TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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:
OPINION :
:
of : No. 87-1203
:
JOHN K. VAN DE KAMP : JUNE 15, 1988
Attorney General :
:
ANTHONY S. DaVIGO :
Deputy Attorney General :
:
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THE HONORABLE LOUISE H. RENNE, CITY ATTORNEY, CITY AND COUNTY
OF SAN FRANCISCO, has requested an opinion on the following question:
Is a person whose felony conviction has been set aside pursuant to the Federal Youth
Corrections Act eligible for employment in California as a peace officer?
CONCLUSION
A person whose felony conviction has been set aside pursuant to the Federal Youth
Corrections Act is eligible for employment in California as a peace officer. However, the conviction
may be considered as a basis for an employment decision.
ANALYSIS
Section 5021, subsection (b), of the Federal Youth Corrections Act (tit. 18 U.S.C. § 5005
1
et seq.) provided:
1
Repealed by Public Law 98-473, title II, section 218(a)(8), October 12, 1984, 98 Statutes
2027. Where a youth offender whose offense preceded the date of repeal of the Act had been
granted or had qualified for a section 5021 certificate, it is immaterial that the act was
subsequently repealed. (Cf. United States v. Romero (D. NM, 1984) 596 F.Supp. 446, 448.)
"Where a youth offender has been placed on probation by the court, the court may
thereafter, in its discretion, unconditionally discharge such youth offender from probation
prior to the expiration of the maximum period of probation theretofore fixed by the court,
which discharge shall automatically set aside the conviction, and the court shall issue to
the youth offender a certificate to that effect."
The inquiry presented is whether an individual who was convicted of a felony in a federal court,
placed on probation, and unconditionally discharged from probation prior to the expiration of its
maximum period, may thereafter be employed in this state as a peace officer. Government Code
section 1029 provides in part as follows:
"(a) Except as provided in subdivision (b), (c), or (d), each of the following persons
is disqualified from holding office as a peace officer or being employed as a peace officer
of the state, county, city, city and county or other political subdivision, whether with or
without compensation, and is disqualified from any office or employment by the state,
county, city, city and county or other political subdivision, whether with or without
compensation, which confers upon the holder or employee the powers and duties of a peace
officer:
"(1) Any person who has been convicted of a felony in this state or any other state.
". . . . . . . . . . . . . . . . . . . . . . . .
"(b) Any person who has been convicted of a felony, other than a felony punishable
by death, in this state or any other state, or who has been convicted of any offense in any
other state which would have been a felony, other than a felony punishable by death, if
committed in this state, and who demonstrates the ability to assist persons in programs of
rehabilitation may hold office and be employed as a parole officer of the Department of
Corrections or the Department of the Youth Authority, or as a probation officer in a county
probation department, if he or she has been granted a full and unconditional pardon for the
felony or offense of which he or she was convicted. Notwithstanding any other provision
of law, the Department of Corrections or the Department of the Youth Authority, or a
county probation department, may refuse to employ any such person regardless of his or
her qualifications.
". . . . . . . . . . . . . . . . . . . . . . . . "
(Emphasis added.)
In 63 Ops.Cal.Atty.Gen. 591 (1980) we concluded that a person who has been convicted
of a felony in federal court, whose conviction has been set aside pursuant to section 5021 of title 18
of the United States Code, is not eligible for employment as a California peace officer. Specifically,
we determined, upon a comprehensive analysis, that the Legislature intended that in the absence of
a full and unconditional pardon, a person who has a felony conviction set aside under the federal
provision would nevertheless fall within the constraints of Government Code section 1029. (Id. at
2. 87-1203
596.) We have carefully reconsidered that analysis and find no basis for modifying our
characterization of legislative intent. On the contrary, it is noted that since the issuance and
publication of that opinion, the Legislature has twice amended in material respects the provisions
of Government Code section 1029, without effecting any change which would provide a basis for
such modification. (Stats. 1984, ch.387, § 1; Stats. 1985, ch. 468, § 1.) It must be presumed that
the interpretation set forth in that opinion had come to the attention of the Legislature, and if it were
contrary to the legislative intent that some corrective measure would have been adopted. (California
Correctional Officers' Assn. v. Board of Administration (1978) 76 Cal.App.3d 786, 794; Sonoma
County Bd. of Educ. v. Pub. Emp. Rel. Bd. (1980) 102 Cal.App.3d 689, 700; 67 Ops.Cal.Atty.Gen.
519, 522 (1984).)2
Two fundamental issues remain. The first concerns the power of the Congress to
supersede the determinations of a state regarding the qualifications of its peace officers. In 63
Ops.Cal.Atty.Gen. 591, supra, we focused on National League of Cities v. Usury (1976) 426 U.S.
833 for the proposition that the Tenth Amendment prohibited Congress from exercising its power
to force directly upon the state its choices as to how essential decisions regarding the conduct of
integral government functions are to be made. In that case, the court found that Congress could not
withdraw from the state the authority to make fundamental employment decisions with regard to the
carrying out of its basic function of furnishing public services, including police protection. We
expressed the view that the determination of qualifications for peace officers falls within such state
authority. (63 Ops.Cal.Atty.Gen., supra, 599.)
National League of Cities v. Usury, supra, 426 U.S. 833, was subsequently overruled
in Garcia v. San Antonio Metropolitan Transit Authority et al. (1985) 469 U.S. 528. Hence, we now
consider the second fundamental issue, whether the federal law did in fact preempt Government
Code section 1029, which forecloses categorically, with certain narrow exceptions, from
employment as a peace officer any person whose conviction has been set aside pursuant to the
Federal Youth Corrections Act.
2
A subsidiary issue neither posited nor considered in the prior opinion is the nature of a
"conviction" for purposes of Government Code section 1029. In Boyll v. State Personnel Board
(1983) 146 Cal.App.3d 1070, the court held that a conviction must include both the guilty plea or
verdict and a judgment entered thereon. (Id. at 1074.) Thus, where an applicant for a peace
officer position had pleaded guilty to a felony charge, and the court suspended further
proceedings without rendition of judgment or imposition of sentence, and following successful
completion of a rehabilitation program dismissed the criminal charge, section 1029 could not
operate as a bar. (Id. at 1075-1076.) While the term "conviction" in section 5021 of the Federal
Youth Corrections Act included a verdict, finding, or plea of guilty (or nolo contendere) and a
judgment (§ 5006(g)), the Act does provide an alternative procedure under which the court may
suspend the imposition of sentence and place the youth offender on probation. (§ 5010.) In such
a case, Government Code section 1029 would not constitute a barrier against employment as a
peace officer.
3. 87-1203
In Silkwood, etc. v. Kerr-McGee Corp., et al. (1984) 464 U.S. 238, 248, the Supreme
Court set forth the principles of federal preemption:
"As we recently observed in Pacific Gas & Electric Co. v. State Energy Resources
Conservation & Development Comm'n, 461 U.S. 190 (1983), state law can be pre-empted
in either of two general ways. If Congress evidences an intent to occupy a given field, any
state law falling within that field is pre-empted. Id., at 203-204; Fidelity Federal Savings
& Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982); Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947). If Congress has not entirely displaced state regulation over the
matter in question, state law is still pre-empted to the extent it actually conflicts with
federal law, that is, when it is impossible to comply with both state and federal law, Florida
Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or where the state
law stands as an obstacle to the accomplishment of the full purposes and objectives of
Congress, Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Pacific Gas Electric, supra, at
204."
(See also 63 Ops.Cal.Atty.Gen. 647, 655 (1980).) It remains to be determined whether Government
Code section 1029 "stands as an obstacle to the accomplishment of the full purposes and objectives"
of the Federal Youth Corrections Act. We conclude that it does.
There can be no doubt that one of the purposes of the Act was to facilitate employment
opportunities. In Doe v. Webster (D.C. Cir. 1979) 606 F.2d 1226, 1234-1240, the court summarized
the purposes of the Act:
"[The authors'] primary concern was that rehabilitated youth offenders be spared
the far more common and pervasive social stigma and loss of economic opportunity that
in this society accompany the 'ex-con' label. While the legislative history offers little
guidance as to the reasoning behind the drafters' choice of terminology, it is crystal-clear
in one respect: they intended to give youthful ex-offenders a fresh start, free from the stain
of a criminal conviction, and an opportunity to clean their slates to afford them a second
chance, in terms of both jobs and standing in the community. . . .
"Chief Judge Orie L. Phillips, of the United States Court of Appeals for the Tenth
Circuit, made the same point, stating that '. . . the Act does provide for the wiping out of
the conviction if the youth is discharged, rehabilitated, and behaves himself well after his
period of supervision. The purpose of that is to help him get a job and keep him from
having to be turned down by a prospective employer because of the fact that he has a
conviction.' Id. at 70. [3] And Chief Judge John J. Parker, of the United States Court of
Appeals for the Fourth Circuit, Chairman of the Committee, testified as to 'one feature in
3
The references are to the Hearings on S. 1114 and S. 2609 Before a Subcommittee of the
Senate Committee on the Judiciary, 81st Congress, 1st Session 7 (1949); Report of the Judicial
Conference of Senior Circuit Judges 19 (1946).
4. 87-1203
this bill which is very salutary and that is if the youth offender is reclaimed . . ., they can
strike out the sentence imposed on him and completely set aside his conviction so that he
will not have a criminal record staring him in the face.' Id. at 45.
"Accordingly, the various Circuits have consistently stressed both the rehabilitative
aspects of the Act and its purpose to provide youthful ex-offenders a fresh start free of the
economic and social disabilities attributable to a criminal conviction.
". . . . . . . . . . . . . . . . . . . . . . .
"The Youth Corrections Act was designed to break that chain, to give those young
people who have not yet matured into hardened criminals an opportunity to break out into
normal society, with jobs, opportunities, and freedom from the stigma of a criminal
record."
(And see United States v. Campbell (9th Cir. 1984) 724 F.2d 812.) Hence, Government Code
section 1029, which forecloses catergorically, with certain narrow exceptions, from employment as
a peace officer any person whose conviction has been set aside pursuant to the Federal Youth
Corrections Act, "stands as an obstacle to the full purposes and objectives" of that Act.
As one of the numerous legal barriers4 attendant upon conviction, therefore, Government
Code section 1029 has been superceded by the provisions of the federal Act.5 The court in Doe v.
Webster, supra, 606 F.2d at 1239, fn. 51, took particular note of legal barriers against government
employment:
". . . Private employers often avoid hiring applicants with criminal records, and
there are even more formidable barriers where public employment or entry into licensed
occupations is sought. The federal government . . ., every state, . . . and most
municipalities, . . . allow for the exclusion of ex-convicts from most regulated occupations.
Such licensing has been held to be a valid exercise of local police power."
Nevertheless, we are not aware of any case, state or federal, which has held that the
federal Act by implication prohibits an employer having knowledge of a conviction from taking that
4
An offender may, under the Act, be relieved of numerous civil and criminal disabilities (e.g.,
use of prior conviction as basis for enhancement, Tuten v. United States (1983) 460 U.S. 660; as
basis for firearms offense, United States v. Fryer (6th Cir. 1976) 545 F.2d 11; as basis for
deportation, Mestre Morera v. United States Immigration and Naturalization Service (1st Cir.
1972) 462 F.2d 1030; and numerous other disabilities, cf. Doe v. Webster, supra, 606 F.2d at
1233-1234, and United States v. Doe (1st Cir. 1984) 732 F.2d 229, 232).
5
Any implication to the contrary in 63 Ops.Cal.Atty.Gen., supra, 598-599, is herewith
disapproved.
5. 87-1203
fact into consideration. It has been held in this regard that an offender may not rely upon the Act
as a basis of concealment from prospective employers. As stated in United States v. Doe (11th Cir.
1984) 747 F.2d 1358, 1359, quoting from United States v. Doe, supra, 732 F.2d at 231:
"The legislative history of the Act reveals that section 5021(a) 'was not
contemplated as a method of concealing the fact of conviction from employers, but rather
as a way of opening up job opportunities to youth offenders in positions which, for reasons
of company policy, government regulation, or otherwise, would not be available for ex-
convicts.'"
Thus, concluded the court, ". . . we read the set-aside provision as eliminating any legal disabilities
that might flow from a conviction, but not as helping a youth offender conceal his past or lie to
prospective employers." (United States v. Doe, supra, at 232.) While other courts have concluded
that the Act requires expungement of the record of conviction and enables the offender to "legally
reply in the negative to any and all questions concerning his former conviction" (see Doe v. Webster,
supra, 606 F.2d at 1234, 1244, and cases cited, n. 66), we view the balanced approach adopted by
the court in United States v. Doe, supra, 231-232, as most consistent with the congressional text.
In any event it is assumed for purposes of this analysis that the state is aware of the
conviction, whether by virtue of an admission or otherwise. While Government Code section 1029
has been removed as a legal barrier, an employer is not prohibited by the Act from exercising its
own judgment respecting the fact of conviction as well, perhaps, as the circumstances surrounding
the conduct which gave rise to the conviction.
It is concluded that a person whose felony conviction has been set aside pursuant to the
Act is eligible for employment in this state as a peace officer. However, the conviction may be
considered as a basis for an employment decision.
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6. 87-1203