Thomas G. WitkopLaw Offices

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Expungement of criminal records and application for employment or educational institution

Expunging a criminal record in Maryland has become easier to accomplish and there are few reasons not to do it if it is possible (if you are not a United States citizen you should contact an immigration attorney to discuss what additional steps you should take before having your record expunged).

The question often comes up after your record has been expunged, what do I put on an employment application or if I'm applying for college, law school or otherwise. What I say below is merely my opinion. I have not tested this argument in court. I do not have authority other than what I show below so you may want to contact me or a lawyer before you rely on it completely.

How does one get in expungement? This is important for the legal analysis. The person with the criminal record applies to the court requesting an expungement. The state of Maryland through the prosecutor's office responds to the request and the court looks at the merits of the expungement petition. Assuming that the request is meritorious the court enters a COURT ORDER declaring that the matter is expunged. The court order part is very important in this analysis. Once you have the court order then your case is officially expunged. Once you have this court order what activity by others is prohibited regarding your expunged case?

Below is the Maryland statute regarding prohibitions once your case has been expunged:

Criminal Procedure Article
Section 10-109. Prohibited acts
(a) Applications for employment or admission. -- (1) Disclosure of expunged information about criminal charges in an application, interview, or other means may not be required:
(i) by an employer or educational institution of a person who applies for employment or admission; or

(ii) by a unit, official, or employee of the State or a political subdivision of the State of a person who applies for a license, permit, registration, or governmental service.

(2) A person need not refer to or give information concerning an expunged charge when answering a question concerning:
(i) a criminal charge that did not result in a conviction; or

(ii) a conviction that the Governor pardoned.

(3) Refusal by a person to disclose information about criminal charges that have been expunged may not be the sole reason for:
(i) an employer to discharge or refuse to hire the person; or

(ii) a unit, official, or employee of the State or a political subdivision of the State to deny the person's application.

(b) Penalties. --
(1) A person who violates this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $ 1,000 or imprisonment not exceeding 1 year or both for each violation.

(2) In addition to the penalties provided in paragraph (1) of this subsection, an official or employee of the State or a political subdivision of the State who is convicted under this section may be removed or dismissed from public service.

In my mind the above statute is quite clear that expunged information need not be disclosed nor can the employer or academic institution make inquiry about the underlying criminal charges. That being said from the statute this clearly applies only within the state of Maryland.

What if you live in Maryland and you are applying for work in Wyoming or applying for school in Florida? What if you have moved out of Maryland and are applying for work in Wyoming or school in Florida?

To answer that I believe the United States Constitution comes into play.

The full faith and credit clause, Article IV, Section 1 provides as follows:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

I would argue that Wyoming, Florida and any other United States jurisdiction would be required to give full faith and credit to the court order of expungement (judicial proceeding) as well as to the Maryland statute prohibiting certain activities (public acts). Teasing this out though the Walmart in Wyoming is clearly not a state but the University of Wyoming is a state school. Conversely, applying for a position at the Laramie County government is in my mind state activity but applying to a private school in Wyoming would not be.

What I'm trying to say is that full faith and credit clause, in my opinion, would only apply to government entities and not private entities. Applying to the Walmart in Wyoming, if they were asking if anything had ever been expunged I think you legally would need to answer yes unless you researched Wyoming law and saw that they had an expungement statute with similar prohibitions. Applying to law school in Wyoming I believe you would not need to disclose the expunged matter because the law school is a government entity.

Whether I am right or wrong in this analysis I think there could be a good faith basis not to reveal expunged matters on many applications. If the employer or academic institution were to call you out on it I think you could make a good faith argument that the Maryland statute is very broad, prohibits disclosing expunged matters, it was a judicial act and the other jurisdiction should recognize the authority of the state of Maryland.

Hope this helps, and call me with questions.

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