Opinion
3010/09.
Decided January 29, 2010.
John C. Gray, Esq., Nicole Salk, Of Counsel, South Brooklyn Legal Services, Inc., Brooklyn NY, Petititioner.
Assistant Attorney General, Nathan A. Brill, Andrew Cuomo, New York NY, Christopher L. Van De Water, Esq, NY, NY, Respondent.
Respondent NEW YORK STATE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) is the agency responsible for overseeing all organizations and programs providing services to the mentally retarded or developmentally disabled in New York State. Petitioner LUIS SOTO (SOTO) applied for a school bus driver position with CONSOLIDATED BUS TRANSIT (CONSOLIDATED), a contractor that provides transportation services to the mentally retarded or developmentally disabled. Then, CONSOLIDATED requested, on July 23, 2008, that OMRDD, pursuant to 14 NYCRR § 633.22, conduct a criminal history record check on petitioner SOTO and approve petitioner SOTO's application to be a school bus driver for OMRDD clients.
OMRDD's criminal background check found that petitioner SOTO had been convicted on February 27, 2004 of violating Penal Law § 265.01 (2), criminal possession of a weapon in the 4th degree, a Class A misdemeanor. Petitioner SOTO served a sentence of one year in jail. Further, OMRDD admits that when it denied petitioner's application it was aware that petitioner SOTO had been granted, on September 26, 2008, a Certificate of Relief from Disabilities by Supreme Court, Kings County. However, OMRDD, in its October 7, 2008 letter to petitioner SOTO, denied petitioner's application for employment as a school bus driver "on the grounds that you were convicted of crime/crimes and that this determination was made consistent with the provisions of Article 23-A of the Corrections Law [sic]."
Petitioner SOTO alleges that respondent OMRDD's decision to deny approval of his employment as a school bus driver for OMRDD's clients was arbitrary, capricious or an abuse of discretion, in violation of Article 23-A of the Correction Law [§§ 750 — 755], Executive Law §§ 296 (15) and 845-b and the New York City Administrative Code § 8-107 (10). Petitioner SOTO seeks to have OMRDD approve his employment as a CONSOLIDATED bus driver for OMRDD clients and award him lost wages and any other damages suffered by him. Respondent OMRDD claims that the denial of approval to petitioner SOTO for employment as a bus driver for OMRDD clients was not arbitrary, capricious or an abuse of discretion.
The Court finds that respondent OMRDD's denial of approval of petitioner SOTO as a bus driver for OMRDD clients is arbitrary, capricious or an abuse of discretion. OMRDD failed to address the eight obligatory Correction Law § 753 (1) factors and give proper consideration to evidence of petitioner's rehabilitation and good conduct, including his Certificate of Relief from Disabilities.
Therefore, the instant Article 78 petition is granted to the extent that respondent OMRDD's October 7, 2008 denial of petitioner's application for employment as a school bus driver is annulled. The instant matter is remanded to OMRDD for a detailed consideration of all eight Correction Law § 753 (1) factors. Further, OMRDD must take into consideration Correction Law § 753 (2), that "[i]n making a determination . . . the public agency . . . shall also give consideration to a certificate of relief from disabilities . . . which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified herein."
Background
Petitioner Soto obtained a New York State Commercial Driver License, Class B with passenger and school bus endorsement, in July 2008, after completing a commercial driver training program and accident prevention course [exhibits I and J of petition]. Then, petitioner applied for a school bus driver position with CONSOLIDATED. CONSOLIDATED, a registered provider of services to OMRDD, applied to OMRDD for approval of petitioner SOTO as a school bus driver for CONSOLIDATED [exhibit B of verified answer].
OMRDD notified petitioner, in a letter dated July 31, 2008, that it intended to deny his application based upon its review of petitioner's criminal history. Respondent advised petitioner of his right to submit within thirty days a written explanation of why his application should not be denied [exhibit 2 of petition]. Petitioner SOTO, on or about August 20, 2008, submitted written material explaining why his application should not be denied, including nine letters of personal and professional references, proof of his commercial driver training and qualifications, proof of his educational attainment and a positive evaluation from the supervisor of his internship as Brooklyn Community Housing and Services [exhibit 1 of petition].
Meanwhile, on September 25, 2208, petitioner SOTO received in Supreme Court, Kings County, a Certificate of Relief from Disabilities, which relieved him of all legal bars and disabilities to employment, except for those in Penal Law §§ 265.01 and 400.00 with respect to a license to possess a firearm [exhibit 3 of petition]. That same day, a copy of petitioner's Certificate of Relief from Disabilities was sent to OMRDD. OMRDD, in a December 9, 2008 letter to petitioner, acknowledged reviewing petitioner's Certificate of Relief from Disabilities prior to making a decision on his employment application [exhibit 4 of petition]. However, OMRDD, in its October 7, 2008-letter to petitioner, denied approval of employment to petitioner because of his one criminal conviction [exhibit 5 of petition].
Petitioner Soto was arrested in June 2002 "after he defended his then girlfriend (who he later married) from an attacker. His actions were the result of a unique and unpredictable set of circumstances and were not a part of a pattern of behavior. To the contrary, this incident was the only time that Mr. Soto had ever been arrested and the only time that he had been convicted of a crime in any state [¶ 17 of verified petition]." He was convicted, in February 2004, of a Class A misdemeanor, criminal possession of a weapon in the fourth degree, Penal Law § 265.01 (2). Prior to his conviction petitioner had a consistent work history in store security and custodial maintenance. Both before and after his conviction, petitioner pursued college credits and earned 75 credits at Touro College's School of Career and Applied Studies, in Brooklyn.
Despite being denied the bus driver position for OMRDD at CONSOLIDATED, CONSOLIDATED offered petitioner another position, driving a van for children under the care of the New York City Administration for Children Services (ACS). Petitioner passed an ACS background check and has been working in this ACS position since August 2008. Petitioner claims, in ¶ 33 of his verified petition, that petitioner earns $11.50 per hour as a driver for ACS, but if he worked as an OMRDD bus driver he would earn $12.50 per hour.
OMRDD's verified answer contains an affirmation by Brian Kelly, Esq., Senior Attorney of OMRDD, who conducted OMRDD's criminal background check of petitioner and made the determination not to approve petitioner SOTO. Mr. Kelly correctly states that he had to make a determination, pursuant to Correction Law § 752, whether: there was a direct relationship between petitioner's conviction and the position applied for; and, if the approval of petitioner's application would involve an unreasonable risk to the safety or welfare of the mentally retarded and developmentally disabled persons who would come under petitioner's care on a bus. Mr. Kelly states, in ¶ 17 of his affirmation, that an OMRDD bus driver has regular unsupervised physical contact with dependent individuals who "may exhibit challenging behaviors which can test the patience of their caregiver." Then, in ¶ 18 of his affirmation, he states that:
I concluded that the fact that Petitioner committed the crime of possessing a deadly weapon with intent to use it upon another, would present an unacceptable risk of harm to these vulnerable individuals under these circumstances. It bears directly on the issue of safety in that it shows his lack of judgment and ability to maintain self control . . . It evinces a propensity for the commission of crimes of violence as well as anti-social behavior, a disregard of lawful authority, and a willingness to place his interests above those of all others. OMRDD therefore, under the circumstances presented here, cannot risk the safety and welfare of defenseless individuals while under the care of the Petitioner.
Further, Mr. Kelly claims that he considered all eight Correction Law § 753 statutory factors concerning the employment of a person with a criminal record. Ultimately, Mr. Kelly concludes, in ¶ 26 of his affirmation, "that the public policy of the state to encourage the employment of persons convicted of criminal offenses was outweighed by the unreasonable risk that the employment of petitioner would present to the safety and welfare of the mentally retarded and developmentally disabled individuals who would be under his care, and that accordingly, Petitioner's application must be denied."
Petitioner was 31 years old when he committed his criminal act. He has not been arrested, let alone convicted of anything else, since serving his sentence. Mr. Kelly's decision, on behalf of OMRDD, to disapprove employment of petitioner SOTO as an OMRDD bus driver is arbitrary, capricious and an abuse of discretion. It flies in the face of Correction Law § 753 (1), in that OMRDD as a public agency in "making a determination pursuant to section seven hundred fifty-two of this chapter . . . shall consider . . . (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 offense." Moreover, pursuant to Correction Law § 753 (2), a public agency when making its determination "shall also give consideration to a certificate of relief from disabilities . . . issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein."
Article 78 review standards
The Court's function in an Article 78 proceeding is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious ( see Pell v Board of Educ. of Union School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." ( Pell at 231). A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination." ( Ador Realty, LLC v Division of Housing and Community Renewal , 25 AD3d 128 , 139-140 [2d Dept 2005], quoting Pell at 231).
Further, a reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law ( see Pell at 231; Matter of Brockport Cent. School Dist. v New York State Local Employees' Retirement System, 270 AD2d 706, 707-708 [3d Dept 2000]). Pursuant to CPLR § 7803 (3), "judicial review is limited to the question whether the measure or mode of penalty or discipline imposed' constitutes an abuse of discretion," ( Featherstone v Franco, 95 NY2d 550, 554). Further, the Court of Appeals ( Featherstone at 554) instructed that in an Article 78 review of administrative sanctions, "the sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."
Citing Featherstone, the Court of Appeals, in Kelly v Safir ( 96 NY2d 32, 38), held that weighing whether a sanction shocks the judicial conscience, "involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general ( Pell, supra at 234)."
Discussion
In the instant proceeding, OMRDD's denial of petitioner SOTO's employment as a bus driver for OMRDD clients is arbitrary, capricious and an abuse of discretion. OMRDD's determination with respect to petitioner SOTO violates the public policy of New York State and decisional law. The public policy of New York State, articulated in Correction Law § 753 (1) (a), is to "encourage the licensure and employment of persons previously convicted of one or more criminal offenses." Further, petitioner SOTO's Certificate of Relief from Disabilities, creates a presumption of rehabilitation. Thus, OMRDD's denial of petitioner SOTO's employment as a bus driver for its clients "is shocking to one's sense of fairness" because "the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited." ( Pell at 234).
The Legislature enacted Correction Law Article 23-A (§§ 750-755), "Licensure and Employment of Persons Previously Convicted of One of More Criminal Offenses," in 1976, to remove barriers to the employment of persons with criminal convictions by prohibiting unfair prejudice against them in employment and licensure. ( Bonacorsa v Van Lindt, 71 NY2d 605, 611; C. Schmidt Sons, Inc. v New York State Liquor Authority, 52 NY2d 751). Accordingly, Correction Law § 751 applies Article 23-A to any public or private employer. Correction Law § 752 bars the denial of a license or employment based solely upon an applicant's criminal record unless:
(1) 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; or(2) 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.
A direct relationship exists when "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).
To determine whether a direct relationship or unreasonable risk exists, pursuant to Correction Law § 752, the public agency or private employer must "consider the factors contained in section 753 to determine whether employment or a license should, in its discretion issue." ( Bonacorsa at 614). Correction Law § 753 (1) provides that:
In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following 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 individuals or the general public.Further, Correction Law § 753 (2) requires a public agency or private employer in making its determination to "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."
The failure of an agency to properly consider Correction Law § 753 factors will render its decision to deny licensure or employment as arbitrary, capricious and an abuse of discretion. ( Gallo v OMRDD, 37 AD3d 984, 986 [3d Dept 2007]; El v NYC Dept. of Educ., 23 Misc 3d 1112[A] [Sup Ct, New York County 2009]; Black v OMRDD, 20 Misc 3d 581, 587 [Sup Ct, Monroe County 2008]; Hollingshed v OMRDD, NYLJ, February 22, 2008, at 27, col 1 [Sup Ct, Bronx County]; Boatwright v OMRDD, NYLJ, May 3, 2007, at 18, col 1[Sup Ct, New York County]; Camulaire v New York City Board of Education, NYLJ, September 9, 1998, at 22, col 1 [Sup Ct, New York County]).
OMRDD, in the instant action, in its opposition papers explains that it denied petitioner's application because of petitioner's one misdemeanor illegal weapons conviction. Mr. Kelly, on behalf of OMRDD, argued, in ¶ 18 of his affirmation, that petitioner's conviction "would present an unacceptable risk of harm to these vulnerable individuals [under OMRDD's care]." Further, it "evinces a propensity for the commission of crimes of violence as well as anti-social behavior, a disregard of lawful authority, and a willingness to place his interests above those of all others" and OMRDD "cannot risk the safety and welfare of defenseless individuals while under the care of the Petitioner." While Mr. Kelly cites the eight factors in Correction Law § 753, OMRDD he did not really analyze them. This is demonstrated by exhibit A of the verified answer, which contains various newspaper articles about a bus matron who left a disabled man in a bus overnight in below freezing temperatures. All of this is irrelevant to petitioner SOTO's character, trustworthiness, rehabilitation or even the specific job duties of a CONSOLIDATED bus driver.
OMRDD pays lip service to the eight Correction Law § 753 factors, and relies on the speculative claims of Mr. Kelly that petitioner SOTO "evinces a propensity for the commission of crimes of violence as well as anti-social behavior, a disregard of lawful authority, and a willingness to place his interests above those of all others." OMRDD determined that petitioner SOTO, with his one misdemeanor conviction, must be deemed to present "an unacceptable risk," without making an individualized determination of whether petitioner SOTO poses such a threat. When OMRDD's "conclusions are based on speculative inferences unsupported by the record its determination should be annulled." ( Sled Hill Café, Inc. v Hostetter, 22 NY2d 607, 612-613).
In analyzing the eight factors found in Correction Law § 753 (1), the first factor is the "public policy of this state" which is to "encourage the licensure and employment of persons previously convicted."
The second factor is "the specific duties and responsibilities necessarily related to the . . . employment sought." Petitioner has a valid commercial drivers license to transport children safely.
The third factor is "the bearing, if any" of the "criminal offense . . . for which the person was previously convicted will have on his fitness or ability to perform one or more such duties and responsibilities." Petitioner's conviction for criminal possession of a weapon in the fourth degree has no bearing on petitioner's fitness or ability to safely transport OMRDD clients. Further, petitioner's one misdemeanor conviction does not demonstrate a pattern of violent or lawless behavior. CONSOLIDATED employed petitioner to drive for ACS and his continued employment in this position shows that he is fit to drive OMRDD clients.
The fourth factor is "[t]he time which has elapsed since the occurrence of the criminal offense." Petitioner's criminal offense was committed in June 2002, more than six years before his application was filed with OMRDD. Courts have found that this approximate period of elapsed time does not pose an unreasonable risk to public safety. ( City of New York v New York City Civil Serv. Commn. , 30 AD3d 227 [1d Dept 2006]; Islam v N.Y.C. Taxi Limousine Commission, NYLJ, December 22, 2008, at 18, col 1 [Sup Ct., New York County]; Camulaire, supra).
An agency must also consider the fifth factor, "[t]he age of the person at the time of the occurrence of the criminal offense or offenses." Petitioner was a 31 year old adult when he committed the offense that led to his conviction. Petitioner's age "will never change — and if determinative, would bar Petitioner forever," and undermine the purpose of Article 23-A of the Correction Law. ( Camulaire, supra). Accordingly, Court have found that a conviction as an adult does not preclude employment or licensure under Article 23-A. ( Islam, supra; Boatwright, supra; Camulaire, supra).
The sixth factor is the seriousness of the crime or crimes committed. Mr. Soto's conviction for criminal possession of a weapon in the fourth degree, a Class A misdemeanor, is not a presumptive disqualifying crime, pursuant to OMRDD regulations. ( 14 NYCRR § 633.98). Individuals with felony and multiple convictions have been found not to present an unreasonable risk. In Gallo, supra, the denial of employment based upon a conviction of assault in the second degree was found by the Appellate Division, Third Department to be arbitrary and capricious because Correction Law § 753 factors were not properly applied. In Hollingshed, supra, there was a finding of no unreasonable risk and petitioner had convictions for, inter alia, robbery in the third degree and grand larceny in the third degree. In City of New York v New York City Civil Serv. Commn., supra, there was a finding of no unreasonable risk in hiring a petitioner with convictions for attempted robbery in the second degree and sexual abuse in the first degree. There was a finding of no unreasonable risk where petitioner was convicted of manslaughter and multiple counts of prostitution and drug possession. ( City of New York v City Civil Serv. Commn., 141 Misc 2d 276 [Sup Ct, New York County 1988]. Mr. Soto claims that his crime was committed in the course of defending his girlfriend. The seriousness of his crime is insufficient to justify OMRDD's denial of approval.
The seventh factor that an agency must consider is information in regard to "rehabilitation and good conduct" of the applicant. Evidence of rehabilitation can include letters of reference, enrollment in school, participation in church, other community involvement and employment. ( Hollingshed, supra; Boatwright, supra; Camulaire, supra). Petitioner produced extensive evidence of his rehabilitation and good conduct, including nine letters of recommendation, a professional reference attesting to his good moral character and commitment to his family, proof of his commercial driver's license, proof of his educational attainment, and a positive evaluation from his supervisor at Brooklyn Community Housing and Services. He also submitted a copy of his Certificate of Relief from Disabilities, which creates a presumption of rehabilitation. Petitioner has not been arrested since his one conviction. All of petitioner's evidence establishes that petitioner has been rehabilitated and demonstrates good conduct.
The eightt factor is the "legitimate interest . . . in protecting property, and the safety and welfare of specific individuals or the general public." As discussed above, petitioner has a New York State commercial driver's license and completed a New York State certified accident prevention program. He is qualified be a bus driver for OMRDD clients. His success as a van driver for ACS, with the vulnerable children ACS supervises, demonstrates that approving his application would not endanger people or property.
Correction Law § 753 (2) mandates that OMRDD has to give consideration to petitioner's Certificate of Relief from Disabilities. The statutory presumption of rehabilitation resulting from a Certificate of Relief from Disabilities "imposes a burden on respondents to come forward with evidence to rebut it." ( Marra v City of White Plains, 96 AD2d 17, 24 [2d Dept 1983]). ( See Arrocha v Board of Educ. of City of New York, 93 NY2d 361, 365; Peluso v Smith, 142 Misc 2d 642, 649 [Sup Ct, New York County 1989]; Camulaire, supra). OMRDD acknowledged in its December 9, 2008-letter that it considered petitioner SOTO's Certificate of Relief from Disabilities when rejecting his application. However, OMRDD has not presented any evidence to rebut the presumption of rehabilitation, nor has OMRDD explained why its rejection of petitioner SOTO was justified in light of the presumption of petitioner's rehabilitation.
Correction Law § 752 (1) permits the denial of a license when there is "a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought." This doesn't apply to the instant petition. In analyzing the statutory definition of "direct relationship," "a direct relationship can be found where the applicant's prior conviction was for an offense related to the industry or occupation at issue . . . or the elements inherent in the nature of the criminal offense would have a direct impact on the applicant's ability to perform the duties necessarily related to the license or employment sought." ( Marra, at 22 — 23). There is no direct relationship between petitioner SOTO's conviction and the employment sought. Driving a bus has nothing to do with petitioner's conviction of criminal possession of a weapon in the fourth degree. Further, it was not an offense against children or one that endangered children.
Further, OMRDD's denial of petitioner's employment application, without consideration of the provisions of Correction Law Article 23-A, is a violation of Executive Law § 296 (15). This is part of the Human Rights Law, which is codified in Article 15 of the Executive Law (§ 290 et seq.). Executive Law § 296 (15) states that:
It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses, or by reason of a finding of a lack of "good moral character" which is based upon his or her having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-A of the correction law.
While not applicable to the instant matter, New York City Administrative Code § 8-107 (10) has the same language, making it an unlawful discriminatory practice to deny a license or employment based upon a criminal conviction when such a denial violates Article 23-A of the Correction Law.
Moreover, OMRDD's denial of petitioner's application, by failing to determine petitioner's employment eligibility in accordance with Article 23-A of the Correction Law, is a violation of Executive Law § 845-b (5) (b). This statute requires that all employment eligibility decisions for persons convicted of a crime be "consistent with article 23-A of the correction law."
It is clear that OMRDD's failure to determine petitioner SOTO's employment eligibility in accordance with Article 23-A of the Correction Law, as well as Executive Law §§ 295 (15) and 845-b (5) (b) is arbitrary, capricious and an abuse of discretion.
Conclusion
Accordingly, it is
ORDERED, that the instant Article 78 petition of LUIS SOTO is granted to the extent that the October 7, 2008 denial by respondent NEW YORK STATE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES of petitioner's application for employment as a bus driver for respondent's clients is annulled; and it is further
ORDERED, that the instant matter is remanded to respondent NEW YORK STATE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES for a new determination based upon: the eight factors enumerated in Correction Law § 753 (1); and, the statutory presumption of rehabilitation with respect to a Certificate of Relief from Disability, pursuant to Correction Law § 753 (2).
This constitutes the Decision and Order of the Court.