P.Johnson_January 30, 2020 – Fresh Start Act of 2019

[LOGO] Lynn Fitch ATTORNEY GENERAL OPINIONS DIVISION January 30, 2020 Phyllis Johnson Executive Director Mississippi Board of Nursing 713 S. Pear Orchard Road Plaza II, Suite 300 Ridgeland, Mississippi 39157 Re: Fresh Start Act of 2019 Dear Ms. Johnson: Attorney General Lynn Fitch has received your opinion request on behalf of the Mississippi Board of Nursing ("the Board") and has assigned it to me for research and reply. ### Questions Presented Due to the length of your request and the number of questions presented, a copy of the same is attached hereto. ### Response Your request seeks an interpretation of the Fresh Start Act of 2019, Miss. Code Ann. Sections 73-77-1, et seq. ("the Act"), primarily by reference to hypothetical scenarios. This office cannot issue an opinion with regard to those scenarios which are not specifically addressed by the Act. However, to the extent an opinion may be provided, we offer the following guidance. Question: Is Miss. Code Ann. Section 73-77-5 applicable where a Board's enabling statute allows for denial of licensure or the imposition of discipline based on the conviction of any crime or felony? Response: Section 73-77-5 of the Act provides as follows: Absent applicable state law, no person shall be disqualified from pursuing, practicing, or engaging in any occupation for which a license is 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205-0220 TELEPHONE (601) 359-3680 Phyllis Johnson January 30, 2020 Page 2 required solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation. (Emphasis added). If the Board's enabling statute prohibits the issuance of an appropriate license based upon a prior criminal conviction, then "applicable state law" would exempt the Board from the requirements of the above-cited section. However, if no such "applicable state law" exists, then the Board must comply with Section 73-77-5. Among the requirements set forth by Section 73-15-19(1), Miss. Code Ann., an applicant for a license to practice as a registered nurse must have been successfully cleared through an investigation consisting, in part, of a "verification that the prospective licensee is not guilty of or in violation of any statutory ground for denial of licensure as set forth in Section 73-15-29 or guilty of any offense specified in Section 73-15-33." Pursuant to Section 73-15-29(1), Miss. Code Ann., the Board is empowered: to revoke, suspend or refuse to renew any license issued by the board, or to revoke or suspend any privilege to practice, or to deny an application for a license, or to fine, place on probation and/or discipline a licensee, in any manner specified in this article, upon proof that such person: * * * * * (b) Has been convicted of a felony, or a crime involving moral turpitude or has had accepted by a court a plea of nolo contendere to a felony or a crime involving moral turpitude . . . ; * * * * * Based upon the Board's enabling statute, it is this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-5 of the Act. A determination of whether an applicant has met the requirements of the applicable statute(s) is a factual determination to be made by the Board. Question: Are licensing boards to interpret Section 73-77-1(1) as "not applicable" or "controlling" when a Board's enabling statute authorizes boards to deny licensure based upon a determination of good moral character or upon a conviction of any crime involving moral turpitude? 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205-0220 TELEPHONE (601) 359-3680 Phyllis Johnson January 30, 2020 Page 3 Response: Section 73-77-7(1) of the Act states: (1) Absent applicable state law, licensing authorities shall not have in any rulemaking for their qualifications for licensure vague or generic terms including, but not limited to, “moral turpitude,” “any felony,” and “good character.” Absent applicable state law, licensing authorities may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants. (Emphasis added). Referencing Sections 73-15-19 and 73-15-29, Miss. Code Ann., quoted, in part, above, it is this office’s opinion that “applicable state law” exists which exempts the Board from Section 73-77-7(1) of the Act. A determination of whether an applicant has met the qualifications set forth by the statute(s) is a factual determination to be made by the Board. Question: Is Section 73-77-9 applicable only when an individual has filed an application for license or may an individual who has not filed an application for license, petition at any time for a determination of criminal record disqualification? Response: Section 73-77-9(1) of the Act provides as follows: Absent applicable state law, an individual with a criminal record may petition a licensing authority at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include details on the individual’s criminal records. The licensing authority shall inform the individual of his standing within thirty (30) days of receiving the petition from the applicant. The licensing authority may charge a fee to recoup its costs not to exceed Twenty-Five Dollars ($25.00) for each petition. (Emphasis added). Section 73-77-9(1), Miss. Code Ann., does not differentiate between applicants and non-applicants, but refers only to “an individual.” Thus, the above-cited section applies to both applicants and non-applicants alike. Question: What type of response is required of the licensing Board within thirty (30) days of receiving the petition regarding the criminal record disqualification? 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205-0220 TELEPHONE (601) 359-3680 Phyllis Johnson January 30, 2020 Page 4 Response: Section 73-77-9(1) of the Act provides, in part, as follows: The licensing authority shall inform the individual of his standing within thirty (30) days of receiving the petition from the applicant. The Act is not specific as to the “type” of required response, requiring only that the individual be informed of his or her “standing” within thirty (30) days. Question: If Section 73-77-9 is applicable to non-licensure applicants, does subsection 2 require a hearing for the non-licensing applicants? Response: As stated above, Section 73-77-9(1) of the Act is applicable to both applicants and non-applicants alike. Thus, the remaining provisions of this section would likewise apply to both applicants and non-applicants. If we may be of further service, please let us know. Very truly yours, LYNN FITCH, ATTORNEY GENERAL By: Tommy D. Goodwin Tommy D. Goodwin Special Assistant Attorney General Attachment 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205-0220 TELEPHONE (601) 359-3680 713 S. Pear Orchard Rd. Plaza II, Suite 300 Ridgeland, MS 39157 T: (601) 957-6300 F: (601) 957-6301 MISSISSIPPI Board of Nursing December 18, 2019 Honorable Attorney General Jim Hood MS Attorney General's Office Walter Sillers Building 550 High Street, Suite 1200 Jackson, MS 39201 DEC 30 2019 ATTORNEY GENERAL'S OFFICE OPINIONS DIVISION RE: Request for Attorney General Opinion of Clarification, Interpretation and Compliance of The Fresh Start Act of 2019 (SB 2781) Dear Honorable Attorney General Hood: The Mississippi Board of Nursing ("Board") respectfully requests an Attorney General's Opinion regarding The Fresh Start Act of 2019 ("Act") which became effective July 1, 2019. The Board seeks clarification as to the interpretation of specific terminology utilized in the Act and the impact, if any, upon the Board as to its compliance and enforcement of the Act. Miss. Code Ann Section 73-77-5 of the Act provides as follows: Absent applicable state law, no person shall be disqualified from pursuing, practicing, or engaging in any occupation for which a license is required solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation. Q: Is Miss. Code Ann Section 73-77-5 applicable where a Board's enabling statute allows for denial of licensure or the imposition of discipline based on the conviction of any crime or felony? Miss. Code Ann Section 73-77-7 (1) of the Act provides as follows: Absent applicable state law, licensing authorities shall not have in any rulemaking for their qualifications for licensure vague or generic terms including, but not limited to "moral turpitude," "any Attorney General Opinion Request Page 2 felony,” and “good character.” Absent applicable state law, licensing authorities may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants. Q: Are licensing boards to interpret Section 73-77-7 (1) as “not applicable” or “controlling” when a Board’s enabling statute authorizes boards to deny licensure based upon a determination of good moral character or upon a conviction of any crime involving moral turpitude? Q: The Act requires implementation of Section 73-77-7(2) within 120 days after its enactment. Does implementation require rule making? Or, will Board action be sufficient (i.e. where the Board’s administrative order covers the factors listed in the Section 73-77-7(2)? For instance, the Mississippi Physical Therapy Practice Law sets out qualifications for licensure in Miss. Code Ann. Section 73-23-47 (1)(a) as requiring applicants to “be of good moral character.” Similar statutory authority is granted to other boards. See e.g., Mississippi Nursing Practice Act which allows the Board to deny an application for licensure upon proof that such person “has been convicted of felony, or a crime involving moral turpitude.” See Miss. Code Ann. Section 73-15-29 (1)(b); See also MS Pharmacy Practice Act, Miss. Code Ann. Section 73-21-97 (1)(c), the Board may refuse to issue a license to a person who has been found guilty of a felony, or any act involving moral turpitude or gross immorality...;” See also Licensing and Regulation of Social Workers, Miss. Code Ann. Section 73-53-17 (1)(g), the applicant may be subject to sanctions if the Board finds that an applicant has been “convicted of any crime which is a felony under the laws of the state or of the United States of America.” See also Qualifications for Barber Instructors, Miss. Code Ann. Section 73-5-8 (b), “any person is qualified to receive a certificate of registration as a barber instructor who “is of good moral and temperate habits;” See also Regulation of Dietitians, Miss. Code Ann. Section 73-10-21 (4)(a)(3), the Board may deny a license to an applicant if “convicted of a crime in any court other than a misdemeanor;” See also Board of Medical Licensure, Miss Code Ann. Section 73-25-29 (4) and (6), the grounds for denial of licensure include (4) “conviction of a violation of any federal or state law regulating the possession, distribution or use of any narcotic drug or any drug considered a Attorney General Opinion Request Page 3 controlled substance under state or federal law. . . (6) conviction of a felony or misdemeanor involving moral turpitude;” See also Qualifications for licensure as an Engineer, Miss. Code Ann. Section 73-13-23 (1)(e) “no person shall be eligible for licensure as a professional engineer who is not of good character and reputation, as defined in the Board’s Code of Professional Conduct. . . ;” See also Real Estate Appraisers Act, Miss. Code Ann. Section 73-34-14 (2)(a) “The board must ensure that applicants for a real estate appraiser license or certification do not possess a background that could call into question public trust. . . .;” See also Uniform Athlete Agents Law, Miss. Code Ann. Section 73-42-11 (3)(a), “The Secretary of State may refuse to issue a certificate of registration if the applicant has been convicted of a crime in another state that, if committed in this state, would be felony or other crime involving moral turpitude.” See also Mississippi Professional Massage Therapy Act, Miss. Code Ann. Section 73-67-21(3)(f) “any and all requirements of good moral character.” Miss. Code Ann. Section 73-77-9 of the Act provides the following: Absent applicable state law, an individual with a criminal record may petition a licensing authority at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include details on the individual’s criminal records. The license authority shall inform the individual of his standing within thirty (30) days of receiving the petition from the applicant. . . Q: Is Section 73-77-9 applicable to require licensing boards to make a determination as to whether or not the individual would be disqualified from licensure solely on the basis of the individual’s petition and information provided in the petition as to the individual’s criminal record? Or, may the Board consider additional information available to the Board (e.g., information from a criminal background check)? Based upon a $25 cap prescribed by this Section, who is going to be responsible for the costs of a criminal background check? Q: Further, if as demonstrated above, a Board’s enabling statute grants authority to a Board to deny a license or impose discipline on the basis of any crime, does the Board have to make a determination at any time prior to the Board obtaining all information, including a criminal background check, to determine whether the individual is disqualified from obtaining a license? Q: Additionally, is Section 73-77-9 applicable only when an individual has filed an application for license or may an individual who has not filed an application for license petition at any time (i.e. prior to entering college) for a determination of criminal record disqualification? # Attorney General Opinion Request Page 4 Q: What type of response is required of the licensing Board within thirty (30) days of receiving the petition regarding the criminal record disqualification? Is it sufficient, for example, if the response is to acknowledge receipt of the petition and to advise that the Board will provide a determination upon completion of its investigation and/or submission of a complete application and/or review of the criminal record? Q: Will the Board be bound by its determination pursuant to Section 73-77-9 (1) at the time that a non-licensure applicant files an application for licensure? Q: If Section 73-77-9 is applicable to non-licensure applicants, does subsection 2 require a hearing for the non-licensing applicants? Q: Under Section 73-77-9 can the board make a determination based upon the information provided by applicant who has not been subject to a Board authorized criminal background check and include a disclaimer? Thank you for your attention to this matter and consideration of the Nursing Board's request. Sincerely, Phyllis Johnson Phyllis Johnson, MSN, RN, FNP-BC Executive Director