2023 New Mexico Statutes
Chapter 28 - Human Rights
Article 2 - Criminal Offender Employment Act
Section 28-2-3 - Employment eligibility determination.

Universal Citation: NM Stat § 28-2-3 (2023)

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;

(2) convictions that have been sealed, dismissed, expunged or pardoned;

(3) juvenile adjudications; or

(4) convictions for a crime that is not job-related for the position in question and consistent with business necessity.

History: 1953 Comp., § 41-24-3, enacted by Laws 1974, ch. 78, § 3; 2010, ch. 76, § 1; 2021 (1st S.S.), ch. 3, § 1.

ANNOTATIONS

Cross references. — For persons convicted of felonious or infamous crime ineligible for public office unless pardoned or restored to political rights, see 10-1-2 NMSA 1978.

The 2021 (1st S.S.) amendment, effective June 29, 2021, revised the list of criminal records that cannot be considered in an application for public employment, licensure or other authority to engage in any regulated trade, business or profession; and in Subsection B, Paragraph B(2), deleted "misdemeanor", and after "convictions", deleted "not involving moral turpitude" and added "that have been sealed, dismissed, expunged or pardoned", and added Paragraphs B(3) and B(4).

The 2010 amendment, effective May 19, 2010, in Subsection A, after "Sections", deleted "3 and 4 of the Criminal Offender Employment Act" and added "28-2-4 and 28-2-5 NMSA 1978"; and added the last sentence.

State board of education subject to article. — The state board of education is subject to the provisions of Criminal Offender Employment Act (COEA), because it is an agency which determines eligibility for employment with the state. 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).

Testimony concerning indictment. — Because an agency has wide discretion in receiving and excluding evidence in proceedings under the Uniform Licensing Act, any error in allowing reference to an indictment against a dentist was harmless. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175.

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