The Arizona Attorney General’s Office concedes there is no state law or procedure for an application to challenge a denial of a fingerprint clearance card if the denial is based on how the Arizona Department of Public Safety interprets an out-of-state criminal conviction.
And while the Arizona Court of Appeals is set to weigh in on that problem for one 2019 applicant, the attorney general contends the applicant took the wrong state agency to court.
Arizona offers two types of fingerprint clearance cards. The first, called a Level 1 Card, is harder to get. The second, referred to as a Standard Card, is the type Sandra K. Starr applied for in 2019 to work as a Behavioral Health Technician.
Starr was denied a clearance card after a DPS employee labeled her 2002 conviction in Texas for “Abandoning or Endangering Child” as being equivalent to a high level felony of child abuse in Arizona. Such a crime put Starr in the absolutely barred category with murderers and rapists.
However, she argued to the Arizona Board of Fingerprinting that the Texas conviction was more equivalent to Arizona’s child neglect or endangerment statute, a much lower felony which made Starr eligible to apply for a good cause exemption.
The Board of Fingerprinting, Starr argued, had a legal obligation to ensure the DPS clerk “made the correct call” in determining the equivalency or classification of her Texas offense under Arizona’s criminal statutes. The Board could not surrender its independent decision-making to a DPS employee making “a split second decision,” she argued.
“Today, one cannot over-exaggerate the need of having a fingerprint card if you intend to work with people,” Starr’s appeal argues. “Not having a card will bar one from working in more than 50 different jobs and professions.”
The attorney general’s office admits there is no state law or DPS rule establishing a method for administratively challenging DPS’s classification of an out-of-state conviction. But such a challenge would not involve the Board of Fingerprinting, as “there is no legal mechanism that allows the Board to sit as an appellate body reviewing, much less changing or reversing, any DPS decision,” including the classification of an out-of-state conviction.
“While the Board and DPS both play a role in the fingerprint clearance card application process, different enabling statutes govern each agency and each agency operates and is funded separately from the other,” the attorney general argued. “Despite the fact that DPS made the decision that Starr disagrees with, Starr chose to sue the Board and not to sue DPS.”
Court records show Starr was a drug addict for more than 30 years during which she spent time in jail and prison. Around 2011, she began what he her attorney calls a “long pilgrimage to rehabilitation.” Those efforts included college, where Starr focused on substance abuse and addition. She also did volunteer work before taking a job in 2015 helping other addicts in their recovery.
That job did not require a clearance card, but in 2017 Starr applied with DPS for a clearance card in order to enter a nursing program. When DPS issued a notice of denial, Starr applied to the Fingerprinting Board for a good cause exception.
“Within 2-3 days the Board rejected her request. Ms. Starr then abandoned any thought of going to nursing school,” her appeal states.
Not to be discouraged, Starr earned an Associate’s degree in Applied Science in Addictions and Substance Use Disorders in 2019. By then, she had a job offer to work as a behavioral health technician. Which meant she needed a standard level clearance card.
DPS sent Starr a notice of denial in March 2019, referring to how her Texas conviction was classified. This time, Starr retained an attorney to assist in completing the application for a good cause exemption.
Her application -all 472 pages- was submitted to the Board on Oct. 28, 2019 with various documents, including court records, police reports, and letters of reference, required per the application.
The very next day, Starr’s application was rejected in a one page letter.
Starr’s attorney then asked the Board for a hearing, which was summarily denied in December 2019. Starr then filed an administrative appeal in January 2020 with the Maricopa County Superior Court.
Then in June 2020, the judge did something neither side saw coming – he dismissed Starr’s challenge, claiming she waived any right to appeal the 2019 denial of a clearance card because she never took any action after DPS denied her 2017 application.
The Arizona Court of Appeals is being asked to decide two separate matters, starting with whether the Maricopa County judge erred in ruling he did not have jurisdiction to hear Starr’s appeal based on her inaction of the 2017 denial.
The second issue is whether Starr’s right to appeal under the Administrative Review Act was violated when the Board of Fingerprinting refused to hear her challenge. And it is being closely watched by employers, job placement agencies, post-secondary education institutions, and of course job seekers.
In April the court of appeals ordered the parties to submit additional briefing about how an applicant can make a challenge to an out-of-state conviction classification if it’s not a responsibility of the Board and if DPS has no procedure for considering an objection.
A decision is expected this summer.