Thursday, January 24, 2019

New York State Education Department’s Office of School Personnel Review and Accountability (OSPRA) and DWI Cases

NewYork Education Department
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I have done a few posts concerning being a teacher and getting a DWI. The NYS education department has to follow specific laws and rules before firing you for a criminal conviction.

How will the DWI effect your job? How will it impact your life? It depends upon what work you do for the education department, and many other factors which I will list below.

State Education Department’s Office of School Personnel Review and Accountability (OSPRA)

When you are charged with any crime you will receive a letter stating that they (OSPRA) will have to investigate and review the situation to determine whether or not it will impact your ability to work for the education department. This usually happens fairly quickly, actually much faster than the court process. Inform your DWI lawyer of the letter immediately. 

How do they determine your fitness to work and to remain in your current position?

First, is the criminal conviction directly related to your employment at the job you were hired for? Worst case scenario, your crime involves students directly. As in dealing drugs to students or having inappropriate contact with students or driving students.

They Can NOT Just Terminate You Just Because You Have a Criminal DWI Conviction 

Section 753 of the New York Corrections Law states that “no application for employment or licensure may be denied based solely on the existence of one or more criminal convictions.”  N.Y. Correct. Law §753 (McKinney 2008). Additionally, New York State Human Rights Law states that it is “unlawful discrimination for any person, agency, bureau, corporation or association, including the state and any political subdivision to deny employment or licensure by reason of his or her having been convicted of one or more criminal offenses.” N.Y. Exec. Law § 296(15) (McKinney 2008

There are two exceptions under Article 23-

Two permissible exceptions to the proscription of denying employment or licensure of persons with people who have criminal convictions. 

(1) there is a direct relationship between the criminal offense and the specific license or employment sought; or 

(2) the license or employment sought involves an unreasonable risk to persons or property.

A "direct relationship" is found where the "nature of the criminal conduct for which the person was convicted has a direct bearing on the person’s fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought.” N.Y. Correct. Law §750(3) (McKinney 2008); Peluso v. Smith, 142 Misc.2d 642, 647-48 (N.Y. Sup. Ct. 1989). 

What specifically constitutes an "unreasonable risk" has not been statutorily defined as such finding is fact specific and dependent upon evaluation of each individual situation and the relationship it has on the license or employment sought. Id.

Eight Factors to Consider When Considering a Denial of Employment or Licensure

Eight (8) factors listed pursuant to § 753(1). See, §753.
 1.     the public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;
2.     the specific duties and responsibilities necessarily related to the license or employment sought;
3.     the bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;
4.     the time which has elapsed since the occurrence of the criminal offense or offenses;
5.     the age of the person at the time of occurrence of the criminal offense or offenses;
6.     the seriousness of the offense or offenses;
7.     any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and the
8.     legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
So in my mind a school bus driver with a DWI conviction would present an unreasonable risk while a school janitor would not. Every DWI case must be evaluated to determine the likelihood that termination is not merely a possibility. A DWI defendant would be wise to address any drug/alcohol problem. Any addiction or abuse will need treatment and will be important to their determination of fitness for the job. 

Newman and Cyr is a boutique law firm focusing on Traffic, Criminal, and DWI and DWAI drug defense in Upstate New York. If you would like a free consultation concerning your charges either call, email, or fill out the form on our website.


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