Opinion
10-19-2017
In re Jonathan COLEMAN, Petitioner–Respondent, v. The NEW YORK CITY DEPARTMENT OF EDUCATION DIVISION OF HUMAN RESOURCES, et al., Respondents–Appellants.
Zachary W. Carter, Corporation Counsel, New York (Eric Lee of Counsel), for appellants. Neighborhood Defender Service of Harlem, New York (Emily Ponder of Counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Eric Lee of Counsel), for appellants.
Neighborhood Defender Service of Harlem, New York (Emily Ponder of Counsel), for respondent.
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 (see Matter of Dempsey v. New York City Dept. of Educ., 25 N.Y.3d 291, 300, 11 N.Y.S.3d 529, 33 N.E.3d 485 [2015] ; see also Matter of Arrocha v. Board of Educ. of City of N.Y., 93 N.Y.2d 361, 363–364, 690 N.Y.S.2d 503, 712 N.E.2d 669 [1999] ). The finding that petitioner's misdemeanor conviction caused grave concern when considering his moral character, and indicated poor judgment and reckless behavior, is supported by the facts surrounding his 2009 conviction for petit larceny in violation of Penal Law § 155.25. This conviction bears a direct relationship to petitioner's application for security clearance ( Correction Law § 752[1] ), and DOE rationally concluded that petitioner's employment would pose an unreasonable risk to property or the safety and welfare of specific individuals or the general public (Corrections Law § 752[2] ).
The record demonstrates that DOE properly considered the factors enumerated in article 23–A of the Correction Law (see Matter of Arrocha, 93 N.Y.2d at 364–365, 690 N.Y.S.2d 503, 712 N.E.2d 669 ; Matter of Persaud v. New York State Off. of Children & Family Servs., 114 A.D.3d 492, 979 N.Y.S.2d 811 [1st Dept.2014] ), and the fact that DOE afforded greater weight to factors unfavorable to petitioner than to those favorable to him does not warrant the conclusion that it did not consider the favorable factors (see Arrocha at 366–367, 690 N.Y.S.2d 503, 712 N.E.2d 669 ). Furthermore, while petitioner's certificate of relief from disabilities creates "a presumption of rehabilitation" ( Correction Law § 753[2] ), it does not establish an entitlement to employment (see Matter of Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 614, 528 N.Y.S.2d 519, 523 N.E.2d 806 [1988] ).
Petitioner's separate failures to disclose his prior termination and criminal record, in violation of DOE's rules and regulations, provide independent and rational bases for denying security clearance (see e.g. Matter of Sindone v. City of N.Y., 2 A.D.3d 125, 126, 767 N.Y.S.2d 438 [1st Dept.2003] ).
ACOSTA, P.J., FRIEDMAN, WEBBER, OING, and MOULTON, JJ., concur.