STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6780

January 4, 1994

ADMINISTRATIVE LAW:

Expunging administrative sanctions from registration records

1965 PA 213 provides that a circuit court may expunge the record of a criminal conviction and that if the court does so, the fact that there was a conviction may not be publicly disclosed.

1965 PA 213 does not require the Department of Commerce to expunge from its registration records the administrative sanctions imposed upon a person relating to conviction of a crime when the person subsequently obtains a court order setting aside the conviction; however, pursuant to section 3(5) of that act, if the Department of Commerce is made aware that a court has ordered the criminal conviction expunged, the Department is thereafter prohibited from disclosing information in those registration records which would reveal or disclose information regarding the expunged conviction.

Ms. Kathleen M. Wilbur

Director

Bureau of Occupational and Professional Regulation

Department of Commerce

Lansing, MI 48909-7518

You have asked a question which may be stated as follows:

According to your letter, your question arises in connection with an individual registered as a certified social worker under the provisions of the Occupational Code, MCL 339.101 et seq; MSA 18.425(101) et seq. The social worker was convicted of health insurance fraud, a criminal misdemeanor. Based upon this conviction, the Board of Examiners of Social Workers disciplined the social worker by imposing a civil fine. ⁽¹⁾ Subsequently, a court set aside the conviction under 1965 PA 213, MCL 780.621 et seq; MSA 28.1274(101) et seq. The social worker has now asked that the administrative sanctions, which are based upon and refer to the criminal conviction, be expunged from the registration records.

1965 PA 213 empowers a court to set aside the conviction of a person of a single crime. As originally enacted, the conviction could be set aside only if the crime were committed prior to the twenty-first birthday of the person. In 1982, the Legislature enacted amendatory 1982 PA 495 to permit a court to set aside the conviction of a person regardless of the age of that person. An application for expungement under the act must be filed with the court which entered the conviction and may not be filed until at least five years after the date of sentencing upon the conviction. 1965 PA 213, section 1(1) and (3), as amended by 1982 PA 495. The expungement is not intended to be automatic; the convicting court is permitted to enter an order setting aside the conviction only "[i]f the court determines that the circumstances and behavior of the applicant from the date of the applicant's conviction to the filing of the application warrant setting aside the conviction and that setting aside the conviction is consistent with the public welfare." 1965 PA 213, section 1(9), as amended by 1982 PA 495. Even if the court does make the necessary findings, the entry of the expungement order rests in the sound discretion of the court. Indeed, the act explicitly provides that "[t]he setting aside of a conviction under this act is a privilege and conditional and is not a right." Id.

Section 2(1) of 1965 PA 213, as amended by 1982 PA 495, provides:

Section 3 of 1965 PA 213, as added by 1982 PA 495 and amended by 1988 PA 11, provides:

The intent of the Legislature in enacting these provisions is manifest. Once an individual has met the statutory prerequisites, including the five year waiting period, and has persuaded the convicting court that it is in the public interest to set aside the conviction, the court may enter an order setting aside the individual's conviction. Upon the entry of such an order, "the applicant, for purposes of the law, shall be considered not to have been previously convicted" except for certain explicitly described purposes. (Emphasis added.) 1965 PA 213, section 2(1), as amended. Moreover, the Legislature made it a misdemeanor for a person other than the applicant to divulge, use, or publish information concerning such an expunged conviction if the person knows or should have known that the conviction had been set aside.

In describing the various purposes which constitute exceptions to this legislative mandate, the Legislature has not seen fit to include licensing activities by agencies within the executive branch of state government. This omission is particularly striking in light of the exception provided in section 3(2)(a), supra, which does permit the use of expunged convictions "in a licensing function conducted by an agency of the judicial branch of state government." (Emphasis added.) It is a well established canon of legislative construction that the expression of one thing implies the exclusion of others not expressed--"expressio unius est exclusio alterius." Taylor v Michigan Public Utilities Comm, 217 Mich 400, 402-403; 186 NW 485 (1922); Sebewaing Industries Inc v Village of Sebewaing, 337 Mich 530, 548; 60 NW2d 444 (1953). Thus, the Legislature's express exception permitting the use of such information in licensing matters within the judicial branch, and its omission of any similar exception for licensing activities within the executive branch, must be read as excluding the latter use from those permitted by the act.

In reaching this conclusion, it must be emphasized that nothing in 1965 PA 213 requires officers and employees of the Department of Commerce to affirmatively inquire as to whether a given criminal conviction has been set aside, even when such a conviction may form the sole basis of disciplinary action taken against a registrant. However, when a registrant subsequently brings an expungement to the attention of the Department, and provides adequate substantiation of that expungement, the provisions of 1965 PA 213, section 3(5), prohibiting the disclosure of information concerning that conviction become applicable and the Department is prohibited from divulging any information regarding the conviction.

It should also be emphasized that nothing in 1965 PA 213 requires the Department of Commerce to expunge from its files any records containing a reference to a conviction which has been set aside or any records concerning the administrative sanction imposed relating to that conviction. The proscription imposed by section 3(5) merely prohibits the divulging, using or publishing of information regarding the conviction. The fact that there was an administrative sanction may be disclosed along with the documents in which the sanction is recorded. However, information concerning the conviction that has been set aside must be deleted from those documents. ⁽²⁾ While it may be prudent for the Department, upon being advised of the setting aside of a conviction, to take appropriate steps to protect the conviction records from disclosure, the act does not require the actual expungement or destruction of those records.

Clearly, the Legislature has passed registration statutes to protect those members of the public who deal with persons engaged in certain occupations. Pursuant to such purpose, the Department of Commerce may continue to disclose the administrative sanction and the facts upon which it was based even though it cannot disclose the conviction. Moreover, the Legislature, in section 1(9) of 1965 PA 213, has provided for the protection of all members of the public concerning knowledge of the conviction since a court may set aside a conviction thereunder only if it finds that action to be "consistent with the public welfare."

It is my opinion, therefore, that 1965 PA 213 does not require the Department of Commerce to expunge from its registration records the administrative sanctions imposed upon a person relating to conviction of a crime when the person subsequently obtains a court order setting aside the conviction; however, pursuant to section 3(5) of that act, if the Department of Commerce is made aware that a court has ordered the criminal conviction expunged, the Department is thereafter prohibited from disclosing information in those registration records which would reveal or disclose information regarding the expunged conviction.

Frank J. Kelley

Attorney General