Strike One and You’re Out

By Mark David Blum, Esq.

Our society has become one of such zero tolerance that no sin is ever forgiven. One sin and your record is forever blemished to the point that you are disabled from being a productive citizen. New York government has shown itself to be without a soul and prefers people to be on public assistance than to be productive members of society. I say, for shame.

A man applied for a job as a custodian for the City of Syracuse School District. During the application phase, he disclosed to the District that he had a 20 year old drug conviction from out of State. He was told by the District that they do not focus on crimes more than seven years old. The man was hired as a temporary part time custodian and began work. Over the course of the next eight months, his status was changed to full time permanent employee of the District. He worked after hours cleaning classrooms at Clary Middle School and was a dependable and honorable employee.

As part of the hiring process, the man was required to undergo an FBI background check conducted in Albany through the New York State Department of Education. It took them quite a while to conduct this background check as the man was hired and was doing the job. One day after more than eight months on the job, the State Department of Education sent the man a letter telling him that his employment was to be terminated. A similar letter was sent to the Superintendant of the Syracuse School District telling them to fire the man as he had no clearance.

The basis for the letters of termination and denial of employment was the then twenty year old drug conviction. Based solely on the existence of that fact, the New York State Department of Education concluded that the man demonstrated a, “lack of judgment and impulse control” and his potential presence around children and teachers posed a threat to their safety and well being.

More than twenty years ago, when the man was 19, he was caught in possession of an illegal drug. He served six months in custody and spent four and a half years on probation. The man is clean, does not do drugs, and is a good father to his children. All he wanted was a job.

I heard about the situation with the man at a party I was attending and could not believe the New York State Department of Education would fire someone or deny them clearance for employment based on a twenty year old drug conviction. I volunteered to see what I could do to help. The time to file an appeal had passed though I tried to send in supportive information. The Education Department summarily disregarded my letter (and admitted so in writing). A final opinion was issued by the Education Department affirming their original conclusion that the man should be denied clearance to work for the Syracuse School District. No comment was made by the Commissioner on how almost 20 years had elapsed since the felony conviction. Nor did the Commissioner address how that conviction was directly related to employment or how it involved an unreasonable risk to the safety or welfare of specific individuals or the general public.

So I did the only thing left for a lawyer to do. We sued the Department of Education. A State Supreme Court judge reviewed all the information and analyzed the actions of the New York State Education Department. The State Supreme Court judge concluded that the Education Department went far afield and was arbitrary and capricious in how they opined the man was a threat or lacked impulse control. The Judge overturned the agency finding and Ordered that the Department of Education take another look at the man and his history.

Meanwhile, we the taxpayers were footing the bill for the unemployment payments being paid to the man. We paid for his medical coverage, food, and housing. Instead of being a productive member of society, the State of New York turned him into a welfare dependant who was out of work.

In its arrogance and paranoia about “drugs”, the Education Department filed an Appeal which was heard and decided last week. That Appellate Court overturned the lower court and concluded that the Education Department had all the information it needed to draw a rational conclusion that the man lacked impulse control and posed a threat to children and staff at a public school. So the man is now without further remedy and remains financed and shouldered by taxpayers instead of being a contributing member to society.

We are talking about a janitor, a custodian. This is not about having access to the nuclear codes or involvement in deep police investigations. He did not apply for a job with the FBI and is not running for President of the United States. All the man wanted to do is work for an honest day’s wages. Emptying trashcans, mopping floors, and cleaning up was all he asked to do and was in fact hired to do. His history was not relevant to his employer, the Syracuse City Schools. Only the State Department of Education situated 300 miles to the east and which had no contact with either the man or the Syracuse School District had any interest in assuring the man did not get a job.

The writer F. Scott Fitzgerald wrote in The Great Gatsby that “there are no second acts in American life”. I don’t believe in that premise. From a personal perspective, I know that is not true. Also, look around you and you can see criminals abound whose sins were far worse than drug possession who have found second lives. Oliver North is the best example.

In law as in life, there has to be a point of repose; a point at which a person can rest easy and move beyond events in their past. Society has to forgive a citizen and allow them to move forward. This is especially so when a person convicted of a crime does the time, completes their sentence, and nearly two decades pass since the original act.

If New York does not support its citizens or gives them but a single strike before they are out of the game for life, then we have become a brutal and heartless state. How can any of us respect our State government or the job it does when on its face it is clear that the State is more interested in causing harm to its citizens instead of encouraging them to success. This national paranoia about “drugs” has turned into the ugliest of cancers that is eating away at our core values. It sickens me to see this kind of ignorant barbarism being practiced by people who are feeding off my annual tax payments.

The State Department of Education should be ashamed of itself. New York State has nothing about which it can be proud. In the name of the drug war, the door to a better life has forever been slammed in the face of an honest hard working citizen of this State.

The only threat posed to employees of the Syracuse School District and the only persons who demonstrate a lack of impulse control are those who sit in their little cubicles in Albany and make decisions of monumental impact with little if any regard to the human being behind the determination.

It is a shame New York has no room for forgiveness. Even the law of the State so demands. Correction Law §752 provides that "no application for any license or employment shall be denied by reason of the applicant's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the applicant has previously been convicted of one or more criminal offenses, unless (1) there is a direct relationship between one more of the previous criminal offenses and specific license or employment sought; or (2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

As an Attorney, it is my obligation to respect the decisions of the Courts. As a citizen and fellow traveler upon this earth, I turn my back upon the Appellate Court and upon the State Agency. To be, the greater criminals are those who are relentless in their pursuit of some esoteric goal of a perfect person. How many of our citizens have a single strike in their backgrounds and would not be considered worthy to clean up urinals in the bathroom? The answer right now is that there is at least one too many.

Those who are making decisions at the Department of Education bring great shame upon themselves and the People of this State. Every one of them should pick up a mop and get to work doing what real people do for a living. Besides, I really do wonder how many of these bureaucrats could themselves withstand the same kind of scrutiny. Their impulse control is obviously out of whack and they do present a danger to the community at large.

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