07/18/2019 | Press release | Distributed by Public on 07/18/2019 11:07
Testimony by Stephen Dunn, CSS Senior Staff Attorney
Hearing before the NYC Department of Consumer Affairs
The Community Service Society of New York (CSS) uses a multifaceted approach to attack income inequality in New York. CSS has been at the forefront of this work for 175 years, changing our strategy and focus as the times demand. Today we engage in policy work, legislative advocacy, impactful direct services programs and litigation in order to help create a fairer, stronger New York.
My name is Stephen Dunn. I am a senior staff attorney in CSS's Legal Department, and I thank you for the opportunity to testify concerning DCA's proposed amendments to Chapter 1 of Title 6 of the Rules of the City of New York. We are concerned that, as a consequence of these proposed changes, otherwise eligible applicants with conviction histories will be denied licenses and face steep fines simply due to good faith and harmless errors or omissions in the application process.
CSS comes to this work from many years of advocating on behalf of clients facing steep hurdles due to criminal records. A conviction history can act as an insurmountable barrier to securing living-wage employment and housing, and to full participation in the life of our city and state. Due to discriminatory policing and prosecution practices, these burdens are disproportionally borne by people of color. CSS's Legal Department has focused exclusively on working with and for persons with conviction histories for more than a decade. We litigate on behalf of individuals and groups who have suffered actionable discrimination because of their records, and we engage in policy and legislative advocacy to make systemic change.
CSS also provides direct services to more than 700 New Yorkers each year through our Legal Department's Next Door Project, working with clients from across the city to obtain, review and correct mistakes in their New York State rap sheets. In our confidential one-on-one review sessions provided at our Manhattan headquarters and at partner agencies across the city, we ensure that our clients obtain the firm knowledge of their record that is essential when applying for a job or a license. In many cases we find that our clients have long been mistaken about the contents of their records, sometimes assuming they were convicted on arrest charges when this was not the case, for example, or misunderstanding the difference between a misdemeanor and a noncriminal conviction. In other cases, because years and sometimes decades have passed, clients have forgotten their precise conviction charges.
The proposed amendments put forth by DCA will harm applicants like our clients, and anyone without precise information about their conviction histories who tries to truthfully respond to DCA employment questions but fails in the attempt. Section 1-01.1 would permit the commissioner to deny any license application or refuse to renew a license where an applicant fails to provide 'complete and truthful' responses, 'conceals' any information, 'makes a false statement,' or 'falsifies' any document associated with the application. Likewise, Section 1-04 would further permit the commissioner to deny any license application or refuse to renew any license, or suspend or revoke a license, if the applicant has made a 'false' representation to the Department. Additionally, Section 6-11 imposes stiff financial penalties on top of the license denial or revocation.
It is our experience, from meeting and working with thousands of clients, that misstatements are quite frequently unintentional, stemming from applicants' misunderstanding of their conviction history or a misunderstanding of the questions asked, or both. DCA's 'Basic Individual License Application' contains questions that an applicant might justifiably get wrong. It asks, for example, whether the applicant has 'ever pled guilty or been convicted of ANY crime or offense? If YES, please explain.' Determining how to answer this legally overbroad question is a conundrum even for experts. And it certainly can stump the average person, causing them to answer incorrectly. It could be that the conviction is from many years ago and the specific details are lost to the passage of time. The applicant many have pled to a charge that was not adequately explained to them by their defense attorney. The applicant could be operating under false information, like so many unfortunately are, that their criminal convictions were automatically expunged after seven years or that their convictions were automatically sealed. Or it could be that the applicant did have his convictions sealed, but now is confused about what he is required to disclose. At the Next Door Project, we review a person's rap sheet and make sure they can comfortably and accurately discuss their record, helping to ensure they can answer questions like these appropriately. Unfortunately, there are more than 6 million New Yorkers who have criminal records and we are not able to provide this resource to everyone. There will be countless people who are denied a license from DCA due an honest and harmless error or omission.
I purposely call the error 'harmless' because the ultimate decision to deny or revoke a license application because of a conviction history is not based on this initial application question. DCA fingerprints applicants and obtains the applicant's full rap sheet from the New York State Division of Criminal Justice Services. DCA will then send the applicant a 'Request for Explanation of Criminal History' form on which DCA asks about specific, relevant convictions. Once the applicant has provided his explanation, DCA then conducts its analysis of the applicant's conviction history pursuant to Article 23-A of the New York Correction Law. DCA's analysis is in no way dependent on the applicant's responses to its criminal records question. Likewise, the applicant gains no advantage by failing to disclose his record in the initial application, and therefore is not motivated to purposely withhold information. Nonetheless, DCA has the authority, under the proposed amendments, to deny an application based on answers to a question that serves as nothing more than a 'gotcha,' catching people out in what are assumed to be - but almost never are - intentional misstatements, even where that application would otherwise be approved. The proposed amendment, in conjunction with the initial application form, will amount to gatekeeping with discriminatory impact.
We have encountered discriminatory gatekeeping before. When clients informed us that their employment applications were being tossed in the trash once they revealed a past criminal conviction or - for larger employers - that they were bounced out of the online employment application portal once they checked 'yes' next to the question about whether they had ever had a criminal conviction, we understood that systemic change was required. We worked closely with VOCAL/NY, Faith in New York and the National Employment Law Project to draft and ensure passage of the New York City Fair Chance Act, among the strongest 'ban the box' laws in the nation.
A similar approach is needed here. We urge DCA to remove the question about conviction history from the basic application form. The only purpose for this question is to form the basis of a denial for an otherwise eligible applicant. While we very much appreciate the due process language included in the amendments, we can't imagine a process that would adequately protect the applicant who does not have the resources or connections to services that would help them to obtain a sophisticated and detailed knowledge of their own record. If DCA feels compelled to keep the question on the initial application (though we see no reason why it is required), then we urge DCA to change the language of the proposed amendments so that only applicants who willfully mislead the agency will have their licenses denied or revoked. Individuals with conviction histories who do not mislead DCA on purpose, but simply get things wrong will otherwise continue to be harmed by their criminal records - here in new and enhanced ways - long after they have served their sentence, completed probation, paid a fine, done community service, or otherwise 'paid their dues.' We urge you to withdraw these proposed amendments.