Police Agency Can Inquire As To Applicant’s Expunged Criminal Conviction

When Jimmy Macon was arrested for DUI after he began employment as a deputy jailer with the Shelby County, Tennessee Sheriff’s Department, the Department learned that in 1993, long before he began work for the County, Macon had pled guilty to a felony drug charge of manufacturing, delivery and possession of a controlled substance. Macon’s conviction was expunged in 1999.

The County then began examining the security investigation statement Macon completed with his application for employment. On the application, Macon answered “no” to the question of whether he had ever been convicted of a felony.

The County terminated Macon for dishonesty. When the County’s Civil Service Merit Board upheld the termination, Macon appealed to the Tennessee Court of Appeals.

Macon argued that under Tennessee statutes, a prospective employer was prohibited from inquiring as to expunged criminal convictions. Macon also contended that because his conviction was expunged, he had the right to deny ever being convicted of a felony.

The Court rejected Macon’s arguments. The Court found there to be an “absence of any Tennessee statute addressing the issue. We find no authority for prohibiting law enforcement agencies from inquiring into the expunged records of applicants, one of them requiring applicants to answer such inquiries truthfully and completely. Consequently, we find no basis for concluding that the Sheriff’s Department could not inquire into Macon’s expunged records.

“We next consider whether Macon had the right to decline to disclose his expunged conviction to the Sheriff’s Department and whether the Board could consider Macon’s admission of a non-disclosed expunged record in making its termination decision. Considering the limited language of the expungement statutes, we must conclude that Macon did not have the right to refrain from disclosing his expunged conviction in response to the Department’s lawful inquiry, and that the Board’s consideration of Macon’s admission of an expunged conviction was proper.”

Macon v. Shelby County Government Civil-Service Merit Board, 2009 WL 3064877 (Tenn. App. 2009).

This article appears in the December 2009 issue