Ban the Box: What does the law say?

As we move into the holiday season, some see it fit not to push toward creating a more just world, but to punish those who have already been punished. This is done selectively and in ignorance, or apathy, of the larger consequences and messages being sent. The same people lamenting recidivism are actively putting up stumbling blocks to those who have made mistakes and are trying to do right.

Last week what we saw in Hartford was not concern for public safety but a witch hunt.

We can speculate over why Kennard Ray was singled out more than others to have his background checked out. Maybe it’s his party affiliation — being part of a growing third party in a city controlled by the Democrats. There’s been open hostility toward that party by those who believe it is somehow responsible for both Republicans losing their footing here and for some Democrats to lose votes. Some have suggested that those calling for this investigation with such gusto all hail from a different racial background from Ray, and that their privilege prevents them from seeing how they are contributing to institutional racism.

I asked Kennard Ray why he thinks this got the spotlight, after all, not all new hires are given so much as a second glance by the media. His telling of it is that questions arose after a press release was issued by the Mayor’s Office, with reporters from the Hartford Courant initially raising the issue. At this stage of the game, he had been appointed and was due to begin work this morning, following the Thanksgiving weekend.

He says that he has “heard several theories on why [his past] may have been brought up, but I’m not sure if any of those theories lead me in a direction where I can form a solid opinion and I am not comfortable speculating. I’m sure we’ll hear more about why this became a public issue of interest in the days to come.”

Regardless of the reasons, this push to “investigate” Ray came largely from those whose own pasts are far from perfect.

The Debt That’s Paid is Never Paid

At what point has someone paid his debt to society? Is it after he has served his jail term? Stayed out of trouble for five years? Ten years?

Kennard Ray himself, in a statement on Facebook, has said that he has “worked tirelessly in my community and communities like it over the past decade to make good on past misgivings. I have in fact done the crimes that the media has reported on, and I have also done the time. In fact, over the past decade I’ve put more time and effort to doing right, than I ever have in doing wrong.”

Do we only consider him rehabilitated on his death bed when we can all be sure that he has obeyed the law for the remaining decades of his life?

What Does the Law Say?

The fact is that Ray, nor anyone else applying for a job with the City of Hartford — with only a few exceptions — needs to be upfront about his criminal past. Hartford has an ordinance spelling out as much. A resolution states:

The court of common council by substitute resolution dated January 12, 2009 resolved that the human resources department review its current civil services processes and eliminate any barriers during an interview process that may preclude applicants with criminal records from gaining employment with the City of Hartford.

Interpretation: a person who has a criminal past can be employed with the City of Hartford.

We should want this. A job with a future, room for advancement, and a decent wage seems like a way to help prevent those with certain types of criminal pasts from returning to make those poor choices.

The Code of Ordinances says as much. In 2010, the “Ban the Box” policy went into effect in Hartford. In 2011, internal policy was conformed to the language of this ordinance.

Sec. 2-382 and 2-383 of the Municipal Code explains:

It is the intent and purpose of this section to assist the successful reintegration of formerly-incarcerated people back into the community by removing barriers to gainful employment after their release from prison.

More than six hundred fifty thousand (650,000) people are released from state and federal prisons each year and hundreds and thousands more leave local jails. Approximately one thousand two hundred (1,200) adults return to the City of Hartford from prison every year. Formerly incarcerated people represent a group of job seekers, ready to contribute and add to the work force. Lack of employment is a significant cause of recidivism; people who are employed are significantly less likely to be re-arrested. Obstacles to employment for people with criminal records and other barriers to re-entry are creating permanent members of an underclass that threatens the health of the community and undermines public safety.

A job with the City of Hartford offers opportunities that one with a fast food or big box store does not. Ray is fortunate to have a decent job to fall back on. Not everyone with his past has that option.

And not everyone with his past knows that in Hartford, if a person is applying for a job with the City, questions about possible felonies are not the first thing a job candidate gets asked.

Where Did The Strong Mayor Go?

There are many people formerly and presently employed with the City who have done something in their time, so this push to investigate Ray seemed surprising to many, including him. He says, “Because I’ve worked closely with some of the advocates and elected officials who were involved in passing the Ban the Box ordinance, and thus was aware of it in a way the average new hire may not have been, I’d have to say – yes – I was surprised this all became an issue.”

Mayor Segarra should have recognized this reality, and more firmly and publicly stood his ground, as he was one of the “Ban the Box” ordinance supporters.

I asked Ray if Segarra had urged him to step down or if the Mayor encouraged him to remain in the position: Ray chose to decline to answer those questions.

It increasingly seems that our mayor is struggling to balance the need to please the people and the need to show leadership; this much has become clear in recent months as we have watched Segarra conflate compromise with a 180. Instead of coming out publicly as a strong voice of support for a person he obviously felt was a good fit for that job, Segarra lost his spine.

Asking the Wrong Questions

More than a few have insinuated that the background check should have happened before Ray was offered the position. A better question to ask might be why Mayor Segarra’s  Communications Director announced these two hires when many of the new employees in City Hall are not given the same welcome. It might be worth asking why Segarra would so quickly change his tune on Ban the Box. In 2011 he was quoted as saying, “I support this change because it eliminates the stigma of a wrong choice or bad decision and promotes a quicker avenue for positive re-entry.  It will also provide many otherwise very qualified candidates a second chance and an opportunity to be a productive resident in our city and in our society.”

It’s even more of a shame that the Mayor, who is more informed than given credit for, would waver when this change, this ordinance, is in effect and can help to substantiate his hiring choice. This was a missed opportunity for Hartford to show itself as a progress place to work and live.

The “Ban the Box” ordinance does not mandate the City of Hartford hire those with past convictions, but it does state that this “stigma,” as Segarra called it, can not interfere with the interview process.

Sec. 2-384 of the Municipal Code clarifies:

Applicant means any current or prospective employee or person who requests to be considered for employment by the city, not including board of education and the public schools.

Conviction means any sentence arising from a plea or verdict of guilty, including a sentence of probation or a sentence of unconditional discharge.

Direct relationship means the nature of criminal conduct for which the person was convicted has a direct and/or specific negative bearing on a person’s fitness or ability to perform one (1) or more of the duties or responsibilities necessarily related to the employment sought.

Otherwise qualified means any applicant who meets all other criteria for a position or consideration for a position.

Sec. 2-385 of the Municipal Code further clarifies the criminal record check standards for the City of Hartford:
(a) In connection with the employment of any person, it shall be not be permissible for the department of human resources to make any inquiry about or to take any adverse action against any person on the basis of any arrest or criminal accusation made against such person, which is not then pending against that person and which did not result in a conviction. It shall further be an unlawful discriminatory practice for a city agency or vendor to require any person to disclose or reveal any arrest or criminal accusation made against such person which is not then pending against that person and which did not result in a conviction.

(b) The criminal record check related policies and practices of the city include, but are not limited to the following:

(1) The city does not conduct a criminal record check on an applicant unless such a check is required by state or federal law or the city has made a good faith determination that the relevant position is of such sensitivity that a criminal record check is warranted.

(2) The city will review the qualifications of an applicant and determine whether an applicant is otherwise qualified.

(3) The city will not conduct a criminal record check for an applicant that is not otherwise qualified for a relevant position.

(4) The city shall make an offer of conditional employment to an applicant, notifying him/her that a criminal record check will be conducted. At this time, an applicant may submit a voluntary disclosure statement of his or her criminal record and any mitigating factors relating to said criminal record.

(5) The city makes final employment decisions based on all of the information available to the city, including the seriousness of the crime(s), the relevance of the crime(s), the number of crime(s), the age of the crime(s), and the occurrences in the life of the applicant since the crime(s). If the final decision of the city is adverse to the applicant and results in the refusal, rescission, or revocation of a position with the city then the city must notify the applicant immediately of the decision and the specific reason(s) therefore.

(6) The applicant shall have seven (7) business days, after receipt of the notice and the photocopy of the criminal record from the department of human resources, to respond by first class mail to the human resources appeals board regarding the criminal record report. The human resources appeals board shall provide the applicant with an opportunity to present information rebutting the accuracy and/or relevance of the criminal record report and must review any information and documentation received from the applicant prior to taking any final action with regard to the applicant.

If that’s not clear enough:

Sec. 2-386. Retaliation and discrimination prohibited

It shall be unlawful to retaliate or discriminate against any person on account of his having claimed a violation of this chapter.

Sec. 2-387. Regulatory authority

The human resources department shall have the authority to promulgate rules and regulations necessary to implement and enforce these sections and may promulgate a form of the affidavit.

Sec. 2-388. Severability

If any provision of these sections shall be held to be invalid by a court of competent jurisdiction, then such provision shall be considered separately and apart from the remaining provisions, which shall remain in full force and effect.

There has been no indication that Ray’s convictions would in any way give reason to doubt his ability to fulfill the duties in this job. If he were seeking a position in the Hartford Police Department, then that old weapons charge might be relevant. If he were seeking work with the Board of Education or at any of the public schools, then human resources could have explored his criminal past early in the application process.

The job Ray would have filled was described in a press release from the Mayor’s Communications Director as ” liaison to City Council, community organizations and residents […] lead project management, policy development, and day-to-day community relations through the Office of Constituent Services.”

So, while there is nothing in this ordinance that would require Ray be hired, it is spelled out well enough that his conviction — being old and irrelevant to nature of job — should be a non-issue.

If all this fuss is about doubting Ray’s  judgement, I would challenge each reader to prove she made absolutely no dodgy decisions in life, particularly while in teens and early twenties. If you managed not to get arrested, permanently injured, or worse for those bad choices, consider yourself fortunate. If you have avoided making that same bad decision for ten years, then you have something in common with Kennard Ray.

It’s okay. Many do.


LaResse Harvey, the Director of Strategic Relations for A Better Way Foundation, spoke at the Urban Hope Refuge Church on Sunday morning about “Ban the Box.” Tonight at 6pm at City Hall, A Better Way Foundation is inviting the community to “stand with Kennard Ray and others who have a criminal record.”

There has been talk about starting a petition. A Facebook profile image  (right) was created to show solidarity with Kennard Ray.

And Ray, he’s going to continue his advocacy for Ban the Box, an advocacy he was involved in before all this came about last week. He says:

“Incarceration and recidivism are far too closely tied to poverty and the best way out of poverty of course is sustainable employment. Government encourages the private sector to hire former offenders through Second Chance tax breaks; but that’s usually only applicable for former offenders who are within their first year of reentry into the community which is a narrow pool. When that tax break is usually less than $3,000.00 per former offender hire, per company, then there’s naturally less incentive for employers to hire ex offenders which narrows the number of offenders who can actually be served by these incentives even further.”

The private sector, Ray says, should not be looked to as a leader on the issue of employing ex-felons. Ray says that it is  “more prudent”  for the government “to take the first step in passing laws like Ban the Box, and understanding and defending those laws when challenged in order to increase the flow of opportunity for ex-offenders and to encourage similar behavior in the private sector.”

As we have seen, the law is only as solid as those willing to enforce it.

Ray said, “good legislation that can serve to empower disadvantage segments of the population like Ban the Box, often are passed and left to fade into irrelevance without any public outreach and/or implementation campaign to put them to good use.”

During the initial wave of uproar last week, between a local news story managing to not once mention the “Ban the Box” ordinance in its coverage and comments (mostly anonymous) on this and other stories, there is no denying that there is a knowledge gap when it comes to Hartford’s own ordinances. Much of the “outrage” over this hire had derived from people who do not even live in Hartford; it’s likely they do not know our laws, and frankly, it is not Mayor Segarra’s job to cater to them as these are not his constituents.

Ray said, “What happens then at the first sign of a threat or challenge which is what has happened in this case, is that administrations are forced to make quick, reactionary decisions.”

So, Ray thinks it’s not just enforcement of the policy that needs to happen, but something more proactive. The State, he says, “has a much better grasp on public outreach in most cases, but in the City of Hartford in the case of Ban the Box, municipal government totally dropped the ball. In a city with such a highly concentrated re-entry population, what does it serve you as government to not do the due diligence of making sure that the people it was passed to serve are aware that it’s exist?”

The community is interested in moving forward, not dwelling in the past, or in others’ unfortunate pasts, as the case may be. But to do this, there needs to be hard, honest look at what just happened.

“If nothing else,” Ray says, “I am glad that these events have shone a brighter light and brought on greater awareness of Ban the Box. I’d consider this entire situation a good thing if it creates space to develop new advocates who can fight for a stronger and expanded Ban the Box law in Hartford and in cities across the state.”