Opn. No. ( 1981 )

Robert G. Lyman, Esq. County Attorney, Albany County

You have asked whether a "certificate of relief from disability" authorizes a job applicant with a criminal record to deny on an employment application that he has ever been convicted of a crime.

A "certificate of relief from disability" (certificate) removes forfeitures, disabilities, or bars to employment automatically imposed by law by reason of a person's conviction of a crime or offense (Correction Law, § 701). The certificate may remove all forfeitures, disabilities and bars or it may be limited to specified ones (ibid.).

No person applying for a license or employment with a private employer or public agency may be denied a license or employment on account of the applicant's conviction of one or more criminal offenses unless:

"(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or

"(2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public." (Id., § 752.)

We note that the term "employment" as used in this context excludes membership in any law enforcement agency (id., § 750 [5]). In making a determination under section 752 the public agency must consider a certificate of relief from disabilities, which creates a presumption of rehabilitation in regard to the offense or offenses specified in the certificate (id., § 753).

We believe it clear from these provisions that a certificate does not in effect eliminate a conviction, thereby justifying a statement by an applicant for public employment that he has not been convicted of a crime. The certificate establishes a presumption of rehabilitation which must be overcome by an employer based upon the required findings under section 752. In other words, the certificate is to be used to mitigate the impact of a criminal record, not to eliminate it. We believe that the applicant must, upon request, list his convictions and should note that he has a certificate of relief from disability.

We conclude that a certificate of relief from disability does not authorize a job applicant with a criminal record to deny on an employment application that he has ever been convicted of a crime. The employer must consider the certificate, which establishes a presumption of rehabilitation as to the criminal offenses specified in the certificate.