When state Rep. Raymond Dehn applied this year to be an appointed member of the Minnesota Public Utilities Commission, he came across a surprising question on a government form: Had he ever been convicted of a felony?
Since 2009, it has been illegal for a public employer to ask such a question of applicants before they’re selected for an interview. And in 2013, the Legislature extended that “ban the box” law to cover private employers as well.
Dehn would know — he used his own teenage burglary conviction to help promote the 2013 measure as necessary criminal justice reform. “It was a little bit surprising when I saw it,” Dehn said of the felony question on his PUC application.
But what might appear at first glance to be a violation of state law is actually an unusual exception that was quietly implemented several years earlier — in 2004 — and one that may have been overlooked by legislators seeking to ban the box years later.
The Secretary of State’s office is required to ask people who apply to serve on state boards and commissions — from volunteer spots on advisory groups to the powerful Metropolitan Council — whether they have a felony conviction. Hundreds, if not thousands of people apply to the positions each year.
Dehn said he didn’t voice objections when he saw the felony question because his pending application for an appointment by the governor puts him in an “awkward situation.” That is, he was reluctant to complain about the process he was in the middle of. But Gov. Tim Walz, Secretary of State Steve Simon and others now say they’re hoping to repeal that 2004 provision they describe as inconsistent with the spirit of ban the box measures.
“The whole idea of ban the box was that we wouldn’t ask people about felonies in their background when they’re applying for a job,” Simon said. “If someone is among us and has left prison behind they should get a shot at these opportunities.”
How did it happen?
In 2009, Minnesota became the second state behind Hawaii to bar public employers from putting a criminal history checkbox on job applications. While DFLers controlled the Legislature, Republican Tim Pawlenty was governor. And when state lawmakers expanded that to cover private employers in 2013, Minnesota was the third state to do so. Now 35 states have some form of ban-the-box legislation and according to the National Employment Law Project, three-fourths of Americans live in a jurisdiction that does not allow a conviction question on applications.
The rationale behind ban the box is to ensure ex-offenders aren’t screened out by employers before they even get a chance to have an interview. It does not, however, prevent an employer public or private from asking about convictions later in the hiring process. Viewed as a criminal justice measure, it has been backed by powerful groups across the political spectrum, including former President Barack Obama, the American Civil Liberties Union and the conservative billionaires Charles and David Koch.
Minnesota employers have largely complied with the law. The state Department of Human Rights didn’t issue a single fine over the law in 2017 or 2018, the Duluth News Tribune reported in April.
There are exemptions in the law for positions that legally require some form of a background check, such as jobs at the Department of Corrections. But because of the 2004 law, exemptions also include positions on more than 200 boards and commissions, from the Acupuncture Advisory Council to the Sentencing Guidelines Commission as well as higher-profile jobs with the PUC and the Metropolitan Council.
People are appointed by the governor to the jobs, and their applications are public records. For instance, Minneapolis mayor Jacob Frey’s application last month to Walz’s Advisory Council on Climate Change says he has no felony convictions.
While many of the boards and commission jobs get only a small stipend or per diem, others, including the PUC, have annual salaries upwards of $100,000.
So how did the felony question on applications come to be? The statute that governs how appointments are made to boards and commissions dates to 1978, but the provision requiring a felony check was not in the original law.
It was only added in 2004 among many amendments to state election law requested by the secretary of state and county auditor. There does not appear to have been discussion of the felony box issue before it was approved by the House Government Operations and Veterans Affairs Committee.
Five years later, when the Legislature passed ban the box for state and local employment applications, no change was made to the application requirements for boards and commissions. It’s unclear if that was intentional.
Sen. Bobby Joe Champion, DFL-Minneapolis, said he was surprised to learn that the question was still being asked; he thought it was part of his 2009 bill. “Did I think it included that? Absolutely I thought it included that,” Champion said.
He also said that he is surprised agency heads hadn’t brought the matter to his attention.
“Because the guiding principal is still the same,” Champion said. “I’m surprised that they haven’t said anything, especially if we all believe that a person should not be perpetually punished.”
He said he wonders how many talented people didn’t even complete applications because they didn’t want their past crimes displayed on a public document.
Former Minneapolis Mayor R.T. Rybak, who lobbied for ban the box at the Legislature, speculated that the retention in statute of the felony question for boards and commissions was an oversight. “We spent a lot of time trying to include as many job categories as possible … so I’m almost sure the state would not have intentionally left out boards and commissions,” he said via email.
Simon, who was in the Legislature when the 2009 and 2013 measures passed, said he only became aware of the requirement to ask about felony convictions at boards and commissions after he was elected to Secretary of State in 2014. His office collects the applications for the jobs.
State officials also push for a change
However the felony checkbox managed to stick around, Simon said he hopes to get rid of it soon. He privately raised the idea with lawmakers in 2015, though no legislator introduced any bills to include boards and commissions applications under ban the box statutes.
Minnesota Human Rights Commissioner Rebecca Lucero, whose agency enforces ban the box, agreed with the Secretary of State’s office. She said her office first noticed the felony checkbox last year on applications for a council that plans the state’s annual Martin Luther King Jr. Day celebration.
Corrections Commissioner Paul Schnell, one of the Walz Administration’s leads on criminal justice reform, said he was surprised to learn the felony question was still being asked by the state.
“That is so bizarre. Especially when you think about the relevance. It’s crazy that we’re getting into those questions,” Schnell said. “If we’re in the second-chance business, we need to make sure we’re providing second chances and not excluding people, potentially excluding people, with those types of questions.
“I am so surprised.”
Walz also said he’d like to get rid of the felony question for applicants to boards and commissions. While he said marking “yes” on the felony question does not disqualify a job-seeker in his eyes, it could dissuade people from even applying. The DFLer said government should ensure those “barriers” aren’t in place. “It’s a benefit for the state, too, to have varied experiences on those boards and commissions,” he said.
Dehn, the lawmaker who applied to the PUC, received a full pardon from the state in 1982 and therefore could have answered “no” on the application. But he said he still noted his felony conviction on the state application since he’s been public about his convictions. While he said he didn’t want to “make a big deal of it” at the time, the felony question still “raised a flag.”
“Does it seem a little odd? Yeah I’d say it’s a little odd,” he said.
Correction: Hawaii was the first state to pass ban-the-box legislation in 1998. Minnesota was second in 2009. This story was changed to correct a statement that Minnesota’s law was first in the U.S.