| Matter of Boatman v New York State Dept. of Educ. |
| 2010 NY Slip Op 03523 [72 AD3d 1467] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kenneth Lamar Boatman, Respondent, v NewYork State Department of Education et al., Appellants. |
—[*1] Mark David Blum, Manlius, for respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (McGrath, J.), entered March 3,2009 in Albany County, which granted petitioner's application, in a proceeding pursuant toCPLR article 78, to annul a determination of respondent Department of Education denyingpetitioner clearance for employment.
In August 2007, petitioner was temporarily hired by the City of Syracuse School District as acustodian. Thereafter, petitioner sought a permanent custodial position at the district's ClaryMiddle School. Petitioner's permanent employment was contingent upon a criminal backgroundcheck and receipt of clearance from respondent Department of Education (see L 2000, ch180 [eff July 1, 2001]; see also Education Law § 1604 [39]; § 1709 [39];§ 1804 [9]; § 2503 [18]; § 3035 [1]). Petitioner's subsequent criminalbackground check revealed a 1989 felony conviction for dangerous drugs in Georgia and twoNew York convictions, one for criminal possession of a controlled substance in the seventhdegree in 1993 and one for criminal mischief in 1997.
In December 2007, based on the contention that granting clearance would involve anunreasonable safety risk, the Department forwarded petitioner a notice of its intent to denyclearance for employment unless petitioner provided a response with satisfactory information[*2]indicating why clearance should be granted. Petitioner didnot respond to the Department's notice and, in March 2008, the Department denied him clearancefor employment. Upon petitioner's appeal, this determination was administratively upheld on thebasis that his employment would "involve an unreasonable risk to the safety and welfare of thestudents and staff of the District." Petitioner then commenced this CPLR article 78 proceeding,contending that the Department's determination was arbitrary and capricious. Finding that therecord was insufficient regarding the particulars of petitioner's convictions and that respondentsfailed to apply the appropriate statutory factors, Supreme Court granted the petition and remittedthe matter to the Department for further proceedings. Respondents now appeal.
Judicial review of the administrative decision denying petitioner clearance for employmentis limited to whether the decision is arbitrary and capricious (see Matter of Arrocha v Boardof Educ. of City of N.Y., 93 NY2d 361, 363 [1999]). If a court finds that the determinationis supported by a rational basis, it "may not substitute its judgment for that of the board or bodyit reviews," but must sustain the determination (id. at 363; see Matter of Peckham v Calogero, 12NY3d 424, 431 [2009]; Matter ofGallo v State of N.Y., Off. of Mental Retardation & Dev. Disabilities, 37 AD3d 984,985 [2007]). In rendering a determination to either grant or deny clearance for employment, theDepartment must apply the standards and factors for the granting or denial of a license oremployment application set forth in Correction Law §§ 752 and 753 (seeEducation Law § 3035 [3] [a]; 8 NYCRR 87.5 [a] [4] [i]; [5] [v]).
Correction Law § 752 bars the denial of a license or employment application basedsolely upon an applicant's criminal record unless there is "a direct relationship between one ormore of the previous criminal offenses and the specific license or employment sought"(Correction Law § 752 [1]), or where granting the license or employment applicationwould "involve an unreasonable risk to property or to the safety or welfare of specificindividuals or the general public" (Correction Law § 752 [2]; see Matter of Arrocha vBoard of Educ. of City of N.Y., 93 NY2d at 364). In making a determination pursuant toCorrection Law § 752, the public agency must consider the eight enumerated factors setforth in Correction Law § 753 (1), together with any "certificate of relief from disabilitiesor a certificate of good conduct issued to the applicant, which certificate shall create apresumption of rehabilitation in regard to the offense or offenses specified therein" (CorrectionLaw § 753 [2]; see Matter of Gallo v State of N.Y., Off. of Mental Retardation & Dev.Disabilities, 37 AD3d at 985). "When all eight factors are considered and the positive factorsare balanced against the negative factors, the resulting decision is neither arbitrary nor capriciousnor does it constitute an abuse of discretion and reviewing courts may not reweigh the factorsand substitute their judgment for that of the agency" (Matter of Gallo v State of N.Y., Off. ofMental Retardation & Dev. Disabilities, 37 AD3d at 985 [citation omitted]).
Here, we find a rational basis for the Department's determination to deny clearance. TheDepartment addressed and weighed the appropriate statutory factors set forth in Correction Law§ 753. While recognizing the policy considerations of Correction Law article 23-A(see Matter of Bonacorsa v Van Lindt, 71 NY2d 605, 611 [1988]), the Departmentconsidered that petitioner was an adult at the time of each conviction, petitioner's historyrevealed two drug convictions, one of which was a felony, and the most recent conviction waswithin the last 10 years. The Department recognized the legitimate interest in protecting thesafety and welfare of children attending school and found that petitioner's criminal history isrelevant to the position he seeks since, as a custodian, he may have direct and frequent contactwith school children and staff. [*3]Other than the certificate ofrelief from disabilities from the 1993 conviction, petitioner failed to submit any informationregarding his prior convictions, the underlying circumstances or evidence of rehabilitation.
While Supreme Court faults the Department for failing to compile a sufficient record withspecific information regarding each of the underlying crimes, it was petitioner's burden toestablish that clearance should be granted (see 8 NYCRR 87.5 [a] [4] [v]; [5] [iii], [v]).Petitioner failed to respond to the Department's notice of intent to deny clearance and, as a result,denial of clearance was mandated (see 8 NYCRR 87.5 [a] [4] [v], [vii]). We also findthat the Department properly weighed petitioner's certificate of relief from disabilities withrespect to the 1993 conviction (see Matter of Arrocha v Board of Educ. of City of N.Y.,93 NY2d at 365). Supreme Court's belief that the certificate should have been given more weightdoes not render the Department's determination irrational (see Matter of Arrocha v Board ofEduc. of City of N.Y., 93 NY2d at 367). Accordingly, as the Department's determination hasa rational basis, Supreme Court's judgment is reversed and the petition is dismissed.
We have reviewed petitioner's remaining contentions and find them to be without merit.
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition dismissed.