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

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). 

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.