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May 11, 2010

Guidelines applicable in selecting or rejecting applicants for employment having a criminal record

Guidelines applicable in selecting or rejecting applicants for employment having a criminal record
Matter of Boatman v New York State Dept. of Educ., 2010 NY Slip Op 03523, decided on April 29, 2010, Appellate Division, Third Department

Correction Law §752 bars the denial of a license or employment application based solely upon an applicant's criminal record unless there is "a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought" (Correction Law §752 [1]), or where granting the license or employment application would "involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."*

In August 2007, Kenneth L. Boatman was hired by the City of Syracuse School District as a temporary custodian.** Boatman later sought a permanent appointment and was told his employment was contingent upon a criminal background check and receipt of clearance from Department of Education.

The criminal background check revealed that Boatman had a 1989 felony conviction for dangerous drugs in Georgia and two New York convictions, one for criminal possession of a controlled substance in the seventh degree in 1993 and one for criminal mischief in 1997. As a result, the Department of Education advised Boatman that its clearance would be denied unless Boatman provided the Department with “satisfactory information indicating why clearance should be granted.***

Ultimately the Education Department denied Boatman clearance for employment on the ground that his employment would "involve an unreasonable risk to the safety and welfare of the students and staff of the District."

Boatman sued, contending that the Department's determination was arbitrary and capricious. Finding that the record was insufficient regarding the particulars of petitioner's convictions and that respondents failed to apply the appropriate statutory factors, When Supreme Court granted Boatman’s petition and remitted the matter to the Department for further proceedings after finding that it had not applied the “appropriate statutory factors, the Education Department appealed.

The Appellate Division said that a judicial review of the administrative decision denying Boatman clearance for employment is limited to whether the decision is arbitrary and capricious. On the other hand, if the court finds that the determination is supported by a rational basis, it "may not substitute its judgment for that of the board or body it reviews," but must sustain the determination.

In this instance, said the Appellate Division, the Department is required to apply the eight enumerated factors**** set out in §753(1) of the Correction Law together with any "certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein."

The court then explained that "When all eight factors are considered and the positive factors are balanced against the negative factors, the resulting decision is neither arbitrary nor capricious nor does it constitute an abuse of discretion and reviewing courts may not reweigh the factors and substitute their judgment for that of the agency."

Finding that there was a rational basis for the Department's determination to deny Boatmen clearance, the Appellate Division reversed the Supreme Court's judgment and dismissed Boatman’s appeal.

* §50.4(d) of the Civil Service Law authorizes the state civil service department and municipal commissions to refuse to examine an applicant, or after examination to certify an eligible, who is guilty of a crime. However the first unnumbered paragraph set out in §50.4(d) provides that "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."

** As to a temporary appointment, typically a school board may, upon the recommendation of the superintendent, conditionally appoint a prospective employee. A request for conditional clearance is to be forwarded to the Commissioner of Education, along with the prospective employee's fingerprints [see, for example, Education Law §1604.39.b.].

*** Other than the certificate of relief from disabilities from the 1993 conviction, Boatmen did not submit any information regarding his prior convictions, the underlying circumstances or evidence of rehabilitation.

The eight factors to be considered concerning a previous criminal conviction:

1. 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;

2. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person;

3. 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;

4. The time which has elapsed since the occurrence of the criminal offense or offenses;

5. The age of the person at the time of occurrence of the criminal offense or offenses;

6. The seriousness of the offense or offenses;

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

8. 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.

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