Tag: Jerry Brown

California enacts modest occupational licensing reform

On September 30, 2018, California Governor Jerry Brown signed into law AB 2138, making California the twelfth state this year to enact occupational licensing reform. This flurry of legislation will make it easier for people with a criminal record to obtain occupational and professional licenses. (As discussed in recent posts, the Institute for Justice’s model occupational licensing act and the National Employment Law Project’s model state law have influenced this legislative trend.) However, California’s take on licensing reform is relatively tepid compared to more extensive reforms in states like Indiana, Kansas, New Hampshire, Tennessee, and Wisconsin. In California, nearly 30 percent of jobs require licensure, certification, or clearance. When AB 2138 takes effect in 2020, it will prohibit licensing boards from denying a license based on certain acts not resulting in conviction, or certain less serious convictions after seven years. The law will require boards to consider rehabilitation evidence for any conviction (not just misdemeanors, as under existing law), to establish more detailed criteria for evaluating convictions, and to issue annual reports. While a more robust version of the bill first passed the California Assembly, it was weakened in the California State Senate, and ultimately, the Senate’s version prevailed. The legislative process and bill’s provisions are discussed in more detail below. Legislative Process: AB 2138’s purpose is to reduce recidivism and provide economic opportunity for all California residents. A more robust version of AB 2138, passed in the California Assembly, had a number of provisions that would have made it easier for people with a criminal conviction to get licensed and back into the workforce, and would have gone into effect immediately. However, the Senate rolled back a number of key provisions, resulting in a watered-down bill, which preserves more barriers to licensing, and delays the bill’s implementation until July 2020. First, the Assembly version would have only permitted denial, suspension, or revocation of a license for a crime “directly and adversely related” to the qualifications or duties of the occupation. However, the final bill only requires the conviction to be “substantially related” to qualifications or duties, reverting to the existing standard in California law, under which more applicants are likely to be disqualified. See Cal. Bus. & Prof. Code. § 480(a)(1). Second, the original Assembly version would have only permitted boards to deny, suspend, or revoke a license based on a conviction from the previous five years, with the exception of violent felonies. The Senate, opting for a longer period in which most convictions can be grounds for denial, expanded the time limit from five to seven years. The Senate version also excludes from any limit a broader class of convictions: serious felonies as defined by California Penal Code section 1192.7, convictions requiring sex offender registration under California Penal Code sections 290(d)(2) or (d)(3), and financial crimes “directly and adversely” related to certain occupations. The Senate version also does not impose any time limits for considering convictions for the purposes of suspending or revoking licenses. Grounds for Denial: While the final version of AB 2138 is not as robust as the earlier Assembly version or those of other reform states, it will narrow the grounds on which a board may deny a license based on a criminal record to only include a conviction or formal professional discipline. The bill will remove from boards the broad discretion they currently possess to deny a license based on “any act involving dishonesty, fraud, or deceit” for self-benefit or harm to others. The new law will prohibit a denial based on an arrest that resulted in a disposition other than a conviction—including an infraction, citation, or juvenile adjudication—and it will only permit a denial based on a criminal conviction or professional discipline. (Unlike alleged conduct or an arrest, a conviction or formal professional discipline is generally subject to procedural protections and due process.) The language in the bill regarding grounds for denial based on a prior conviction provides that a board may deny a license only if: The applicant has been convicted of a crime within the preceding seven years from the date of application that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made, regardless of whether the applicant was incarcerated for that crime, or the applicant has been convicted of a crime that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made and for which the applicant is presently incarcerated or for which the applicant was released from incarceration within the preceding seven years from the date of application. However, no time limitation will apply to a denial based on: a “serious felony” as defined by California Penal Code section 1192.7, a crime requiring sex offender registration under California Penal Code sections 290(d)(2) or (d)(3), or, for certain licenses, a financial crime that is currently a felony and is “directly and adversely related” to the fiduciary qualifications, functions, or duties of the occupation. Next, a board will be able to deny a license based on professional discipline, but only if the applicant “has been subjected to formal discipline by a licensing board in or outside California within the preceding seven years from the date of application based on professional misconduct that would have been cause for discipline before the board for which the present application is made and that is substantially related to the qualifications, functions, or duties of the business or profession for which the present application is made . . . .” In addition, under AB 2138, a person may not be denied a license because of a conviction if that person was granted clemency or a pardon, made a showing of rehabilitation for a felony conviction (misdemeanors are already covered under existing law), or had the conviction dismissed or set aside under California Penal Code section 1203.42. Finally, a board may deny a license on the basis that an applicant knowingly made a false statement of fact required to be revealed in the application, but not based solely on an applicant’s failure to disclose a fact that would not have been cause for denial of the license had it been disclosed. Under the bill, each board must develop more specific criteria—and publish a summary online—for how it determines whether a crime is substantially related to the qualifications, functions, or duties of an occupation in deciding whether to deny, revoke, or suspend a license. Such criteria must include: (1) the nature and gravity of the offense; (2) the number of years elapsed since the offense occurred; (3) the nature and duties of the profession; and (4) any evidence of rehabilitation submitted by an applicant. If a board denies a license in part or whole based on a conviction history, it must notify the applicant in writing of the applicant’s right to appeal, any procedure by which the decision can be challenged, and how to request a complete conviction history. Preliminary Determination: Most of the other states that have enacted licensing reforms in 2018 include a provision for a preliminary determination, a key feature of the Institute for Justice’s model licensing laws, including the Collateral Consequences in Occupational Licensing Act. Such a provision allows individuals to seek a preliminary determination of whether their criminal record will be disqualifying before investing time and money in the licensing process, and to be advised what remedial action they may take. However, a preliminary determination process is conspicuously absent from California’s bill. Another proposed California bill, AB 2409, would have specifically permitted such a preliminary determination, providing that a person could petition a licensing board “at any time” for a determination of whether their criminal record would be disqualifying. And a criminal record would only be disqualifying if the person had a conviction for a felony or violent misdemeanor and if the board determined—by clear and convincing evidence—that the offense of conviction was substantially related to the state’s interest in protecting public safety, that having the license would put the person in a position of being more likely to reoffend, and that the person reoffending would cause greater harm than the denial of the license. AB 2409 also would have allowed individuals to petition licensing boards to review and rescind their regulations. In April 2018, AB 2409 failed in an Assembly committee along a party-line vote, with Democrats in opposition, a result that a Reason.com writer attributed to the influence of special interests who benefit from maintaining high barriers to employment. Reporting: AB 2138 includes an annual reporting requirement, which could provide data to support future reforms. But because the law goes into effect in 2020, the data will not be available until 2021 at the earliest. Each board will be required to make an annual report publicly available that details the number of applications received for each license, the number of applicants requiring inquiries into criminal history, as well as the final disposition and voluntarily submitted demographic information of any applicant with a criminal record who: (1) received a denial or disqualification; (2) provided evidence of mitigation or rehabilitation; or (3) appealed a denial or disqualification. Covered Boards: AB 2138 applies to occupational and professional licensing boards within California’s Department of Consumer Affairs, but the bill exempts from most of its provisions the State Athletic Commission, Bureau for Private Postsecondary Education, and Horse Racing Board. Also of note, as reported by Nick Sibilla in USA Today, the California Department of Forestry and Fire Protection, under California legislation signed in June, may now certify former prison firefighters as “emergency medical responders,” which qualifies them for some state firefighter jobs in lieu of an EMT license. Disclosure: I was a clinical student in 2017 at the East Bay Community Law Center, which was one of the writers of AB 2138, but I had no involvement in AB 2138.     Read more

Jerry Brown takes back a pardon . . . really?

Jerry Brown reportedly regretted one of his 105 Christmas Eve pardons, after learning from an LA Times article that the recipient had recently been disciplined by federal financial regulators.  He therefore announced that he was rescinding his grant, claiming that the pardon was not yet final because the Secretary of State had not signed the document evidencing it. This is not the first time that a governor or president has had second thoughts about a pardon, but it is unusual for a chief executive to attempt to undo one that has been made public.  Governor Brown’s attempt to retract the pardon may or may not be effective, but it certainly reflects unfortunate disarray in the administration of the pardon power in California for which other deserving pardon candidates may end up paying. Glen Williams Carnes was pardoned on December 24 for a 1989 drug-related offense committed while he was a teenager, for which he spent three years on probation.  In the pardon document, Brown stated the Carnes had received an order from the Orange County Superior Court “evidencing … he has lived an honest and upright life, exhibited good moral character and conducted himself as a law-abiding citizen.” This judicial order, styled a “Certificate of Rehabilitation,” is the first step in the California pardon process, after which applications are submitted by the governor’s office for a second vetting by the Board of Parole Hearings. Later that same day, the Times reported that [F]ederal records show Carnes was disciplined by investment regulators in May 2013. He signed a consent settlement with the Financial Industry Regulatory Authority that states he agreed to be barred from financial investment. The document alleged that he hid an outside business deal and provided investigators with “false and misleading statements that minimized and mischaracterized his involvement.” Carnes did not admit guilt. Securities and Exchange Commission records show the business deal that led to the sanction became what is now Carnes’ company: Global Vision Holdings, a publicly traded corporate umbrella of which Carnes is listed as CEO, chairman of the board and chief financial officer. Currently, Global Vision owns The Place Media, which publishes local magazines placed in hotels, Mamma’s Best, a line of organic food products, and a financial consulting firm. However, SEC records show Global Vision’s last financial report was made in late 2013. In April, it informed the SEC it could not complete its year-end 2013 filing in time “due to recent turnover in its accounting department.” Upon learning from the newspapers of the FINRA sanctions, Governor Brown moved that same afternoon to withdraw the pardon, stating that he had relied to his detriment on the court’s order of rehabilitation, and that in any case the pardon had not yet become final: “This information was not disclosed by the applicant,” Brown’s spokesman, Evan Westrup, said in a written response to The Times. “Without the certificate of rehabilitation, this individual would not have been considered for a pardon. This particular pardon has not yet been attested by the Secretary of State and it has subsequently been withdrawn.” For his part, the disappointed Mr. Carnes told the Times that he planned to contact Brown’s office “first thing on Friday morning as tomorrow is Christmas, to refute your allegations.” The Associated Press reported that Carnes said he was unaware he needed to report the regulatory settlement on his clemency application. Stay tuned for further details in this most recent pardon soap.  In the meantime, we have a couple of comments on the episode.  First of all, it is not at all clear that the Governor’s effort to retract a pardon he had already announced, on grounds that a ministerial formality had not yet been performed, will be held effective if challenged.  The Supreme Court of Michigan recently invalidated a similar attempted retraction by Governor Granholm, there of a commutation she later regretted after protests by his victim’s family.  See Makowski v. Governor, 495 Mich. 465; 852 N.W.2d 61 (June 3, 2014).  See also Marbury v. Madison, 5 U.S. 137 (1803).  We don’t know if Mr. Carnes plans to take his case to court — though the possibility of further embarrassment may discourage him.  (This is apparently why Isaac Toussie didn’t contest President George W. Bush’s retraction of his pardon under similar circumstances — a pardon that was also granted apparently without adequate staffing.) The Carnes episode also reflects poorly on the present state of the California pardon process, and on its reliability in service to the Governor.   Carnes reportedly told the Times that “he went through an extensive background check that took over a year making him eligible for his gubernatorial pardon.”   However, that background check (presumably by the BPH and the governor’s staff) evidently didn’t dig very deep to reassure the Governor that Carnes was a suitable recipient of his public mercy:  A simple Google search by CCRC staff finds Carnes listed on the website of the CFA Institute as an individual “currently serving public disciplinary sanctions for violations of the CFA Institute Code of Ethics and Standards of Professional Conduct or who have resigned their memberships while under investigation for industry-related misconduct.” Nor was the court’s certification of Carnes’ rehabilitation a very effective filter in this case. Carnes was reportedly granted his COR in August 2013, several months after the FINRA sanctions were imposed.  It is unclear whether the court knew of the sanctions when it granted the COR, though they would certainly seem to have reflected poorly on Mr. Carnes’ rehabilitation in that context as well. Finally, while the retraction is unfortunate for Mr. Carnes, it is even more unfortunate for others who are seeking a pardon from Governor Brown, since it is inevitable that an episode like this may dampen his general enthusiasm for pardoning.  This is why it is so very important that those staffing pardons for an elected official do a thorough investigation and be very sure there is nothing about a case that might cause embarrassment.  Neither the BPH nor the court appears not to have done a very thorough job in this case, if our own crude Google-limited investigative efforts are any guide.  And now others awaiting the Governor’s favor may suffer for this poor staffing. We will have more to say in this space about the administration of the pardon power in California.  We believe that its basic framework, notably its reliance on a prior judicial finding of rehabilitation, could be adapted into a comprehensive functional relief system second to none in the country. Read more

‘Tis the season for . . . . some presidential forgiveness

It’s that time of year again.  Odds are that sometime in the next two weeks President Obama will issue some pardons and commute some prison sentences.  I have never quite reconciled myself to the unfortunate and ahistorical  association of pardoning with the silly turkey ceremony (the Obama girls were right to roll their eyes) and Christmas gift-giving, the result of decades of presidential neglect and sometime Justice Department sabotage of the power.  But now that the season for forgiveness is upon us, I can’t wait to see what’s underneath the tree. It was my fondest hope during the 2008 campaign that this president would want to revive the practice of pardoning, like Jerry Brown in California and Pat Quinn in Illinois, and restore a degree of regularity and accountability to the federal pardon process.  But so far President Obama has issued only 52 full pardons, making him the least generous full-term president in our Nation’s history.  And so far there is no indication that he intends to reinvigorate the federal pardon process, as Justice Anthony Kennedy urged in an iconic speech to the American Bar Association more than a decade ago, and as scholars and practitioners have regularly urged in less exalted settings ever since.  Nor has his Administration proposed any alternative procedure by which individuals with federal convictions can avoid or mitigate collateral consequences, like the set-aside authority in the Youth Corrections Act that was repealed in 1984. But there is some reason for optimism even this late in the game.  President Obama’s evident willingness to use his constitutional power to reduce long drug sentences will hopefully have a spillover effect on the other half of the clemency caseload, the applications for full pardon from people who have long since served their sentences and gone on to live productive and law-abiding lives.  There are more than 800 applications for pardon pending in the Justice Department, many from people convicted decades ago whose lives of service have been exemplary.  They deserve something more than a gambler’s chance at forgiveness. Read more