Keith Treadway, Esq.

*1 Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and response.

*1 Your letter asks whether a political subdivision, under certain circumstances, may employ a person that has a felony record relating to a felony covered by Section 25-1-113. More specifically, you ask whether a political subdivision can employ such a person who had the charges non-adjudicated under Miss. Code Ann. Section 99-15-26 (as amended). Additionally, you ask if the political subdivision can hire a person with non-adjudicated charges, must the political subdivision wait until the conditional period prescribed under Section 99-15-26 is complete and the charges actually dismissed. Finally, you ask may a political subdivision hire a person who has had an arrest and/or conviction expunged.

*1 The relevant portion of the amended version of Section 25-1-113 which bars future or continued public employment states:

*1 (Emphasis added). Thus, on its face, the statute applies both to those convicted of a covered felony or those who have pled guilty to such charges. The non-adjudication process under Section 99-15-26 is commonly referred to as a conditional dismissal. This statute states in relevant part:

*1 Miss. Code Ann. Section 99-15-26 (as amended). Applicability of this statute is premised on a person entering a “plea” of guilty which the court then has discretion to accept or not. If the court withholds acceptance, the court may then place conditions on the person entering the plea and upon successful completion of the conditions, the court must then dismiss the charges. Miss. Code Ann. Section 99-15-26(4). The period for completion of conditions can extend up to a five-year period. Miss. Code Ann. Section 99-15-26(2). If the conditions for the conditional dismissal are met and the charges dismissed, the person may petition the court for expungement of the charge and related records. Miss. Code Ann. 99-15-26(5). However, the requirement for expungement is premised on a petition being filed requesting such relief.

*2 Because Section 25-1-113 applies to either convictions or pleas, a person with a covered felony who has merely been non-adjudicated under Section 99-15-26 would still fall within the employment bar. This is so because the person would have, by necessity, pled guilty to a felony. Thus, a political subdivision could not employ such a person during his conditional period. Even after dismissal, the fact of the guilty plea remains, and the bar would still apply. This fact notwithstanding, Section 99-15-26 does allow for expungement of the charges upon petition by the non-adjudicated person. Under Mississippi laws “[t]he effect of an expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted.” Miss. Code Ann. Section 99-19-71 (as amended); see also, Miss. Code Ann. Section 99-15-57 (making expungement available to persons who plead guilty within six months prior to Section 99-15-26 becoming effective.). Accordingly, if an expunction order is obtained, the person has all the rights afforded to him under the laws prior to his arrest. Thus, any employment bar under Section 25-1- 113 would be removed.

*2 In summary, a political subdivision may not hire a person who is currently completing the conditional phase of a non-adjudication nor a person who has merely had the charges dismissed under the non-adjudication procedures. However, if such a person successfully completed the non-adjudication process and takes the further step of seeking and obtaining an expungement, the expungement would remove the employment bar of Section 25-1-113. If this office may be of further assistance, do not hesitate to contact us.