Chapter 3301-20 Standards for Employment of Individuals With Criminal Convictions

3301-20-01 Employment of individuals in positions that require a license and licensure of individuals with certain criminal convictions or other alternative dispositions.

The purpose of this rule is to ensure the safety and well-being of students, and, pursuant to sections 3319.39 and 3319.31 of the Revised Code, establish rehabilitation standards for those individuals with certain criminal convictions and other alternative dispositions seeking employment with a district for a position that requires a license issued by the state board of education, those currently employed by a district in a position that requires a license issued by the state board of education, and those seeking or currently holding licensure by the state board of education. The provisions of this rule apply to teachers, substitutes, educational aides, holders of pupil activity supervisor permits, and any other position which requires a license issued by the state board of education.

(A) The following terms are defined as they are used in this rule:

(1) "Applicant" means one of the following:

(a) One who is under final consideration for appointment or employment in a position that requires a license issued by the state board of education. An "applicant" does not include a person currently employed by a district in a position that requires a license issued by the state board of education who is under consideration for a different position with the same district; or

(b) A person applying for an initial license, certificate, or permit described in Chapter 3319. or in division (B) of section 3301.071 or in section 3301.074 of the Revised Code.

(2) "Educator" means a person holding any license, certificate, or permit described in Chapter 3319. or in division (B) of section 3301.071 or in section 3301.074 of the Revised Code.

(3) "Criminal records check" has the same meaning as section 109.572 of the Revised Code.

(4) "District" means a school district as described in section 3311.01 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) "State board" means the Ohio state board of education as defined in section 3301.01 of the Revised Code.

(6) "Superintendent" means the superintendent of public instruction and his/her designee as defined in section 3301.13 of the Revised Code.

(7) "Department" means the Ohio department of education as defined in section 3301.13 of the Revised Code.

(8) "License" means the same as the term license as defined in division (A) of section 3319.31 of the Revised Code.

(9) "Upon learning" means when first having knowledge of either official results of a criminal background check or a guilty plea, finding of guilt or conviction that has been verified through certified court or law enforcement records.

(10) "Absolute bar offense" means any offense listed in division (C) of section 3319.31 of the Revised Code.

(11) "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.

(12) For the purposes of this rule, the term "conviction" or "convicted" includes any determination of guilt resulting from a plea of guilty to or a finding of guilt by a jury or court of any violation of an offense.

(B) No district shall employ, the state board shall not issue a license to, and the superintendent shall not enter into a consent agreement with an applicant or educator upon learning that he/she has been convicted of any absolute bar offense.

(C) The state board shall revoke an educator's license upon learning that he/she has been convicted of any violation of any absolute bar offense. If the state board intends to deny or revoke a license pursuant to this paragraph, the state board shall act in accordance with division (C) of sections 3319.31 and 3319.311 of the Revised Code and Chapter 3301-73 of the Administrative Code.

(D) If an educator has been convicted of any offense, other than an absolute bar offense, the state board shall act in accordance with sections 3319.31 and 3319.311 of the Revised Code and Chapter 3301-73 of the Administrative Code. If the educator satisfies all terms and conditions of a consent agreement or state board adopted resolution pertaining to the educator, he/she shall be deemed rehabilitated with regard to the specific offense addressed in the consent agreement or resolution for purposes of future employment. A district maintains the discretion whether to employ an educator who has been deemed rehabilitated under this paragraph and the state board reserves the right to institute further formal proceedings based upon other violations of section 3319.31 of the Revised Code, whether occurring before or after the effective date of the consent agreement or a state board adopted resolution.

(E) No district shall employ, the state board shall not issue an initial license to, and the superintendent shall not enter into a consent agreement with an applicant who has previously been convicted of an offense listed in division (B)(1) of section 3319.39 of the Revised Code or section 3319.31 of the Revised Code unless all of the following conditions are met:

(1) The conviction is not one of the absolute bar offenses defined in paragraph (A)(10) 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 or section 3319.31 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;

(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; and

(iii) Convictions of two or more misdemeanor theft related convictions as defined in sections 2913.02 , 2913.03 , 2913.04 , 2913.11 and 2913.51 of the Revised Code shall be counted as one conviction.

(d) The applicant provides 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 activity;

(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 activity of the applicant before and after the criminal activity;

(vi) Whether the applicant has completed the terms of his probation or deferred adjudication;

(vii) Evidence of rehabilitation;

(viii) Whether the applicant fully disclosed the crime to the state board, the department and the district;

(ix) Whether employment or licensure will have a negative impact on the local education community;

(x) Whether employment or licensure will have a negative impact on the state-wide education community; and

(xi) Any other factors the state board, district, or superintendent considers relevant.

(F) It is the applicant's duty to provide written evidence upon application for employment or licensure that the conditions specified in paragraph (E) of this rule are met. If the applicant fails to provide such evidence or if the district or the state board determines that the proof offered by the applicant is inconclusive or does not establish proof of rehabilitation, the applicant shall not be hired and the license shall not be issued. Any doubt shall be resolved in favor of protecting the persons served by the district. If the state board intends to deny a license based on the criteria specified in paragraph (E) of this rule not being met, the state board, through the superintendent, shall notify the applicant and afford the applicant the opportunity to request an administrative hearing under section 3319.31 and Chapter 119. of the Revised Code.

(G) 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 purposes of this rule, a sealed conviction includes a conviction that has been expunged pursuant to a court order.

(H) A conviction of an offense listed in division (B)(1) of section 3319.39 of the Revised Code or section 3319.31 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 purposes of this rule, unconditional pardon includes a conditional pardon with respect to which all conditions have been performed or have transpired.

(I) If an applicant or educator has been granted a judicial finding of eligibility for intervention in lieu of conviction under section 2951.041 of the Revised Code, or has agreed to participate in a pre-trial diversion program under section 2935.36 of the Revised Code, or a similar diversion program under rules of a court, for any offense listed in division (B)(2) of section 3319.31 or division (C) of 3319.31 of the Revised Code, the state board shall act in accordance with sections 3319.31 and 3319.311 of the Revised Code and Chapter 3301-73 of the Administrative Code.

(J) This rule is promulgated under the state board and department of education's rule-making authority under section 3319.31 , division (E) of section 3319.311 , and section 3319.39 of the Revised Code.

(K) Thorough documentation of the district's proceedings and decision on employment shall be maintained in the district's files.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.39
Rule Amplifies: 3319.291 , 3319.31 , 3319.311 , 3319.39
Prior Effective Dates: 10/1/94; 2/9/04, 08/27/2009

3301-20-02 Circumstances upon which individuals with certain convictions may participate in the ohioreads program.

(A) Except as provided in section 3301.88 of the Revised Code, an individual seeking participation in the ohioreads program who has been convicted of or plead guilty to a violation of section 2903.13(assault) , 2913.02(theft) , 2903.16 (failing to provide for functionally impaired), or 2903.21(menacing) of the Revised Code may be considered for participation as a volunteer in the program if all of the following conditions are met:

(1) The offense was a misdemeanor.

(2) The victim of the offense was not a person under eighteen years of age.

(3) At least five years have elapsed since the individual was fully discharged from imprisonment, probation, and parole, or the individual has had the record of his conviction sealed pursuant to section 2953.32 of the Revised Code.

(4) The individual provides written confirmation by a court, his parole officer, and/or counselor that the individual has been rehabilitated.

(5) The individuals considering the volunteer are persuaded that the volunteer's participation will not jeopardize in any way the health, safety, or welfare of the persons served by OhioReads program. The following factors must be considered in determine if an individual will jeopardize the health and safety of an individual in the program:

(a) The individual's age at the time of the offense.

(b) The age and ability of the victim, including whether the victim is an individual with physical or mental disabilities.

(c) The nature and seriousness of the offense.

(d) The circumstances under which the offense was committed.

(e) The degree to which the individual participated in the offense.

(f) The time elapsed since the individual was fully discharged from imprisonment, probation, or parole.

(g) The likelihood that the circumstances leading to the offense will recur.

(h) Whether the individual is a repeat offender. "Repeat offender" means a person who has been convicted of or plead guilty to the commission of any of the offenses listed in Revised Code section 3301.88 , two or more times in separate criminal actions. Convictions or guilty pleas resulting from or connected with the same act, or resulting from offenses committed at the same time, shall be counted as one conviction or guilty plea.

(i) The extent to which the position sought for provides an opportunity for the commission of an offense listed in Revised Code section 3301.88 .

(j) The individual's employment record.

(k) The individual's efforts at rehabilitation and the result of those efforts.

(l) Whether any criminal proceedings are pending against the individual.

(m) Any other factors the program considers relevant.

(B) It is the individual's duty to provide written proof that the conditions specified in paragraph (A) of this rule are met. If the individual fails to provide such proof or if the ohioreads program determines that the proof offered by the individual is inconclusive, the individual shall not participate. Any doubt shall be resolved in favor of protecting the persons served by the program.

(C) This rule is applicable to records of convictions that have been sealed pursuant to section 2953.32 of the Revised Code when the information contained in those sealed records bears a direct and substantial relationship to the position sought.

R.C. 119.032 review dates: 06/13/2014 and 06/13/2019
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3301.88
Rule Amplifies: 3301.88
Prior Effective Dates: 2/21/2000

3301-20-03 Employment of non-licensed individuals with certain criminal convictions.

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 with a district for a position that does not require a license and those individuals 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 3319.391 of the Revised Code. (The provisions of this rule do not apply to school bus or school van drivers.)

The rule establishes offenses for which employment and a determination of rehabilitation of a non-licensed individual for a position within a school are expressly forbidden and sets forth conditions under which a determination of rehabilitation is possible.

(A) Definitions:

(1) "Applicant" means one who is under final consideration for appointment or employment in a position with a district that does not require an educator license.

(2) "Criminal records check" has the same meaning as in section 109.572 of the Revised Code. For the purposes of this rule, "date of criminal records check" shall mean the date of receipt of the results of a background check requested by a district, which shall be time-stamped by the district on the date of receipt by the district.

(3) "District" means a school district as described in section 3311.01 of the Revised Code, a municipal school district as described in section 3311.71 of the Revised Code, an educational service center, a community school, a county MR/DD, a chartered non-public school, or a preschool program.

(4) "Employee" means a current employee of a school district who is not required to be licensed or certificated, but who is subject to the requirements of a background check pursuant to section 3319.391 of the Revised Code.

(5) "Offense" for the purposes of this rule means an offense in division (B)(1) of section 3319.39 and of the Revised Code and includes any municipal ordinance, law of this state, another state, or the United States that is substantially equivalent to one of the offenses referred to in division (B)(1) of section 3319.39 of the Revised Code.

(6) "Non-rehabilitative offense" means a criminal offense that would prohibit a district from hiring or continuing employment of such an individual, and are the following:

(a) Sexually-oriented offenses: sections 2907.02(rape) , 2907.03 (sexual battery), 2907.04 (unlawful sexual conduct with a minor), 2907.05 (gross sexual imposition), 2907.06 (sexual imposition), 2907.07(importuning) , 2907.21 (compelling prostitution), 2907.22 (promoting prostitution), 2907.23(procuring) , 2907.25 (prostitution; after positive HIV test), 2907.31 (disseminating matter harmful to juveniles), 2907.32 (pandering obscenity), 2907.321 (pandering obscenity involving a minor), 2907.322 (pandering sexually oriented matter involving a minor), or 2907.323 (illegal use of a minor in nudity-oriented material or performance) of the Revised Code or a violation of former section 2907.12 (felonious sexual penetration) of the Revised Code.

(b) Child-related violent offenses: sections 2905.01(kidnapping) , 2905.02(abduction) , 2905.05 (criminal child enticement), 2919.23 (interference of custody) of the Revised Code that would have been a violation of section 2905.04 (child stealing) of the Revised Code as it existed prior to July 1, 1996, had the violation been committed prior to that date, divisions (B)(1), (2), (3), or (4) of section 2919.22 (endangering children) of the Revised Code.

(c) Violent offenses: sections 2903.01 (aggravated murder), 2903.02(murder) , 2903.03 (voluntary manslaughter), 2903.04 (involuntary manslaughter) of the Revised Code.

(d) "Other violence-related offenses," which mean a violation of the following sections that occurred either within twenty years prior to the date of the current application for a position with the district or, for a current employee of a district, within twenty years prior to the date of the current criminal records check: 2903.11 (felonious assault), 2903.12 (aggravated assault), 2911.01 (aggravated robbery), 2911.02(robbery) , 2911.11 (aggravated burglary), or 2923.161 (improper discharge firearm at or into habitation; school-related offenses) of the Revised Code; 3716.11 (placing harmful objects in food/confection), 2919.12 (unlawful abortion) of the Revised Code.

(e) "Drug offenses," which mean a violation of the following sections that occurred either within ten years prior to the date of the current application for a position with the district or, for a current employee of a district, within ten years prior to the date of the current criminal records check: sections 2925.02 (corrupting another with drugs), 2925.03 (trafficking in drugs), 2925.04 (illegal manufacture of drugs or cultivation of marihuana), 2925.05 (funding of drug or marihuana trafficking), 2925.06 (illegal administration or distribution of anabolic steroids) of the Revised Code.

(f) "Theft offense," which means a violation of section 2911.12(burglary) of the Revised Code that occurred either within ten years prior to the date of the current application for a position with the district or, for a current employee of a district, within ten years prior to the date of the current criminal records check.

(g) "Other offenses," which mean a violation of the following sections that occurred either within five years prior to the date of the current application for a position with the district, or for a current employee of a district, within five years prior to the date of the current criminal records check: 2903.13(assault) , 2903.16 (failing to provide for a functionally impaired person), 2903.21 (aggravated menacing), 2903.34 (patient use or neglect), 2907.08(voyeurism) , 2907.09 (public indecency), division (A) of section 2919.22 (endangering children), 2919.24 (contributing to unruliness or delinquency of a child), 2919.25 (domestic violence), 2923.12 (carrying concealed weapons), 2923.13 (having weapons while under disability), 2925.11 (possession of a controlled substance that is not a minor drug possession offense) of the Revised Code.

(B) No district shall employ an applicant upon learning that he/she has pled guilty to, been found guilty by a jury or court of, or convicted of any violation of a non-rehabilitative offense as listed in paragraph (A)(6) of this rule. In addition, the district shall release an employee from employment upon learning that he/she has pled guilty to, been found guilty by a jury or court of, or convicted of any violation of a non-rehabilitative offense as listed in paragraph (A)(6) of this rule. Likewise, a district shall release from employment an individual if the results of a criminal records check indicate that, pursuant to this rule, the applicant does not qualify for employment.

(C) Pursuant to division (B)(2) of section 3319.39 of the Revised Code, a district may employ an applicant conditionally until the criminal records check required by section 3319.39 of the Revised Code is completed and the district receives the results of the criminal records check. If the results of the criminal records check indicate that, pursuant to this rule, the applicant does not qualify for employment, the district shall release the applicant from employment.

(D) A district maintains the discretion whether to employ or retain in employment an individual who has been deemed rehabilitated pursuant to this rule. A district may employ an applicant or continue to employ an individual that has previously pled guilty to, been found guilty by a jury or court of, or convicted of an offense listed in division (B)(1) of section 3319.39 of the Revised Code, if all of the following conditions for rehabilitation are met:

(1) The offense is not a non-rehabilitative offense as listed in paragraph (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 or employee provides written confirmation of his/her efforts at rehabilitation and the results of those efforts. Written confirmation may include a statement by a court, parole officer, probation officer and/or counselor, or another source as approved by the district that the applicant or employee has been rehabilitated.

(4) A reasonable person would conclude that the applicant's hiring or the retention of the employee would not jeopardize the health, safety, or welfare of the persons served by the district, based upon information pertinent to the following factors:

(a) The nature and seriousness of the crime;

(b) The extent of the applicant or employee's past criminal activity;

(c) The age of the applicant or employee when the crime was committed;

(d) The amount of time elapsed since the applicant or employee's last criminal activity;

(e) The conduct and work activity of the applicant or employee before and after the criminal activity;

(f) Whether the applicant or employee has completed the terms of his probation or deferred adjudication;

(g) Evidence of rehabilitation;

(h) Whether the applicant fully disclosed the crime to the district;

(i) Whether employment could have a negative impact on the local education community;

(j) Whether employment could have a negative impact on the state-wide education community;

(k) Any other factor the district considers relevant.

(E) It is the applicant or employee's duty to provide written evidence that the conditions specified in paragraph (D) of this rule are met. If the applicant or employee fails to provide such evidence or if the district determines that the proof offered by the applicant or employee is inconclusive or does not establish proof of rehabilitation, the applicant shall not be hired or the employee shall be released from employment. Any doubt shall be resolved in favor of protecting the persons served by the district.

(F) Except as otherwise specified in this rule, the provisions of this rule are also 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.

(G) A plea of guilty to, a finding of guilt by a jury or court of, or 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 or the retention of an employee if the applicant or employee 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 purposes of this rule, "unconditional pardon" includes a conditional pardon with respect to which all conditions have been performed or have transpired.

(H) 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.

(I) 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.

(J) The decision of the district on whether to employ or continue to employ an individual pursuant to the requirements of this rule can not be appealed to the Ohio department of education or state board of education.

(K) This rule is promulgated under the state board and department of education's rule-making authority under division (E) of section 3319.39 of the Revised Code.

R.C. 119.032 review dates: 06/13/2014 and 06/13/2019
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.39 , 3319.391
Rule Amplifies: 3319.31 , 3319.311 , 3319.39 , 3319.391
Prior Effective Dates: 8/27/2009