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May 14, 2015

The eight factors that a public agency or private employer must consider before rejecting an applicant for employment based on his or her criminal record

The eight factors that a public agency or private employer must consider before rejecting  an applicant for employment based on his or her criminal record
2015 NY Slip Op 04028, Court of Appeals

Distinguishing its decision in Acosta v New York City Board of Education [Board], in this action the Court of Appeals held that the Board’s denial of the application for certification as a school bus driver because of his prior criminal convictions was not arbitrary and capricious.

Here the applicant [Applicant] for certification as a school bus had disclosed that he had been convicted of two drug-related felonies as well as three theft-related misdemeanors, the most recent in 1993, when Applicant was 41 years old. Applicant explained that his criminal history was related to a past drug addiction, which he had overcome in the mid-1990s through a drug treatment program.

DOE withheld its certification as a school bus driver, advising Applicant’s employer that  the reason for the denial was that Applicant had been "convicted of an offense that render[ed] [him] unsuitable to perform duties associated with the transportation of school age children." As a result of petitioner's failure to receive certification, the bus company terminated Applicant's employment.

Applicant and other individuals who had been denied certification by the DOE based on criminal convictions commenced a proceeding pursuant to CPLR Article 78 challenging the denials. Supreme Court dismissed the proceeding. However, the Appellate Division modified Supreme Court's judgment, granted the petition to the extent of annulling the DOE's determinations, and remitted to the DOE, "to give petitioners an opportunity to review the information upon which DOE's determinations were based and to submit statements and documents pursuant to Chancellor's Regulation C-105."

Regulation C-105 provides that "[i]f, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with [DOE's Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."

Although Applicant had submitted various documents to the DOE from a number of prior employers including the bus company, all which described Applicant as a reliable and responsible employee and a certificate of relief from disabilities with respect to his felonies issued by Supreme Court in 2002, DOE again denied his application.

Applicant again challenged DOE’s denial of certification to serve as a school bus driver.

Supreme Court granted Applicant’s petition to the extent of annulling DOE's determination, ordered the DOE to approve petitioner's application, and remanded. Supreme Court concluded that the DOE had "failed to consider all eight factors as set forth in section 753 of the Correction Law. . . . Respondent only considered petitioner's criminal history when reviewing his application and failed to consider his extensive evidence of rehabilitation. Petitioner's last conviction was eighteen years ago and he obtained a certificate of relief from disabilities" (see 2012 NY Slip Op 30552[U] [Sup Ct, NYCounty 2012]).

The Appellate Division reversed Supreme Court's judgment, holding that "[t]he DOE's May 4, 2011 determination that [Applicant’s] prior drug-related convictions as an adult bore on his fitness and/or ability to perform his school bus duties was rationally based, and it shows DOE gave due consideration to the relevant factors under Correction Law § 753 before denying his application. Although [Applicant] avers he has been drug free since 1994, and his crimes were directly related to his drug addiction at the time, the offenses were not youthful indiscretions (he was 41 years old), but were of a serious nature since each involved narcotics."

The Appellate Division granted Applicant leave to appeal to the Court of Appeals, certifying the question whether its order was properly made. The Court of Appeals affirmed the Appellate Division’s decision.

The Court of Appeals noted that the Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the §752 exceptions applies:

"(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 [or her] fitness or ability to perform one or more such duties or responsibilities.

(d) The time which 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 [or her] behalf, in regard to his [or her] rehabilitation and good conduct.

(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."
(Correction Law § 753 [1].)

and that "[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive."

Referring to it decision in Acosta, the court explained that there it had reviewed DOE's denial of an application for a security clearance, filed by an individual who had been convicted of first-degree robbery when she was 17 years old. Although DOE contended that issuance of the security clearance would pose "an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,” the Court of Appeals held that the DOE acted arbitrarily because the agency failed to consider each of the factors specified in Correction Law § 753 and, further, did not take into consideration all of the documentation that Acosta submitted in support of her application, and therefore violated Correction Law §753(g). The court said that it concluded that DOE's review amounted to no "more than a pro forma denial of petitioner's application on the basis of her prior criminal conviction,"

In his appeal, Applicant argued that “DOE has, once again, failed to review anything other than an applicant's criminal record.”

The Court of Appeals said that it disagreed with Applicant, holding that in contrast to Acosta, Applicant “adduces no evidence demonstrating that the DOE failed to consider the information he provided concerning his relevant employment history.”  Here, said the court, the record indicates that the DOE may simply have given "greater weight to . . . the fact and circumstances of [Applicant's] conviction[s] than to . . . his subsequent accomplishments," and in these circumstances the DOE's determination cannot be overturned without "engaging in essentially a re-weighing of the factors, which is beyond the power of judicial review.

Considering these elements and the relevant statutes, the Court of Appeals, Chief Judge Lippman dissenting, said that under these circumstances “we cannot conclude that the DOE's determination, declining to grant the certification despite the certificate of relief from disabilities, was arbitrary and capricious.”

The decision is posted on the Internet at:


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NYPPL Lawblogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; as Director of Research, Governor’s Office of Employee Relations; as Director of Personnel for the State University of New York System; and as Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional. NYPPL's Email Address = nyppl@nycap.rr.com