Labor & Employment Law

Criminal record of an applicant not an automatic bar to appointment

Criminal record of an applicant not an automatic bar to appointment
Valerie Black v NYS Office of Mental Retardation and Development Disabilities, 2008 NY Slip Op 28205, Decided on March 28, 2008, Supreme Court, Monroe County, Justice Evelyn Frazee

Valerie Black was hired by Arc of Monroe County [Arc] as an individual support specialist-residential subject to her passing the mandatory criminal background check and approval process by New York State Office of Mental Retardation and Developmental Disabilities (OMRDD). The duties of the position stated that the incumbent:

"works directly with adults with physical and developmental disabilities in a residential environment to provide personal care and promote participants' independence, individualization, productivity, integration, personal choice, safety, and well being. Interacts with individuals, staff, and supervisors (Assistant Program Manager, Program Manager, and Residential Supervisor) in a positive and culturally respectful manner."
On September 18, 2007, OMRDD wrote Black that they had revoked her temporary work approval and intended to disqualify her from employment with Arc as of October 18, 2007, unless they received a written explanation that would lead it to change its decision. OMRDD?s letter listed approximately twenty misdemeanor convictions and six felony convictions of petitioner between January, 1980 and August, 2004.

In response, Black submitted her resume, three letters of reference from community service providers, proof of completion of alcohol and substance abuse treatment, and graduation from Monroe Community College with distinction for being on the dean's list for three consecutive semesters. In the words of the court, ?Essentially, [Black] maintains that following her last conviction for petit larceny on August 16, 2004, she has turned her life around, successfully completed drug treatment, graduated from Monroe Community College, and has done volunteer work.?

On October 19, 2007, OMRDD advised Black that it was denying her application "on the grounds that you were convicted of a crime crimes [sic] and that this determination was made consistent with the provisions of Article 23-A of the Corrections Law." Black's employment with Arc was rescinded and she sued, contending that OMRDD?s determination is arbitrary, capricious, and contrary to law because (1) it fails to show a direct relationship between one or more of the previous criminal offenses and the employment sought or that the granting of the employment would constitute an unreasonable risk to the property or safety or welfare of specific individuals or the general public under Correction Law §752; (2) it fails to address the factors enumerated in Correction Law §753; and (3) it fails to recognize the evidence of rehabilitation as required by Correction Law §753(2).

In addition, Black argued that she is a recovered/recovering drug and alcohol addict and, therefore, is a "qualified individual" under Executive Law §296(1)(a) and that OMRDD discriminated against her by denying her employment by reason of her disability.

Justice Frazee said that ?It is well established that judicial review of an administrative determination is limited to whether such determination was arbitrary or capricious or without a rational basis in the administrative record,? and the standard to be applied in this instance is ?? all eight factors set forth in Correction Law §753 are [to be] considered in making a determination pursuant to Correction Law §752 concerning employment of a person with a criminal conviction and the positive factors are [to be] balanced against the negative factors.? The resulting decision, said the court, must neither arbitrary nor capricious nor constitute an abuse of discretion .?

In this instance Justice Frazee decided that OMRDD?s determination was arbitrary and capricious. The affidavit submitted by OMRDD in support of its decision indicated, in part, that Black did not have a ?Certificate of Relief from Disabilities or Good Conduct? and had applied for ?a position which would involve regular and substantial unsupervised or unrestricted physical contact with consumers.? The affidavit also set out criminal history spanning more that 20 years, and stated that ?The positive factors were balanced against the negative factors. A direct relationship was found between the job and the previous convictions. These factors outweigh the public policy of the state to encourage employment of persons convicted of criminal. [sic] Employment would involve an unreasonable risk to the safety and welfare of the consumers or the general public.? The contents of the affidavit did not persuade the court that OMRDD had met its burden.

Justice Frazee indicated that OMRDD had not indicated ?the specific duties and responsibilities necessarily related to the employment sought are not set forth? in the affidavit. Further, OMRDD said that Black has applied for a position which "would involve regular and substantial unsupervised or unrestricted physical contact with consumers," which the court characterized as ?a general catchall statement? without addressing the specific employment duties involved in the employment sought by Black. In addition, Justice Frazee said that OMRDD ?fails to specify the bearing, if any, that [Black?s] convictions will have on her fitness or ability to perform such duties or responsibilities.?

Finally, the court commented that OMRDD?s determination ?fails to articulate in any meaningful and specific way the positive factors which were submitted by [Black].? For example, the fact that Black graduated from Monroe Community College with distinction was glossed over as the "application provided information concerning education . . ."

The Court found that because all the factors enumerated in Correction Law §753 were not properly addressed and considered by OMRDD, its determination that there is a direct relationship between Black?s convictions and the employment sought and that granting of the employment would involve an unreasonable risk to the safety and welfare of the consumers or the general public is arbitrary and capricious. It remanded the case to OMRDD for its further consideration.

Full post as published by New York Public Personnel Law on June 04, 2008 (boomark / email).