Does Mississippi's Fresh Start Act of 2019 stop the social-worker board from denying a license based on a felony conviction?

Plain-English summary

The Mississippi State Board of Examiners for Social Workers and Marriage & Family Therapists asked the AG whether the 2019 Fresh Start Act, Miss. Code Ann. §§ 73-77-1 et seq., overrode their existing rules for evaluating applicants with criminal records or "good moral character" defects. The Fresh Start Act broadly says licensing boards cannot disqualify applicants for any prior conviction unless the crime "directly relates" to the licensed occupation, and bars licensure rules from using vague terms like "moral turpitude," "any felony," or "good character", absent applicable state law.

The AG read the "absent applicable state law" carve-out as the key. The social-work board's enabling statute, Miss. Code Ann. § 73-53-13(d), already requires applicants to show "good moral character" and absence of a felony conviction "related to the practice of social work" within the past ten years. Since the legislature wrote those criteria into the enabling statute, "applicable state law" existed and the board was exempt from the Fresh Start Act's blanket prohibitions. The board's job was to apply its own enabling-statute criteria to each applicant as a factual matter.

The AG also clarified one Fresh Start Act provision that runs without exception: § 73-77-9, which lets any "individual with a criminal record" petition any licensing authority for a pre-application determination of whether the record will disqualify them. That right applies to non-applicants as well as applicants, and the 30-day response and $25 fee cap also apply.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

The Fresh Start Act of 2019 was Mississippi's contribution to a national reform movement aimed at lowering occupational-licensing barriers for people with criminal records. The Act has three operative pieces:

1. § 73-77-5 prohibits disqualification from any licensed occupation "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."
2. § 73-77-7(1) prohibits boards from using "vague or generic terms" like "moral turpitude," "any felony," and "good character" in their licensure rulemaking, and limits criminal-record review to records "specific and directly related" to the occupation.
3. § 73-77-9 gives any individual the right to petition a licensing authority for a determination on whether the individual's criminal record disqualifies them, with a 30-day response requirement and a $25 fee cap.

Each of the first two pieces is subject to "absent applicable state law." That language matters. If the legislature, in the board's enabling statute, has already specified the criminal-record or character criteria, those statute-level rules are the "applicable state law" that displaces the Fresh Start Act's general restrictions. The Fresh Start Act becomes a backstop, not a ceiling.

For social workers, the board's enabling statute, Miss. Code Ann. § 73-53-13(d), specifies among the licensure prerequisites: "(ii) Good moral character" and "(iv) Absence of conviction of a felony related to the practice of social work for the last ten (10) years." Both of those statutory provisions are precisely the kind of criteria the Fresh Start Act would otherwise restrict. The AG concluded that because the legislature wrote those criteria into the enabling statute, the board could continue applying them under its existing factual-determination process.

The third piece, § 73-77-9, has no "absent applicable state law" exception. The petition right, the 30-day response, and the $25 fee cap apply universally. The board's only flexibility is in deciding what kind of "standing" determination is responsive within the 30 days; the AG noted the statute does not specify the form of response.

Common questions

Q: Does this mean the Fresh Start Act did nothing for social-work applicants in Mississippi?
A: It did not change the substance of the social-work board's licensure criteria. But it did create the petition mechanism in § 73-77-9, so a person with a criminal record could ask the board, before applying or paying application fees, whether their record was disqualifying. That early-warning tool was a meaningful change.

Q: How does the "absent applicable state law" carve-out work?
A: Sections 73-77-5 and 73-77-7(1) each open with "absent applicable state law." The AG read that to mean that where a board's enabling statute already specifies criminal-record or character criteria, those statute-level rules are the "applicable state law" that exempts the board from the Fresh Start Act's general restrictions. For the social-work board, § 73-53-13(d) supplied that applicable state law.

Q: What if the board's enabling statute is silent on criminal records?
A: Then the Fresh Start Act's restrictions would apply directly. The board would have to limit consideration to convictions "directly related" to the licensed occupation and could not use vague terms like "moral turpitude." This opinion applied only to a board with explicit criminal-record criteria in its enabling statute.

Q: Could a non-applicant really petition the board for a determination?
A: Yes. The AG read § 73-77-9 to apply to "an individual," whether or not the individual had filed an application. That makes the petition useful for someone considering whether to invest in education or training before applying.

Q: What "type" of response satisfies the 30-day deadline?
A: The AG said 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 30 days. The opinion left the form of that response to the board and did not spell out further requirements.

Citations and references

Statutes:

• Miss. Code Ann. § 73-77-1 et seq. (Fresh Start Act of 2019, SB 2781)
• Miss. Code Ann. § 73-77-5 (Disqualification limited to directly related convictions)
• Miss. Code Ann. § 73-77-7(1) (Prohibits vague terms; limits criminal-record review)
• Miss. Code Ann. § 73-77-9(1) (Petition right, 30-day response, $25 fee cap)
• Miss. Code Ann. § 73-53-13(d)(ii) (Social-work licensure: good moral character)
• Miss. Code Ann. § 73-53-13(d)(iv) (Social-work licensure: 10-year felony bar)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/B.Dilworth_January-30-2020-Fresh-Start-Act-of-2019.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OPINIONS DIVISION

January 30, 2020

Billy Dilworth
Executive Director
Mississippi State Board of Examiners for
Social Workers and Marriage & Family Therapists
Post Office Box 4508
Jackson, Mississippi 39296-4508

Re: Fresh Start Act of 2019

Dear Mr. Dilworth:

Attorney General Lynn Fitch has received your opinion request on behalf of the Mississippi State Board of Examiners for Social Workers and Marriage & Family Therapists ("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 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.

Section 73-53-13(d)(iv), Miss. Code Ann., requires an applicant seeking licensure to prove to the board's satisfaction, the "[a]bsence of conviction of a felony related to the practice of social work for the last ten (10) years." 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 set forth by the enabling statute is a factual determination to be made by the Board.

Question: 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?

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).

Section 73-53-13(d)(ii), Miss. Code Ann., requires an applicant seeking licensure to prove to the board's satisfaction, "[g]ood moral character." Based upon the Board's enabling statute, it is this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-7(1) of the Act. A determination of whether an applicant has met the qualifications as set forth by the enabling statute 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?

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
Special Assistant Attorney General

Attachment