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Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.

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Monday, March 07, 2016

A law enforcement agency may refuse to appoint an applicant for employment in a civilian position based on the applicant's prior criminal conviction


A law enforcement agency may refuse to appoint an applicant for employment in a civilian position based on the applicant's prior criminal conviction
2016 NY Slip Op 01548, Appellate Division, First Department

Article 23-A of the Corrections addresses the “licensure and employment of persons previously convicted of one or more criminal offenses.” It is referred to as a remedial statute “enacted to eliminate the effect of bias against ex-offenders that prevented them from obtaining employment,” by prohibiting employers, public and private, from unfairly discriminating against persons previously convicted of one or more criminal offenses. In making its employment decision, Article 23-A bars discrimination based on a criminal record “unless after consideration of certain enumerated statutory factors, the employer determines that there is direct relationship between the offense(s) and the duties or responsibilities inherent in the … employment … or such employment … poses an unreasonable risk to the public….”

Characterized as case turning on the interpretion of Article 23-A and involving “an issue of first impression,” the Appellate Division unanimously sustained the decision of the New York City Police Department [NYPD] not to appoint DB to the position of Police Communications Technician (PCT). Individuals employed by NYPD as PCTs serve as "civilian employees"* in contrast to serving in the Department as "sworn officers" as defined in §1.20 (34) of the Criminal Procedures Law. 

Notwithstanding the criteria set out in Article 23-A, the court ruled that a law enforcement agency may refuse to hire an applicant seeking employment with that agency as a civilian solely on the basis of the applicant's prior criminal conviction. The Appellate Division explained that, in its view, the protections of Article 23-A do not apply to an individual seeking to be hired by a law enforcement agency in a "civilian" capacity because "membership in any law enforcement agency" is expressly exempted from the statutory definition of "employment" set out in §750(5) of the Correction Law.**

DB had alleged that the sole basis for the NYPD rejecting her for employment as a PCT was that she has a prior criminal conviction.*** 

The issue as formulated by the Appellate Division: Is an individual applying for civilian employment as a PCT with NYPD, a law enforcement agency, seeking something different from "membership" in a law enforcement agency? DB contended that "membership" in a law enforcement agency applies only to sworn officers such as police officers in contrast to those seeking employment in a civilian capacity and that any other interpretation renders the policy of rehabilitation through employment meaningless because good jobs with the NYPD are foreclosed to her, despite having received a certificate from disabilities.

The court concluded that where a term does not have a controlling statutory definition, "courts should construe the term using its usual and commonly understood meaning." Turning to the Merriam-Webster dictionary, the Appellate Division said "membership" is therein defined as "the state of belonging to or being a part of a group or an organization — the state of being a member — all the people or things that belong to or are part of an organization or a group." 

Thus, said the court, applying this broad definition, the exemption does not apply to a narrower group of people such as those seeking employment as sworn officers with a law enforcement agency but applies to anyone, including those such as DB, applying for employment in a law enforcement agency in civilian capacity rather than in a sworn officer capacity. In the words of the Appellate Division: “Had the legislature intended that the exemption from Article 23-A only apply to persons seeking to enforce laws [i.e. uniformed police officers or peace officers], but not the civilians employed by the same agencies or departments, it could have specifically so provided.”

Noting that New York State’s Attorney General has similarly interpreted the exemption in Article 23-A [see 1981 Ops Atty Gen No. 81-7], the court said that while an opinion of the Attorney General is not binding, it "is an element to be considered." In addition, the Appellate Division cited Little v County of Westchester, 36 AD3 616, a case involving the rejection of an applicant for appointment as a correction officer.****

The court opined that its interpretation was not inconsistent with the broad purpose of Article 23-A, that applicants with prior criminal convictions be treated fairly as PCTs take calls, obtain critical information and are the first point of contact between the public and law enforcement and such personnel have access to confidential information, including non-public activities. In the words of the Appellate Division, “The civilian nature of the job does not determine its importance in NYPD operations.”

* Incumbents of such positions are frequently referred to as 911 operators or dispatchers.

** §750.5 provides that "employment" shall not, for the purposes of [Article 23-A], include membership in any law enforcement agency” while §751, pertinent part, provides that the provisions of Article 23-A shall apply with respect to employment “except where a mandatory forfeiture, disability or bar to employment is imposed by law, and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.” According to the decision, DB possessed a certificate of relief from disabilities.

*** The court noted that DB contended that she was a victim of domestic violence and that she inflicted certain injuries on her abuser in self-defense. She pleaded guilty to second-degree assault, a Class D felony and was sentenced to five years probation, which she had completed.

**** In Little the court held that “An appointing authority has wide discretion in determining the fitness of candidates, which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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