Montana universities differ on background check policy - Montana Kaimin: News

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Posted: Wednesday, October 23, 2013 11:51 pm | Updated: 11:58 pm, Wed Oct 23, 2013.

Montana State University may have had no choice in hiring Shuichi Komiyama, a former professor at MSU accused of sexually assaulting a student during the 2010-11 school year.

Komiyama was hired at MSU in 2006 before it started conducting background checks on faculty. According to the lawsuit against Komiyama, he was serving probation and had already been convicted of two counts of unlawful intercourse with a minor prior to being hired at MSU. MSU did not conduct a background check on Komiyama.

Kevin McRae, a deputy commissioner at the office of the commissioner of higher education, said courts have ruled that when employers throw out applications  based on prior convictions, they  are often sued under nondiscrimination laws.

“I would say in the MSU case, had they known about his record, they probably could not have refused to hire him,” McRae said.

Leslie C. Taylor, legal counsel at Montana State University, said when MSU does a background check, it only goes back seven years. In Komiyama’s case, the charges were from at least 20 years ago and would not have shown up, she said.

Taylor said MSU began doing background checks in 2010, and it’s very rare for a faculty hire’s background check to reveal a felony. She said MSU does not plan to run background checks on professors who were hired before 2010. She said there are no statistics on how many former convicts work in professor or administration positions on campus.

The University of Montana also does not keep public information on how many of their faculty and administration have felony convictions.

McRae said background checks were conducted on staff members related to residence halls and security at MSU prior to 2010. He said it is too hard for there to be a standard from his office about what groups should be given background checks within the university system.

Lucy France, legal counsel for UM, said the University began requiring background checks for their faculty hires in 2003. Since then, the University has offered faculty positions conditional upon a background check, she said. France said sexual assault conviction could prevent a University professor from being hired.

“If it was repetitive, it’s hard to speak globally, but the short answer is yes. But we’d have to look at all the circumstances, but it would be a consideration,” France said. “If somebody is put in charge of money and they have been convicted of embezzlement, you would be cautious of putting them in charge of money.”

According to the UM’s human resources policies and procedures, faculty, administrators and hired professionals receive a letter with their offer of employment detailing the conditions of that background check.

“Employment is contingent upon a satisfactory criminal background investigation.  The determination of ‘satisfactory’ is at the sole discretion of the employer,” the letter reads. “Immediate dismissal will occur if criminal background investigation results are unsatisfactory.”

McRae said universities don’t entirely have that power.

McRae said the choice would be different if it was a matter of a former felon working with minors, but universities are essentially a workplace. A former felon has the same constitutional right to work as anyone else, he said. The debate behind background checks is ongoing, because in a lot of cases there is very little you can do with that knowledge if a candidate is qualified, he said.

“If they are the most qualified applicant, the burden is on the employer why the applicant is disqualified from the position,” McRae said. “I’m not saying I love the decision, but how are they going to defy a lawsuit?”


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