I was recently asked whether a fire department could consider an arrest, not just a conviction, when determining whether to accept a member or bring a member off suspension.
The answer is no. Under New York law the arrest cannot be considered in a determination to accept or reject a member. An arrest is not a conviction, just an allegation, and no matter how certain everyone in the department is that the person is guilty of the crime, if he (or she) was not convicted there is no determination that he did what he was accused of doing.
Criminal Conviction Checks
Executive Law §837-o requires any person who applies for membership in a fire department, or who seeks to transfer as a member to another fire department, to undergo a background check for a conviction of the crime of arson or a crime which requires the person to register as a sex offender. The search must pertain solely to ascertaining whether the applicant was convicted of arson or a crime which requires the applicant to register as a sex offender under Article 6-C of the Correction Law.
The results of the search must be kept confidential by the Chief, except as provided in Section 837-o(3), which requires that the Chief notify the member of the results. In fact, the results of the search must only state either that: (i) the applicant stands convicted of arson and/or a crime which requires the him to register as a sex offender, or (ii) the applicant has no record of conviction. The results of the search do not divulge any other information relating to the criminal history of the applicant.
Using an Arrest Record
It is an unlawful discriminatory practice under the Human Rights Law §296(16), unless otherwise permitted (in rare circumstances), for any person, association or agency to make any inquiry about, or to act adversely to the individual involved as a result of, any arrest or criminal accusation of that individual not then pending against the individual which was followed (i) by a termination of the criminal action in his favor, or (ii) by an order adjourning the criminal action in contemplation of dismissal, or (iii) by a youthful offender adjudication, or (iv) by a conviction for a violation which is sealed. The law applies to “licensing, housing, employment, including volunteer positions …”
Criminal Procedure Law §160.60 indicates that the sealing provisions of the Criminal Procedure Law are intended to restore individuals who have had criminal actions against them which were terminated in their favor to the status they occupied before the arrest or prosecution. The arrest or prosecution does not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, or profession. According to the law, “Upon the termination of a criminal action or proceeding against a person in favor of such person … the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling.”
There are legitimate reasons to deny membership, or to terminate a member, but a mere arrest is not one, and a denial based on termination will not survive a challenge.
