Could Kentucky's emergency medical services board license someone with a felony conviction or completed felony diversion?

Plain-English summary

Kentucky's Attorney General concluded in 2013 that the Board of Emergency Medical Services could not consider applications from people convicted of or pleading to a felony, or from people who had completed a diversion program for a felony. It also read the EMS statute to require revocation when a license holder fell within those categories.

The opinion addressed an apparent clash among licensing laws. A general law limited disqualification based on criminal convictions and allowed some licensing discretion after rehabilitation. A separate diversion law said successful diversion was not a conviction and generally need not be listed on a license application. The AG concluded that neither displaced the EMS statute's specific bar: the general conviction rule permitted felony disqualification, while the EMS provision expressly named completed felony diversion, even though diversion was not a conviction. The opinion treated the EMS rule as the controlling, more specific law.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did completing felony diversion make an applicant eligible for a Kentucky EMS license in 2013?

The AG said no. Although successful diversion did not count as a conviction under the law it quoted, the EMS licensing provision separately barred applicants who had completed a felony diversion program.

Could the EMS board use rehabilitation discretion to overlook a felony under the opinion's reading?

The AG said the general rehabilitation provision did not override the specific EMS licensing bar. It concluded that the board could not consider applications in the listed felony categories.

What did the opinion say about an existing EMS license?

It read the EMS statute to require revocation when a license holder was convicted of or pled to a felony or completed a felony diversion program.

Background and statutory framework

The board asked about applications after it had denied a person who completed felony diversion. The AG compared the express EMS application bar in KRS 311A.050(2)(n) and revocation provision in KRS 311A.060(2)(l) with the general licensing rule in KRS 335B.020(1) and the diversion rule in KRS 533.258(1). It reasoned that the statutes could be read together without letting the general provisions erase the specific EMS restriction.

Citations and references

Statutes: KRS 311A.050(2)(n); KRS 311A.060(2)(l); KRS 335B.020(1); KRS 533.258(1).

Case cited: Spees v. Kentucky Legal Aid, 274 S.W.3d 447, 450 (Ky. 2009), quoted for harmonizing statutes where possible.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original Word document: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG13-013.doc

Original opinion text

OAG 13-013

December 20, 2013

Subject: Whether the Kentucky Board of Emergency Medical Services may consider applications from convicted felons or individuals who have completed a felony diversion program.

Requested by: Mike Poynter, Executive Director

Kentucky Board of Emergency Medical Services

Written by: Matt James

Syllabus: The Kentucky Board of Emergency Medical Services may not consider applications from convicted felons or individuals who have completed a felony diversion program.

Statutes construed: KRS 237.110; KRS 311A.050; KRS 311A.060; KRS 313.080; KRS 313.100; KRS 335B.010; KRS 335B.020; KRS 335B.060

OAGs cited: OAG 80-388

Opinion of the Attorney General

Mike Poynter, Executive Director of the Kentucky Board of Emergency Medical Services (“KBEMS”), has requested an opinion of this office regarding whether the KBEMS may consider applications from convicted felons or individuals who have completed a felony diversion program. At the request of this office, the Kentucky Community & Technical College System, which houses KBEMS, has provided its analysis. We advise that KBEMS may not consider applications from convicted felons or from individuals who have completed a felony diversion program.

Mr. Poynter informs us that KBEMS had previously denied an applicant for licensure pursuant to KRS 311A.050(2)(n), which provides that no applicant shall have completed a felony diversion program. KBEMS has historically denied all applications from convicted felons or individuals who have completed felony diversion programs pursuant to KRS 311A.050(2)(n). The applicant contends that he has completed his felony diversion program and is eligible to be licensed. At issue is whether KBEMS may consider his application given the prohibition in KRS 311A.050(2)(n).

In what appears to be a fact pattern for a law school final exam question in statutory interpretation, KRS 311A.050(2) provides that “no person licensed or certified by the board or who is an applicant for licensure or certification by the board shall . . . (n) be convicted of, have entered a guilty plea to, have entered an Alford plea to a felony offense, or completed a diversion program for a felony offense.” KRS 311A.060(2)(l) contains a parallel provision for KBEMS license holders, which provides that “if it is found that the person who is licensed or certified by the board has been convicted of, pled guilty to, entered an Alford plea to a felony offense, or has completed a diversion program for a felony offense the license or certification shall be revoked.” KRS 311A.050(2)(n) and 11A.050(2)(l) thus expressly ban applicants who have been convicted of a felony, pled to a felony, or completed a diversion program for a felony, and require the immediate revocation of a license holder who has done so.

However, KRS 335B.020(1) provides that:

No person shall be disqualified from public employment, nor shall a person be disqualified from pursuing, practicing, or engaging in any occupation for which a license is required solely because of a prior conviction of a crime, unless the crime for which convicted is one described in KRS 335B.010(4) or otherwise directly relates to the position of employment sought or the occupation for which the license is sought.

KRS 335B.010(4) provides that “’conviction of crime’ shall be limited to convictions of felonies, high misdemeanors, and misdemeanors for which a jail sentence may be imposed.” KRS 335B.020(3) further provides that:

Nothing in KRS 335B.020 to 335B.070 shall be construed so as to limit the power of the hiring or licensing authority to determine that an individual shall be entitled to public employment or a license regardless of that individual's conviction if the hiring or licensing authority determines that the individual has been successfully rehabilitated.

Taken together, KRS 335B.010 and 335B.020 provide that no person shall automatically be disqualified for any license unless convicted of a felony, high misdemeanor, or misdemeanor for which a jail sentence may be imposed. A licensing authority has the further discretion to issue a license to such a person if the authority determines that the person has been successfully rehabilitated. Additionally, KRS 335B.060 provides that “the provisions of KRS 335B.020 to 335B.070 shall prevail over any other laws, rules and regulations which purport to govern the granting, denial, renewal, suspension, or revocation of a license or the initiation, suspension, or termination of public employment on the grounds of conviction of a crime or crimes.” KRS 335B.060 expressly provides that KRS 335B.020 et seq. supersede any other laws or regulations in conflict with those provisions.

Further complicating the interpretation of KRS 311A.050(2)(n) is KRS 533.258. KRS 533.258(1) provides that “if the defendant successfully completes the provisions of the pretrial diversion agreement, the charges against the defendant shall be listed as ‘dismissed-diverted’ and shall not constitute a criminal conviction.” KRS 533.258(1) thus provides that completion of a diversion program dismisses the charges and does not count as a criminal conviction. KRS 533.258(2) provides that a person who completes a pretrial diversion program “shall not be required to list this disposition on any application for employment, licensure, or otherwise unless required to do so by federal law.” Although KRS 311A.050(2)(n) bars consideration of applicants who have completed a diversion program for a felony, KRS 533.258 provides that anyone who has completed a diversion program for a felony has not been convicted of a crime and shall not be required to list it on any application for licensure.

“When the application of two statutes leads to apparent conflict, we have a duty to harmonize them so as to give effect to both, if possible.” Spees v. Kentucky Legal Aid, 274 S.W.3d 447, 450 (Ky. 2009). As a matter of pure statutory construction, KRS 335B.010 and 335B.020 do not expressly conflict with KRS 311A.050(2)(n) with regard to felony convictions. KRS 335B.020(1) and 335B.010(4) provide that no person shall be automatically disqualified because of a prior conviction of a crime, unless that crime is a felony, high misdemeanor, or misdemeanor for which a jail sentence could be imposed. The ban preventing convicted felons from applying to the KBEMS is thus consistent with KRS 335B.010(4) and 335B.020(1) because they allow for the possibility of automatic disqualification for felonies. KRS 335B.020(4) does not override KRS 311A.050(2)(n), as KRS 335B.020(4) only provides that “nothing in KRS 335B.020 to 335B.070 shall be construed so as to limit the power of the hiring or licensing authority.” KRS 335B.020(4) is expressly restricted to KRS 335B.020 to 335B.070, and does not by its terms apply to limits on the power of licensing authorities provided by statute in other chapters. Thus there is no express conflict between KRS 311A.020 and KRS Chapter 335B; automatic disqualifications based on felonies are consistent with KRS 335B.010 and 335B.020. Since there is no actual conflict, the preemption provision of KRS 335B.060 does not apply, and persons who have been convicted of or pled to a felony may not apply for licensure by the KBEMS.

Similarly, regarding completion of a diversion program for a felony, KRS 311A.050(2)(n), 335B.020(1), and 533.258(1) do not conflict by their express terms. KRS 335B.020(1) says only that “no person shall be disqualified . . . solely because of a prior conviction of a crime.” KRS 533.258(1) provides that “if the defendant successfully completes the provisions of the pretrial diversion agreement, the charges . . . shall not constitute a criminal conviction.” Completion of a diversion program for a felony is not a conviction of a crime, and therefore the provisions of KRS 335B.020(1) are not triggered.

Further, KRS 311A.050(2)(n) and KRS 533.258(2) are not expressly conflicting. KRS 311A.050(2)(n) bars anyone from applying to KBEMS who has completed a diversion program for a felony, but KRS 533.258(2) requires that no person who has completed a diversion program for a felony shall be required to list it on a licensing application. KRS 311A.050(2) provides that “no person licensed or certified by the board or who is an applicant for licensure shall . . . be convicted of, have entered a guilty plea to, have entered an Alford plea to a felony offense, or completed a diversion program for a felony offense.” It flatly states that no person may be an applicant who has completed a diversion program for a felony offense, and does not reach the question of whether the person is required to list the diversion program on the application; anyone who has completed a diversion program for a felony simply may not apply to begin with. Thus KRS 311A.050(2)(n) and KRS 533.258(2) are consistent; persons who have completed a diversion program for a felony are not permitted to apply for licensure by the KBEMS. If a person who has completed a felony diversion program does apply without listing the completion of the felony diversion program on the application, and KBEMS later becomes informed of it, 311A.060(2)(l) provides that the person’s license shall be automatically revoked.

This interpretation of KRS 311A.050(2)(n) and 311A.060(2)(l) is strengthened by the fact that the language used in it is not an isolated instance; it appears in several other statutes enacted subsequent to the provisions of KRS 335B.010 et seq. KRS 313.100(9), governing dentists, provides that:

If it is found the person who is licensed or registered by the board has been convicted of, pled guilty to, or entered an Alford plea to a Class A, B, or C felony offense, or has completed a diversion program for a Class A, B, or C felony offense, the license or registration shall be revoked.

KRS 313.100(9) provides for automatic revocation of a dentist’s license upon being convicted of or pleading to a class A, B, or C felony, or completing a diversion program for one. KRS 313.080(1) reaffirms this, providing that “no person shall . . . (d) Maintain any license or certificate authorized by this chapter if convicted of, having entered a guilty plea to, having entered an Alford plea to, or

having completed a diversion program for a Class A, B, or C felony offense on or after the date of initial licensure or registration.” Although they do not contain language relating to completing a diversion program for a felony, KRS 237.110(22)(i) requires the automatic revocation of a concealed deadly weapon license upon conviction of or pleading to a felony, and KRS 237.110(22)(j) requires the automatic revocation of a concealed deadly weapon instructor certification in those circumstances. All of these statutes require automatic revocation of a license based on conviction of or pleading to a felony, and KRS Chapter 313 expressly includes completing a diversion program for a felony as grounds for automatic revocation. If we were to advise that the provisions of KRS Chapter 335B supersede the provisions of KRS 311A.050(2)(n) and 311A.060(2)(l), we would similarly have to advise that they also supersede the comparable provisions in KRS Chapters 237 and 313, and we are reluctant to interpret one statute to negate several others.

Familiar canons of statutory construction also favor giving controlling weight to KRS 311A.050(2)(n), 311A.060(2)(l), 237.110(22)(i) and (j), 313.080(1), and 313.100(9) over the restrictions in KRS 335B.020. All of these statutes were reenacted or amended subsequent to KRS 335B.020, and all of them are more specific in that they relate only to certain licensing authorities, while KRS 335B.020 is a general prohibition relating to all licensing and occupations. “It is a well-known canon of statutory interpretation that the later controls the former when two statutes appear to be in conflict.” Osborne v. Keeney, 399 S.W.3d 1, 22 (Ky. 2012). Also, “in resolving apparent conflict between two statutes, a primary rule of construction requires that precedence be given to the specific statutory provision over the more general.” Spees, 274 S.W.3d at 450. Even assuming that KRS 311A.050(2)(n) and 311A.060(2)(l) actually conflict with KRS 335B.020, they and similar provisions are both enacted later and are more specific than KRS 335B.020, and thus should control. While we recognize that the general intent of KRS 335B.020 is to prevent felony offenders from being barred from professions and stigmatized, the legislature has repeatedly demonstrated a determination in several different contexts that the public interest in certain professions requires absolutely barring felony offenders from them, and our “role is not to second-guess the statute's wisdom.” Keith v. Hopple Plastics, 178 S.W.3d 463, 466 (Ky. 2005).

In summary, we advise that the Kentucky Board of Emergency Medical Services is barred by KRS 311A.050 from considering applications from persons who have been convicted of or pled to a felony, or have completed a pretrial diversion program for a felony, and is required by KRS 311A.060 to automatically revoke the license of anyone who has been convicted of or plead to a felony, or has completed a pretrial diversion program for a felony.

JACK CONWAY

ATTORNEY GENERAL

Matt James

Assistant Attorney General