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In the Matter of Madeline Acosta v. New York City Department of Education

March 24, 2011

IN THE MATTER OF MADELINE ACOSTA, RESPONDENT,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, ET AL., APPELLANTS.



The opinion of the court was delivered by: Lippman, Chief Judge

Thisopinion is uncorrected and subject to revision before publication in the New York Reports.

We conclude that the New York City Department of Education (DOE) failed to comply with the requirements of the Correction Law and thus acted arbitrarily in denying petitioner's application for security clearance.

I. As a general matter, it is unlawful in this state for any public or private employer to deny any license or employment application "by reason of the individual's having been previously convicted of one or more criminal offenses" (Correction Law § 752; see Executive Law § 296 [15]). This general bar was enacted to further certain goals that the Legislature has identified as among the "general purposes" of the Penal Law, namely, "the rehabilitation of those convicted" and "the promotion of their successful and productive re-entry and reintegration into society" (Penal Law § 1.05 [6]). As Governor Hugh L. Carey's memorandum approving the legislation that codified this general prohibition noted, "the key to reducing crime is a reduction in recidivism," and "[t]he great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual's return to society his willingness to assume a law-abiding and productive role is frustrated by senseless discrimination" (Governor's Approval Mem, Bill Jacket L 1976, ch 931, 1976 McKinney's Session Laws of NY, at 2459 ["Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime."]).

There are, however, two significant exceptions to this general prohibition. The first exception arises where "there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual" (Correction Law § 752 [1]). The Legislature has clarified that a "'[d]irect relationship' means that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question" (Correction Law § 750 [3]). This "direct relationship" exception is not at issue on this appeal.

It is the Correction Law's second exception to the general rule barring the adverse treatment of an application for a license or employment based on an applicant's prior criminal conviction that concerns us here. The second exception allows for the adverse treatment of such applications where "the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public" (Correction Law § 752 [2]). We have previously noted that the Legislature has not provided a statutory definition of the phrase "unreasonable risk" in this context "for the obvious reason that a finding of unreasonable risk depends upon a subjective analysis of a variety of considerations relating to the nature of the license or employment sought and the prior misconduct" (Matter of Bonacorsa v Van Lindt, 71 NY2d 605, 612 [1988]).

Although the "unreasonable risk" analysis under the second exception is a subjective one, section 753 (1) of the Correction Law provides that, "[i]n making a determination" as to whether either the "direct relationship" exception or the "unreasonable risk" exception applies, "the public agency or private employer shall consider" the following eight factors:

"(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 ...


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