84-947.

Individual with criminal conviction; submit preliminary application; occupational board; duties; determination; appeal; fee.

(1) The fundamental right of an individual to pursue an occupation includes the right of an individual with a criminal history to obtain an occupational license, government certification, or state recognition of the individual's personal qualifications.

(2)(a) An individual who has a criminal conviction under the laws of Nebraska or any other jurisdiction may submit to the appropriate occupational board a preliminary application for an occupational license, government certification, or state recognition of the individual's personal qualifications for a determination as to whether the individual's criminal conviction would disqualify the individual from obtaining the occupational license, government certification, or state recognition of the individual's personal qualifications from that occupational board. The preliminary application may be submitted at any time, including prior to obtaining required education or paying any fee, other than the fee for the preliminary application under subsection (9) of this section.

(b) The individual may include with the preliminary application additional information about the individual's circumstances at the time of the application, mitigating factors, and other evidence of rehabilitation, including:

(i) The age of the individual when the individual committed the offense;

(ii) The time elapsed since the offense;

(iii) The circumstances and nature of the offense;

(iv) The completion of the criminal sentence;

(v) The completion of, or active participation in, rehabilitative drug or alcohol treatment or individual counseling;

(vi) Testimonials and recommendations, which may include a progress report from the individual's probation or parole officer;

(vii) Other evidence of rehabilitation;

(viii) Education and training;

(ix) Employment history;

(x) Employment aspirations;

(xi) Family responsibilities at the time of the application;

(xii) Whether the individual is required to be bonded in the occupation; and

(xiii) Any other information the individual deems appropriate.

(3) Upon receipt of a preliminary application under subsection (2) of this section and a fee if required under subsection (9) of this section, the appropriate occupational board shall make a determination of whether the individual's criminal conviction would disqualify the individual from obtaining an occupational license, government certification, or state recognition of the individual's personal qualifications from that occupational board in accordance with subsection (4) of this section. In making such determination, an individual's criminal history disqualifies the individual from obtaining an occupational license, government certification, or state recognition of the individual's personal qualifications only if:

(a) The individual's conviction directly and specifically relates to the duties and responsibilities of the occupation;

(b) The individual obtaining such license, certification, or state recognition would pose a direct and substantial risk to public safety because the individual has not been rehabilitated, as evidenced by information described in subdivision (2)(b) of this section, to safely perform the duties and responsibilities of the occupation; and

(c) Beginning January 1, 2025, the individual has a potentially disqualifying conviction.

(4) In determining whether an individual's criminal history is disqualifying under subsection (3) of this section, the occupational board shall only make an adverse determination after:

(a) The executive director or employee designee of the occupational board issues a preliminary adverse determination after completing the following actions:

(i) Providing an opportunity for an informal meeting with the individual, which shall be held in-person, by remote video, or by teleconference within sixty days after receiving an application for consideration. The individual shall be allowed to include character witnesses at such informal meeting. The executive director or employee designee shall not make an adverse determination based on an individual's decision not to attend an informal meeting or not to include character witnesses; and

(ii) Issuing and submitting a written preliminary determination to the appropriate occupational board for consideration and ratification within sixty days after receiving the preliminary application for consideration or after the informal meeting, whichever is later. A preliminary adverse decision shall not become final without consideration and ratification by the appropriate occupational board; and

(b) The occupational board ratifies the preliminary adverse determination and issues a final adverse determination in writing within ninety days after the issuance of the preliminary adverse determination.

(5) The determination of the occupational board shall include findings of fact and conclusions of law, including clear and convincing evidence for any adverse determination made by the occupational board. If the occupational board determines that the individual's criminal conviction would disqualify the individual, the occupational board may advise the individual of any action the individual may take to remedy the disqualification. If the occupational board finds that the individual has been convicted of a subsequent criminal conviction, the occupational board may rescind a determination upon finding that the subsequent criminal conviction would be disqualifying under subsection (3) of this section.

(6) An individual shall not be required to disclose nor shall consideration be given in a determination under this section to the following:

(a) A deferred adjudication, participation in a diversion program, or an arrest not followed by a conviction;

(b) A conviction of an offense for which no sentence of incarceration is statutorily authorized;

(c) A conviction that has been sealed, annulled, dismissed, expunged, set aside, or pardoned;

(d) A juvenile adjudication;

(e) A nonviolent misdemeanor unless it is for an offense expressly listed in section 84-941.01;

(f) A conviction older than three years for which the individual was not sentenced to a term of incarceration; or

(g) A conviction for which the individual's incarceration ended more than three years before the date of the application, other than a potentially disqualifying conviction.

(7) The individual may appeal the determination of the occupational board. The appeal shall be in accordance with the Administrative Procedure Act.

(8) An individual shall not file another preliminary application under this section with the same occupational board within two years after the final decision on the previous preliminary application, except that if the individual has taken action to remedy the disqualification as advised by the occupational board, the individual may file another preliminary application under this section with the same occupational board at any time after six months following the final decision on the previous preliminary application.

(9) An occupational board may charge a fee not to exceed one hundred dollars for each preliminary application filed pursuant to this section. The fee is intended to offset the administrative costs incurred under this section. If an individual's income at the time of the preliminary application is at or below three hundred percent of the federal poverty level, such individual may submit with the preliminary application a request for a waiver of the fee along with supporting documentation to show such individual's income. If the occupational board determines that the individual's income is at or below three hundred percent of the federal poverty level, the occupational board shall waive the fee.