Office of Technical Complaints

TECHNICAL Review DECISION

 

 

In Re: Technical Qualification Complaint	Date mailed
	July 30, 2008
of
	TAD 2008-129
Kendall D. Lesure	Ref. No. 2008-03183
	Key Word(s)
Employment Sanction Selection

 

Basis of Complaint and Relief Requested

The complainant is questioning the Civil Service decision to impose upon him an employment sanction at the request of the Department of Human Services (DHS). The complainant seeks a reversal of that decision.

Background

On February 7, 2008, the complainant submitted a Pre-Employment Application to the DHS. The complainant was interviewed by the DHS Centrally Coordinated Hiring Pool for a Services Specialist position. The complainant successfully passed the interview process and the DHS proceeded to conduct a background and reference check. On May 16, 2008, the DHS sent to the complainant a letter stating, in part:

The DHS-1502 Pre-Employment Application specifically asks candidates if they have ever been convicted of a misdemeanor or felony. The DHS-1502, Pre-Employment Application, submitted by you on February 7, 2008, indicates your response to this question was that you had been found guilty of a misdemeanor of retail fraud 3^rd degree in August of 1999. When we checked the Michigan Internet Criminal History Access Tool (ICHAT) it did not reveal a misdemeanor in 1999. We learned, however, that on April 18, 2007 you pled guilty to retail fraud third degree, and paid _^2a fine. Additionally, ICHAT indicates that you have two other felony charges pending from an incident on March 19, 2008. If the information we obtained from the ICHAT is accurate, you have falsified your application. I have enclosed a copy of the information we received from this check and a copy of your Pre-Employment Application for your review.

* * *

We are contacting you at this time to verify that the information we obtained from the ICHAT is accurate. If the information is not accurate, it is your responsibility to work through the appropriate channels to clear your driving record. Once this has been accomplished you should contact me to let me know the results.

* * *

. . . If I have not heard from you regarding the status of the charge by May 29, 2008, our agency will be contacting the Civil Service Commission to request that your name be placed on the official list of sanctioned applicants.

In a letter dated May 29, 2008, the appellant responded to the DHS, stating in part:

In regards to the Misdemeanor of Retail Fraud 3^rd Degree . . . This incident due occur (sic) in August of 1999, which was a stolen library book on a college campus (a value of $90). However, that (sic) did not charge me until 5/2/2000 as indicated on ICHAT. Therefore, I had no knowledge of the charge, because I had already moved back to Detroit because the school semester had ended. Therefore, I did not find out until another background check in March 2007. I pleaded (sic) guilty o (sic) 4/18/2007 to stop the warrant for my arrest in Ottawa County. This will be expunged in April 2009.

In regards to the pending felony charges, I was not aware of the charges when I submitted the application to DHS . . . I was placed in a Diversion program through Wayne County, which will clear my name of any wrongdoing in April of 2009 as well. In order for me to be accepted in this Program it was required that I am (sic) arrested, which took place on 3/19/08. I have not been convicted of anything . . . Attached to this letter is a court-ordered (sic) of my Diversion Program.

The DHS states that it did not receive the complainant’s response.

In a letter dated June 17, 2008, the DHS submitted to the CSC a request to place on the complainant an employment sanction for providing false information. The DHS stated,
_^3in part:

. . .  On the application submitted and submitted (sic) by Mr. Lesure on February 7, 2008, indicates his response to this question was that he had been found guilty of a misdemeanor or retail fraud 3^rd degree in August of 1999. When we checked the Michigan Internet Criminal History Access Tool (ICHAT) it did not reveal a misdemeanor in 1999. We learned that on April 18, 2007 he pled guilty to retail fraud third degree, and paid a fine. Additionally, ICHAT indicates that he has two other felony charges pending from an incident on March 19, 2008.

On May 16, 2008, I sent Mr. Lesure a letter asking him to verify whether or not the information we had obtained from the ICHAT was accurate. He was given until May 29, 2008 to contact our agency to verify if the information we had received was accurate. To date, we have not had a response from Mr. LeSure.

In a letter dated June 23, 2008, the CSC OCS informed the complainant that, at the request of the DHS, it had imposed an employment sanction of three years for providing false information on his Pre-Employment Application. On July 7, 2008, the CSC Office of Technical Complaints received the complainant’s Technical Qualification Complaint. The complainant contends that he did not intentionally falsify any information on his application.

Discussion

First, in their June 17, 2008 letter, the DHS states, in part:

. . . On the application submitted . . . Mr. LeSure . . . indicates his response to this question was that he had been found guilty of a misdemeanor of retail fraud 3^rd degree in August of 1999.

Actually, that is not accurate. The DHS Pre-Employment Application does not ask for the date of conviction, and nowhere on the application did the complainant indicate that he was convicted in 1999. The DHS application asks for the date of the offense, not the date of the conviction. The complainant states that the actual offense took place in August 1999 and that he was not officially charged with the offense until May 2000, which is consistent with the information provided by ICHAT. The complainant was not aware of the charge until 2007, which is when he took steps to settle the issue by pleading guilty and paying the fine. However, the complainant truthfully reported that he had been convicted of the felony of retail fraud-3^rd degree. He truthfully reported the date of the offense. He did not provide false information regarding the date of his conviction since the application does not ask for the date of the conviction. Based on all of the information in the record, I am unable to conclude that the complainant provided false information regarding his conviction or that he attempted to hide the fact that he _^4had been convicted. I am unable to conclude that this issue should result in the imposition of an employment sanction on the complainant.

With regard to the pending charges, the DHS states:

Additionally, ICHAT indicates that he has two other felony charges pending from an incident on March 19, 2008.

The complainant submitted the application on February 7, 2008, which even the DHS acknowledges was approximately six weeks prior to the arrest that led to the pending charges. Therefore, when the complainant indicated on his February 7, 2008 application that he had no pending charges, this was not a false answer. This, then, does not provide sufficient cause to impose an employment sanction on the complainant.

The one issue where there is material disagreement between the DHS and the complainant is that the complainant contends that he responded to the DHS letter of May 16, 2008, with his own letter of May 29, 2008. The DHS contends that it received no response to their May 16, 2008 letter. However, it is possible that both accounts are accurate. It is possible that the complainant sent the May 29, 2008 response letter and it is equally possible that the DHS never received the letter. However, given the fact that the complainant did not provide false information on his application regarding the date of his conviction and did not provide false information on his application regarding pending felony charges, I am unable to conclude an employment sanction is warranted based simply on the possible vagaries of the postal system.

Decision

Based on all of the information in the record, I am unable to conclude that sufficient evidence exists to impose an employment sanction on the appellant for providing false information on his DHS Pre-Employment Application. The requested relief is granted. The employment sanction imposed on the complainant, therefore, is removed.

It must be noted, however, that removal of the employment sanction does not imply an obligation on the part of the DHS, or any other state agency, to consider the complainant a viable candidate or to appoint the complainant to any position. That determination still rests with the employing agency.

/S/                                                                           

Kenneth Melaragni, Technical Review Officer

Office of Technical Complaints

_^5

cc:	Judy Sieffert, Department of Human Services

 

This decision may be appealed to the Civil Service Commission through the Employment Relations Board within twenty-eight (28) calendar days after the mailing date of this decision, as authorized by Civil Service Commission Rule 8-3.4.  You may appeal upon application and leave granted, in the discretion of the Board, upon showing of grounds for appeal under Civil Service Commission Rule 8‑7.5.  If the Board grants your request for appeal, you will have to show grounds for modification or reversal of this decision, see §4(P)(1) of Civil Service Regulation 8.05, Employment Relations Board Appeal Procedures.  You must serve copies of the application upon the Technical Review Officer and the persons copied on the decision and submit proof of service thereof to the Board with the application.  Civil Service Regulation 8.05, and Civil Service Regulation 8.06, Computing Time and Filing Documents, should be referenced for directions on filing an application for leave to appeal.  The applicable Michigan Civil Service Commission Rules; Civil Service regulations; and forms for filing an application for leave to appeal, and proof of service are available through the Civil Service Web site at www.michigan.gov/mdcs, or by contacting the Board office.  Applications for leave to appeal and inquiries should be addressed to the Employment Relations Board, Capitol Commons Center, 400 South Pine Street, P.O. Box 30002, Lansing, Michigan 48909; by telephone, at (517) 335-5588; by fax, at (517) 335-2884; or by e-mail to MDCS-ERB@michigan.gov.