Massachusetts Town Faces Accusations over Potentially Illegal Background Checks

By Michael Klazema on 9/16/2016

The town of Webster, Massachusetts is searching for a new town administrator. The search process involves a committee of people and detailed background checks for top potential candidates. However, according to a report from the Telegram & Gazette—a newspaper based in Worcester—there is some question regarding the legality of the background checks.

The Telegram & Gazette report noted that Webster's Town Administrator Screening Committee has helped to whittle the candidate field down to three finalists. The town's Board of Selection will screen and interview those three finalists to arrive at a hiring decision. But townspeople and members of the screening committee are concerned that the Board of Selection might not be completely objective in its assessment of new candidates. In particular, some people in the town of Webster believe that the board is intentionally skewing the process in favor of the sitting town administrator.

One of the areas of concern in the screening process is a "waiver of liability form" that all candidates must sign. This form permits the town to run extensive background checks on each finalist. Two finalists who were recently eliminated from the town administrator search took issue with the form, which has not been revised in 17 years.

Webster's waiver of liability form does not just give the town the right to run criminal background checks or employment verifications on applicants. By signing the form, the finalists for the town administrator position are asked to waive clergy-penitent privilege and consent to a thorough health investigation.

Waiving clergy-penitent privilege would feasibly allow the town of Webster to interview priests about confessions that the finalists may have made in the past. Typically, anything said to a member of the clergy in confession is privileged information. Like attorney-client privilege or doctor-patient confidentiality, this bond between "clergy" and "penitent" is typically maintained without exceptions. Webster's waiver of liability form requires town administrator candidates to waive that privilege or be disqualified from consideration.

Webster's request for town administrator candidates to waive clergy-penitent privilege is unusual but it isn't illegal. What may be illegal is the town's request to delve into the current health and medical histories of candidates. The Telegram & Gazette report noted that this part of the waiver of liability form may violate HIPAA (the Health Insurance Portability and Accountability Act of 1996) and its "Privacy Rule." At least one member of the Town Administrator Screening Committee wants to hire an outside legal consultant to determine whether or not Webster is violating federal law. If the waiver of liability form violates HIPAA, the town may need to revamp its background check policies before filling the administrator position.


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