177 Livingston Street 7th Floor Brooklyn, NY 11201 (718) 254-0700 info@bds.org

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON GOVERNMENTAL OPERATIONS AND COMMITTEE ON IMMIGRATION OVERSIGHT HEARING ON LANGUAGE ACCESS IMPLEMENTATION PLANS.

TESTIMONY OF:

 

Juliana Chereji – Family Defense Practice

 

BROOKLYN DEFENDER SERVICES

 

 

Presented before

The New York City Council

Committee on Governmental Operations and Committee on Immigration

            Oversight Hearing on

Local Law 30 of 2017: Language Access Implementation Plans.

October 25, 2018

 

My name is Juliana Chereji and I am a supervising attorney in the Family Defense Practice (FDP) of Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year.

 

Since its inception, BDS’ Family Defense Practice, has sought to bring the highest quality interdisciplinary representation to our clients, while helping them obtain the benefits and services they need out-of-court to keep their families safe and strong.  I have represented primarily Spanish-speaking clients during my tenure at BDS since 2009 and have done advocacy surrounding language access issues since 2014.

 

I thank the New York City Council Committee on Governmental Operations and the Committee on Immigration, and in particular Chairpersons Fernando Cabrera and Carlos Menchaca, for the opportunity to testify about language access issues in the New York City Administration of Children’s Services (ACS).

 

Background

 

With over 15% of our clients speaking a primary language other than English, FDP knows how important it is for our clients with limited English proficiency (LEP) to have attorneys and social workers who can communicate with them in their primary language. It enhances the attorney-client relationship and vastly improves the quality of representation that FDP provides our clients.[1]

 

FDP recruits attorneys and social workers from different backgrounds who speak many languages because clients greatly benefit from working with attorneys and social workers who speak their primary language.  Reflecting the diversity of Brooklyn, FDP staff speaks over ten different languages, including Spanish, Russian, Haitian Creole, Mandarin, Cantonese, Arabic, French, Korean, Urdu and Bengali. Over a third of FDP’s staff is bilingual.  Clients who do not speak English as their first language benefit from being paired with FDP staff attorneys who speak their language, and who, in many cases, have contacts with community-based agencies and familiarity with a client’s cultural or religious background, a factor which is often relevant in an Article 10 case. FDP also uses telephonic interpretation services to translate for LEP clients that speak a language other than those spoken by our staff.

 

While having a legal advocate that speaks your language makes an enormous difference in the outcome of cases, it is equally important for our clients to have access to services in their native language as they navigate all aspects of the child welfare system in Family Court, in meetings with their ACS caseworker, or when engaging in programs and other services. Our clients’ ability to communicate with ACS staff is critical to keeping their families stable and together, yet for years, our clients have experienced problems with communicating with ACS staff who do not speak their language.

 

FDP regularly raises language access issues with ACS officials, both by email and in-person meetings with managerial staff. In November 2015, BDS submitted a letter to then-Commission Gladys Carrión about language access issues that we encountered on a regular basis. Three years later, many of these same problems continue to have a negative impact on our clients. In the spring of 2018, BDS, along with other family defense providers citywide, met with staff for Councilmembers Stephen Levin and Margaret Chin of the New York City Council to discuss language access issues in the child welfare system.

 

Despite ACS’ administrative efforts and policies enacted through its Language Access Implementation Plan required by Local Law 30, our LEP clients still regularly encounter problems, especially when assigned caseworkers who do not speak the same primary language as they do.

 

 

 

Lack of Quality Interpretation Services

 

ACS’ Language Access Implementation Plan entitles LEP families to have “full access to in-person and telephonic interpretation services in over 200 languages (including sign language) through ACS language services vendors,” interpretation services through bilingual ACS staff, or services from ACS staff in their primary language.[2]

 

While the New York State Office of Court Administration is responsible for providing interpretation services at court hearings, ACS policy requires these services to be available 24 hours per day, 7 days per week, and to be provided in “all interactions between ACS staff and clients who are LEP, deaf, or hearing impaired” for all other interactions with ACS.[3]

 

Nevertheless, BDS often witnesses and hears from our clients that either inappropriate interpretation services are being used or that no interpretation services are being used at all:

 

  • Case workers often incorrectly assume and assert that our clients understand English even when BDS has clarified to them that our clients do not meaningfully understand English enough to communicate regarding their child welfare case.

 

  • Instead of calling interpreter services, ACS case workers may use our clients’ children (including children that are subjects in their cases), other family members, and even the other respondents in their case to interpret complex and sensitive information.

 

  • Rather than providing an interpreter, ACS caseworkers may force families to converse in English during supervised visits, even if their household language is a language other than English, so the caseworker can monitor what is being said.

 

  • Our LEP clients are often not made aware of interpretation or translation services that ACS offers or may feel reluctant to assert their right to interpretation services.

 

  • In some cases where interpretation services are utilized, case workers have used an interpreter who speaks a different specific dialect from the one our client speaks or even an entirely different language, diminishing the quality of the conversation and the accuracy of the information that is being relayed. ACS often does not make a sufficient effort to ensure that culturally competent interpretation services are offered.

 

  • Case workers often express concerns about what our clients are saying to their children during supervised visits when the case workers do not understand their language. The case workers then have additional people observe the visit to monitor their language which greatly reduces the quality of the visits.

 

 

  • BDS attorneys often witness ACS caseworkers using telephonic interpretation services on speaker phone in public areas of family court to discuss sensitive information in front of other people not involved in our clients’ case. Forcing clients to discuss sensitive information in public diminishes the effectiveness of case work contact and erodes trust between parents and caseworkers.

 

Client Stories

 

In August, 2018, BDS arraigned Mr. H., a native Uzbek speaker. Mr. H. speaks a little Russian and very little English, but enough of both to muster basic conversation. Two BDS attorneys, including one supervisor, attempted to speak with him in English but were not able to have a full and complete conversation with an acceptable level of understanding for a legal proceeding. BDS requested at multiple points that the court provide an Uzbek-language interpreter but the court apparently could not find one. Instead, a Russian interpreter was provided. Mr. H. said multiple times that he did not speak Russian well and that he needed an Uzbek interpreter. However, he had been in court all day waiting for an Uzbek interpreter. He later told his attorney that under the circumstances he felt pressured to use the Russian interpreter. He was arraigned without understanding many substantive portions of the court hearing, what was being asked of him, or what his rights were.

 

Since the arraignment, from at least August 9 until October 12, he did not see his child even though he desperately wanted to see them. Though OCA was responsible for interpretation in court, based on our understanding of his interactions with ACS, his Child Protective Special (CPS) almost always contacts Ms. S without a translator and expects him to be able to communicate in English. While he can discuss logistical and other mundane issues in English, Mr. H. and counsel have been adamant that he needs an Uzbek interpreter when he is discussing anything of substance.

 

Finally, ACS and FLCS have requested that Mr. H. engage in various parenting/ DV courses and alcohol treatment. Mr. H. has told his counsel on multiple occasions that he is happy to engage in these services. Counsel for Mr. H. has told FCLS that they should find a language-appropriate referral. On at least four occasions, counsel for Mr. H. told the FCLS attorney assigned to this case that Mr. H. needs Uzbek-language accommodations for his services and for communication with the CPS. FCLS insisted each time either that FCLS had seen the client speak English with the CPS or that the client spoke Russian, or both. None of the attorneys working on this case speak Russian, but BDS produced a Russian-speaking attorney before an October Preliminary Conference. The Russian-speaking attorney attempted to speak with Mr. H. in Russian in front of the FCLS attorney. The Russian-speaking attorney they certified to the FCLS attorney that Mr. H. indeed spoke “very bad Russian.” Despite the ACS Language Access Implementation Plan requiring interpretation services for interactions, ACS staff continued to fail to provide Mr. H. with appropriate translation in his native Uzbek language.

 

***

 

BDS arraigned Mr. B., a native Uzbek speaker, in September, 2018. He arrived in court around 9:30 AM and was forced to wait for an Uzbek interpreter to arrive. Before BDS was assigned, his BDS attorney witnessed Mr. B. attempting to ask his ACS caseworker many questions, partially using a translation app on his phone. His caseworker kept telling him that an interpreter was coming and he should wait and talk to his attorney. Around 12:30 PM, his caseworker, at the urging of a court officer, suggested he work with a Russian interpreter. Mr. B. refused. The Uzbek interpreter arrived around 4:15 PM and he was able to have counsel assigned.

 

After intake, FCLS asked Mr. B.’s BDS attorney if he knew of any Uzbek-speaking providers to whom Mr. B. could be referred for a domestic violence accountability program. Shortly thereafter, Mr. B. allegedly told his caseworker that he would not be doing services unless ordered by the court, which led FCLS to believe they had no further responsibility to find an appropriate provider. However, through appropriate translation services, Mr. B. expressed a different position to his BDS attorney. FCLS’s position may be based, at least in part, on the caseworker’s inability or unwillingness to communicate with him using a translator, as well as their inability to actually find an appropriate provider.

 

Recommendations

 

While the goals and policies outlined in ACS’ Language Access Implementation Plan should ensure LEP families are receiving the interpretation and translation services they need, our experience shows that public-facing staff often do not follow the policies, which can confuse our clients and exclude them from full participation in their cases.

 

  • Because many respondents do not feel comfortable asking for interpretation services or may not know they have the right to ask, ACS staff must be trained to proactively offer interpretation and translation services in every case, even if there is an assumption that the client speaks English.

 

  • Whenever possible, ACS should assign case workers that speak the same language as the parents.

 

  • ACS should include language access protocol review in supervisory review between public-facing staff and their supervisors.

 

  • ACS should make their best efforts to refer parents to outside programs and services that are culturally competent and offer interpretation services.

 

Conclusion

 

BDS thanks the Council for ensuring ACS and other city agencies create and implement language access policies through Local Law 30. It is crucial to all of our clients’ cases and to their families that they are able to effectively communicate with their caseworkers and other ACS staff. When public-facing ACS staff members are not compliant with ACS’ language access protocols, our LEP clients are unable to fully participate in their cases and risk further instability in their families’ lives. We urge the Council to use its power to hold ACS accountable in enforcing its implementation plan and ensure New York parents and families can effectively communicate with ACS.

 

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Daniel Ball, Communications & Development Coordinator, 718-254-0700 ext. 579 or dball@bds.org.

[1] See, e.g., Jayesh M. Rathod, The Transformative Potential of Attorney Bilingualism, 46 U. Michigan J. Law Reform 863-920 (2013).

[2] The Mayor’s Office of Immigrant Affairs and the Mayor’s Office of Operations, Local Law 30 Report (June 30, 2018), available at https://www1.nyc.gov/assets/immigrants/downloads/pdf/moia-report-LL30-june-2018.pdf.

[3] Ibid.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON JUSTICE SYSTEM OVERSIGHT HEARING ON PAY HEARING AND RETENTION RATES FOR ADAS AND PUBLIC DEFENDERS

TESTIMONY OF:

 

Danielle Regis – Criminal Defense Practice

 

BROOKLYN DEFENDER SERVICES

 

 

Presented before

The New York City Council

Committee on Justice System

            Oversight Hearing on Pay Parity and Retention Rates

for ADAs and Public Defenders

 

October 25, 2018

 

My name is Danielle Regis and I am a senior staff attorney in the criminal defense practice of Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year. I have been defending clients in Brooklyn criminal and Supreme Court for more than seven years.

I thank the New York City Council Committee on Justice System, and in particular Chairperson Rory Lancman, for the opportunity to testify about the urgent need for pay parity for public defenders and assistant district attorneys with other city-funded attorneys. My testimony today will focus on the challenges that I and my colleagues at Brooklyn Defender Services face as we struggle to remain in a rewarding profession that makes it difficult for us to pay off our student loans, rent an apartment or start a family.

In September and October 2018, Brooklyn Defender Services conducted interviews and a focus group with public defenders willing to share their personal stories with the Council. Many of our defenders are plagued with growing student loan debt. Most expressed struggling to save as a top concern. The majority disclosed their need for therapy – and the struggle to cover its costs. Others disclosed opting not to pursue therapy because of its cost – and having to find other ways to ensure self-care.

A common topic of concern: starting a family. A vivid example of the enormity of this concern comes from someone who expressed that in deciding to start a family they have had to come to grips with the ways in which this decision will clash with their professional commitment to this work. They shared, “No one becomes a public defender for the money, but at a certain point the low pay and student loan debt that the vast majority of lawyers face become untenable when faced with the financial challenges of raising a child in New York City.”

We discovered those financial challenges present in a variety of ways for our defenders. One defender disclosed, “[My spouse and I] live in a rent stabilized apartment and still struggle to make ends meet, with no hope of saving for the future.”

All of the defenders conveyed that there has been at least one occasion when they had to reflect on the seemingly inevitable existential question – which one defender characterized best: whether “being a public defender is incompatible with the goals” of financial stability and starting a family. All of the defenders who participated in the interviews and focus group expressed a profound sadness at having to confront this question.

Defender Stories

Story #1: My spouse and I decided to start our family. However, financial necessity is forcing me to consider ways to make more money which would force me out of the profession I love. It’s a devastating issue for me and my family.

Story #2: If I have a second child, in order to send them to daycare with my first child, I would have to use my entire take home salary on childcare.

Story #3: I’ve been in a seemingly eternal battle with my student debt. I come from a working class family, and am the first in my family to ever go to college and I am also the only lawyer in my family. My parents could not help me with tuition and now I have so much debt. Our salary, and the costs of living in New York City force me to make minimal payments so I have only been chipping away at the debt. If we get a salary raise, I tend to use that money to make some additional payments on my loans. I feel like I will never be financially stable if I stay a public defender. I hate that this insurmountable debt threatens the work I love.

Story #4: I am single. I have roommates. I need to have roommates in order to afford to have a roof over my head. I also need therapy because our job takes a toll on me sometimes. I can’t afford therapy. I also can’t afford to fly home to see my family on the west coast as often as I would like. I attempt to save but I have come to realize that it’s not a realistic goal I can achieve.

Story #5: I lived at home with my parents for my first couple of years as a public defender. The commute to work was rough but I had to endure it. I just couldn’t afford to move out. To move out, I had to implement a strict budgeting plan in order to save enough money to have for a security deposit. Then the year we got a salary raise I had a little more to work with and was able to save more. I now have my own place, but I have a long commute to work because I cannot afford rent anywhere in the vicinity of our office. I love the work that I do. Even though the financial aspect of it is challenging, you try to make it work.

Story #6:  I’m the one that’s supposed to be helping my aging parents, not the other way around. I have to be honest and truthful and disclose: my parents still buy my fights to go home to see them for the holidays. Recently, my laptop got damaged and needed replacement. When I couldn’t afford to pay for it my father helped with me with the costs to purchase a new one. I am so grateful that my parents are able to help me but it’s a source of stress for me that they do so. Each year I am forced to think about how this system of support from my parents is not sustainable. My parents are retired now and I know they use up their savings when they help me financially. I worry about how, one day, my parents are going to depend on me, their only child. I really don’t know how I am every going to get out of this cycle of debt to be able to really assist and support them.

I tried to rent my couch on AirBnB as a way to get extra income so that I am in a better financial situation. That didn’t last very long because my landlord didn’t agree with it and almost evicted me.

I’ve opted not to marry because the legal consequences of my student loan debt would be disastrous for my partner.

Story #7: My spouse and I decided that we were only going to be able to afford to raise one child, even though we both want more children. We are lucky that my spouse works in a different field and makes more money than I do. And even with that, we have struggled a lot financially. Those financial struggles placed a strain in our marriage and affected us deeply over the years. We had to undergo counseling and therapy. Therapists are expensive, and are not really covered by our insurance. Therapy and counseling have helped us immensely. My spouse and I are still struggling financially, but we have learned to accommodate as we go along and we work hard at making sure that financial issues don’t take over.

Story #8: A surprising consequence of my decision to pursue a lifelong career in public defense is the impact it has had on my marriage. My husband and I have been through some very tough times, not because I work long hours and work too many night shifts (causing childcare havoc) but because we didn’t know if we can make ends meet. I cannot begin to adequately describe the level of anxiety our financial instability has brought to us. I have had to defer payments on my student loan debt so many times I don’t think I will ever be eligible for loan forgiveness even though I’ve satisfied the requirement of practicing for at least 10 years in the field. Things have gotten better mostly because my husband has taken advantage of opportunities to earn extra money here and there. I’m not able to do that mostly because I don’t have time and take care of our daughter takes priority. We are now homeowners, but it was an extremely difficult path. It took multiple us tries at mortgage applications to be able to buy our house – and now that we have it, the financial troubles only continue because the costs of repairs are eating up our savings. I know that by choosing to pursue the work I love, I am also choosing to continue down this difficult financial path. I didn’t choose this work for the money.

Story #9: I recently put in my notice at BDS. I have accepted a job as an attorney at a different non-profit organization that is funded by foundations and thus able to pay higher salaries. I have been a public defender for eight years and it is more than just a job – being a public defender is my identity. But I am in my mid-thirties and my husband and I are ready and eager to start a family. We did the math and realized that there was no way for us to pay for infant care that costs nearly $2,000 per month. We do not have an extra $2,000 per month. We do not have an extra $500 per month after rent and student loan payments and we do not have family in the area who can help with childcare. I am very sad to leave but I had to choose between doing this work and starting a family. I chose starting a family.

Conclusion

Defenders in New York City cannot wait five years, or two years, or even one year to see an increase in pay. If New York City wants to continue to ensure that we provide high-quality public defense to all New Yorkers, regardless of their ability to pay, we must increase wages for our attorneys and social workers on the front lines. We ask the Council to act in the next budget cycle to increase the allocation for public defenders to ensure that we can raise pay to meet that of attorneys at other city agencies, including corporation counsel.

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Daniel Ball, Communications & Development Coordinator, 718-254-0700 ext. 579 or dball@bds.org.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON EDUCATION ON EMPLOYMENT AND SCHOOL TRANSPORTATION

TESTIMONY OF:

Shelle Shimizu – Employment Law Fellow, Employment Law Unit

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Education

October 16, 2018

My name is Shelle Shimizu and I am an attorney at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the Committee on Education for holding this hearing and for providing us with the opportunity to testify.

BDS’s employment practice provides legal representation and informal advocacy to people facing employment discrimination due to current or prior contact with the criminal justice system. Our clients face numerous formal and informal barriers to employment. Many are suspended or terminated from employment upon arrest and absent any finding of criminal culpability. Others are completely excluded from employment opportunities due to their criminal histories. In New York State, many occupations are regulated by statutes that limit or exclude people with criminal records—and this includes school bus drivers.

BDS supports the Council’s intention to improve our city’s school transportation system, but urges due consideration to the widespread harm of demonizing people with criminal records. As an organization that serves people impacted by the immigration, child welfare and criminal legal systems, we frequently work with school-aged children who depend on bus transportation to access their education.  Across practice areas, we hear of problematic school transportation practices, including untimely student drop-offs and pick-ups, unnecessarily long bus rides and unprofessional conduct by school bus staff.  Our Education Practice assists BDS clients in addressing these concerns, but systematic failures by the Office of Pupil Transportation (OPT) often compromise the speed and extent of available relief. Accordingly, BDS commends the Council’s proposals that seek to improve accountability and reliability of the school transportation system.

All that said, it is critically important to distinguish job-related misconduct from past mistakes that have no direct connection to the work. BDS submits this testimony to address Intros 926 and 929, both of which pertain to OPTs process for certifying, investigating and disciplining school bus drivers. As a public defender office, BDS is concerned with legislation that, even unintentionally, could lead to undue employment barriers for people with open cases or prior convictions. Today I would like to highlight the following concerns.

School Bus Drivers Are Already Highly Regulated

Recent articles published in the New York Daily News and New York Post raised concerns that the vetting process for school bus drivers is too lax.[1] In the articles, an OPT investigator claims to have uncovered six bus drivers with conviction histories that he believes should have precluded their employment as school bus drivers. However, the articles, as well as a subsequent letter from Comptroller Scott M. Stringer calling for change, do not mention the various steps that an individual must take to become a school bus driver.

In order to drive a school bus, an individual must first obtain a Commercial Driver’s License (CDL) with the required designations through the New York Department of Motor Vehicles. Certain applicants with criminal convictions are prohibited, either temporarily or permanently, from obtaining a CDL. These convictions are enumerated in Section 509-cc, Article 19-A of New York’s Vehicle and Traffic Law.[2] This list is extensive and includes over 80 convictions that could potentially prevent an individual from obtaining a CDL. Notably, the state requires potential bus drivers to either not have one of these disqualifying convictions or to present sufficient evidence of rehabilitation to warrant the CDL.

Next, the person typically must apply for a bus driver position through a private vendor contracted by the DOE. While there is concern that these vendors are not properly running background checks on applicants, we have seen evidence to the contrary. One recent client served as a bus driver for many years and after a break from driving he wished to return to the profession. While he was in the process of applying for positions, he was arrested.  As a result, all of the school bus vendors that he applied to denied him employment due to his open case. No finding of criminal culpability had been made, and yet our client was presumed guilty by the company and denied the opportunity to serve as a bus driver—a position he held for many years.

In the event that a person obtains a CDL and is subsequently hired by a vendor, they must then be certified by the Office of Pupil Transportation. Per the OPT website, in order to receive certification an individual must provide a litany of documentation including: a 19-A final qualification letter provided by the DMV, a 13 county criminal history check letter dated within 60 days, negative drug test results dated within 60 days, and three letters of recommendation.[3]

People seeking employment as a school bus driver must proceed through a vetting process with multiple junctures at which they can be excluded due to their criminal record. While OPT and the city’s school transportation employers are entitled to their own review of school bus candidates, it should be considered within the context of the preceding steps of review.

A Criminal Conviction Should Not Automatically Exclude Individuals from Employment Opportunities and OPT Must Consider Evidence of Rehabilitation

A criminal conviction is not determinative of a person’s character or their abilities as an employee. People can and do change. New York State and City have created a variety of legal protections to support those truths. In enacting Article 23-A of the Correction Law,[4] New York State created standards for employers to follow with the goal of limiting unjust discrimination against a candidate due to a past conviction. The law requires employers to consider a number of factors, including the age of the individual at the time of the offense and the amount of time that has lapsed, to analyze whether the prior conviction should bar employment.  In establishing the law, the Legislature also recognized the importance of rehabilitation:

“Observers of our criminal justice system agree that the key to reducing crime is a reduction in recidivism (i.e. repeated criminal conduct by the same individuals). The great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual’s return to society his willingness to assume a law-abiding and productive role is frustrated by senseless discrimination. Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime.”[5]

New York City’s Fair Chance Act and New York State’s sealing statutes 160.58 and 160.59, further reflect a commitment to the fundamental premise that people can be rehabilitated—that they can reenter their communities and live positive lives after involvement with the criminal legal system.

The articles in the New York Post and New York Daily News center around an OPT investigator claiming to uncover several bus drivers with criminal histories that he believes should preclude them from working as a bus driver. While we recognize the instinct to be alarmed, we question the premise that the convictions alone should preclude them from employment, especially without any other information. New York State and City law recognizes the need to consider a variety of factors, including rehabilitation, before drawing such conclusions. In fact, one of the Article 23-A factors an employer must consider is that “New York public policy encourages the licensure and employment of people with criminal records.” We ask that the Council keep this is mind as it solicits information regarding the criminal histories of current school bus drivers.

Any Legislation Must Be Carefully Drafted to Avoid Reinforcing Harmful Stereotypes and Disproportionately Impacting Communities of Color

Black and Latinx people, with or without criminal records, have long faced discrimination in hiring practices. Criminal records only compound the barriers to obtaining or maintaining a job, and blanket bans on employees with such records exacerbate inequality in our society without improving public safety.

This pervasive discrimination inspired New York City’s Fair Chance Act—a local version of the Ban-the-Box laws enacted in jurisdictions across the country. At its core, the Fair Chance Act aims to dismantle stereotypes about the desirability of formerly incarcerated workers and increase hiring rates for that population.[6] Employers have expressed reluctance to hire people with criminal records on the basis that they are seeking what some have called “work readiness”—a term that one leading economic research institute defined as encompassing “personal qualities such as honesty and reliability, an inclination to arrive at work on time every day, a positive attitude toward work.”[7] Employers may, without good reason, regard the existence of a criminal record as a proxy for the absence of those qualities.[8] However, research shows that these presumptions are not only discriminatory, but are indeed false.[9]

Intro. 929 requires that OPT disclose the “number of notifications received from the New York state of division of criminal justice services that a school bus attendant has been arrested for charged criminal activity.” We are concerned about the message that this reporting sends—that those with criminal justice involvement are inherently dangerous and a hidden threat that must be uncovered. This message conflicts with the City’s overall purpose of expanding employment opportunities for all, including people with records.

It is also important to acknowledge any policy that targets people with arrests or convictions will replicate the biases of our criminal legal system and disproportionately affect Black and Latinx people, particularly those experiencing poverty. In 2016, Black people accounted for approximately 48% of total arrests while Latinx people accounted for 34% of total arrests despite representing 26% and 29% of the total New York City population respectively.[10] Consequently, any regulation or policy that regulated the employment of individuals with criminal records will disproportionately and unfairly discriminate against people of color.[11]

We know that this Council has taken many steps forward to protect those with criminal records from employment discrimination. While we recognize that the bills today seek to gather information on OPT’s vetting process, we hope that this data collection will not be used to further limit the employment of those with criminal histories.

Recommendations:

 Add a Section to Intro 929 to Ensure That the Office of Pupil Transportation Abides by Its Legal Obligations Under Article 23-A

The Office of Pupil Transportation’s vetting process should be transparent and should abide by New York Correction Law Article 23-A. Article 23-A prohibits an employer from denying or terminating employment due to a criminal conviction unless the employer is able to establish that the conviction directly relates to the position at hand or that they are an unreasonable risk to public safety. This law requires employers to consider numerous factors in making this determination.

Intro.  929 would require OPT to disclose:

“The timeframe and a description of the actions taken by the department for each substantiated notification for which a driver or attendant lost their department qualifications…”

BDS agrees that greater transparency into OPT’s “investigative process” is necessary. Accordingly, we ask that Intro. 929 specifically require OPT to disclose how it incorporates Article 23-A in its process. In our experience, it is unclear whether OPT follows Article 23-A and considers the factors appropriately before taking any adverse action, including evidence of rehabilitation.[12] This bill should be amended to ensure that Article 23-A is formally incorporated to protect the rights of all OPT employees.

Notably, Article 19-A of the Vehicle and Traffic Law allows individuals with disqualifying convictions to potentially obtain a CDL if five years have passed since the conviction and the individual obtains a Certificate of Relief from Disabilities. The Legislature enacted this thoughtful provision and we believe that this demonstrates a commitment to the idea that rehabilitation is possible and that a conviction should create a permanent bar to employment. As this Council obtains more information on OPT’s vetting process, we encourage this committee to ensure that OPT abides by Article 23-A and that it affords proper weight to any evidence of rehabilitation.

Remove Section 2 from Int. 929, Which Does Not Comport with the City’s Values

Intro. 929 would require OPT to disclose the “number of notifications received from the New York State Division of Criminal Justice Services that a school bus attendant has been arrested for charged criminal activity…” We are concerned that such information may be used to take adverse action against employees or applicants with open criminal cases. Moreover, public reporting may pressure employers to unfairly exclude qualified drivers based on unfounded allegations.

An arrest is not an indication of criminal culpability—by definition, neither guilt nor innocence has been adjudicated by a court of law at the charging stage of the criminal process. Further, people are often arrested and processed through the criminal legal system without any criminal culpability: overpolicing of communities and people of color and/or false reports very often factor into an individual’s arrest.

We cannot discount that individuals may be arrested on unsubstantiated allegations or very little evidence. Further, many are later found to be not criminally culpable. In fact, in 2017 only 23% of New York City adult arrests resulted in a criminal conviction.[13] Yet, we believe that OPT’s current practice is to automatically and immediately suspend an employee upon any arrest. All individuals are innocent until proven guilty in a court of law, and this practice violates fundamental precepts of justice and fairness.[14]

The proposals today do not in themselves create any additional regulations or limitations on individuals who are arrested. However, data on arrests are not probative and we are concerned with how this data will be used in the future. The Department of Education already implements an overly aggressive policy when an employee is arrested. Individuals are immediately suspended upon arrest based on attenuated charges without any opportunity for immediate review of this decision. We hope that the proposals today will not be the first step towards greater inappropriate barriers for those with criminal histories, particularly those with arrests that never lead to a conviction.

Conclusion

Thank you for your consideration of our comments. If you have any questions, please feel free to reach out to Andrea Nieves in my office at 718-254-0700 ext. 387 or anieves@bds.org.

 

[1] Selim Agar and Bruce Golding, DOE Probing Alleged School Bus Driver Approval Fraud, N. Y. Post (Sept. 18, 2018),  available at: https://nypost.com/2018/09/18/doe-probing-alleged-school-bus-driver-approval-fraud/; Ben Chapman and Graham Rayman, City School Bus Drivers with Criminal Pasts Slip Through Gaping Loopholes, N.Y. Daily News (Sept. 14, 2018), available at: http://www.nydailynews.com/new-york/ny-metro-school-bus-drivers-criminal-record-20180914-story.html

[2] Article 19-A Information Packet, Dept. of Motor Vehicles, Bus Driver Unit. DS-700 (updated 09/2017), available at https://dmv.ny.gov/forms/ds700.pdf.

[3] New York City Department of Education, Office of Pupil Transportation, Driver Information, available at: http://www.optnyc.org/vendors/DriverInformation.htm

[4] Full cite

[5] Mem in Support, Bill Jacket, ch. 931, L. 1976.

6     Jessica S. Henry and James B. Jacobs, Ban the Box to Promote Ex-Offender Employment, National Employment Law  Project (October 16, 2007), available at: https://www.nelp.org/wp-content/uploads/2015/03/Henry-Jacobs.BantheBox.article.Oct-07.pdf

7     Harry J. Holzer et al., Can Employers Play a More Positive Role in Prisoner Reentry?, Urb. Inst. 1-2 (2002), https://www.urban.org/sites/default/files/publication/60761/410803-Can-Employers‌-Play-a-More-Positive-Role-in-Prisoner Reentry-.PDF

8     See id.

9     In a study comprised of over a quarter million applicants for customer service positions, researchers at the Kellogg and Northwestern University School of Law found that people with criminal histories did not perform their duties any worse than non-offenders.Based on the research of Dylan Minor, Nicola Persico, and Deborah Weiss, Should You Hire Someone with a Criminal Record? (February 3, 2017), available at: https://insight.kellogg.northwestern.edu/article/should-you-hire-someone-with-a-criminal-record. See also, Jena McGregor, Why Former Felons May be Good Employees, Washington Post (May 6, 2015), available at https://www.washingtonpost.com/news/on-leadership/wp/2016/05/06/why-former-felons-may-be-good-employees/?utm_term=.8616ba5ae69f

[10] Data obtained Data obtained through the Department of Criminal Justice Services. Available at http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/nyc.pdf

[11] Excluding individuals with criminal histories from employment opportunities further disenfranchises low-income, black and brown individuals who are targeted by racially biased law enforcement practices. From stop-and-frisk to the over prosecution of people of color for minor offenses such as turnstile jumping or marijuana, we cannot ignore the prevalence of prejudice in our criminal justice system. See, Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (finding that New York Police Department officers engaged in “indirect racial profiling” by targeting racial minority neighborhoods at higher rates); see also a report published by the Community Services Society, The Crime of Being Short $2.75: Policing Communities of Color at the Turnstile (October 2017) available at, http://lghttp.58547.nexcesscdn.net/803F44A/images/nycss/images/uploads/pubs/Fare_Evasion_FINAL_10_6_17_smaller.pdf; see also, Innocence Project, Racial Disparities in NYC Arrest Data for Marijuana Possession, available at https://www.innocenceproject.org/racial-disparities-in-nyc-arrest-data-marijuana-possession/( finding that between January-March of 2018, 93% of those arrested for marijuana use were persons of color.)

[12] The Article 23-A factors to be considered are the following:

 

  1. That New York public policy encourages the licensure and employment of people with criminal records;
  2. The specific duties and responsibilities of the prospective job;
  3. The bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities;
  4. The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction;
  5. The age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction;

6.The seriousness of the applicant’s conviction history;

  1. Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct;
  2. The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
  3. Employers must also consider a certificate of relief from disabilities or a certificate of good conduct, which shall create a presumption of rehabilitation regarding the relevant conviction.

 

[13] Data obtained through the Department of Criminal Justice Services. Available at http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/nyc.pdf

[14] Losing employment due to an arrest can result in severe and debilitating consequences. Our clients are largely from low-income communities, and their jobs are often their only source of income. Many live paycheck to paycheck. They are heads of households, mothers and fathers. When our clients lose their employment due to an arrest, their lives are completely upended.  Even if a person is innocent of the charges against them, their case could take months to resolve. Unemployed and without income, they will not only face an uphill battle to obtain government benefits, but will also find it very difficult to find alternative work as certain employers will hold applications in abeyance until the case is resolved.

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BDS’ COMMUNITY OFFICE ONE-YEAR ANNIVERSARY CELEBRATION

Brooklyn Defender Services is excited to invite our neighbors and partners to join us in celebration of the one year anniversary of BDS’ Community Office at 566 Livonia Ave.

We are thrilled to have a presence in East New York and to serve Brooklyn residents with legal information, education and assistance.

Light refreshments will be served.

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