The Court of Appeals (our highest state court) has ruled that the DOE arbitrarily denied an applicant a security clearance to teach for a contracted employer. Madeline Acosta had applied for a position at Cooke Center for Learning and Development. She had been convicted of a 1st Degree Robbery, when she was 17, some 14 years before, and claimed to have been completely rehabilitated by earning a college degree and working as a paralegal.
Under the Correction and Executive Law it is unlawful 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”
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” and 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.”
It is the second exception that concerned the court.
There are eight factors that potential employers must weigh and while the court found that it would be improper for a court to re-weigh the factors it felt that the overriding public policy to encourage rehabilitation of convicted felons outweighed, in this instance, the concerns that the employer might have.
The court ruled that it was arbitrary for the DOE to deny the security clearance.
Acosta v. NYCDOE, 2011 NY Slip Op 2073; 16 N.Y.3d 309; 2011 N.Y. LEXIS 437; 31 I.E.R. Cas. (BNA) 1840, March 24, 2011