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Considering criminal conviction in determining qualification of an applicant for employment in the public service

Considering criminal conviction in determining qualification of an applicant for employment in the public service
Matter of El v New York City Dept. of Educ., 2009 NY Slip Op 50883(U), Decided on April 1, 2009, Supreme Court, New York County, Judge Alice Schlesinger [This opinion will not be published in the Official Reports.]

Civil Service Law Section 50.4 provides for the disqualification of applicants or eligibles for appointment in the Classified Service and states that: ?The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible ? (d) who has been guilty of a crime ? No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.?

Education Law Section 3035.3, effective July 1, 2009,* deals with clearing an individual for employment as an educator, i.e., a position in the Unclassified Service, in consideration of ?his or her criminal history.? Subdivision 3 provides that ?All determinations to grant or deny clearance for employment pursuant to this subdivision shall be performed in accordance with subdivision sixteen of section two hundred ninety-six of the executive law and article twenty-three-A of the correction law. When the commissioner denies a prospective employee clearance for employment, such prospective employee shall be afforded notice and the right to be heard and offer proof in opposition to such determination in accordance with the regulations of the commissioner.?

Talib El filed an Article 78 petition seeking to annul a decision by New York City Department of Education (DOE) denying his application for employment as a substitute teacher, asserting that the decision is arbitrary and capricious and discriminatory in that it gives undue weight to the fact that he pleaded guilty to various crimes more than 20 years ago and fails to give appropriate consideration to the substantial evidence he presented in his favor, including a Certificate of Relief from Disabilities issued by the Parole Board.** Such a Certificate creates "a presumption of rehabilitation in regard to the offense or offenses specified therein."

DOE asked the court to dismiss El?s petition, arguing that "In light of [El?s criminal record history], granting employment will pose an unreasonable risk to the safety and welfare of the school community." DOE also contended that it did not receive a copy of the Certificate until after its decision had been rendered.

Judge Schlesinger said that Article 23-A of the Correction Law bars discrimination against persons previously convicted of criminal offenses*** and provides that employment cannot be denied based on an applicant's criminal history unless one or both of the following exceptions is found to apply:

1. There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

2. The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Section 753, subd. (1), lists eight factors which the potential employer "shall consider" when making a determination pursuant to §752 whether the "unreasonable risk" exception applies. Those factors include the following:

(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person;

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;

d) The time that has elapsed since the occurrence of the criminal offense or offenses;

(e) The age of the person at the time of occurrence of the criminal offense or offenses;

(f) The seriousness of the offense or offenses;

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

Noting El?s possession of a Certificate of Relief, Judge Schlesinger found that El presented to the Board of Education substantial evidence in support of his employment application demonstrating that he had been rehabilitated since his last conviction some 20 years ago including his having obtained a high school diploma, a Bachelor's of Science in Human Resources and a Master's of Science in Counseling and Education. In addition, the New York State Education Department had licensed El to practice as a Mental Health Counselor and he was also accredited by the State as an Alcoholism and Substance Abuse Counselor Trainee.

Further, said the court, State Education had certified El as a Teaching Assistant and issued a provisional certificate valid through 2011 to work as a School Counselor.

In addition, El had supplied DOE with his employment history and numerous references.

Despite this, El was notified that the Board of Education had denied his application ?based on [his] criminal record history ? including a serious felony conviction. In light of this, granting employment will pose an unreasonable risk to the safety and welfare of the school community.?

Although Judge Schlesinger indicated that the Board of Education has a certain amount of discretion in determining whether to hire a teacher, she ruled that ?the decision must be annulled where, as here, it is arbitrary and capricious and fails to properly consider all the factors required by law.?

Judge Schlesinger, conceding that ?the Court cannot substitute its judgment for that of the agency,? said that it has a duty to insure that the law is properly applied and that the decision is not based upon "speculative inferences unsupported by the record." In this instance, said the court, DOE?s decision on the whole, suggests that it was based primarily, if not entirely, on El?s criminal history, with little consideration of the other evidence and statutory factors.

Accordingly, the Court held that DOE?s decision denying El's substitute teacher application ?is arbitrary and capricious and must be annulled.?

As to the appropriate remedy, Judge Schlesinger granted El?s petition and remanded the matter to DOE for a new determination ?which applies the statutory presumption related to the Certificate of Relief from Disabilities and otherwise evaluates the relevant factors in accordance with the terms of this decision.?

* See, also, Section 3035.3(a) and (b), ?effective until July 1, 2009.?

** El?s Certificate states that it "removes all legal bars and disabilities to employment, license and privilege except those pertaining to firearms under Sections 265.01(4) and 400.00 of the Penal Law and except the right to be eligible for public office."

*** The New York State?s Human Rights Law, [Executive Law §296(15)] and the New York City?s Human Rights Law [Administrative Code §8-107(10)] also prohibit rejection of applicants for public employment based solely on a criminal conviction.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_50883.htm

Full post as published by New York Public Personnel Law on June 05, 2009 (boomark / email).