24-5-101. Effect of criminal conviction on employment rights - fee - determination.

Statute text

(1) (a) Except as otherwise provided in subsection (1)(b) of this section, the fact that a person has been convicted of a felony or other offense involving moral turpitude shall not, in and of itself, prevent the person from applying for and obtaining public employment or from applying for and receiving a license, certification, permit, or registration required by the laws of this state to follow any business, occupation, or profession.

(b) This subsection (1) does not apply to:

(I) The offices and convictions described in section 4 of article XII of the state constitution;

(II) The certification and revocation of certification of peace officers as provided in section 24-31-305;

(III) The employment of personnel in positions involving direct contact with vulnerable persons as specified in section 27-90-111, C.R.S.;

(IV) The licensure or authorization of educators prohibited pursuant to section 22-60.5-107 (2), (2.5), or (2.6), C.R.S.;

(V) The employment of persons in public or private correctional facilities pursuant to sections 17-1-109.5 and 17-1-202 (1)(a)(I) and (1.5), and the employment of persons in public or private juvenile facilities pursuant to sections 19-2.5-1505 and 19-2.5-1519 (4);

(VI) The employment of persons by the public employees' retirement association created pursuant to section 24-51-201 who, upon the commencement of that employment, will have access to association investment information, association assets, or financial, demographic, or other information relating to association members or beneficiaries; and

(VII) (A) The employment of persons by the department of public safety, the department of corrections, and the department of revenue.

(B) The exception in subsection (1)(b)(VII)(A) of this section does not apply to positions within the wildland fire management section in the department of public safety.

(2) (a) Whenever any state or local agency is required to make a finding that an applicant for a license, certification, permit, or registration is a person of good moral character as a condition to the issuance thereof, or evaluate the impact of an applicant's criminal record, the fact that such applicant has, at some time prior thereto, been convicted of a felony or other offense involving moral turpitude, and pertinent circumstances connected with such conviction, shall be given consideration in determining whether, in fact, the applicant is qualified. The intent of this section is to expand employment opportunities for persons who, notwithstanding that fact of conviction of an offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society.

(b) In evaluating an applicant, an agency shall comply with subsection (4) of this section and shall not use the determination of the following information as a basis for denial or taking adverse action against any applicant otherwise qualified:

(I) The applicant has been arrested for or charged with but not convicted of a criminal offense and the criminal case is not actively pending; except that, an agency may consider the conduct underlying the arrest;

(II) The applicant has been convicted of a criminal offense but pardoned;

(III) The applicant has been convicted of a criminal offense but records of the conviction have been sealed or expunged;

(IV) A court has issued an order of collateral relief specific to the credential sought by the applicant; or

(V) The applicant has been adjudicated for committing a delinquent act in a juvenile proceeding.

(3) (a) Unless statute prohibits the employment of a person with a specific criminal conviction for a particular position, an agency shall not advertise the position with a statement that a person with a criminal record may not apply for the position or place on the application a statement that a person with a criminal record may not apply for the position.

(b) (I) With the exception of the department of corrections and the department of public safety, the agency shall not perform a background check until the agency determines that an applicant is a finalist or makes a conditional offer of employment to the applicant.

(II) The exception in subsection (3)(b)(I) of this section does not apply to positions within the wildland fire management section in the department of public safety.

(c) If, after determining that an applicant is a finalist or after making a conditional offer of employment to an applicant, the agency determines that the applicant has a criminal history, the agency shall comply with subsection (4) of this section and shall not use the determination of the following information as a basis for not making an offer of employment or for withdrawing the conditional offer of employment:

(I) The applicant has been arrested for or charged with but not convicted of a criminal offense and the criminal case is not actively pending;

(II) The applicant has been convicted of a criminal offense but pardoned;

(III) The applicant has been convicted of a criminal offense but records of the conviction have been sealed or expunged; or

(IV) A court has issued an order of collateral relief specific to the employment sought by the applicant.

(d) and (e) Repealed.

(4) Except as provided in subsection (6) of this section, when considering an applicant for a license, certification, permit, or registration pursuant to subsection (2) of this section or, if, after determining that an applicant is a finalist or making a conditional offer of employment to an applicant, the agency determines that the applicant has a conviction other than as described in subsection (2)(b) or (3)(c) of this section, the agency shall consider the following factors when determining whether the conviction disqualifies the applicant:

(a) The nature of the conviction;

(b) Whether there is a direct relationship between the conviction and the position's duties and responsibilities and the bearing, if any, the conviction may have on the applicant's fitness or ability to perform one or more such duties and responsibilities, including whether the conviction was for unlawful sexual behavior as listed in section 16-22-102 (9); whether the duties of employment would place a coworker or the public in a vulnerable position; and whether the applicant will be directly responsible for the care of individuals susceptible to abuse or mistreatment because of the individual's circumstances, including the individual's age, disability, frailty, mental health disorder, developmental disability, or ill health;

(c) Any information produced by the applicant or produced on his or her behalf regarding his or her rehabilitation and good conduct; and

(d) The time that has elapsed since the conviction.

(5) Notwithstanding any other provision of law to the contrary, the provisions of this section apply to the office of the governor.

(6) (a) If, at any stage in the hiring process, the department of corrections or the department of public safety determines that the applicant has been convicted of a crime, the department must consider the factors listed in subsections (4)(a) to (4)(d) of this section when determining whether the conviction disqualifies the applicant for the position.

(b) Notwithstanding subsection (6)(a) of this section, if, after determining that an applicant for a position within the wildland fire management section in the department of public safety is a finalist or when making a conditional offer of employment to the applicant, the department of public safety determines the applicant has been convicted of a crime, the department must consider the factors listed in subsections (4)(a) to (4)(d) of this section when determining whether the conviction disqualifies the applicant for the position.

(7) Before a state or local agency makes a final determination that a criminal conviction disqualifies an applicant from receiving a license, certification, permit, or registration, the agency shall provide the applicant with written notice that describes:

(a) The specific conviction that is the basis for the disqualification;

(b) The reasons the conviction was determined to be disqualifying, including findings for each of the factors in subsection (4) of this section that the agency deemed relevant to the determination; and

(c) The right to submit additional evidence relevant to each of the factors listed in subsection (4) of this section, consistent with section 24-4-104.

(8) A state or local agency that makes a final determination that a criminal conviction will prevent an applicant from receiving a license, certification, permit, or registration shall issue the determination in writing and shall include notice of the right to appeal the determination and notice of the earliest date the applicant may reapply for the credential in accordance with section 24-4-106.

History

Source: L. 73: p. 513, 1. C.R.S. 1963: 39-25-101. L. 90: Entire section amended, p. 1207, 1, effective March 16. L. 92: Entire section amended, p. 1098, 7, effective March 6. L. 95: Entire section amended, p. 1103, 37, effective May 31. L. 99: Entire section amended, p. 923, 2, effective July 1. L. 2003: Entire section amended, p. 2521, 11, effective June 5. L. 2004: (1)(b)(III) and (1)(b)(IV) amended and (1)(b)(V) added, p. 232, 5, effective April 1. L. 2006: (1)(b)(VI) added, p. 161, 1, effective March 31. L. 2010: (1)(b)(III) amended, (SB 10-175), ch. 188, p. 795, 52, effective April 29. L. 2011: (1)(b)(IV) amended, (HB 11-1121), ch. 242, p. 1061, 9, effective August 10. L. 2012: (1)(b)(V) and (1)(b)(VI) amended and (1)(b)(VII), (3), (4), and (5) added, (HB 12-1263), ch. 233, p. 1021, 1, effective August 8. L. 2014: (1)(b)(VII), (3)(b), and IP(4) amended and (6) added, (HB 14-1172), ch. 61, p. 279, 1, effective August 6. L. 2018: (1)(b)(VII), (2), (3)(c), IP(4), and (4)(b) amended and (3)(d) and (3)(e) repealed, (HB 18-1418), ch. 352, p. 2086, 1, effective May 30. L. 2021: (1)(a), IP(1)(b), (1)(b)(VII), (3)(b), and (6) amended, (SB 21-012), ch. 29, p. 121, 1, effective April 15; IP(1)(b) and (1)(b)(V) amended, (SB 21-059), ch. 136, p. 744, 112, effective October 1. L. 2022: (2)(b)(III) and (2)(b)(IV) amended and (2)(b)(V) added, (HB 22-1383), ch. 365, p. 2605, 4, effective August 10; (7) and (8) added, (HB 22-1098), ch. 220, p. 1438, 2, effective August 10.

Annotations

Cross references: (1) In 2011, subsection (1)(b)(IV) was amended by the "Safer Schools Act of 2011". For the short title, see section 1 of chapter 242, Session Laws of Colorado 2011.

(2) For the legislative declaration in HB 22-1383, see section 1 of chapter 365, Session Laws of Colorado 2022.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "The EEOC's New Enforcement Guidance on the Use of Criminal Background Checks", see 41 Colo. Law. 45 (Dec. 2012).

Strong public policy of Colorado is to aid ex-offenders in their rehabilitation to society and to insure that they are not discriminated against solely because they, at one time, were convicted of crimes. Watson v. Cronin, 384 F. Supp. 652 (D. Colo. 1974).

Medical license not necessarily prohibited by prior conviction. A prior felony conviction, by itself, is not sufficient to warrant the denial or revocation of a medical license. Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275, 599 P.2d 869 (1979).

This section, in combination with the statutes governing disciplinary action against a real estate broker, makes the degree of rehabilitation an essential factor to be considered. The real estate commission bears the burden of proving not only that the broker was convicted of a felony, but also that he or she has not been rehabilitated. Colo. Real Estate Comm'n v. Bartlett, 272 P.3d 1099 (Colo. App. 2011).

Evidence of circumstances which led to prior felony conviction may be considered by the board of medical examiners in deciding whether or not to revoke a medical license. Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275, 599 P.2d 869 (1979).

Massage parlor license inquiry not restricted to prior felony convictions. In making an examination of an applicant for a massage parlor license, a board of county commissioners is not restricted to inquiring into prior felony convictions. JRM, Inc. v. Bd. of County Comm'rs, 200 Colo. 384, 615 P.2d 31 (1980).

This section does not prohibit denial of massage parlor license for other conduct which would establish the absence of good moral character. JRM, Inc. v. Bd. of County Comm'rs, 200 Colo. 384, 615 P.2d 31 (1980).

Such as sexual activity and nudity. The consideration by the board of county commissioners of evidence of sex acts and nudity in the operation of a massage parlor by the applicant for a massage parlor license is proper. JRM, Inc. v. Bd. of County Comm'rs, 200 Colo. 384, 615 P.2d 31 (1980).

Only "moral turpitude" offenses serve as justification for denial of liquor license. Sections 12-47-118, 12-47-137, and 12-47-141, as governed and modified by this section, require that only those offenses involving "moral turpitude" can serve as justification for the denial of a liquor license. Hartman v. Wadlow, 37 Colo. App. 90, 545 P.2d 735 (1975), aff'd, 191 Colo. 196, 551 P.2d 201 (1976).

"Driving while impaired" is not a moral turpitude offense. While "driving a motor vehicle while ability is impaired" is a serious offense, nevertheless, it does not rise to the magnitude of being one involving moral turpitude. Hartman v. Wadlow, 37 Colo. App. 90, 545 P.2d 735 (1975), aff'd, 191 Colo. 196, 551 P.2d 201 (1976).

Convictions may serve as a basis for delaying, but not permanently denying, a motor vehicle salesperson license under 12-6-118 (7)(a)(I), which section is limited to specific felony convictions and does not make a criminal conviction, without more, the basis for denying a license; therefore, there is no irreconcilable conflict between this section and 12-6-118 (7)(a)(I). Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115 (Colo. App. 2008).

Board may consider circumstances surrounding applicant's criminal conduct in determining whether to reinstate license. The applicant's rehabilitation alone does not mandate licensure. Colo. State Bd. of Pharmacy v. Priem, 2012 COA 5, 272 P.3d 1136.

Applied in Beathune v. Colo. Dealer Licensing Bd., 198 Colo. 483, 601 P.2d 1386 (1979); R & F Enters., Inc. v. Bd. of County Comm'rs, 199 Colo. 137, 606 P.2d 64 (1980).