HOUSE LABOR, VETERANS' AND MILITARY AFFAIRS

COMMITTEE SUBSTITUTE FOR

HOUSE BILL 382

54th legislature - STATE OF NEW MEXICO - first session, 2019

AN ACT

RELATING TO EMPLOYMENT; EXPANDING THE LIST OF CRIMINAL RECORDS THAT CANNOT BE CONSIDERED IN AN APPLICATION FOR PUBLIC EMPLOYMENT, LICENSE OR OTHER AUTHORITY; ENACTING NEW SECTIONS OF CHAPTER 61 NMSA 1978 TO PROHIBIT THE EXCLUSION FROM PROFESSIONAL LICENSURE OF PERSONS CONVICTED OF CERTAIN FELONIES.

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] an arrest or 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 application or a conviction for a crime that is not directly related to the duties or responsibilities of the licensed occupation, 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. Section 61-1-1 NMSA 1978 (being Laws 1957, Chapter 247, Section 1, as amended) is amended to read:

     "61-1-1. SHORT TITLE.--[Sections 67-26-1 through 67-26-31 NMSA 1953] Chapter 61, Article 1 NMSA 1978 may be cited as the "Uniform Licensing Act"."

     SECTION 3. A new section of the Uniform Licensing Act is enacted to read:

     "[NEW MATERIAL] EXCLUSION FROM PROFESSIONAL LICENSURE-- PROHIBITION--EXCEPTIONS.--

          A. A board shall not deny licensure to an individual who is otherwise qualified for licensure on the sole basis that the individual has been previously arrested for or convicted of a felony, unless the individual was convicted and the conviction was for a crime related to the profession for which the individual seeks licensure.

          B. By September 1, 2019, a board shall promulgate rules relating to licensing requirements to list the specific criminal convictions that could disqualify an applicant from receiving a license on the basis of a previous felony conviction. A board shall not use vague or generic terms, such as "moral turpitude" or "good character". A board may only list disqualifying felony convictions that are directly related to the duties and responsibilities for each specific license.

          C. When promulgating the list of criminal convictions that could disqualify an applicant from receiving a license pursuant to Subsection B of this section, the board shall consider:

                (1) the public policy of this state, as expressed in the Criminal Offender Employment Act, to encourage the licensure of persons with arrest and conviction records;

                (2) whether the elements of the crime are directly related to the specific duties and responsibilities of that occupation and within the scope of that license;

                (3) whether the occupation offers the opportunity for the same or a similar crime to occur;

                (4) the relationship of the crime to the purposes of state regulation of the occupation for which the license is required; and

                (5) the length of time since the crime occurred.

          D. A board shall use the clear and convincing standard of proof in examining the factors to determine whether an applicant with a disqualifying felony conviction will be denied a license. The board shall make its determination based on the following factors:

                (1) the nature and seriousness of the crime for which the individual was convicted;

                (2) the passage of time since the commission of the crime;

                (3) the relationship of the crime to the ability, capacity and fitness required to perform the duties and discharge the responsibilities of the occupation; and

                (4) any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a disqualification.

          E. If an individual has a felony conviction for a crime that could disqualify the individual from receiving a license, the disqualification shall not last longer than three years from the date of conviction.

          F. If a board denies an individual a license solely or in part because of the individual's prior conviction of a crime, the board shall notify the individual in writing of the following:

                (1) the grounds and reasons for the denial or disqualification;

                (2) that the individual has the right to a hearing to request reconsideration of the board's decision;

                (3) if no reconsideration is requested, the earliest date the person may reapply for a license; and

                (4) examples of rehabilitation that may be considered upon reapplication.

          G. Any written determination by the board that an applicant's felony conviction is specifically listed as a disqualifying conviction and is directly related to the duties and responsibilities for the licensed occupation shall be documented in written findings for each of the factors listed in Subsection D of this section by clear and convincing evidence sufficient for a reviewing court.

          H. An individual with a felony conviction may petition a board at any time for a determination of whether the individual's felony conviction will disqualify the individual from obtaining a license as follows:

                (1) the petition shall include details on the individual's felony conviction; and

                (2) the board shall inform the individual of the individual's standing within thirty days of receiving the petition from the applicant. The board may charge a fee to recoup its costs not to exceed twenty-five dollars ($25.00) for each petition.

          I. In any administrative hearing or civil litigation authorized under this section, the board shall carry the burden of proof on the question of whether the applicant's criminal conviction directly relates to the occupation for which the license is sought."

     SECTION 4. A new section of the Uniform Licensing Act is enacted to read:

     "[NEW MATERIAL] MITIGATION AND REHABILITATION--FITNESS FOR OCCUPATION.--An applicant with a conviction directly related to an occupation for which a license is sought upon reconsideration shall not be disqualified from licensure if the applicant can demonstrate sufficient mitigation or rehabilitation and fitness to perform the duties of the occupation. The applicant may provide evidence:

          A. that at least one year has elapsed since the applicant's release from any correctional institution;

          B. that the applicant has complied with all terms and conditions of probation or parole; and

          C. that the applicant has not been convicted of any crime since the applicant's conviction for a crime directly related to the occupation for which a license is sought; or

          D. of mitigation or rehabilitation and present fitness, including:

                (1) mitigating circumstances relevant to the crime or social conditions surrounding the applicant at the time the crime was committed;

                (2) the age of the applicant at the time the crime was committed;

                (3) the time elapsed since the crime was committed;

                (4) evidence of work history, particularly any training or work experience related to the occupation for which the license is sought; or

                (5) references from persons in contact with the applicant since the applicant's release from any local, state or federal correctional institution."

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