The Austin Chronicle

Double Jeopardy

A long-ago bust gets a city staffer fired and raises questions about drug policy

By Lauri Apple, November 29, 2002, News

In March, just two months after he was hired, Ryan Blum-Kryzstal was fired from his job at the St. John's Library and Community Center -- because he rolled a joint in a parking lot on South Padre Island seven years ago. Since his job involved working with children, he was subject to a criminal background investigation; when the CBI was eventually done, it found that Blum-Kryzstal had pled no contest (nolo contendere) in 1995 to a misdemeanor marijuana charge, and the city disqualified him from his position at St. John's.

After months of trying to get his job back, recently Blum-Kryzstal's fate turned for the better -- sort of. Upon re-examining the city's approach to CBIs, City Manager Toby Futrell disagreed with staff's conclusion that "nolo contendere" equals "guilty," and on Nov. 7 offered Blum-Kryzstal his old job back in a personal letter. "I think we did not do justice to this gentleman," she told the Chronicle. "Everything that could have gone wrong, did. ... We made a mistake in interpreting policy."

But after seven months of tidying up his criminal record, submitting new applications to the city, and trying to make a living in a troubled economy, Blum-Kryzstal finally decided not to accept Futrell's offer, which he called "bittersweet." In addition to financial reasons -- and his desire to work specifically at St. John's, which is now fully staffed -- he's doubtful the city would support his vision for the new center. "The library is still subject to budget cuts. Materials take months to years to be [acquired]," he said. "The city only made the decision to rehire me not on the value of my work, but based on pressure from the press."

Blum-Kryzstal thinks his story exemplifies a problem not even Toby Futrell can fix: the nation's obsession with crime and punishment, with making war on drugs, and with punitive employment policies wielded against workers and applicants despite their performance or promise. He says of his experience, "This is a symptom of a greater disease."

Haunted by the Past

Blum-Kryzstal, who moved to Austin in summer 2001, knew how many locals take pride in the city's "weirdness" and laid-back atmosphere -- which, though he no longer smokes marijuana, involves tolerance of the herb. How could the government of a city noted for its liberalism hold him to such a stringent standard -- particularly since he told them about his arrest when he first applied?

Originally, Blum-Kryzstal says, "they paid more attention to my character. They felt that I would be a strong asset to the community." A graphic designer and musician by trade, he says he wanted to work at St John's, which serves one of Austin's poorest neighborhoods, "to create social change on a base level. I wanted to be with the kids after school, when they really formed their patterns. I wanted to be a force of stability and goodness."

At the time of his firing, he was finishing up a proposal for the city to stock St. John's "with resources other than The New York Times bestsellers" -- CDs by A Tribe Called Quest and Miles Davis, biographical picture books on Malcolm X and Martin Luther King Jr., and videos that weren't produced by Hollywood. He had begun an after-school drawing session and had plans for computer courses, music, and other activities he felt were inadequately provided in the neighborhood. Being the only white male on the St. John's staff was a new and intriguing experience. "I really felt like I was a part of something powerful for the community."

Blum-Kryzstal says that during his own youth in McAllen he was "a stupid kid" who took advantage of his family's affluence, banked on never getting busted, and often hung out with neighborhood drug dealers who were just as white and wealthy as he was. In March 1995, he went to Padre with a stash and a strong desire to party. One night he hit the town with a plastic bag full of marijuana and went to a club. Drunk and high, he stumbled into the parking lot and rolled a joint. Suddenly, he heard a man's voice call out -- a park ranger, asking what the bag contained. Dazed and alarmed, Blum-Kryzstal dropped the joint on the ground, but by then it was too late. The officer patted him down, discovered the stash, and arrested him on the spot. He was held for 24 hours.

Months later, Blum-Kryzstal went to court and on the advice of his lawyer pled nolo contendere. A Cameron County judge sentenced him to six months of deferred adjudication -- similar to probation, but never recorded as a conviction as long as the offender stays out of trouble. During those months he gave up smoking marijuana and has been drug-free ever since.

"After court that day, I never heard or really thought about it ever again," he said. Until one Monday morning in March, almost seven years after his arrest, when Blum-Kryzstal's supervisor, St. John's branch manager Elva Garza, asked him into her office: "She seemed sad, and quiet." Joining her were two advisers, who he says "sat with long, dour faces ... [they were] barely able to look at me." They explained the city's policy regarding CBIs, then handed him a Texas Dept. of Public Safety report showing the arrest. "Flipping through the pages, I began to cry as they told me I had to pack my things and leave the building as soon as I had accomplished the duties I needed to complete."

Under the city's pilot CBI program for youth-oriented jobs, Blum-Kryzstal should have been screened before being hired, but according to the city, when his application was processed the library's HR specialist was away from her office. He was processed as a new hire, and only later did library staff discover the CBI hadn't been done. When it was, the library forwarded the report to the city's HR department and requested an opinion in light of the pilot policy. As the response indicated, "the intent of the CBI policy was to count as conviction any type of case that indicates guilt, including 'nolo contendere' status." On March 5, Library Director Brenda Branch wrote Blum-Kryzstal a termination letter, which offered 10 working days' pay.

Initially, Blum-Kryzstal thought the CBI was simply wrong, since it didn't reflect the Cameron County dismissal of his case, so he called DPS to change his record and asked the city to run another check. It came back the same as the first, according to the city. Meanwhile, Blum-Kryzstal's now-vacant position had been frozen internally in response to the city's budget woes, and the library told him he would need to reapply for the position, as a new applicant when it was unfrozen some time in the future. He could not simply be reinstated as soon as he cleared his record.

Blum-Kryzstal also found out, after talking to lawyers, that to actually clear his record he would need to either get an expunction -- an expensive process that can take months -- or seek pardon from Governor Rick Perry. He paid his bills by working a few day labor jobs, waiting tables, and an occasional freelance graphic gig. He reapplied for his old job, along with two others, in July; his position at St. John's was unfrozen and could officially be filled Oct. 1.

But in November, Blum-Kryzstal got a letter from the city's HR department informing him that his application had been rejected. "I encourage you to apply again when positions for which you are qualified become vacant," the letter stated. This was for a job he had already been hired for once -- and that he was offered again, three days later, by the city manager herself.

Shades of Gray

What was this pilot CBI project supposed to do, other than drive off talented employees because of meaningless, long-ago drug arrests? In November 2000, the city HR department implemented the program, after an earlier city audit recommendation, to create consistent policies -- regardless of the city department -- applying to youth-oriented jobs, and to determine whether workers rejected for those positions would be eligible for other city employment. Participating departments developed a list of positions involving work with children; the CBI information would be provided by DPS. The pilot (and now permanent) CBI program differed from previous city practices in that it created a consistent approach to what had formerly varied from department to department.

The city took what HR considered "a conservative approach" to the process, as revealed by its "adverse" convictions list. Crimes against persons, including assault and sexual assault and homicide, and weapons offenses, as well as possession of "dangerous drugs," (whether felony or misdemeanor) and obscenity (a misdemeanor) were grounds for automatic rejection. (Interestingly, the program was "selective" regarding convictions for arson, hate crimes, and stalking.)

The city departments most affected included Library, Health and Human Services, Parks and Recreation, and Public Works. Jobs covered by the program range from library staff to crossing guards, shuttle drivers to landscape technicians. The results of an open records request show that, besides Blum-Kryzstal, at least eight job applicants with misdemeanor drug convictions were rejected for jobs -- all with PARD -- due to the CBI guidelines. No other library employees or applicants were fired or rejected.

That was during the pilot; the now-permanent CBI program no longer disqualifies candidates with misdemeanor drug convictions. But the scope of the city CBI is 10 years; adverse offenses committed during that time period automatically result in disqualification. By comparison, AISD rejects applicants who have committed a misdemeanor (including those related to drugs or alcohol) or "offense of moral turpitude" within the past five years. (Any prior felony convictions, or pending felony or misdemeanor charges, will also get you rejected by AISD's human resources department.) The standard city CBI looks at the DPS record of criminal convictions, but the city can also, at its discretion, order an "expanded CBI" that considers convictions for adverse offenses that occurred before the 10-year period, arrests not leading to conviction, deferred-adjudication sentences like Blum-Kryzstal's, and information from out of state. However, the city policy says arrests will be "generally ignored," as will nolo contendere pleas and deferred adjudication.

On paper, the CBI program appears straightforward -- but many shades of gray exist. An assault conviction can mean inflicting a bruise during a minor tussle or beating someone to a pulp; the CBI doesn't distinguish between them and doesn't allow for appeals from applicants. (Current employees may be able to use the city grievance procedure, but Blum-Kryzstal hadn't been employed long enough to qualify.) While those who believe their CBIs contain erroneous information can request a second review, they have to pay for changes to their records at DPS.

City HR staff "wouldn't have time or the ability to go through everyone's details" to uncover such distinctions, Futrell explains. "You'd go through trials. It would make it cumbersome." It would also incur a great cost to the city. But Futrell recognizes that shortcomings in the criminal justice system can lead to wrongful or misleading convictions. As a result of Blum-Kryzstal's case, she has taken a second look at the policy and has suggested several changes, including the removal of "disorderly conduct" from the list of adverse crimes. "Every student with a wild night on the Drag could fall under that category," she said. "We never intended to disenfranchise an entire generation of employees."

Our Punitive Society

The city is not alone among employers in developing hiring policies that penalize workers twice for past crimes. Austin criminal defense attorney Leon Grizzard, who has represented several city employees in criminal cases, says employers often take action against people whose convictions are unrelated to their present or prospective jobs. Due to stricter hiring guidelines, he says, more and more people will be unable to find good employment.

"We're creating people who are more marginalized and trying to get good jobs to support their families," he said. "We're just a punitive, straight-laced society." But we're also a litigious society; many employers adopt strict policies as protection against lawsuits. "It's laudable not to employ somebody dangerous," Grizzard says. All things being equal, he feels, if one person has a conviction and another doesn't, the "safest" thing is to hire the person with the clean record.

In the past, when job seekers with previous deferred adjudications, like Blum-Kryzstal, were asked on applications if they had ever been convicted of a crime, they could say "no" and hear nothing more about it. Now, though, agencies like DPS and private entities share the minutiae of their databases with employers, making it easy to find out if someone has ever been arrested, let alone convicted. Many employers now ask to see applicants' entire records, including deferred adjudication, which Grizzard considers a "legal fiction" since it's tantamount to probation; the judge just didn't enter guilt. "Employers are aware of it, and are looking for it," Grizzard said.

The tough-on-crime, war-on-drugs era promises to produce the "whole generation" of disenfranchised applicants that Futrell hopes to avoid. Last year alone, FBI stats show that nearly 723,000 Americans were arrested for marijuana violations (nearly half of all U.S. drug arrests) with the vast majority (nearly 90%) of those for possession only. According to the National Organization for the Reform of Marijuana Laws, about six million Americans have been arrested on marijuana charges over the past decade, more "than the entire populations of Alaska, Delaware, the District of Columbia, Montana, North Dakota, South Dakota, Vermont, and Wyoming combined." Annual marijuana arrests have more than doubled in that time.

Unlike many employers, the city of Austin does not drug-test employees or applicants, except workers holding commercial driver positions (as required by federal law). And under the new policy, it no longer penalizes those with minor drug offenses. But that provides little consolation for Blum-Kryzstal. Though the city is now welcoming him back, his marijuana charge will remain on his record for life. He wonders what will happen the next time he applies for a job -- "When will I be considered a productive member of society?" end story

Copyright © 2024 Austin Chronicle Corporation. All rights reserved.