June 24, 2013

Considering Certificates of Relief from Civil Disabilities, Certificates of Good Conduct or an Executives Pardon in determining eligibility for public employment

Considering Certificates of Relief from Civil Disabilities, Certificates of Good Conduct or an Executives Pardon in determining eligibility for public employment
Anonymous v NYC Human Resources Administration, 154 A.D.2d 233.

In Anonymous v NYCHRA the Appellate Division considered the termination of a public employee because he allegedly made false statements on his application for public employment. The decision involves the inter-relationship and application of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.

Anonymous had been appointed in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."*

According to the ruling, Anonymous allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Anonymous'] termination."

Anonymous sued, contending that his termination was arbitrary and that his discharge was in violation of §296 of the Human Rights Law.

Anonymous had been convicted of two misdemeanors. However, he contended that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil Disabilities together with "the dispositions of his criminal cases along with his application."

Although New York courts have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Appellate Division believed that Anonymous "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."

 The court appeared troubled by the summary dismissal of Anonymous' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Anonymous] to retain his position after questioning." A second footnote indicated that the file of investigator originally involved in the case, whom Anonymous claimed told him that "there would be no further problems with his application [despite the inconsistency regarding his criminal record,] had been misplaced."

As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, §296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual has been convicted.

Additional protections against discrimination based on a criminal conviction are contained in §752 of the Corrections Law. §752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see §702, Correction Law]. Anonymous had obtained such a Certificate from a State court judge.

The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain or be eligible for public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**

Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of his or her conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [§703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, §4, State Constitution].

In the Anonymous case the Appellate Division said that the action taken against Anonymous by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law §702(2)(c)] and the court which saw fit to grant [Anonymous] a second chance at life."

This suggests that in a §50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct or an Executive Pardon in challenging his or her proposed disqualification form the eligible list or employment in the public service.

* Although the statutory authority for the termination is not specified in the decision, it is assumed that Anonymous was disqualified pursuant to §50.4 of the Civil Service Law. §50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to §50.4.]

** The Board of Parole is also authorized to issue such Certificates. See §703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.