Collateral Consequences Reduction Act Exposed

The Collateral Consequences Reduction Act is a draft model policy considered by ALEC's Commerce, Insurance and Economic Development Task Force at the July 2017 Annual Meeting. As of August 7, 2017 it is not known whether this model policy was approved by the ALEC Board of Directors.

ALEC Bill Text

A bill for an act relating to occupational regulations; establishing a process to review criminal record to reduce offenders’ disqualifications from state recognition; and proposing coding for new law as ____________, chapter ____.

Summary: This bill allows an ex-offender the right to petition a licensing board for review of their criminal record at any time for a determination of whether the individual’s criminal record will prevent them from obtaining a license. It also outlines the circumstances for which a licensing board can deny an ex-offender from obtaining a license.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ____________:

100.01 Definitions.

Subdivision 1. Scope. For the purposes of this chapter, the words defined in this section have the meaning given.

Subd. 2. Certification. “Certification” is a voluntary program in which the state government grants nontransferable recognition to an individual who meets personal qualifications established by the legislature. Upon approval, the individual may use “certified” as a designated title. A non-certified individual may also perform the lawful occupation for compensation but may not use the title “certified.”

Subd. 3. Lawful occupation. “Lawful occupation” means a course of conduct, pursuit or profession that includes the sale of goods or services that are not themselves illegal to sell irrespective of whether the individual selling them is subject to an occupational regulation.

Subd. 4. Occupational license. “Occupational license” is a nontransferable authorization in law for an individual to perform exclusively a lawful occupation for compensation based on meeting personal qualifications established by the legislature. In an occupation for which a license is required, it is illegal for an individual who does not possess a valid occupational license to perform the occupation for compensation.

Subd. 5. Personal qualifications. “Personal qualifications” are criteria related to an individual’s personal background and characteristics including completion of an approved educational program, satisfactory performance on an examination, work experience, other evidence of attainment of requisite skills or knowledge, moral standing, criminal record and completion of continuing education.

Subd. 6. Specialty occupational license for medical reimbursement. “Specialty occupational license for medical reimbursement” means a non-transferable authorization in law for an individual to qualify for payment or reimbursement from a government agency for the non-exclusive provision of medical services based on meeting personal qualifications established by the legislature. A private company may recognize this credential. Notwithstanding this specialty license, it is legal for a person regulated under another occupational regulation to provide similar services as defined in that statute for compensation and reimbursement. It is also legal for an individual who does not possess this specialty license to provide the identified medical services for compensation but the non-licensed individual shall not qualify for payment or reimbursement from a government agency.

100.02 Petition for Review of Criminal Record

Subdivision 1. The right of an individual to pursue an occupation is a fundamental right.

Subd. 2. The fundamental right of an individual to pursue an occupation includes (a) the right of an individual with a criminal record to petition the state to obtain a certification, occupational license, specialty occupational license for medical reimbursement or other state recognition of the individual’s personal qualifications (hereafter “state recognition”) and (b) the state not using a criminal record as an automatic permanent bar to an individual’s receiving state recognition.

Subd. 3. An individual with a criminal record may petition a licensing board, agency, department or other state or local issuer of occupational licenses (hereafter “board”) at any time, including before obtaining any required education or training, for a determination of whether the individual’s criminal record will disqualify the individual from obtaining state recognition.

Subd. 4. The individual shall include in the petition the individual’s criminal record. The individual may include additional information about the individual’s current circumstances, including the time since the offense, evidence of rehabilitation, testimonials and employment aspirations.

Subd. 5. Notwithstanding any other statute or rule, the board is authorized to determine whether the individual’s criminal record disqualifies the individual from obtaining state recognition.

Subd. 6. The board may find the individual’s criminal record disqualifies the individual from obtaining state recognition only if:

• the individual’s criminal record includes a conviction for a felony or violent misdemeanor;
• the type of felony or violent misdemeanor for which the individual was convicted is expressly codified as a disqualifying offense in the relevant occupational license’s statute; and
• the board concludes the state has an important interest in protecting public safety that is superior to the individual’s right. The board may make this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that:

• the specific offense for which the individual was convicted is substantially related to the state’s interest;
• the individual, based on the nature of the specific offense for which the individual was convicted and the individual’s current circumstances, is more likely to reoffend by virtue of having the license than if the individual did not have the license; and
• a re-offense will cause greater harm than it would if the individual did not have the license.

Subd. 7. The board shall issue its determination within 90 days after the board receives the petition. The determination shall be in writing and include a finding of facts and a conclusion of law.

Subd. 8. If the board determines the state’s interest is superior to the individual’s right, the board may advise the individual of actions the individual may take to remedy the disqualification. The individual may submit a revised petition reflecting the completion of the remedies at any time after 90 days following the board’s judgment.

Subd. 9. The individual may appeal the board’s determination in subdivision 7 as provided for in the state’s administrative procedure act.

Subd. 10. The individual may submit a new petition to the board at any time after two years following a final judgment in the initial petition.

Subd. 11 The board may rescind its determination at any time if the individual is convicted of an additional offense that the Board determines meets the elements in subdivision 6.

Subd. 12. The board may charge a fee to recoup its costs not to exceed $100 for each petition.

Subd. 13. The Department of Public Safety will establish an annual reporting requirement of the (a) number of applicants petitioning each board, (b) the numbers of each board’s approvals and denials, (c) the type of offenses for which each board approved or denied the petitions and (d) other data the Department determines. The Department will compile and publish annually a report on a searchable public website.

100.03 Effective date. This chapter is effective on _____________.