

Data access aside, the department has no power over what the DPA does with what its officers find in the background checks, Gatpandan added.

“Recruitments for all [investigator] positions are handled by the Department of Police Accountability,” wrote Gatpandan in a statement to the Examiner. “Moreover, any related background outcome decisions and noticing responsibilities would be made by the same aforementioned agency, Department of Police Accountability.”

DPA officials would not say how many people have been rejected because of their background checks or why police do the background instead of another agency.

Meanwhile, Gray is still uncertain as to why he was not hired, and has only been given information on the matter by the DPA, though he has tried to contact everyone involved to find out what occurred. Gray already works for The City, but the Examiner is not naming the agency where he works at Gray’s request.

In a May 31 letter to Mayor Ed Lee, Gray wrote about his ordeal and its complicated nature.

“After undergoing the interview process, I received an offer letter dated April 27, 2017 for an 8124 Investigator position, contingent upon passing a background check (offer enclosed),” Gray wrote. “However, on May 12, 2017, I received a call from Erick Baltazar, acting director of DPA, stating that I had not passed the background check and therefore I could not work for the department.”

He filed a complaint with the Civil Service Commission and was denied copies of his background check from police, who told him to contact the DPA about the matter.

Gray only learned why he didn’t pass the background check after filing a Public Records Act request through the DPA; a similar request to the SPFD was denied. He was denied because of information in a previous background check when he applied to be a police officer.

A wet and reckless conviction in 2011 — expunged in 2014 — was one of the reasons why he did not pass the background check, which was listed in an SFPD memo he obtained from the DPA. Additionally, the memo claimed that he made false statements when applying to the Police Department.

For instance, a college girlfriend allegedly fell over a chair when she left his dorm room, but the memo said he had admitted to punching her. Gray denied punching her.

Additionally, the memo said that he’d admitted to driving under the influence of marijuana during his late teens, which he did not deny.

Still, Gray remains confused.

“They don’t explicitly state how that would prevent me from doing the job or why that would be the basis for preventing me from accessing their system,” he said, adding that his failed application for entry into the Police Department in 2014 shouldn’t impact working for the DPA.

His last move is his Civil Service Commission complaint, which lays out why he says he’s been wronged.

“I contend that due to my previous application with the SFPD, I was held to a higher standard than [the] other 8124 Investigator candidates applying to work for the Department of Police Accountability. Additionally, I contend that SFPD made false statements in support of their decision … to declare a failed background with led to my employment offer being rescinded,” Gray wrote in his complaint.

Gray has yet to receive any information on when the commission will hear his case.

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