CRIMINAL CONVICTIONS AND THEIR IMPACT ON MEMBERSHIP AND EMPLOYMENT
Reprinted from AFDSNY Fire District Affairs
EXECUTIVE SUMMARY
Fire districts and departments in New York must navigate complex legal requirements when evaluating applicants or current members with criminal convictions. By law, only arson convictions automatically disqualify a person from fire service membership or holding a fire district office. Other convictions require individualized consideration under Article 23-A of the Correction Law, which mandates a balancing test to weigh the applicant’s rehabilitation, the nature and severity of the offense, time elapsed, age at conviction, and public safety concerns.
The 2024 Clean Slate legislation further complicates evaluations by allowing certain convictions to be expunged, meaning that employers may encounter criminal records that are no longer legally actionable. Boards must follow strict procedures, document their decisions, and ensure applicants provide necessary certificates of conviction and disclosure information. Failure to adhere to these laws can create liability, while proper compliance offers legal protection and aligns with state policy emphasizing rehabilitation and reintegration.
WHY IT MATTERS
This guidance is critical because it balances public safety, legal compliance, and fairness. Fire districts must ensure that applicants and members are properly vetted without unlawfully discriminating based solely on prior convictions. Following statutory procedures protects the organization from lawsuits, demonstrates due diligence, and provides a defensible record of decision-making. Moreover, careful application of the law ensures that individuals with prior convictions are given a fair opportunity for rehabilitation, aligning with state policy and minimizing the risk of denying service or employment based on outdated or irrelevant information. Proper documentation and adherence to the Correction Law balancing test safeguard both the fire service and the public it serves.
EXPLANATORY DETAILS
In workplaces, employers often face the task of evaluating candidates with previous criminal convictions and dealing with current employees who have been arrested or convicted of crimes. Fire districts and fire departments are mandated to screen new applicants for arson convictions. Additionally, in recent times, a criminal record check for sex offense convictions has been included in the legal requirements for background checks of volunteer firefighter applicants.
Throughout history, numerous fire districts and fire departments have established rules, regulations, and bylaws that enforce automatic restrictions on membership and employment based Confidential Information on specific criminal convictions. However, under New York State law, the sole automatic restriction on membership pertains to an arson conviction to any degree. This restriction applies to membership in both the fire department and fire company, as well as to holding an appointed or elected fire district office. Importantly, it does not automatically restrict civil service employment.
The concept that any felony is grounds to reject an applicant or dismiss a current member or employee is not a concept that is supported by applicable statutory and case law.
It is crucial to understand that although the press, media, and the public often swiftly condemn volunteers, public officers, and employees upon their conviction of a crime and criticize your organization for not immediately cutting ties with them, in most instances, the law does not allow for such immediate action. The law establishes specific protections for individuals convicted of crimes to safeguard their rights to future employment and access certain licenses.
New York State’s public policy aims to rehabilitate individuals convicted of crimes and to provide them with opportunities so that they can once again become functioning productive members of society.
A nationwide initiative is underway to expunge criminal records, enabling individuals convicted of crimes to reintegrate into society and pursue employment and other opportunities. This effort suggests that clearing these records could alleviate the stigma associated with criminal histories and expand access to employment and other prospects for affected individuals.
More importantly, the “Clean Slate” legislation in New York State adopted in 2024 has created the potential for many convictions to be expunged from the records of people previously convicted of misdemeanors and felonies. This creates the real possibility that a fire service employer may act on information that is no longer valid.
Many perceive this as a practice filled with potential dangers for both private and public workplaces. Some focus on the dangers of previously convicted personnel being bad actors in the workplace. Others focus on the same people being victimized by an employer not following the law and providing due process before denying employment or membership.
It is essential to remember that New York State has specific laws governing how employers can handle the prior criminal records of job applicants and the convictions of current members or employees. Following these regulations and ensuring that both applicants and existing staff receive proper due process can shield you from potential legal consequences. Despite the ongoing social upheaval surrounding this issue, obeying the relevant laws is paramount.
The State Legislature, in collaboration with the Governor, holds the authority to enact laws that establish additional impacts for criminal convictions. This might involve mandating registration with the state for individuals convicted of specific crimes, such as those listed on the sex offense registry. Furthermore, the state can stipulate that individuals with certain convictions are ineligible for state licenses or types of employment. For instance, someone convicted of arson to any degree may be barred from becoming a member of a volunteer fire department.
When the state has created a prohibition, the work of the local fire department and Board of Fire Commissioners is completed when the criminal conviction to which the prohibition applies is uncovered. The applicant certainly has a right to show that the report is not accurate, and they do not stand being convicted of the crime, but if the report is accurate the application can be rejected. On the other hand, if no ban has been created, the applicant has a right to further consideration.
A volunteer fire department and Board of Fire Commissioners can inquire about whether an applicant has been convicted of a crime. It should not inquire about criminal accusations and arrests that have not borne convictions unless the charges are currently pending before a criminal court.
If the background check uncovers a previous criminal conviction (excluding arson convictions), the procedure outlined in Article 23-A of the Correction Law must be followed.
While individuals may hold personal opinions regarding which crimes should disqualify someone from obtaining specific licenses or employment opportunities, the members of both the volunteer fire department and the Board of Fire Commissioners, tasked with evaluating membership applications, cannot afford to rely solely on personal opinions. Instead, they are obliged to follow the statutory procedures for assessing a conviction and deciding upon each applicant’s eligibility. Implementing a procedure will function as a safeguard against allegations of unjustly rejecting an applicant’s application for membership or employment.
There is always the possibility that a fire district will face a lawsuit for the acts of a person hired or approved for membership despite the fact that he or she has a criminal record. Following this process will serve as a defense to a claim that the Board negligently approved or hired the person in a lawsuit where a third party might seek to hold them accountable for the conduct of that person with the criminal record.
It is important that a process is followed and that it is documented.
If your organization rejects the applicant, the applicant can request a written explanation for the rejection under the statutory scheme. Correction Law § 754 [McKinney]
The right to this explanation makes it even more imperative that your organization follow the statutory process to approve or reject the application.
What exactly is the procedure that must be followed? The statutory scheme explains the basis for rejecting an applicant and the balancing test that must be followed. By “balancing test” we refer to the factors the statutes direct the Board to consider as it weighs the right of the applicant to employment or membership against the facts that might weigh against the hiring or appointment. The Board will balance those factors and the interest of the applicant.
How does the fire department membership or the Board of Fire Commissioners determine the existence of a “direct relationship”? How could they demonstrate that employing or admitting this individual would pose an unreasonable risk to property, the safety, or welfare of specific individuals, or the public? Correction Law § 753 outlines an assessment process or balancing test for them to utilize in evaluating the effect of this prior conviction on the individual’s capacity to serve.
First, you need to consider the fact that New York State wants you to consider appointing or hiring this person. It does not want a person rejected solely because they have a criminal conviction(s) on their record. More of a basis must be developed to justify the denial. Furthermore, New York State requires an explanation regarding why the tasks and obligations associated with this position or membership are deemed unsuitable for an individual with a criminal record. Are the job responsibilities such that they involve handling finances, while the individual has been convicted of offenses related to financial misconduct or embezzlement? Do the duties involve interacting with children, whereas the individual has a history of mistreating them? If there is intent to reject employment or membership, it is crucial to establish a clear connection between the job requirements and the inadequacies demonstrated by previous criminal behavior. Does a conviction for the prior criminal offense render the person unfit for the position they are seeking?
What leads you to believe this is the case?
What is the timeframe since the person’s conviction?
A significant gap between the conviction and the application date tends to benefit the applicant, whereas a more recent conviction tends to work against them. At what age did the person commit the offense?
Generally, offenses committed at a younger age are viewed more favorably for the applicant, while those committed as mature adults tend to work against them. What is the severity of the offense?
Was it a violent crime? These are considerations to be assessed. You must also consider the information given by the applicant. Ensure that your application explicitly requests disclosure of prior criminal convictions. If the applicant fails to disclose a prior criminal conviction that has not been sealed by the court or by operation of law, you have the right to deny the application due to the failure to provide accurate information. In such cases, there is no need to address the criminal conviction(s) in the evaluation process. Make certain that your application requires a person who has been convicted of a crime to provide a certificate of disposition from the court in which they were convicted. Make this a part of the application process and treat an application without this document as incomplete until the certificate(s) is provided.
Ensure that individuals disclosing a criminal conviction are guided in the application form to provide in writing any information they wish to bring to your attention, aiding in the review and assessment of their prior convictions as well as presenting evidence of post-conviction rehabilitation and good conduct. It is not necessary to grant the applicant a hearing. Allowing them to submit information in writing fulfills this aspect of the evaluation process.
Under Town Law §176-b a Board of Fire Commissioners in a fire district must approve or reject an application for membership in its fire department within “forty days after service of written notice of election to membership shall have been made by the secretary of the fire company upon the secretary of the board of fire commissioners, either personally or by mail.” Town Law § 176b [McKinney]. Please note that “by mail” in a statute relates to utilizing the U.S. Postal Service unless the statute specifically authorizes a digital alternative. If the Board fails to act within the designated timeframe, the membership application is deemed approved by operation of law.
Rejecting an application for submission of a false statement is not a rejection due to a criminal record. Note that if misconduct pertains to falsification of an application or other documents concerning criminal conviction, such conduct (falsification) is not subject to the Correction Law’s balancing test.
The Board of Fire Commissioners should establish a regulation stipulating that failure to disclose a criminal conviction or any form of falsification on an application constitutes misconduct. Such misconduct may lead to disciplinary measures, including potential removal from membership or employment, once the falsification is uncovered, regardless of the timing.
The Board of Fire Commissioners should have a rule in place that members and employees must disclose a criminal conviction to their supervisor within a limited period after the jury verdict or entry of a guilty plea. The Board of Fire Commissioners should implement a regulation stating that a criminal conviction for an offense committed while an individual is a member or employee constitutes misconduct.
Such misconduct should subject the member or employee to disciplinary action. During the disciplinary proceedings, the fire department or fire district body tasked with hearing the case will utilize the balancing test and regulations outlined in the Correction Law to determine a suitable course of action.
In the end the decision is a matter of Board discretion, but following the correct process and keeping documentation is critical.