DOUBLE JEOPARDY

A Long-Ago Bust Gets a City Staffer Fired and Raises Questions About
Drug Policy

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?"