By: Tiffany R. Allen, Esq.
Published on: Mon 24th Oct, 2022 By: Campbell Durrant, P.C.
More than 18 months since the election of President Joe Biden, and the unsuccessful insurrection at the Capitol Building, the world of political extremism has been under a microscope especially with the January 6th Commission hearings. Recently, the membership list of the Oath Keepers, a far-right anti-government extremist group charged with sedition in the capitol riot, was released and the names of nearly 40,000 members were made public. The Anti-Defamation League’s Center for Extremism reviewed the membership rolls and identified more than 370 individuals who currently work in public law enforcement in addition to over 100 individuals who are members of the military.
Civil Service provisions of the Borough and First Class Township Codes state that the Civil Service Commission can refuse to examine, or if examined, may refuse to certify any applicant who “is affiliated with any group which have policies or engage in activities that are subversive to the form of government established in Federal or State law”. Municipalities whether covered by civil service regulations or not can put measures in place to prevent the hiring of members of extremist groups during the early pre-employment stages. One immediate action a public employer can take is to update its employment application and pre-employment checklists including polygraph questions for law enforcement. Drafting these questions should be done with close consultation with labor counsel to ensure that such measures appropriately screen anti-government extremists while not violating First Amendment rights.
Employers can engage in further scrutiny of candidates by tightening the vetting process with thorough screenings of their social media in consultation with labor counsel to ensure such screening does not cause the employer to inappropriately reject candidates based upon protected class information that may be discovered during such screening. Individuals tasked with conducting background checks should also know how to identify the signs and symbols of anti-government, far right groups as members often display the insignia through tattoos, flags, and other imagery on their personal property and on social media.
When it is learned that a current employee is a member of an extremist group, law enforcement agencies should take all allegations seriously and promptly investigate. It is also advised that public agencies regularly review departmental policies to ensure they address extremist-related activity. Policy updates are crucial as these policies can serve as guidance when investigating allegations of extremism.
• Employers should review their vetting and hiring processes to appropriately exclude from hiring members of extremist organizations.
• Employers should immediately investigate all allegations of employee off duty misconduct related to participation in extremist activities
• Employers should review internal policies and procedures to ensure they reflect prohibitions on extremist misconduct
• All of these steps should be takin in consultation with labor counsel to ensure that First Amendment rights are not violated.
The Bottom Line
Screening for and excluding extremist, anti-government candidates from law enforcement employment is a difficult, complicated, and necessary task that must be done in close consultation with labor counsel to avoid legal pitfalls including First Amendment violations.