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HM 39
SHORT TITLE Criminal Offender Employment Act Application
FY10 3 Year
Total Cost
or Non-Rec
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates HJM13 and Relates to HB223
Relates to Appropriation in the General Appropriation Act
LFC Files
Responses Received From
Administrative Office of the Courts (AOC)
State Personnel Office (SPO)
Department of Health (DOH)
Public Education Department (PED)
New Mexico Corrections Department (NMCD)
Synopsis of Bill
House Memorial 39 notes that in 2007, pursuant to HM 41 and SJM 4, the Secretary of
Workforce Solutions convened a task force to review barriers to public employment for persons
with criminal convictions and to make recommendations for removing those barriers while
protecting the public, that the task force found that state agencies are inconsistently applying the
provisions of the Criminal Offender Employment Act, including Subsection b of Section 28-2-4
NMSA 1978, providing for a presumption of sufficient rehabilitation for certain individuals, and
that implementation of the Criminal Offender Employment Act is limited due to a lack of
understanding and inconsistent interpretation of the law. Therefore, HM 39 resolves that each
state agency be directed to comply with all of the provisions of the Act, and to apply the
presumption of sufficient rehabilitation set forth in the Act. HM 39 also resolves that each state
agency cooperate with the Workforce Solutions Department and the task force to develop a
better understanding of and to consistently apply the provisions of the Criminal Offender
Employment Act.
House Memorial 39 – Page
The effective date of the Act is July 1, 2008.
There is no appropriation contained in this bill.
State agencies may incur additional expenses complying with the provisions of this memorial.
There will be an indirect fiscal impact upon the judiciary whose staff must cooperate with the
Workforce Solutions Department and the task force and comply with the provisions of the
Criminal Offender Employment Act.
The 2007 Legislature approved House Memorial 41 and Senate Joint Memorial 4 requesting that
task force be convene to review barriers to public employment for persons with criminal
convictions and to make recommendations for removing those barriers. The membership of this
task force included the following: the New Mexico Federation of Labor, the New Mexico
District Attorney’s Association, PB&J Family Services, New Mexico Department of workforce
solutions, the Mid Region Council of Governments, the state personnel office, the New Mexico
regulation and licensing department, the Association of Commerce and Industry, the New
Mexico Women’s Justice Project, the New Mexico children, youth and families Department, and
the New Mexico corrections department.
Members of the task force engaged in the following activities: developed and distributed an on-
line survey tool focusing on hiring policies and practices to each cabinet secretary or agency
head who serves on the Governor’s cabinet, the executive directors of state boards and
commissions that have the ability to hire staff, the New Mexico State Legislature, the office of
the New Mexico District Attorneys, and the New Mexico courts. Additionally, members of the
task force visited Project SOAR (Success for Offenders After Release) at the New Mexico State
Penitentiary in Santa Fe; visited Crossroads (a program that provides a wide array of transitional
services to individuals recently released from prison or jail) in Albuquerque, heard a presentation
of research on background checks conducted by state agencies in other states; hosted a public
forum at a community center in Albuquerque and conducted in-person interviews with
individuals with criminal convictions. The task force further reviewed current literature,
research and reports from national organizations and others states on barriers individuals with
criminal convictions face and what steps can be taken to address these barriers.
In November 2007, members of the task force reported their findings and recommendations to
the members of the Courts, Corrections & Justice Committee.
Task Force findings included:
that state agencies are inconsistently applying the provisions of the Act, including
the provision for a presumption of sufficient rehabilitation for certain individuals;
that implementation of the Act is limited due to a lack of understanding and
inconsistent interpretation of the law. (From HM 39)
Most persons with criminal convictions have barriers to employment related to those
convictions and associated behavioral and educational issues, which can include “spotty"
House Memorial 39 – Page
work histories, low skill levels, and physical and mental health problems.
The Criminal Offender Employment Act, 28-2-3.A, Employment Eligibility Determination,
states that subject to the provisions of Section B (which provides that records of arrest not
followed by a valid conviction and misdemeanor convictions not involving moral turpitude
shall not be used in connection with an application for any public employment, license or
other authority), 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 the conviction, but such conviction shall not operate
as an automatic bar to obtaining public employment or license or other authority to practice
the trade, business or profession".
In 28-2-4, Power to refuse, renew, suspend or revoke public employment or license, the state
and its political subdivisions can refuse to grant employment for certain causes to persons
with convictions but must explicitly state in writing the reasons for their decision to do so.
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, which provides that where moral turpitude is involved but the
conviction does not directly relate to the particular employment, the employer can make the
determination, after investigation, that the person has not been sufficiently rehabilitated to
warrant the public trust.
The courts are participating in performance-based budgeting. It appears that this legislation will
have a minimal, if any, impact on performance measures as they relate to judicial budgeting.
The department of workforce solutions is asked to work with other agencies to ensure that state
agencies are complying with all of the provisions of the criminal offender employment act.
House Memorial 39 relates to House Bill 223 and duplicates House Joint Memorial. HB 223
includes $170,000 appropriation from the general fund to the Department of Workforce
Solutions in order to continue with the work of the 2007 task force.
Criminal Offender Employment Act, NMSA 19778 28-2-1 et. seq.
NMCD already complies with the Criminal Offender Employment Act, and will cooperate fully
with the task force. However, it is important to note that convicted felons are disqualified by law
(Section 33-1-11 NMSA) from ever working as correctional officers for NMCD, and NMCD’s
largest number of vacancies is correctional officer positions.
DOH notes that the wording of NMSA 28-2-1, et seq, and HM39 does not take into account the
particular vulnerability of DOH patients and consumers. However, NMSA 28-2-1 & HM 39
House Memorial 39 – Page
does give agencies discretion when determining the employment, trade, licensing, business, or
profession of individuals convicted of felonies, violent crimes, and crimes of moral turpitude.
HM39 would require documentation of the decision making process when exercising this
discretion. NMSA 28-2-4, subsection B prescribes that there shall be a presumption of
rehabilitation upon completion of probation, parole, or three (3) years’ expiration after release.
Agencies will still be able to rebut the presumption when considering the safety and wellbeing of
patients, consumers, and employees.
According to the United States Department of Justice, about one in every 37 U.S. adults will
serve time in a state or federal prison. In 2006, almost 4,000 New Mexicans were incarcerated.
Nationally, about 65% of individuals who are released from prison are rearrested within three
years. The cost to society for re-confinement is significant.
Research has shown that obtaining gainful employment for an individual who has been released
from prison is a key factor in reducing recidivism and ensuring the safety and security of the
citizens of New Mexico.
Rehabilitated criminals are provided a broad range of protection in state employment and
licensing by the Criminal Offender Employment Act, §28-2-1 N.M.S.A. et. seq. Courts might
use the existing laws to provide greater protection.
New Mexico’s public postsecondary institutions do not discriminate against persons with
criminal convictions from attending, taking classes, and selecting career paths. However, due to
the shooting rampage at Virginia Tech last spring, colleges are increasingly concerned about
particular applicants who have had troubled pasts, including criminal convictions. This proposal
would allow the Task Force on Employment Barriers to participate in a review process to ensure
that heightened concern over college campus shootings was not being used as a barrier to keep
certain students from attending New Mexico colleges.
The Governor could issue an executive order directing state agencies to provide evidence of their
full compliance with the Criminal Offenders Employment Act.