In the Matter of Ciro Dellaporte, Respondent,v.New York City Department of Buildings, et al., Appellants.

Brief

N.Y.February 13, 2014

MICHAEL A. CARDOZO Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 KAREN M. GRIFFIN Assistant Corporation Counsel Phone: (212) 356-0854 Fax: (212) 356-2509 kgriffin@law.nyc.gov December 20, 2013 Andrew W. Klein, Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, N.Y. 12207 Re: Dellaporte v. New York City Department of Buildings Appeal No. 2013-00308 Dear Mr. Klein: In response to this Court’s November 19, 2013 Rule 500.11 letter, this letter brief is submitted on behalf of respondents-appellants the New York City Department of Buildings and Aisha Norflett, Director Licensing Unit. Background In this Article 78 proceeding, petitioner-respondent Ciro Dellaporte (“petitioner”), seeks to annul the decision of Aisha Norflett, the Director of Licensing for the New York City Department of Buildings, (“DOB”), which denied his 2011 application for renewal of his High-Pressure Boiler Operating Engineer (“stationary engineer”) license. In denying the petition, the Supreme Court held that DOB’s determination not to renew petitioner’s license was rational. The Appellate Division, First Department reversed, holding that DOB’s determination that petitioner’s prior conviction bore “a direct relationship to the duties and responsibilities attendant to a stationary engineer” lacked a rational basis. The Appellate Division, First Department, granted DOB’s motion for leave to appeal to this Court. The order of the Appellate Division should be reversed on summary disposition for the reasons stated below and in the City’s Appellate Division brief. Jurisdiction of this Court. By Order dated October 15, 2013, the Appellate Division granted DOB’s motion for leave to appeal and, pursuant to CPLR 5713, certified that the following question of law, decisive of the correctness of its determination, has arisen, which in its opinion ought to be reviewed by this Court: Was the order of this Court, which reversed the order of Supreme Court, properly made? The Appellate Division further certified that its determination was made as a matter of law and not in the exercise of discretion. Applicable Statutes & Case Law A. The New York City Construction Codes: Trades and Occupations Regulated by DOB. The intent of the New York City Construction Codes is to provide “reasonable minimum requirements and standards . . . for the regulation of building construction in the city of New York in the interest of public safety, health and welfare . . . .” NYC Admin. Code §§ 28-101.1 & 28-101.2. Pursuant to the Construction Codes, no person may engage in work regulated by Chapter 4 or hold oneself out as authorized to engage in such work unless licensed by DOB. NYC Admin. Code § 28-401.4. Article 401 of Chapter 4 sets forth general provisions applicable to all licenses under DOB’s jurisdiction. NYC Administrative Code section 28-401.6 provides as follows: All applicants for a license or certificate of competence shall be at least 18 years of age, shall be able to read and write the English language, shall be of good moral character, and shall meet additional qualifications that 2 may be prescribed for the particular license or certificate of competence. Id. (emphasis added). NYC Administrative Code section 28-401.12 sets forth the regulations governing the renewal of licenses under the jurisdiction of DOB. Pursuant to section 28-401.12, DOB is authorized to “refuse to renew a license . . . on any grounds on the basis of which it could deny, suspend or revoke such license.” NYC Administrative Code section 28-401.19 enumerates the grounds upon which DOB is empowered to, inter alia, suspend or revoke a license. Section 28-401.19 provides, in pertinent part, as follows: The commissioner shall have the power to suspend or revoke a license or certificate of competence and/or to impose a fine not to exceed twenty-five thousand dollars for each finding of violation, and/or to order any holder thereof to repair damage resulting from any act or omission as set forth in this chapter or in rules, for any of the following: *** 12. Conviction of a criminal offense where the underlying act arises out of the individual’s professional dealings with the city or any other governmental entity; 13. Poor moral character that adversely reflects on his or her fitness to conduct work regulated by this code . . . . Id. B. The Operation And Inspection of Boilers In The City of New York. In the City of New York, high-pressure boilers must be operated by an individual holding a license as a stationary engineer. NYC Administrative Code section 28-413.1 provides as follows: 3 It shall be unlawful to operate any high- pressure steam boiler for any purpose whatsoever, in the city of New York or in connection with any vessel on the waters in and around the city not subject to the jurisdiction of the United States, unless such boiler is operated by or under the direct and continuing supervision and in the presence of a person having a [stationary] engineer license under the provisions of this article. The qualifications necessary for issuance of a license as a stationary engineer are set forth under Article 413 of Chapter 4 of Title 28 of the Administrative Code sections 28-413.2 and 28-413.3. Pursuant to section 28- 413.2, an applicant must submit satisfactory proof of relevant employment, degrees, certificates, experience, supervision, and apprenticeship as described in the statute. In addition, pursuant to section 28-413.3, as a condition of license renewal, a stationary engineer shall provide evidence satisfactory to DOB that such licensee is "fit to perform the work." The inspection of boilers within the State of New York is subject to the detailed statutory scheme set forth in NYS Labor Law section 204, which requires that boilers be inspected annually or at least once every two years, depending upon the type of boiler. See NY Lab. Law § 204(1) (McKinney’s 2009). Low pressure boilers located in dwellings of 6 families or more are included within the definition of boiler as set forth under Labor Law section 204. See NY Lab. Law § 204(5); see also CitySpec v. Smith, 617 F.Supp.2d 161 (E.D.N.Y. 2009)(upholding the constitutionality of NY Lab. Law § 204). The inspection requirements of NY Labor Law section 204 are mirrored in NYC Administrative Code §28-303.2, which provides as follows: § 28-303.2 Annual inspection. Except as otherwise provided in this article, all boilers as defined in section 204 of the New York state labor law, excepting those boilers listed in subdivision five of such section of such labor law, shall be inspected at least once a year by a qualified department boiler inspector or an approved 4 agency. Such inspections shall also include the chimney connectors. All individuals who perform periodic inspections pursuant to this article shall be qualified under section 204 of the New York state labor law and the rules promulgated by the commissioner of labor or the commissioner of buildings. C. New York State Correction Law Provisions. New York Correction Law section 752 generally prohibits discrimination in employment and the issuance of licenses by reason of the applicant having been previously convicted of one or more criminal offenses or by reason of a finding of lack of “good moral character” where such finding is based upon these prior convictions. N.Y. Correct. Law § 752 (McKinney’s Supp. 2013); see N.Y. Exec. Law § 296 (McKinney’s 2010). There are two significant exceptions to this general prohibition. The first exception arises where “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.” N.Y. Correct. Law § 752. In this context, “direct relationship” is defined as “the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question.” N.Y. Correct. Law § 750(3). Where a direct relationship exists, the agency must nonetheless consider the eight factors set forth in section 753(1) “to determine whether employment or a license should, in its discretion, issue.” Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 613 (1988). The second exception arises 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.” N.Y. Correct. Law § 752(2). Under this Court’s interpretation of the statutory scheme, the agency or employer must weigh the eight section 753 factors to determine, in the first instance, whether an unreasonable risk exists.1 Continued… 1 The section 753 factors are: (a) 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. 5 Bonacorsa, 71 N.Y.2d at 613. For purposes of both exceptions, once an agency has considered all eight factors, the weight given to each of these factors is “beyond the power of judicial review.” Arrocha v. Board of Educ., 93 N.Y.2d 361, 367 (1999). Relevant Facts and Procedural Background. A. Denial of Petitioner’s Renewal Application By application dated February 10, 2011, petitioner sought renewal of his stationary engineer license (Appellate Division Record of Appeal (“R”) 84-87). Petitioner disclosed in his application that on June 8, 2006, he had been convicted of the crime of Misappropriation of Funds (R-85). In considering his application, DOB requested and petitioner provided additional information regarding this conviction (R-89, 91-94, 96, 98-103). Specifically, that while petitioner was employed by the Board of Education as a custodial engineer, he was engaged in a kickback scheme and pled guilty to “Theft From An Agency Receiving Federal Funds,” in violation of 18 U.S.C. section 666(a)(1)(A), a Class C felony (R-98- 103). The Court Information provided, in pertinent part, that between June 2003 and February 2005, petitioner “did knowingly and intentionally embezzle, steal, obtain by fraud and misapply property valued at $5,000 or more, that was owned by and under the care, custody and control of the [Department of Education]” (R-99). (b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person. (c) 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. (d) The time which has elapsed since the occurrence of the criminal offense or offenses. (e) The age of the person at the time of occurrence of the criminal offense or offenses. (f) The seriousness of the offense or offenses. (g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct. (h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public. 6 After considering both the duties and responsibilities of a stationary engineer and the circumstances surrounding petitioner’s conviction, DOB determined that the nature of the criminal conduct for which petitioner was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to a stationary engineer (R-106- 107). Moreover, after weighing the remaining section 753 factors and giving particular weight to the need for stationary engineers’ reports to be reliable for the protections of individuals and the public safety, petitioner’s age at the time he engaged in the illegal conduct, and the fact that his criminal acts took place less than seven years ago, DOB determined that petitioner lacks the good moral character required to be a stationary engineer. As such, DOB denied petitioner’s application for renewal (R-105-107). Petitioner filed the instant Article 78 proceeding challenging DOB’s determination (R-17-42). In his verified petition, petitioner argued that the determination was arbitrary because his license had been renewed five times subsequent to his conviction and twice since disclosure of convictions became required for licenses, he had received a certificate of relief from disabilities, and because, upon information and belief, other applicants who were convicted of similar crimes had their licenses renewed (R-19-23). In addition, petitioner argued that he was denied a hearing on his application. Finally, while admitting that work on high pressure boilers “carr[ies] a concern of risk,” petitioner stated that at the current time “he is not working on these [] dangerous machines” although he did not dispute that as a stationary engineer he would be authorized to do so (R-22-23). B. Supreme Court Decision By Decision/Order dated March 27, 2012, the Supreme Court, New York County, held that DOB’s determination not to renew petitioner’s stationary engineer license was rational (R-8-14). While recognizing that it is the policy of the state to employ previously convicted, yet rehabilitated offenders, the Court held that, after analyzing and weighing the statutory factors, DOB rationally concluded that petitioner’s conviction has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license sought. Specifically, because stationary engineers are responsible for maintaining dangerous high pressure boilers, it is imperative that they be trustworthy and that they maintain honest, accurate records (R-13). The Supreme Court found that since petitioner’s conviction involved the misuse of a position of trust, his criminal activity has a direct bearing on his fitness or ability to perform the duties of a stationary engineer (R-12-13). 7 C. Appellate Division Decision By Decision and Order dated May 7, 2013, the Appellate Division, First Department reversed, holding that the determination to deny petitioner’s renewal application lacked a rational basis. Matter of Dellaporte v. New York City Dept. of Bldgs., 106 A.D.3d 446 (1st Dept. 2013). Specifically, the Appellate Division held that “[r]espondent arbitrarily concluded that petitioner’s federal conviction for theft of funds bore a direct relationship to the duties and responsibilities attendant to a stationary engineer.” In reaching this conclusion, the Court held that petitioner’s actions in the “kickback” scheme underlying his prior conviction “bear no direct relationship to the equipment maintenance duties and responsibilities inherent in the stationary engineer license, and thus does not satisfy the first exception to the general prohibition of discrimination against persons previously convicted of criminal offenses” Id. at 447 (citing Correction Law § 752[1]). The Appellate Division also held that DOB could not rationally have found petitioner to pose an unreasonable risk to public safety or welfare so as to satisfy the second exception since he had performed his job without incident since 2007. Finally, the Court stated that DOB failed to afford petitioner the mandatory presumption of rehabilitation attendant to his certificate of relief from disabilities. Argument The Appellate Division, First Department, used the wrong standard in determining whether a direct relationship exists for purposes of Correction Law section 752(1). In so doing, it impermissibly narrowed the statutory exception in a manner that is unsupported by the plain language of the statute. The Legislature enacted the Correction Law provisions at issue to ensure that individuals were not automatically denied employment or licensure based solely on the fact that they had been previously convicted of a crime or crimes. The Legislature, however, also recognized that there are legitimate reasons to deny employment or a license to individuals based on their criminal history. Section 752 strikes a balance between these two competing interests by announcing a general prohibition against denying employment or licensure based solely on a prior conviction but also providing two exceptions where prior convictions may be properly considered in employment and licensing decisions. 8 The “direct relationship” exception requires the employer or licensing agency to look at the “nature of the criminal conduct” to ascertain what flaws in character, propensities for certain conduct, bad qualities, or character traits may be implied from the criminal conduct. See Al Turi Landfill v. N.Y. State Dep't of Envtl. Conservation, 98 N.Y.2d 758 (2002) (“the elements inherent in the criminal conduct for which the petitioner and its principals were convicted, to wit, dishonesty, lack of integrity in conducting business, and a willingness to mislead the government”). Next, the employer must consider the specific duties and responsibilities necessarily related to the employment or license in question to determine whether the “elements inherent in the criminal conduct” directly bear upon an applicant’s “fitness or ability” to perform “one or more” of those duties. N.Y. Correct. Law § 750(3). See Al Turi, 98 N.Y.2d at 761. If a determination is made that the particular traits or proclivities normally associated with the criminal act directly bear upon at least one of the duties necessarily related to the license, the statutory scheme, as interpreted by this Court, requires that the employer or licensing agency then consider the eight factors set forth in section 753 “to determine whether in fact the direct relationship is sufficiently attenuated to warrant issuance of the license.” Bonacorsa, 71 N.Y.2d at 612. On the other hand, if the nature of the criminal conduct has no bearing on the specific duties and responsibilities, the analysis ends there. Essentially, a determination is made that whatever these character traits or flaws were or are, they are not a concern for purposes of the position being sought. Id. at 613 (holding in the absence of direct relationship or unreasonable risk, a conviction cannot be considered as a basis for denying a license or employment). For example, in Al Turi, the State Conservation Department Commissioner denied the petitioner's application for a permit to expand a landfill because of the petitioner’s criminal history, specifically, the petitioner and its principals had pled guilty to federal tax-related crimes spanning several years. Al Turi. 98 N.Y.2d at 760. While recognizing that the “petitioner's criminal activities did not generally involve the violation of environmental laws,” this Court nevertheless held that the Commissioner rationally found that: the elements inherent in the criminal conduct for which the petitioner and its principals were convicted, to wit, dishonesty, lack of integrity in conducting business, and a willingness to mislead the government, have a direct relationship to the duties and responsibilities inherent in the 9 license sought, including accurate record keeping, effective self-policing, and honest self-reporting to the government. Id. at 761 (quoting 289 A.D.2d 231, 232 (2d Dept. 2001). Here, the Appellate Division failed to apply the analysis set forth in Al Turi. In finding that no direct relationship exists, the Appellate Division improperly focused solely on the duties petitioner performed that provided the opportunity for criminal activity (“duties analysis”) and overlooked the nature of the crime and the character traits petitioner exhibited, which bear on his fitness and ability to perform the duties of a stationary engineer.2 In its decision, the Court simply summarized the factual details of the crime without any mention of their nature or the character traits that may be implied from petitioner’s criminal conduct. Nor did the Court discuss the duties and responsibilities necessarily related to a stationary engineer license. Rather, it appears that once it concluded that a similar kickback scheme with the same modus operandi could not be implemented under the license sought, the Court’s analysis ended. This is not the proper test. By limiting the exception to a duties analysis the Appellate Division ignored the most significant portion of the relevant statutory language. As a result, the new test created by the Appellate Division significantly and impermissibly narrowed the statutory exception. 2 The full extent of the Appellate Division’s analysis was as follows: Petitioner’s prior conviction resulted from the misuse of his administrative powers in his former position, which granted him control over hiring, payroll, and selection of vendors. Such actions bear no direct relationship to the equipment maintenance duties and responsibilities inherent in the stationary engineer license, and thus do not satisfy the first exception to the general prohibition of discrimination against persons previously convicted of criminal offenses. Dellaporte, 106 A.D.3d at 447. 10 A job or license applicant’s prior criminal conviction is not relevant simply out of concern that a similar crime will or could be committed in the future. Rather it speaks to the character of the individual and how any defects in character may bear on his fitness or ability to perform “one or more” of the duties and responsibilities necessarily related to the license sought. N.Y. Correct. Law §§ 750(3); 753(1)(b) & (c). See Al Turi, 98 N.Y.2d at 761-762. The section 753 factors then look at the age of the individual at the time he participated in the criminal act[s], the amount of time which has passed since the crime, the seriousness of the offense, and whether the individual has demonstrated sufficient rehabilitation and good conduct so that an assessment may be made regarding the risk that the individual still has these character traits or flaws. N.Y. Correct. Law § 753. Here, upon learning of petitioner’s criminal history, DOB, in connection with petitioner’s renewal application and in compliance with the statutory mandate, considered both the nature of his crime as well as the duties and responsibilities necessarily related to a stationary engineer license. The nature of petitioner’s crime involved dishonesty, a lack of integrity, and a willingness not only to mislead the government and but also to embezzle public funds for personal gain (A-131-136). Stationary engineers are responsible for ensuring that high pressure boilers operate safely. In order to do this, they must keep accurate records of the boiler’s functioning, and must regularly inspect the boiler for problems, shutting it down when necessary to perform repairs. High pressure boilers must be inspected annually and inspectors rely on these records to ensure that the boilers are functioning properly. NYC Admin Code § 28-303.3 [DOB annual inspection requirements]; 12 NYCRR 14-1.13 [State log requirements]. Notably, these responsibilities are not incidental, but integral to the position of a stationary engineer. High pressure boilers are used in institutions such as hospitals and schools, where the risk to public safety is particularly high. Properly maintained boiler logs and regular inspections are essential to identifying problems that, if not properly addressed, could result in boiler explosions. The explosions could be severe and even deadly. See Kleva, Stephen, “Boiler Inspection, Maintenance, Safety,” HPAC Engineering, March 31, 2009; Puskar, John R., “Boiler and Combustion Safety: What You Don’t Know Can Kill You!,” Wiley InterScience, May 12, 2005. Accordingly, it is imperative that the logs kept by stationary engineers detailing the condition of high pressure boilers are reliable and trustworthy and that the reports submitted to DOB for low pressure boiler inspections are accurate. Thus, as in Al Turi, stationary engineers’ duties and 11 responsibilities also include “accurate record keeping, effective self-policing, and honest self-reporting to the government.” See Al Turi, 98 N.Y.2d at 761-762.3 DOB has a compelling interest in ensuring that individuals who are susceptible to corrupt influences for their own personal advancement are not put in positions where their actions could harm the public safety and welfare. Stationary engineers frequently work unsupervised. Thus, it is necessary that they are honest and trustworthy and not be susceptible to potential bribery from individuals seeking to avoid costly repairs. The risk that petitioner still possesses some or all of the character traits associated with his prior conviction directly reflects on his fitness to perform these duties. Having determined that a direct relationship exists between petitioner’s prior conviction and one or more of the duties and responsibilities necessarily related to a stationary engineer license, DOB then properly proceeded to discuss the section 753 factors (R-29-30). In addition to the duties and responsibilities of a stationary engineer and the bearing this conviction has on petitioner’s fitness and ability to perform these duties (R-29-30), DOB also properly considered the public policy not to discriminate against individuals with criminal convictions and the evidence of rehabilitation, including the certificate of relief from disabilities submitted by petitioner (R-28-30). In addition, DOB properly considered: (1) the passage of time, here less than seven years and thus not sufficiently attenuated from the license being sought; (2) petitioner’s age when he engaged in the criminal conduct, forty-one years old, and thus neither an adolescent nor a young adult but rather an age when morals and values are generally established and certainly an age where petitioner should have known better; (3) the seriousness of the offense, defrauding a government agency; and (4) the documentation petitioner submitted to demonstrate rehabilitation or good conduct (R-30). Arrocha, 93 N.Y.2d at 367 (holding courts are not allowed to re- weigh the agency’s assessment of the weight to be afforded each factors). Finally, the Appellate Division was incorrect when it concluded that DOB failed to afford petitioner the mandatory presumption of rehabilitation and 3 Even assuming the duties analysis was proper, the Appellate Division’s application of its own test was flawed. Record keeping is an administrative power and is one of the integral duties stationary engineers perform. It is also one of the duties petitioner abused in his former position, which led to his conviction. Yet, the Appellate Division failed to consider this in its duties analysis. Dellaporte, 106 A.D.3d at 447. 12 that its finding that the evidence was insufficient, absent any independent evidence in rebuttal, demonstrates that the determination was arbitrary and capricious. A certificate of relief from disabilities creates a presumption of rehabilitation in regard to the offense[s] specified therein. N.Y. Correct. Law § 753(2). It does not establish a prima facie entitlement to the license or employment nor does it establish that the applicant is rehabilitated without first considering the other seven statutory factors. Bonacorsa, 71 N.Y.2d at 614. The section 753 inquiry looks beyond simply whether the individual will engage in future criminal conduct. It is designed to also address whether the character traits associated with the past criminal conduct disqualify the applicant because of valid concerns these particular traits would raise in any reasonable employment or licensing decision. See Al Turi, 98 N.Y.2d at 761. The law was not designed to force employers to hire, or governments to license, individuals whose past convictions demonstrate that they are ill-suited to certain jobs and thus, potentially put the employer or licensing agency at risk of exposure. Rather it was designed to prevent automatic disqualification due to past convictions and to ensure that these employment or licensing decisions are unbiased and rational. Therefore, while the certificate affords a presumption of rehabilitation - in the sense that a court has determined that the individual is unlikely to engage in future criminal conduct -- the other factors provide a counterbalance which, depending on the weight afforded these factors, can rebut the presumption of rehabilitation. The burden does not shift to the employer or DOB, as the Appellate Division improperly found, to introduce independent evidence demonstrating a lack of rehabilitation. Bonacorsa, 71 N.Y.2d at 614. (holding consideration of other factors warrant denial “notwithstanding the absence of new evidence specifically addressed at overcoming the presumption of rehabilitation”). The significance afforded the remaining factors, assuming it is rational and not arbitrary, is sufficient to defeat the presumption. Id. In sum, because the Appellate Division impermissibly narrowed the direct relationship exception in a manner that is inconsistent both with the plain language and the intent of the statutory provision, the decision below should be reversed. 13 14 Conclusion For all of the foregoing reasons, this Court should reverse the Appellate Division’s May 7, 2013 decision and order (one paper) reversing the Supreme Court’s determination dismissing the petition, and order that the petition be dismissed. Respectfully submitted, Michael A. Cardozo, Corporation Counsel of the City of New York, Attorney for Appellants. By: Karen M. Griffin Cc. Douglas Rosenthal, Esq. The Rosenthal Law Firm, PC 40 Exchange Place, Suite 1820 New York, N.Y. 10005