Current through all regulations passed and filed through September 16, 2024
The purpose of this rule is to provide
for the safety and well-being of students, and pursuant to sections
3319.39 and
3319.391 of the Revised Code,
set rehabilitation standards for those individuals with certain criminal
convictions seeking employment or currently employed by a district in a
position that does not require a license but who are subject to the
requirements of a criminal records check pursuant to section
3319.39 of the Revised Code.
(The provisions of this rule do not apply to school bus or school van
drivers).
(A)
The following terms are defined as they are used in the
rule:
(1)
"Applicant" means one who is under final consideration for
appointment or employment with a district in a position that does not require
an educator license issued by the State Board of Education under Chapter 3319
of the Revised Code.
(2)
"Employee" means a current employee of a district who
is not required to be licensed or certified, but who is subject to the
requirements of a background check pursuant to section
3319.391 of the Revised
Code.
(3)
"Criminal records check" has the same meaning as in
section 109.572 of the Revised
Code.
(4)
"District" means a school district as described in
Chapter 3311 of the Revised Code, educational service centers, community
schools, STEM schools, college preparatory boarding schools, county boards of
DD, chartered non-public schools, preschool programs, and any other future
school chartered by the department.
(5)
"Offense" means a
violation of a criminal section of the Revised Code, or any municipal ordinance
or law of this state, another state, or the United States that is substantially
equivalent to a violation of a criminal section of the Revised
Code.
(6)
"Absolute bar offense" means any offense in violation
of division (B)(1), (2), (3), or (4) of section
2919.22 of the Revised Code; a
violation of section 2903.01,
2903.02,
2903.03,
2903.04,
2903.11,
2903.12,
2905.01,
2905.02,
2905.05,
2907.02,
2907.03,
2907.04,
2907.05,
2907.06,
2907.07,
2907.21,
2907.22,
2907.23,
2907.25,
2907.31,
2907.32,
2907.321,
2907.322,
2907.323,
2911.01,
2911.02,
2911.11,
2911.12,
2919.12,
2923.161,
2925.02,
2925.03,
2925.04,
2925.05, or
2925.06 of the Revised Code; a
violation of section 2905.04 of the Revised Code as
it existed prior to July 1, 1996, a violation of section
2919.23 of the Revised Code that
would have been a violation of
2905.04 of the Revised Code as
it existed prior to July 1, 1996, had the violation been committed prior to
that date; felonious sexual penetration in violation of former section
2907.12 of the Revised
Code.
(7)
For the purposes of this rule, the term "conviction"
includes any determination of guilt resulting from a plea of guilty to or
finding of guilt by a jury or court of any violation of an
offense.
(8)
"Upon learning" means when first having knowledge of
either official results of a criminal records check or a guilty plea, finding
of guilt or conviction that has been verified through certified court or law
enforcement records.
(B)
No district shall
hire an applicant upon learning that he/she has been convicted of an absolute
bar offense.
(C)
A district shall release an employee from employment
upon learning that he/she has been convicted of an absolute bar offense. This
division shall not apply to any convictions that the district learned about
prior to the effective date of this rule.
(D)
No district shall
hire an applicant who has been convicted of an offense listed in division
(B)(1) of section 3319.39 of the Revised Code
unless all of the following conditions are met:
(1)
The offense is
not one of the absolute bar offenses defined in division (A)(6) of this
rule.
(2)
At the time of the offense, the victim of the offense
was not a person under eighteen years of age or enrolled as a student in a
district;
(3)
The applicant can demonstrate rehabilitation by meeting
the following rehabilitation criteria:
(a)
If the offense
was a felony, at least five years have elapsed since the applicant was fully
discharged from imprisonment, probation, or parole or the applicant has had the
record of his/her conviction sealed or expunged pursuant to section
2953.32 of the Revised Code or
any municipal ordinance or law of this state, another state or the United
States that is substantially equivalent to section
2953.32 of the Revised
Code.
(b)
If the offense was a misdemeanor, at least five years
have elapsed since the date of conviction or the applicant has had the record
of his/her conviction sealed or expunged pursuant to section
2953.32 of the Revised Code or
any municipal ordinance or law of this state, another state or the United
States that is substantially equivalent to section
2953.32 of the Revised
Code.
(c)
The applicant is not a repeat offender. A repeat
offender is an applicant who has been convicted of any of the offenses listed
in division (B) (1) of Section
3319.39 of the Revised Code two
or more times in separate criminal actions. The following factors shall be
considered when determining an applicant's repeat offender status:
(i)
A sealed or
expunged conviction shall not be counted; and
(ii)
Convictions
resulting from or connected with the same act, or resulting from offenses
committed at the same time shall be counted as one conviction.
(d)
Upon
the request of the hiring school district, the applicant shall provide written
confirmation of his/her efforts at rehabilitation, the results of those
efforts, and whether the terms of his/her probation, parole or deferred
adjudication have been completed. Written confirmation may include a statement
by a court, parole officer, probation officer, treatment provider and/or
counselor that the applicant has been rehabilitated. Such written confirmation
will not be conclusive evidence that the applicant has met the other
rehabilitation criteria listed in this rule.
(e)
A reasonable
person would conclude that the applicant's hiring or licensure will not
jeopardize the health, safety, or welfare of the persons served by the
district. Evidence that the applicant's hiring or licensure will not jeopardize
the health, safety, or welfare of the persons served by the district shall
include, but not be limited to the following factors:
(i)
The nature and
seriousness of the crime;
(ii)
The extent of
the applicant's past criminal history;
(iii)
The age of the
applicant when the crime was committed;
(iv)
The amount of
time that has elapsed since the applicant's last criminal
activity;
(v)
The conduct and work history of the applicant before
and after the criminal activity;
(vi)
Whether the
applicant has completed the terms of his/her probation or deferred
adjudication;
(vii)
Evidence of rehabilitation;
(viii)
Whether the
applicant fully disclosed the crime to the hiring school
district;
(ix)
Whether employment or licensure will negatively impact
the health, safety, or welfare of the school community;
(x)
Any other factors
the district considers relevant.
(E)
It is
the applicant's duty to provide written evidence upon applicant for employment
that the conditions specified in paragraph (C) of this rule are met. If the
applicant fails to provide such evidence or if the district determines that the
proof offered is inconclusive or does not establish proof of rehabilitation,
the applicant shall not be hired. Any doubt shall be resolved in favor of
protecting the persons served by the district.
(F)
This rule is
applicable to records of convictions that have been sealed pursuant to section
2953.32 of the Revised Code or
any municipal ordinance or law of this state, another state, or the United
States that is substantially equivalent to section
2953.32 of the Revised Code. For
the purposes of this rule, a sealed conviction includes a conviction that has
been expunged pursuant to a court order.
(G)
A conviction of
an offense listed in division (B)(1) of section
3319.39 of the Revised Code
shall not prevent an applicant's hiring if the applicant has been granted an
unconditional pardon for the offense pursuant to Chapter 2967 of the Revised
Code or the conviction or guilty plea has been set aside pursuant to law. For
the purposes of this rule, unconditional pardon includes a conditional pardon
with respect to which all conditions have been performed or have
transpired.
(H)
A district maintains the discretion whether to employ
or retain in employment an individual who has been deemed rehabilitated
pursuant to this rule.
(I)
As a condition of initial or continued employment
pursuant to the requirements of this rule, the district may request the
applicant or employee to be evaluated by a licensed provider (e.g. physician,
psychologist, psychiatrist, independent social worker, professional counselor,
chemical dependency counselor, etc.) and/or successfully complete a recognized
and/or certified treatment program relevant to the nature of the conviction.
(Unless otherwise specified in an employee contract, labor agreement, or other
similar agreement, the employee or applicant shall bear all direct and
associated costs of the evaluation and treatment program.) Failure on the part
of an applicant or employee to comply with the district's request pursuant to
this paragraph may be considered by the district as a factor against initial or
continued employment.
(J)
Prior to rendering a decision on employment, the
district shall provide an opportunity for a meeting to an employee, if
requested by the individual, so that he/she may provide evidence of
rehabilitation pursuant to the requirements of this rule.
(K)
Thorough
documentation of the district's proceedings and decision on employment shall be
maintained in the district's files.
(L)
The decision of
the district on whether to employ or continue to employ an individual pursuant
to the requirements of this rule cannot be appealed to the Ohio department of
education or state board of education.
Replaces: 3301-20-03
