Opinion
No. 20858/11.
2012-10-23
In the Matter of the Application of William EXUM, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Personnel Review Board, 346 Broadway, New York, N.Y. 10013, Respondent.
Petitioner was self-represented, but retained counsel for oral argument. Benjamin J. Traverse, of Counsel to the Corporation Counsel of the City of New York., for Respondent.
Petitioner was self-represented, but retained counsel for oral argument. Benjamin J. Traverse, of Counsel to the Corporation Counsel of the City of New York., for Respondent.
RICHARD VELASQUEZ, J.
The following papers numbered 1 to 4 read on this motion:
Papers Numbered
Notice of Petition/Cross Motion
Affidavits (Affirmations) Annexed1–2, 3–4
Opposing Affidavits (Affirmations)3
Reply Affidavits (Affirmations)4
Memorandum of Law____________________________5
After oral argument and a review of all submissions herein the Court finds as follows:
Petitioner commenced this proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR), challenging the decision of the New York Health and Hospitals Corporation Personnel Review Board (Respondent) in affirming the Health and Hospital Corporation's decision to disqualify petitioner from appointment to the position of “special officer” under Examination No. 6090. Petitioner asks the Court to reverse this decision, thereby deeming petitioner qualified for the position to which he applied. Petitioner was pro se until the date of his Oral Argument in this matter. He was represented by counsel for oral argument.
Respondent cross-moves the Court to dismiss the petition on the ground that the Personnel Review Board's decision was rationally based, and was not arbitrary, capricious or unlawful. Respondent was represented Benjamin J. Traverse, of Counsel to the Corporation Counsel of the City of New York.
Background
On October 16, 2009, petitioner William Exum applied for the position of “special officer” with the New York City Health and Hospitals Corporation (HHC). The “special officer” position is designated as a Peace Officer position pursuant to New York Criminal Procedure Law Section 2.10. To be found eligible for this position, candidates must meet the requirements for Peace Officer status in New York State, which includes proof of good character. As such, HHC requires all applicants to reveal all arrests, convictions and pending charges. Consistent with this requirement, petitioner duly noted his record with specificity on his application for employment with HHC.
As part of the application process, petitioner was subject to a background investigation by the New York City Department of Citywide Administrative Services (DCAS). Upon DCAS's recommendation, petitioner's application was denied on the basis of (1) his arrest and conviction record, and (2) his failure to accurately disclose his prior employment history. His appeal of DCAS' decision to the Personnel Review Board of The New York City Health and Hospitals' Corporation was denied by a decision dated July 22, 2011. Petitioner timely commenced his Article 78 Application on September 15, 2011.
Among the exhibits provided to the Court by the parties is a document entitled “NOTICE OF EXAMINATION” “Special Officer (HHC)”. This document contains detailed descriptions of “What the Job Involves”, “salary” and “How to Apply”. The applicant is instructed to reveal “ALL arrests, convictions and pending charges that have occurred in your lifetime. This includes any materials sealed, expunged, or set aside under Federal or State law ...”.
The document also lists the factors which may be cause for disqualification: “(a) conviction of an offense, the nature of which indicates lack of good moral character or disposition toward violence or disorder, or which is punishable by one of more years of imprisonment; (b) two or more convictions of an offense, where such convictions indicate disrespect for the law; (c) discharge from employment, where such discharge indicates poor behavior or inability to adjust to discipline; (d) dishonorable discharge from the Armed Forces.”
A copy of portions of petitioner's application were attached as “exhibits” both by petitioner and respondent, along with several other exhibits including a New York City Police Department “Criminal History Search Based Solely on NYPD Records within the Environs of New York City Only”. Petitioner's fingerprints are found on this document and the document is dated August 29, 2008. After a search based upon petitioner's fingerprints the following is noted on said document: “Criminal Record: no”. At the top of this document is found this statement: “Good Conduct Certificate”.
Petitioner also attached a copy of a “Certificate of Merit” presented to him by “The Criminal Court of the State of New York” in recognition of outstanding and dedicated service to the People of the State of New York during the BLIZZARD of 1996?. Several other letters and documents are also provided by petitioner and respondent and will be referred to when relevant.
Discussion
According to New York Practice Law and Rules (CPLR), in an Article 78 proceeding, an administrative agency's decision may be disturbed by the courts if that decision was arbitrary, capricious or erroneous as a matter of law. CPLR § 7803(3). A reviewing court should look to the “whole record to determine whether there exists a rational basis to support the findings upon which the agency's determination is predicated”. Purdy v. Kreisberg, 47 N.Y.2d 354, 358, 418 N.Y.S.2d 329, 391 N.E.2d 1307, 1309 (N.Y.1979). Whether a rational basis exists turns on whether the administrative determination is supported by substantial evidence, which is defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” City of New York v. City Civil Serv. Comm'n, 141 Misc.2d 276, 281, 532 N.Y.S.2d 626, 630 (N.Y.Sup.1988).
In the instant matter, the Personnel Review Board for New York City Health and Hospitals Corporation based its decision upholding William Exum's disqualification for the position of Special Officer on the following grounds:
1. “DCAS recommended the disqualification of the Appellant, largely due to his record of arrests and convictions for possession of marijuana'.
2. “His termination from prior similar employment.”
3. “His omission of this prior termination when he applied for exam 6090”.
A thorough review by the Court of all submissions in this matter and a search of the record indicates that all three of these grounds for disqualification are factually incorrect.
Factual Analysis of Grounds for Disqualification
1. On petitioner Exum's employment application for the position of “special officer” he lists an arrest in 1977 for allegedly possessing a “gravity knife” in the glove compartment of his car. He pled guilty to disorderly conduct, and was “conditionally discharged” and his record sealed. Petitioner was 19 years old at the time of his arrest.
Petitioner's next arrest which resulted in a conviction occurred on April 2, 2000, approximately 23 years after his first arrest in 1977. Petitioner was charged with possession of a controlled substance, to wit, marijuana, and pled guilty to disorderly conduct. Petitioner was conditionally discharged and the charge was later dismissed and the record sealed. These are petitioner's only convictions. Petitioner was also arrested on possession of marijuana 11/10/98, 8/18/99, 2/17/01, 3/9/04 and 9/8/06. Each of these arrests was dismissed.The date of his employment application for the position of “special officer” was October 16, 2009–more than three years after his last arrest (September 8, 2006) for possession of marijuana, a charge which was dismissed on October 5, 2006.
On August 29, 2008, the NYPD's Public Inquiry & Request Section issued a “Good Conduct Certificate” to the petitioner and found that he had no criminal record based upon his fingerprint submission for a Search of his Criminal History. Petitioner also pointed out in his petition, affidavit and exhibits that between his first arrest in 1977 and his conviction in 2000, he had no arrests during this twenty-three year period.
Thus, petitioner had one arrest for possession of marijuana which resulted in a plea and conviction for disorderly conduct. The conviction was later dismissed and the record sealed. All of petitioner's other arrests for marijuana possession resulted in dismissals.
As regarding character and background for the position of Special Officer, HHC, among the factors listed as reasons for being found unqualified as mentioned above, are convictions-not arrests. The only convictions to be considered are those which indicate lack of good moral character, or a disposition toward violence or disorder. Petitioner's convictions which could indicate a lack of good moral character occurred in 1977 and 2000. These convictions are separated by 23 years, and the last in 2000 occurred 9 nears before petitioner's application. Both of these convictions were conditionally discharged and the record sealed. Petitioner has never been sentenced to a period of incarceration.
Moreover, New York Correction Law § 753: “Factors to be considered concerning a previous criminal conviction; presumption” states as follows at “2.” “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 certification 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.” Petitioner presented his Certificate of Good Conduct at his appeal and hearing before the Personnel Review Board, and no evidence was offered by respondent to rebut this presumption. Furthermore, petitioner obtained a second “Good Conduct Certificate dated April 19, 2011 and was again found to have “no criminal record” by an NYPD search based upon petitioner's fingerprints in 2011.”
2. Petitioner alleges that he was never discharged from prior similar employment, as found by DCAS as the second reason for his disqualification.. On his employment application, petitioner responded to “Question 15” “Were you ever disciplined (i.e. suspended demoted, reprimanded, fined, fired, terminated, discharged) in any position, by either a public or private employer?” Petitioner responded by underlining the terms “fired, terminated, discharged” and answered “N” (no) to the question. Respondent, while maintaining that petitioner was terminated from his employment with Quality Protection Services, attaches to his “Cross–Motion to Dismiss,” a “Memorandum” from Steve Weitz from the City of New York's Citywide Personnel Services, entitled “Subject William Exum, Applicant for Special Officer (HHC), Exam No. 6090, Case No. 015469”: that states as follows:
TELEPHONE INTERVIEW WITH QUALITY PROTECTION SERVICES
CHIEF FINANCIAL OFFICER AND VICE PRESIDENT OF OPERATIONS
“A search of candidate's personnel file [William Exum] revealed a disciplinary write-up that indicates that on 11–24–03, candidate received a written warning for leaving his post without relief on 11–23–03. The form, which states that a similar incident will lead to suspension or termination, was acknowledged by signature in the name William Exum, dated 11–24–03. (Emphasis supplied).
The report from this telephone interview dated April 27, 2010, makes clear that petitioner was not fired, terminated or discharged from his employment with Quality Protection Services, and that respondent was or should have been aware of this fact at the time of petitioner's hearing on May 19, 2010.Accordingly, the Court finds that petitioner was not “fired, terminated, discharged” from his position with Quality Protection Services 11–24–03. No allegation has been made by respondent that William Exum was “fired, terminated, discharged” from any other prior similar employment. Thus, the second ground for finding petitioner unqualified for the subject position is factually incorrect.
3. Petitioner did not omit “his prior termination” in his employment application, as he was never terminated. He did, however, list this position in his employment application as a “security guard” with “Quality Protection, 801 2nd Ave., New York City”, and provide his supervisor's telephone number. In addition, under reason for leaving, petitioner stated that he was “disciplined for leaving his post without relief”, but that he left for other reasons. He listed his duties as “I.D. checks, patrol, visitors sign in logs”. Accordingly, the third ground for finding petitioner unqualified for the subject position is, likewise, factually incorrect.
New York Correction Law Article 23A: It's Application to Petitioner's Case
In the Personnel Review Board's “Findings and Analysis”, this statement is found: The Corporation did not challenge the Appellant's education and experience for the position of Special Officer, but it asserted that his overall record, which included several criminal arrests and convictions, rendered him unfit for this position”. The Personnel Review Board, in its analysis of petitioner's case, stated in its decision that it “must take into consideration” an eight-factor test outlined in Article 23–A, Section 753 of the New York Correction Law. Petitioner contends, however, that respondent has misrepresented his arrest and conviction record and failed to provide his Certificate of Good Conduct as it was dated 2011—after the hearing had taken place.
A review of New York Correction Law Article 23A and the eight factors to be considered when reviewing a previous criminal conviction, indicates that the Personnel Review Board's Findings and Analysis are erroneous as a matter of law.
§ 753 of New York Correct Law provides as follows:
Factors to be considered concerning a previous criminal conviction:
Presumption
1. In making a determination pursuant to section sever 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 oremployment sought by the person.
(C) The bearing, if any, the criminal offense or offenses for which the personwas 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 offenses or offense.
(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 state.
2. In making a determination pursuant to section sever-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 shallcreate a presumption of rehabilitation in regard to the offense or offenses specified therein. (Emphasis supplied)
Where a court finds that a respondent has disqualified a petitioner by failing to address the eight obligatory Correction Law factors and give proper consideration to evidence of petitioner's rehabilitation and good conduct including his Certificate of Relief from Disabilities, or Certificate of Good Conduct, the respondent's decision to disqualify has been found to be arbitrary, capricious and an abuse of discretion. See, In the Matter of the Application of Soto v. New York State Office of Mental Retardation and Developmental Disabilities, 26 Misc.3d 1215(A), 2010 WL 334857 (N.Y.Sup.2010).
In Soto, the petitioner had been convicted on February 27, 2004 of criminal possession of a weapon in the 4th degree and had served a sentence of one year. On September 26, 2008, petitioner had been granted a Certificate of Relief from Disabilities. Petitioner had no other arrests after his release from prison as of September 26, 2008 when he was granted his Certificate. Petitioner applied for a position as school bus driver and had the requisite experience and education required by the position.
Based upon the respondent's reason for denial of petitioner's application in Soto—“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.”—the Court found respondent's decision to be arbitrary, capricious and an abuse of discretion.
In the instant matter, petitioner has two convictions for disorderly conduct—one for possession of a “gravity knife” when petitioner was 19 years old, and a second for possession of marijuana over 23 years later. Both of these convictions resulted from petitioner pleading guilty to disorderly conduct. All of petitioner's other arrests were dismissed with the exception of these two convictions for which petitioner pled guilty to a lessor offense and was never sentenced to a term of incarceration Moreover, § 752 and 753 address only convictions and not arrests. Although respondent maintains that petitioner had two convictions for marijuana, respondent is incorrect. Petitioner had two convictions for disorderly conduct, only one of which resulted from an arrest for marijuana, and both of which were conditionally discharged.
Respondent also maintains that petitioner produced a “Certificate of Good Conduct” dated in 2011—after his denial by the Personnel Review Board's decision. To the contrary, petitioner has included in his several exhibits his 2008 “Certificate of Good Conduct” which he provided to the Personnel Review Board at his hearing.
New York Corrections Law Article 23A: Policy Considerations
“Article 23A of the Correction Law was enacted in 1976 in an attempt to eliminate the effect of bias against ex-offenders which prevented them from obtaining employment. Studies establish that the bias against employing or licensing ex-offenders was not only widespread but particularly unfair and counterproductive.” Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 523 N.E.2d 806, 528 N.Y.S.2d 519 (N.Y.1988). The Bonacorsa Court goes on to emphasize that even where the statutory definition of “direct relationship” between the conviction and the employment or license sought applies, a certificate of good conduct creates a presumption of rehabilitation which can be overcome by the production of independent evidence to rebut the presumption. In the instant matter, it appears that the petitioner was not given a presumption of rehabilitation warranted by his Certificate of Good Conduct, by the Personnel Review Board and that no evidence was presented to rebut said presumption. The same presumption applies to the “unreasonable risk” exception. No evidence was presented to rebut said presumption as it applies to “unreasonable risk”.
In Bonacorsa, the petitioner in an Article 78 proceeding had been a licensed owner-trainer-driver of harness race horses. In 1974 his license was revoked because he was convicted of violating the Rules of the Racing and Wagering Board and Federal crimes. His article 78 proceeding challenged the Racing and Wagering Board's denial of an application he made for a new license in 1985.
In finding that the Hearing Officer's decision to deny the license was not arbitrary or capricious, the court considered that New York Corrections Law Article 23A is a powerful and necessary public policy. The court also found that the Hearing Officer in Bonacorsa analyzed each of the eight factors listed in section 753 of the Corrections Law and weighed the policy considerations and law against the facts of petitioner's case. The Hearing Officer also considered the legitimate interest of the Racing and Wagering Board in protecting the safety and welfare of the general public as the statue requires. Petitioner had been convicted of two felonies carrying a maximum sentence of five years' imprisonment and a $5,000 .00 fine. Thus, the Hearing Officer denied the license to petitioner, as he was an individual involved in a criminal scheme to cover up for another who petitioner knew had been barred from horse racing. Respondent denied said license as a legitimate means of preventing the appearance or fact of impropriety in the sport.
In Acosta v. New York Dept. Of Education, 16 N.Y.3d 309, 921 N.Y.S.2d 633, 946 N.E.2d 731 (N.Y.2011),
the New York City Bar Association filed an Amicus Curiae brief before the Court of Appeals in support of petitioner Acosta., and in support of a finding that the New York City Department of Education's denial of employment to petitioner was arbitrary and capricious. The following is an excerpt from said brief focusing on the purpose of New York Correction Law:
Article 23–A of the New York Correction Law is a landmark statute that articulates a broad and powerful public policy favoring employment opportunities for individuals who have previously been convicted of one or more criminal offenses. One of the law's principal goals is to reduce recidivism by increasing employment opportunities for persons with criminal records. By its terms, an employer may not deny or terminate employment on the basis of prior criminal convictions except in two narrowly defined circumstances. Some employers, licensing entities, and public agencies in New York, however, have adopted impermissibly broad interpretations of Article 23–A's exceptions that have effectively turned this antidiscrimination provision on its head. They have employed procedures that comply neither with New York administrative law nor the requirements of Article 23–A, frustrating the legislature's aim of eliminating employment discrimination against former offenders. As a result, persons with criminal histories, having been denied employment on the basis of convictions from many years before, must commence Article 78 proceedings to secure the rights guaranteed by the statute-an option they may not even know about and that, given the limited resources of legal services firms, may not realistically be available. Brief of Amicus Curiae the New York City Bar Association, In the Matter of the Application of Madeline Acosta, Petitioner–Appellee, v. The New York City Department of Education, et al, Court of Appeals of New York, May 18, 2010.
The Court in Acosta found that the Department of Education did not consider each of the eight factors as found in Correction Law § 753 and that their denial was, indeed, arbitrary and capricious.
The Legislature has determined that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the ground that the applicant was previously convicted of a crime. This general prohibition advances the rehabilitation and reintegration goals of the Penal Law. Furthermore, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole. The direct relationship' exception and the unreasonable risk' exception to this general rule may be resorted to only upon a consideration of each of the eight factors enumerated in Correction Law § 753. Acosta v. New York Dept. Of Education, 16 N.Y.3d 309, 921 N.Y.S.2d 633, 946 N.E.2d 731 (N.Y.2011) .
See also, Jocelyn Simonson, Rethinking Rational Discrimination' Against Ex–Offenders, 13 Georgetown Journal on Poverty Law and Policy 283 (2006).
Likewise, in Formica Construction, Inc., et al v. Mintz, 65 A.D.3d 686, 885 N.Y.S.2d 298 (2nd Dept.2009), the court found that a determination by the New York Department of Consumer Affairs (DCA) denying a construction contractor's application to renew home improvement contractor license on the ground that a principal in the business had a recent felony conviction that was related to the license sought, was properly annulled by the Supreme Court, Richmond County, as the DCA did not reflect in its determination that it had considered all eight statutory factors. Similarly, in Soto–Lopez v. New York City Civil Service Commission, 713 F.Supp. 677 (S.D.N.Y.1989), the Court held that a manslaughter conviction would not warrant exclusion of an otherwise qualified individual from employment as a housing caretaker with the city housing authority as there was no direct relationship between the offense and the employment sought, and granting the application for employment would not involve an unreasonable risk to property or safety or welfare of general public.
In the Matter of El v. New York City Dept. Of Educ., 23 Misc.3d 1121(A), 886 N.Y.S.2d 70 (N.Y.Sup.2009), the court found that it had a “duty to insure that the law is properly applied and that the decision denying petitioner's substitute teacher application is not based upon speculative inferences unsupported by the record'. Here, respondent's denial letter was particularly problematic in that petitioner's criminal history was the only evidence detailed in any meaningful respect. The court determined that the Board of Education failed to consider all eight of the statutory factors and the evidence presented by petitioner, including a Certificate of Relief from Disabilities and the fact that many years had passed since petitioner's convictions.
Other factors Examined That are Consistent with Article 23A Policy
Petitioner is an African American man. During the years he was arrested and subsequently charges against him were dismissed (1998–2006), numerous concerns were raised by the public, the media, writers and advocates regarding New York's “stop and frisk” policies. These policies resulted in a much greater proportion of African American and Latino men being subjected to “stops and frisks, than were present in the population at large. These accounts have been thoroughly documented. See for example, 74 NYULR 956,New York University Law Review: STOPPING THE USUAL SUSPECTS: RACE AND THE FOURTH AMENDMENT (October, 1999) demonstrating that the New York City “Street Crimes Unit”, created to confiscate illegal handguns, conducted nearly forty thousand stops and frisks in 1997 and 1998 that produced no contraband of any sort. The vast bulk of those stopped and frisked without adequate basis were African American and Latinos.
Not only were African Americans stopped and frisked at a much higher rate than whites during this time period, but when arrests were made, they were often for possessing small amounts of marijuana in public view. The “public view:” occurred when the detained were asked to empty their pockets, and those small amounts of marijuana were then found in “public view” and the person detained, was then arrested. 6 N.Y. Prac. Criminal Law § 26:1.
See also, Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York, The New Press, 2012 for a detailed examination of the drug war which was begun in an era of declining drug use, and its effect on African–Americans, Latinos and the poor.
These statistics and commentary demonstrate that New York Corrections Law Article 23A can be one of the most effective tools in ensuring that employment discrimination is addressed and rectified, particularly in circumstances as in the instant matter. Petitioner William Exum has committed no offenses which would in any way cause injury to others, was arrested for possession of marijuana, apparently during stops and frisks, and all of his arrests, except one were dismissed a few weeks later. He pled guilty to two different charges of disorderly conduct, one resulting from the possession of a gravity knife at the age of nineteen and another resulting from possession of marijuana approximately twenty-three years later. Petitioner was granted a Certificate of Good Conduct on August 29, 2008, and not one scintilla of evidence was presented by respondent to rebut the presumption accorded this Certificate, to demonstrate that petitioner was not rehabilitated.
The second two reasons respondents have given as reasons for petitioner's disqualification are both factually incorrect. Petitioner has never been terminated from a position, and he revealed his entire employment history in his application for employment including the fact that he had been “written up” for having left his security guard station without permission.
Finally, the State of New York and this court practice a policy in favor of rehabilitation and encourages the employment of persons with a prior conviction as set forth in New York Correction Law Article 23A.
Conclusion
Accordingly, the Court finds that the determination of respondent is arbitrary, capricious, and erroneous as a matter of law. While basing its finding that petitioner was disqualified on grounds that were factually incorrect and in error, respondent also failed to specify the bearing, if any, that petitioner's convictions, which have had on his fitness or ability to perform such duties or responsibilities and the position at issue called for. The Court finds that since all the factors enumerated in Correction Law § 753 were not properly addressed and considered, the determination that petitioner must be disqualified is arbitrary, capricious, and erroneous as a matter of law.
It is hereby ORDERED, that the instant Article 78 petition of William Exum is granted to the extent that the July 22, 2011 denial by respondent of petitioner's application for employment as a security guard is hereby annulled; and it is further
ORDERED, that the instant matter is remanded to respondent 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 Good Conduct, pursuant to Correction Law § 753(2).
ORDERED that respondents' cross-motion to dismiss is hereby denied in its entirety.
This constitutes the Decision and Order of the Court.