An applicant's possession of a Certificate of Relief from Disabilities does not, in and of itself, establish an entitlement to employment
2017 NY Slip Op 07306, Appellate Division, First Department
The New York City Department of Education [DOE] rejected the application for security clearance for a position as a public school cleaner submitted by the Petitioner in an Article 78 action. Petitioner brought the Article 78 action seeking a court order annulling DOE's action. Supreme Court granted the petition and remanded the matter to DOE for further proceedings. DOE thereupon appealed the Supreme Court's ruling.
Citing Matter of Dempsey v New York City Department of Education, 25 NY3d 291, the Appellate Division unanimously reversed the Supreme Court's decision "on the law" and dismissed Petitioner's Article 78 action.
The court explained that the denial of Petitioner's application for security clearance for a position as a public school cleaner has a rational basis in the record and was not arbitrary and capricious in view of DOE's finding that Petitioner's misdemeanor conviction "caused grave concern when considering his moral character, and indicated poor judgment and reckless behavior."
Further, said the Appellate Division DOE's action is supported by the facts surrounding Petitioner's subsequent conviction for petit larceny, which conviction "bears a direct relationship to Petitioner's application for security clearance," supports DOE's concluding that Petitioner's employment would pose "an unreasonable risk to property or the safety and welfare of specific individuals or the general public."
Noting that DOE properly considered the factors enumerated in Article 23-A of the Correction Law* with respect to the employment of an individual having a previous criminal conviction, the court opined that the fact that DOE gave greater weight to factors unfavorable to the Petitioner than to those favorable to him did not support the conclusion that DOE did not consider such favorable factors.
Another element considered by the Appellate Division was that Petitioner submission of a Certificate of Relief from Disabilities in support of his application for employment. The court, however, ruled that although such a Certificate "creates 'a presumption of rehabilitation' it does not establish an entitlement to employment." §753.2 provides that "In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a 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."
Another element considered by the Appellate Division was that Petitioner submission of a Certificate of Relief from Disabilities in support of his application for employment. The court, however, ruled that although such a Certificate "creates 'a presumption of rehabilitation' it does not establish an entitlement to employment." §753.2 provides that "In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a 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."
Lastly, the Appellate Division noted that Petitioner's failed to disclose a prior termination and criminal record in violation of DOE's rules and regulations. This omission, said the court, provided an "independent and rational basis for denying security clearance" to Petitioner.
* §753.1 of Article 23-A of the Correction Law sets out the factors to be considered with respect to the employment of an applicant having a previous criminal conviction as follows:
(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 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 behalf, in regard to his 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.
The decision is posted on the Internet at: