Amendment #195 to H4700

Removing barriers to professional licensure and employment opportunities due to past convictions

Mr. LeBoeuf of Worcester moves to amend the bill by adding the following section:

“SECTION XX. (a) Section 172 of chapter 6 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by inserting, after the word “entity”, in line 27, the following words:- , subject to section 172N.

(b)  Said chapter 6 is hereby amended by striking out section 172N, as so appearing, and inserting in place thereof the following 2 sections:-

(c) Section 172N. For the purposes of this section, “licensing authority” shall include any agency, examining board, credentialing board or other office or commission, including boards supervised by the commissioner of professional licensure, with the authority to impose occupational fees or licensing requirements on a profession.

(d) Notwithstanding any other provision of law, a licensing authority shall not automatically bar an individual from a professional or occupational license because of a criminal record. A licensing authority shall provide individualized consideration of an individual’s circumstances as described in subsections (d) and (e) to deny, diminish, suspend, revoke, withhold or otherwise limit a professional or occupational license.

(e) Notwithstanding any general or special law to the contrary, a licensing authority shall not consider, nor require an individual to disclose:

(1) a deferred adjudication, including but not limited to a continuance without a finding, participation in a diversion program or an arrest not followed by a conviction;

(2) a conviction for which no sentence of incarceration may be imposed;

(3) a conviction that has been sealed, annulled, dismissed, vacated, set aside, expunged or pardoned;

(4) a juvenile adjudication;

(5) a non-violent misdemeanor;

(6) a conviction that occurred more than 3 years prior to the date of the licensing authority’s consideration or where the individual’s incarceration ended more than 3 years before the date of the licensing authority’s consideration, except for a conviction of:

(f) a crime punishable by imprisonment for a term exceeding 2 and a half years, or any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult, that (A) has as an element involving the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (B) is burglary, extortion, arson or kidnapping; (C) involves the use of explosives; or (D) resulted in death, bodily injury, or serious bodily injury with malice aforethought;

(i) a felony related to a sex offense, a sex offense involving a child or a sexually violent offense as defined in section 178C; or

(ii) a felony related to criminal fraud pursuant to section 1 of chapter 267 or embezzlement pursuant to chapter 266.

(g) A licensing authority may deny, diminish, suspend, revoke, withhold or otherwise limit a professional or occupational license only if the licensing authority determines, by clear and convincing evidence, that:

(i) First, an individual’s non-excluded criminal record directly relates to the duties and responsibilities of the profession or occupation.

(ii) Second, if an individual’s non-excluded criminal record is directly related to the duties and responsibilities of the profession or occupation, the licensing authority must then determine if the interest of the licensing authority in protecting the public, an individual or property from harm outweighs the individual’s right to hold the professional or occupational license.

(iii) Third, if the licensing authority determines that the interest in protecting the public, an individual or property from harm outweighs the individual’s right to hold the professional or occupational license, then the licensing authority shall determine if the applicant has failed to be rehabilitated.

(h) An individual with a criminal record may petition a licensing authority at any time, including before obtaining any required personal qualifications or applying for a license, for a decision as to whether the individual’s criminal record is directly related to the profession and that criminal record would disqualify the individual from obtaining a professional or occupational license. The licensing authority may charge a fee to the petitioner to recoup costs related to the petition, not to exceed $100 for each petition. If the petitioner’s income is at or below 250 per cent of the federal poverty level used to determine indigency by the trial court of the commonwealth, the fee shall be waived.

(i) The petitioner shall include in the petition an authorization for the licensing authority to obtain the petitioner’s criminal record.

(j) If the licensing authority decides that the professional or occupational license should not be granted, the licensing authority may provide an alternative advisory opinion, in which the licensing authority may advise the petitioner of actions the petitioner may take to remedy the disqualification.

(k) If advised by the licensing authority of remedial actions, the petitioner may submit a revised petition reflecting completion of the remedial actions before a deadline set by the licensing authority in the alternative advisory decision.

(l) Notwithstanding any general or special law to the contrary, a licensing authority shall not use vague terms in its consideration and decision making, including:

(i) good moral character;

(ii) moral turpitude; or

(iii) character and fitness.

(m) Nothing in this section shall be construed to change a licensing authority’s ability to enforce other conditions of professional and occupational licenses, including the personal qualifications required to obtain recognition or compliance with other regulations.”

Additional co-sponsor(s) added to Amendment #195 to H4700

Removing barriers to professional licensure and employment opportunities due to past convictions