2019 New Mexico Statutes
Chapter 28 - Human Rights
Article 2 - Criminal Offender Employment Act
Section 28-2-4 - Power to refuse, renew, suspend or revoke public employment or license.

Universal Citation: NM Stat § 28-2-4 (2019)

A. Any board or other agency having jurisdiction over employment by the state or any of its political subdivisions or the practice of any trade, business or profession may refuse to grant or renew or may suspend or revoke any public employment or license or other authority to engage in the public employment, trade, business or profession for any one or any combination of the following causes:

(1) where the applicant, employee or licensee has been convicted of a felony or a misdemeanor involving moral turpitude and the criminal conviction directly relates to the particular employment, trade, business or profession;

(2) where the applicant, employee or licensee has been convicted of a felony or a misdemeanor involving moral turpitude and the criminal conviction does not directly relate to the particular employment, trade, business or profession, if the board or other agency determines after investigation that the person so convicted has not been sufficiently rehabilitated to warrant the public trust; or

(3) where the applicant, employee or licensee has been convicted of trafficking in controlled substances, criminal sexual penetration or related sexual offenses or child abuse and the applicant, employee or licensee has applied for reinstatement or issuance of a teaching certificate, a license to operate a child-care facility or employment at a child-care facility, regardless of rehabilitation.

B. The board or other agency shall explicitly state in writing the reasons for a decision which prohibits the person from engaging in the employment, trade, business or profession if the decision is based in whole or in part on conviction of any crime described in Paragraphs (1) and (3) of Subsection A of this section. Completion of probation or parole supervision or expiration of a period of three years after final discharge or release from any term of imprisonment without any subsequent conviction shall create a presumption of sufficient rehabilitation for purposes of Paragraph (2) of Subsection A of this section.

History: 1953 Comp., § 41-24-4, enacted by Laws 1974, ch. 78, § 4; 1985, ch. 234, § 1; 1997, ch. 238, § 5; 1997, ch. 251, § 1.

ANNOTATIONS

1997 Multiple Amendments. — Laws 1997, ch. 238, § 5 and Laws 1997, ch. 251, § 1 both enacted amendments to this section. Pursuant to 12-1-8 NMSA 1978, Laws 1997, ch. 251, § 1, as the last act signed by the governor, has been compiled into the NMSA 1978 as set out above, and Laws 1997, ch. 238, § 5, while not compiled pursuant to 12-1-8 NMSA 1978, is set out below.

Laws 1997, ch. 251, § 1 [set out above], effective July 1, 1997, inserted "or employee" in two places and "a license to operate a child-care facility or employment at a child-care facility" in Paragraph A(3).

Laws 1997, ch. 238, § 5 [set out below], effective June 20, 1997, in Paragraph A(3), inserted "homicide, kidnapping" following "convicted of" near the beginning and "renewal" following "reinstatement" near the end.

"28-2-4. Power to refuse, renew, suspend or revoke public employment or license.

A. Any board or other agency having jurisdiction over employment by the state or any of its political subdivisions or the practice of any trade, business or profession may refuse to grant or renew or may suspend or revoke any public employment or license or other authority to engage in the public employment, trade, business or profession for any one or any combination of the following causes:

(1) where the applicant, employee or licensee has been convicted of a felony or a misdemeanor involving moral turpitude and the criminal conviction directly relates to the particular employment, trade, business or profession;

(2) where the applicant, employee or licensee has been convicted of a felony or a misdemeanor involving moral turpitude and the criminal conviction does not directly relate to the particular employment, trade, business or profession, if the board or other agency determines after investigation that the person so convicted has not been sufficiently rehabilitated to warrant the public trust; or

(3) where the applicant or employee has been convicted of homicide, kidnapping, trafficking in controlled substances, criminal sexual penetration or related sexual offenses or child abuse and the applicant or employee has applied for reinstatement, renewal or issuance of a teaching certificate, regardless of rehabilitation.

B. The board or other agency shall explicitly state in writing the reasons for a decision which prohibits the person from engaging in the employment, trade, business or profession if the decision is based in whole or in part on conviction of any crime described in Paragraphs (1) and (3) of Subsection A of this section. Completion of probation or parole supervision or expiration of a period of three years after final discharge or release from any term of imprisonment without any subsequent conviction shall create a presumption of sufficient rehabilitation for purposes of Paragraph (2) of Subsection A of this section."

The purpose of a license revocation proceeding is not to punish the licensee but to protect the public from practitioners who do not possess the necessary qualifications. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.

Content of notice of contemplated action. — The "evidence" to be set out in the notice of contemplated action under Section 61-1-4 NMSA 1978 is the evidence of the ground or grounds to be relied upon in taking the contemplated action under former Section 61-5-14 NMSA 1978, not the evidence to the adduced by way of explanation and determination of rehabilitation under Criminal Offender Employment Act. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175.

Jury determination of guilt relevant concern. — For purposes of this article, a jury determination of a teacher's guilt of sexual misconduct with a minor acted as a conviction, despite subsequent dismissal of the case after the teacher completed his deferred sentence. Garcia v. State Bd. of Educ., 1984-NMCA-102, 102 N.M. 306, 694 P.2d 1371, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Decertified teacher has burden of proving rehabilitation. — A teacher who was found guilty of sexual misconduct with a minor was convicted of a crime directly relating to the teaching profession and, therefore, had the burden of showing, upon application for recertification, that he had been sufficiently rehabilitated. Garcia v. State Bd. of Educ., 1984-NMCA-102, 102 N.M. 306, 694 P.2d 1371, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Revocation of dental license. — Where a dentist was convicted of four counts of making or permitting a false claim for reimbursement for public assistance services, a conviction itself, as distinguished from the underlying conduct, is a sufficient basis for revoking a dental license. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175.

Meaning of rehabilitation. — While "rehabilitation" is not defined in this section (although the statute does create a presumption of rehabilitation after completion of parole, or after a certain period has elapsed after release from prison), its dictionary definition is "to restore a condition of good health, ability to work or the like". Bertrand v. N.M. State Bd. of Educ., 1975-NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976).

Board must state reasons why applicant has not been rehabilitated and may not rely solely on the fact of conviction to deny an application. Garcia v. State Bd. of Educ., 1984-NMCA-102, 102 N.M. 306, 694 P.2d 1371, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Distinction in treatment of crimes relates to burden of proof. — The distinction in treatment, under this section, between crimes that directly relate to a profession and crimes that do not directly relate to a profession concerns the burden of proof: under Subsection A(1), an applicant for issuance or reinstatement of a license or certificate has the burden of proving that he or she has been sufficiently rehabilitated, while, under Subsection A(2), there is a presumption of rehabilitation and the board or agency has the burden of proving an applicant for issuance or reinstatement of a license or certificate has not been sufficiently rehabilitated. N.M. Bd. of Pharmacy v. Reece, 1983-NMSC-080, 100 N.M. 339, 670 P.2d 950.

Where court accepted board rehabilitation decision. — Probative evidence of rehabilitation of a teacher who was on one year's probation for one count of distribution of marijuana included her conscientious and successful performance at her job and the parents' perception of her as a person with whom they would trust their children; but evidence that she had become angry when her probation officer would not let her see her file, made a derogatory comment about the laws and "narcs," told a student who asked her about drugs that he could get in some trouble because of some bad laws, but for him to do what he wanted, was probative of what the board could conclude was a poor attitude towards criminal offenses for one who was a teacher, and since the state board members spoke to her at some length themselves and were able to draw their own impressions of her progress towards rehabilitation, the appellate court would not substitute its judgment for that of the board. Bertrand v. N.M. State Bd. of Educ., 1975-NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976).

Standard for use of conviction to revoke license. — In order for a conviction to be used as a basis for a license revocation, the licensing agency must explicitly state its reasons for a decision prohibiting the licensee from engaging in his or her employment or profession, and the agency must find that the licensee has not been sufficiently rehabilitated to warrant the public trust and must give reasons for this finding. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175.

Writing requirement explained. — When a decision is made on grounds that a criminal conviction directly relates to a person's profession, the reasons for such a decision must be explicitly stated in writing. It is not sufficient to merely recite the language of the statute, but rather the "reasons" for the conclusion that there is a direct relation must be given, especially so that a reviewing body may know the reasons for the administrative body's conclusion; and if the conviction of a crime is to operate as other than an automatic bar to employment, the administrative agencies must explain what they perceive the detrimental effect of employment to be. Bertrand v. N.M. State Bd. of Educ., 1975-NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976).

Scope of writing required under Subsection B. — Subsection B of Section 28-2-4 NMSA 1978 requires the board to state the reasons for its decision that the crime for which the professional was convicted directly relates to the practice of the profession, and also the reasons, if any, why the professional has not been rehabilitated and why he should be prevented from practicing the profession. N.M. Bd. of Pharmacy v. Reece, 1983-NMSC-080, 100 N.M. 339, 670 P.2d 950.

Knowledge of public record not imputed to estop dismissal. — Where the local school board did not have knowledge of a teacher's conviction until approached by her probation officer, although it was a matter of public record, the court of appeals declined to impute this knowledge to the board so as to estop it from dismissing her. Bertrand v. N.M. State Bd. of Educ., 1975-NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976).

Prejudicial error resulted from failure to follow revocation procedures. — Failure of real estate commission to follow the procedures established by this section in its revocation of a real estate license for conviction of conspiracy to import marijuana was prejudicial error. McCoy v. N.M. Real Estate Comm'n, 1980-NMSC-081, 94 N.M. 602, 614 P.2d 14 (1980).

Required procedure for denial, suspension, or revocation of real estate license. — In each instance in which the real estate commission contemplates the denial, suspension or revocation of a license because of a criminal conviction, certain steps should be followed: 1) whether the conviction directly relates or does not directly relate to real estate, notice should be given to the licensee that the basis for the action is warranted by the Criminal Offender Employment Act; 2) evidence should be introduced on behalf of the commission supporting whether the conviction is directly related or not directly related to the business of a real estate broker or salesperson, and whether sufficient rehabilitation has been made, if required by the Criminal Offender Employment Act; 3) findings should be made after the hearing to uphold the decision of the commission under the Criminal Offender Employment Act as well as under the Real Estate Licensing Act. 1982 Op. Att'y Gen. No. 82-02.

Law reviews. — For annual survey of New Mexico law relating to administrative law, see 12 N.M.L. Rev. 1 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Licenses and Permits §§ 56, 58, 106, 142; 63A Public Officers and Employees §§ 48 to 50, 184 to 186, 241 to 243, 291.

53 C.J.S. Licenses §§ 39, 52; 67 C.J.S. Officers and Public Employees §§ 22, 101, 110, 125.

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