HOUSE BILL 382
54th legislature - STATE OF NEW MEXICO - first session, 2019
INTRODUCED BY
Andrea Romero and Mark Moores
AN ACT
RELATING TO EMPLOYMENT; EXPANDING THE LIST OF CRIMINAL RECORDS THAT SHALL NOT BE CONSIDERED IN APPLICATION FOR ANY PUBLIC EMPLOYMENT, LICENSE OR OTHER AUTHORITY; CREATING A PROCESS TO ALLOW A PERSON TO PETITION A BOARD AT ANY TIME FOR A DECISION ON WHETHER THE PERSON'S CRIMINAL RECORD WOULD DISQUALIFY THE PERSON FROM LICENSURE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 28-2-3 NMSA 1978 (being Laws 1974, Chapter 78, Section 3, as amended) is amended to read:
"28-2-3. EMPLOYMENT ELIGIBILITY DETERMINATION.--
A. Subject to the provisions of Subsection B of this section and Sections 28-2-4 and 28-2-5 NMSA 1978, in determining eligibility for employment with the state or any of its political subdivisions or for a license, permit, certificate or other authority to engage in any regulated trade, business or profession, the board or other department or agency having jurisdiction may take into consideration a conviction, but the conviction shall not operate as an automatic bar to obtaining public employment or license or other authority to practice the trade, business or profession. A board, department or agency of the state or any of its political subdivisions shall not make an inquiry regarding a conviction on an initial application for employment and shall only take into consideration a conviction after the applicant has been selected as a finalist for the position.
B. The following criminal records shall not be used, distributed or disseminated in connection with an application for any public employment, license or other authority:
(1) records of arrest not followed by a valid conviction; [and
(2) misdemeanor convictions not involving moral turpitude;]
(2) a conviction that has been sealed, dismissed, expunged or pardoned;
(3) a juvenile adjudication; or
(4) a conviction that occurred more than three years before the date of the petition except for a conviction of:
(a) a felony committed with violence against a person, threatened violence or a likelihood of serious bodily injury; in which the defendant was personally armed with or personally used a deadly weapon in the commission of the crime; or in which the defendant personally inflicted great bodily injury in the commission of the crime; or
(b) a felony in violation of any provision of Chapter 30, Article 9 NMSA 1978."
SECTION 2. A new section of Chapter 28, Article 2 NMSA 1978 is enacted to read:
"[NEW MATERIAL] PETITION FOR REVIEW OF CRIMINAL RECORD.--
A. An individual with a criminal record may petition a board at any time, including before obtaining any required education or training, for a decision of whether the individual's criminal record will disqualify the individual from obtaining a license.
B. The individual shall include in the petition the individual's criminal record or shall authorize the board to obtain the individual's criminal record.
C. The individual may include, and a board shall consider, additional information, including:
(1) the time elapsed since the offense;
(2) completion of the criminal sentence;
(3) any certificate of rehabilitation or good conduct;
(4) completion of, or active participation in, rehabilitative drug or alcohol treatment;
(5) testimonials and recommendations, including a progress report from the individual's probation or parole officer;
(6) other evidence of rehabilitation;
(7) training;
(8) employment history;
(9) employment aspirations;
(10) personal information, including the age of the individual when the individual committed the offense and the individual's current family responsibilities; or
(11) any remedial actions taken in response to board recommendations issued pursuant to Subsection F of this section.
D. A board shall not consider:
(1) records of arrest not followed by a valid conviction;
(2) a conviction that has been sealed, dismissed, expunged or pardoned;
(3) a juvenile adjudication; or
(4) a conviction that occurred more than three years before the date of the petition except for a conviction of:
(a) a felony offense committed with violence against a person, threatened violence or a likelihood of serious bodily injury; one in which the defendant was personally armed with or personally used a deadly weapon in the commission of the crime; or one in which the defendant personally inflicted great bodily injury in the commission of the crime; or
(b) a felony in violation of any provision of Chapter 30, Article 9 NMSA 1978.
E. A board shall not find that the individual's criminal record disqualifies the individual from obtaining a license unless the board establishes by clear and convincing evidence that:
(1) the individual was convicted of a felony not excluded by Subsection D of this section that is directly, substantially and adversely related to the state's interest in protecting public safety; and
(2) granting the individual a license would put the individual in a position in which the individual would more likely than not cause harm.
F. A board shall issue its decision no later than ninety days after the board receives the petition. The decision shall be in writing and include findings of fact and conclusions of law. If the board decides that the individual's criminal record would disqualify the individual from obtaining a license, the board may recommend actions the individual may take to remedy the disqualification.
G. The individual may submit a new petition to a board after one year following the decision on the initial petition and any subsequent decision.
H. If a board decides that the individual's criminal record would not disqualify the individual from obtaining a license and the individual subsequently files an application for a license, the board shall not deny the individual a license based solely on the individual's criminal record; provided that the individual's criminal record shall not have changed since the date of the board's last decision issued pursuant to this section.
I. A board may charge a reasonable fee for the review of a petition filed pursuant to this section, but in no case shall the fee exceed the actual cost to the board. J. A board's decision shall be final and not appealable.
K. A board's decision shall not prohibit a person from filing an application for any license, permit, certificate or other authority to engage in any regulated trade, business or profession in this state.
L. As used in this section:
(1) "board" means:
(a) the construction industries commission, the construction industries division and the electrical bureau, mechanical bureau and general construction bureau of the construction industries division of the regulation and licensing department;
(b) the manufactured housing committee and manufactured housing division of the regulation and licensing department;
(c) a board, commission or agency that administers a profession or occupation licensed pursuant to Chapter 61 NMSA 1978; and
(d) any other state agency to which the Uniform Licensing Act is applied by law; and
(2) "license" means a license, permit, certificate or other authority to engage in any regulated trade, business or profession in this state."
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