Judge Rejects Denial Of State Job to Ex-Felon

By Noeleen G. Walder

New York Law Journal

February 19, 2008

An applicant who had last been convicted of a felony 24 years ago was illegally denied employment working for New York state as a direct care worker for mentally impaired adults, a Bronx court has ruled.

The New York State Office of Mental Retardation and Developmental Disabilities failed to consider that the candidate previously had an "unblemished work record" with vulnerable populations and had not been convicted since 1983, Acting Supreme Court Justice Patricia Anne Williams (See Profile) held in Hollingshed v. New York State, 0006848/2007.

The decision will be published Friday.

The denial "of [Michael] Hollingshed's employment application based solely on the sheer number of his over 20-year old convictions is clearly arbitrary, capricious and an abuse of discretionary power," the court held. Judith Whiting, senior staff attorney for the Legal Action Center who represented Mr. Hollingshed, said in an interview that "employment is the number one factor" in a person's successful re-entry to the community after incarceration. People released from prison or jail face a host of barriers, based on "law, custom and prejudice," including difficulty obtaining housing, government benefits and generally "supporting themselves and their family," she noted.

The dispute arose after Mr. Hollingshed applied for a job in August 2006 as a direct care worker with Episcopal Social Services, an agency funded by the Office of Mental Retardation and Developmental Disabilities, according to the complaint. The per diem position paid $10 an hour and involved aiding high-functioning mentally impaired adults with bathing, feeding and other activities.

According to the decision, Mr. Hollingshed, then 56, had more than 14 years of experience working with special needs populations, including homeless adults, disabled foster children, and individuals with cerebral palsy and HIV/AIDS.

After a background check confirmed Mr. Hollingshed's criminal history, which the complaint alleges he had disclosed on the job application, the office of disabilities provided Mr. Hollingshed 30 days to explain why he should not be denied employment.

On Sept. 8, 2006, Mr. Hollingshed sent a letter to the state office, detailing his criminal history and indicating that he had worked continuously since his last conviction in 1983. He also noted that he had received a Certificate of Good Conduct in 1992 from the New York State Board of Parole, which the decision states, "served to remove all legal bars and disabilities to employment, license and privilege except those pertaining to firearms and except the right to be eligible for public office."

"[M]y life has made a 360 degree turn around," Mr. Hollingshed wrote in a letter filed with the court. "Don't let my past criminal history be the determining factor whether or not my application will be approved. I try to leave the past in the past but that don't [sic] always seem to work it always seem to find away [sic] to resurface," he added.

After Mr. Hollingshed was denied employment, he filed an Article 78 petition challenging the determination.

In granting the petition, Justice Williams rejected the state's argument that Mr. Hollingshed's prior convictions "established a pattern of behavior" and "presented an unreasonable danger" to the social service agency's consumers.

The judge noted that §752 of the state Correction Law allows an employer to deny an individual employment based on criminal history only if a "direct relationship" exists between the prior offenses and the specific job or if hiring the person would present an "unreasonable risk" to property or the public.

In deciding whether to hire a person with a criminal background, an employer must consider several factors, including the duties of the job, when the offense occurred, the "seriousness" of the crime, information concerning "rehabilitation and good conduct," and the "legitimate interest in protecting property, and the safety and welfare of specific individuals or the general public." (Correction Law §753)

Within 'Parameters'

Given that Mr. Hollingshed's last conviction for third-degree robbery and third-degree grand larceny occurred over 20 years ago, the judge concluded that "Mr. Hollingshed's history fits squarely" within the "parameters" of Correction Law §753.

"Since his release . . . in 1988, Mr. Hollingshed has had no further arrests and has been continuously and successfully employed working with emotionally, mentally, and physically handicapped children," Justice Williams wrote.

"It does not appear" that the agency fully considered Mr. Hollingshed's prior work experience, letters of reference, and Certificate of Good Conduct, the court held.

Citing Boatwright v. NYS Office of Mental Retardation and Developmental Disabilities, 100330/07, the judge found that the office of disabilities "could not reasonably state that Mr. Hollingshed provided no proof of his rehabilitation or the fact that he had been drug free for almost 18 years."

In Boatwright, Supreme Court Justice Emily Jane Goodman (See Profile) of Manhattan held that the office of disabilities illegally terminated a United Cerebral Palsy employee based on a 21-year-old felony conviction for third-degree attempted possession of a weapon (NYLJ, April 30, 2007).

Justice Williams also rejected claims that Mr. Hollingshed had failed to provide documentation from the Department of Parole, noting that the office of disabilities had never requested such information and could have obtained necessary documents on its own.

The court concluded that the state's decision was "arbitrary and capricious and an abuse of its discretion." It ordered the office of disabilities to allow the Episcopal Services Agency to hire Mr. Hollingshed.

Ms. Whiting, who represented Mr. Hollingshed and also litigated the Boatwright case, said in an interview "The state should encourage organizations to hire people who moved on from past mistakes, not stand in the way." She added that this decision confirms the work that her organization, bar groups and others are doing in the re-entry area.

The Office of Mental Retardation and Developmental Disabilities was represented by Assistant Attorney General Inna Reznik. The Attorney General's Office did not return calls seeking comment.

- Noeleen G. Walder can be reached at nwalder@alm.com.