Matter of Rennert v Connetquot Cent. Sch. Dist.

[*1] Matter of Rennert v Connetquot Cent. Sch. Dist. 2016 NY Slip Op 50107(U) Decided on February 1, 2016 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 1, 2016
Supreme Court, Suffolk County

In the Matter of the Application of Donna Rennert, Petitioner, For an Order and Judgment pursuant to Article 78, CPLR

against

Connetquot Central School District, THE BOARD OF EDUCATION OF THE CONNETQUOT CENTRAL SCHOOL DISTRICT, and WILLIAM F. MILLER, in his capacity as the DIRECTOR OF TRANSPORTATION, Respondents.



12712/2015



VITALE & LEVITT, PC

Attys. for Petitioner

445 Broad Hollow Rd.

Melville, NY 11747

GUERCIO & GUERCIO, LLP

Attys. for Respondents

77 Conklin Street

Farmingdale, NY 11735
Thomas F. Whelan, J.

Upon the following papers numbered 1 to 10read on thisArticle 78 proceeding; Notice of Petition or Order to Show Cause and supporting papers 1 - 3; 4-5; Answer and Opposing papers:6; 7-8; Reply papers; Other 9 (memorandum); 10 (memorandum); (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that the petition (#001) served in this Article 78 proceeding, in which petitioner, Donna Rennert, seeks a reversal of the April 16, 2015 determination of respondent, William F. Miller, to deny consideration of the petitioner as a viable candidate for the position of bus driver by declining to select her for bus driver training and for a direction that the respondents provide her with bus driver training and promote her to the position of bus driver upon her successful completion of such training and her fulfilment of all licensing requirements, is considered under CPLR Article 78 and is denied.

The petitioner is employed by the respondent school district as a bus assistant (a/k/a matron) and has been so employed for the past nine years. In or about 2012, she advised respondent Miller that she was interested in applying for the position of bus driver, which is a non-promotional position. In response, Mr. Miller advised that he would not consider her for that position since her application included evidence of a conviction for driving under the influence of alcohol some ten years back in time.

In March of 2015, petitioner Rennert submitted a new application to the respondents for consideration as a candidate for the position of school bus driver. It was received by the respondents' transportation department on March 17, 2015. On that date, there were no vacancies in that job title. In this application, the petitioner reported that she had been convicted of a crime other than a minor traffic infraction but she did not elaborate as to the details of that conviction as requested to do so by the instructions on the application form.

On March 20, 2015, Gretchen Penn, a representative of the union to which the petitioner apparently belongs, corresponded with respondent Miller on behalf of the petitioner. Therein, Ms. Penn referred to respondent Miller's prior denial of the petitioner's application for the position of bus driver due to the petitioner's prior conviction for driving under the influence of alcohol. Ms. Penn went on to advise respondent Miller, that, among other things, a similar response to the petitioner's new application might run afoul of the provisions of Article 23-A of the New York State Correction Law.

By e-mail dated March 23, 2015, respondent Miller replied to Ms. Penn's correspondence. He therein instructed Ms. Penn about the nature of the position of bus driver and the differences between it and the position of bus assistant (matron). He further advised that the job of bus driver was not promotional in nature but belonged to a separate job class. Respondent Miller went on to state that "my knowledge of the previous DUI conviction of Ms. Rennert precludes me from, in good faith to the taxpayers of the school district, hiring her to drive students" (see [*2]Exhibits B and C attached to the affidavit of respondent Miller).

On March 26, 2015, the petitioner delivered a letter of intent to the respondents' transportation department advising of her request to be considered for the position of school bus driver. On April 1, 2015, the respondents posted a Vacancy Notice advising that three school bus driver positions and a leave replacement school bus driver were available, each of which required a CDLB/PS license. The notice further advised that experienced drivers would be preferred. Eight letters of intent were received from individuals who wished to be considered for the vacant positions, including the March 26, 2015 letter from the petitioner.

Respondent Miller screened the applicants who submitted letters of intent and, according to the petitioner, he conducted an interview of petitioner Rennert, the date of which is unknown to the court. Thereat, respondent Miller was made aware that the petitioner's prior DUI conviction had been removed from her driver's license abstract and that she had received various satisfactory reviews of job performance as a bus assistant. However, respondent Miller advised the petitioner that she would not receive school bus driver training because of the prior conviction, a fact which is not disputed in the answering papers served by the respondent.

The petitioner then commenced this Article 78 proceeding for a judgment annulling the determination of respondent Miller and for a directive that she be placed in a school bus driver training program and, upon the successful completion thereof and her fulfilment of all licensing requirements, that she placed in the position of school bus driver. The petitioner claims that the respondents acted in an arbitrary and capricious manner and violated the provisions of Article 23-A of the Correction Law because respondent Miller categorically denied the petitioner the opportunity to train for the position of school bus driver due to her prior driving under the influence conviction without consideration of the factors mandated by that statute.

The respondents appeared by answer and by affidavit of respondent Miller. In the answer served, the respondents deny the factual allegations set forth in the petition and deny acting in any manner actionable under CPLR 7802. In his opposing affidavit, respondent Miller avers that he advised petitioner Rennert that he would not recommend her as a candidate for the training necessary to become a district school bus driver. However, neither the nature of that determination nor the method and manner of its delivery is detailed and no contemporaneous writing or other memoranda thereof has been put before the court.

The remaining portions of respondent Miller's affidavit is dedicated to describing the process by which he determined the petitioner's application. He avers that he considered the factors enumerated in § 753 of the Correction Law and others, including that the DUI conviction entered against the petitioner fourteen years ago had been removed from the transcript of the petitioner's driving record. He also considered the petitioner's failure to elaborate on the details of such conviction as requested to do on the application form executed by her on March 16, 2015. Respondent Miller concluded that the employment of petitioner Rennert as a school bus driver would pose "an unacceptable level of risk to the safety of students" and that her prior [*3]conviction "reflects poorly on Ms. Rennert's ability to perform the duties of school bus driver" and thus denied her application.

For the reasons stated below, the petition is denied.

Under New York law, it is generally unlawful for any public or private employer to deny any license or employment application "by reason of the individual having been previously convicted of one or more criminal offenses" (Correction Law Article 23-A; § 752; see also Executive Law § 296[15]). This general bar was enacted to further certain goals that the Legislature has identified as among the general purposes of the Penal Law § 1.05(6), namely, "the rehabilitation of those convicted" and "the promotion of their successful and productive reentry and reintegration into society" (see Acosta v New City Dept. of Educ., 16 NY3d 309, 921 NYS2d 633 [2011]).

There are two statutory exceptions to this general rule (see Correction Law § 752[1]; [2]; Dempsey v New York City Dept. of Educ., 25 NY3d 291, 11 NYS3d 529 [ 2015]). The first arises when 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 (see Correction Law § 752 [1]). The term, direct relationship, is defined in Correction Law § 750(3) as meaning that the subject criminal conduct has a direct bearing on the applicant's fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question. The second exception allows for the adverse treatment of an individual's application 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 (see Correction Law § 752[2]).

In making a determination regarding whether either the "direct relationship" exception or the "unreasonable risk" exception applies, the public agency or private employer must consider the eight factors enumerated in Correction Law § 753 (see Matter of Arrocha v Board of Educ. of City of NY, 93 NY2d 361, 364, 690 NYS2d 503 [1999]). Where the unreasonable risk exception is found to exist after applying the eight enumerated factors, further consideration of those eight factors is not a necessary component of determining whether to grant the license or employment at issue (see Bonacorsa v Van Lindt, 71 NY2d 605, 613-14, 528 NYS2d 519 [1988]). In contrast, where a determination that the direct relationship exception applies after consideration of the eight factors, those eight factors must be considered anew in determining whether to grant or deny the license of employment application (id.).

The statutory scheme goes on to provide for a presumption of rehabilitation upon the applicant's presentation of a certificate of good conduct or certificate of relief from civil disabilities to the licensing agency or potential employer (see Correction Law § 753). However, the presentation of either does not establish a prima facie entitlement to the license or employment at issue (see id.; Dempsey v New York City Dept. of Educ., 25 NY3d 291, supra; Gorelik v New York City Dept. of Bldgs., 128 AD3d 624, 10 NYS3d 85 [1st Dept 2015). There is no statutory requirement for a determination in writing by the licensing agency or potential [*4]employer where it denies the application of a person previously convicted of a crime. However, the agency or private employer must, if requested by the applicant in writing, provide, within thirty days of such request, a written statement setting forth the reasons for such denial (see Correction Law § 754).

Appellate case authorities have thus held that the absence of a writing or of a contemporaneous record is no bar to a challenge to a determination denying such license or employment application in an Article 78 proceeding or the other proceedings contemplated by Correction Law § 755 (see Acosta v New York City Dept. of Educ., 16 NY3d 309, supra). Here, there was no written denial of the petitioner's application nor a contemporaneous record of the screening or interview of the petitioner by respondent Miller. The court is thus left to determine the petitioner's demands for relief upon the pleadings and other submissions attached to the affidavits and other papers submitted in this Article 78 proceeding.

A determination made without a hearing by a public agency to deny an application for a license or for employment by an individual with a prior criminal conviction is subject to challenge in an Article 78 proceeding (see Correction Law § 755). In measuring the validity of such determination, courts invoke the standard set forth in CPLR 7503(3), which is colloquially known as the arbitrary and capricious standard. Pursuant thereto, the denial determination must be upheld unless there is a showing that it was arbitrary, capricious, an abuse of discretion or contrary to law (see CPLR 7803[3]). In making its determination, the court may not substitute its judgment for that of the agency or member under review (see Matter of Arrocha v Board of Educ. of City of NY, 93 NY2d 361, supra; Dempsey v New York City Dept. of Educ., 108 AD3d 454, 969 NYS2d 452 [1st Dept 2013], aff'd. 25 NY3d 29, supra).

Upon application of the foregoing legal precepts to the circumstances of this case as presented by the parties, the court finds no basis to set aside the determination to deny the petitioner's application for the position of bus driver by declining to select her for bus driver training. The evidence adduced in the record demonstrates that such determination issued in April of 2015 following respondent Miller's interview with the petitioner on her filed application package. The record further reflects, without refutation, that respondent Miller considered the eight factors enumerated in Correction Law § 753 and applied them in making his determination that the petitioner's prior conviction for driving while under the influence of alcohol fell within the "unreasonable risk" exception to the prohibition against denying employment on the basis of a prior criminal conviction which is codified in Correction Law § 752. While respondent Miller did not use the term "unreasonable risk" in detailing his actions, the language he employed in determining that there was "an unacceptable level of risk to the safety of students" that would arise from employing the petitioner as a school bus driver, is indicative of his invocation of the exception codified in Correction Law § 752(2) (see Dempsey v New York City Dept. of Educ., 25 NE3d 291, supra at footnote 3). This finding of "unreasonable risk" following consideration of the eight enumerated factors and the determination to deny the petitioner's application, even without evidence of his further consideration of those eight factors, is alone sufficient to find that respondent Miller did not act in an arbitrary or capricious manner nor did he abuse the discretion [*5]vested in him or act in a manner contrary to law (see Bonacorsa v Van Lindt, 71 NY2d 605, 613-14, supra). It is thus unnecessary to consider whether respondent Miller's invocation of the "direct relationship" exception set forth in Correction Law § 752(1) was rational and proper.

Contrary to the claims of the petitioner and her counsel, the record is devoid of evidence of conduct actionable as arbitrary and capricious or as an abuse of discretion on the part of respondent Miller. Nor does the record contain evidence of any non-compliance with the provisions of Article 23-A of the Correction Law. The statement contained in the March 23, 2015 e-mail from respondent Miller to Ms. Penn, wherein respondent Miller stated that his "knowledge of the previous DUI conviction of Ms. Rennert, precludes me from, in good faith to the taxpayers of the school of the district, hiring her to drive our students" is not sufficient evidence of actionable arbitrary or abusive conduct on the part of Mr. Miller or of a dereliction in his duties under the relevant provisions of the Correction Law. This statement issued prior to the posting of the vacancy notice and to the delivery of the petitioner's letter of intent, after which, respondent Miller reviewed the petitioner's application and the attached submissions and he interviewed the petitioner with respect thereto. The petitioner, who failed to elaborate upon the details of her conviction and failed to present a certificate of relief from civil disabilities or of good conduct, did not establish that there was any actionable conduct on the part of respondent Miller.

In view of the foregoing, the relief requested in the petition is denied and the petition is dismissed.

Dated: February 1, 2016_______________________________

THOMAS F. WHELAN, J.S.C.