OHIO CRIMINAL BACKGROUND CHECK REQUIREMENTS FOR EDUCATIONAL INSTITUTION EMPLOYEES: PART 2

OHIO CRIMINAL BACKGROUND CHECK REQUIREMENTS FOR INDIVIDUALS EMPLOYED BY EDUCATIONAL INSTITUTIONS: PART II: BACKGROUND CHECKS FOR TEACHERS AND OTTHER LICENSED SCHOOL EMPLOYEES

The following article is the second in a two-part series concerning criminal records check requirements imposed by the State of Ohio for employees of educational institutions. The first article, which appeared in the Winter 2010 edition of the Vindicator, discussed the criminal records check provisions that are mandated by the State of Ohio for non-licensed, non-transportation employees.  This article, by contrast, focuses on the criminal records check required by the State of Ohio for teachers and other licensed school employees.  Specifically, this article addresses several significant issues concerning criminal records checks for licensed school employees, including the consequences of past convictions, rehabilitation criteria, and confidentiality.

This article also addresses the potential effects of pleading guilty to, or being convicted of, various criminal offenses on licensed and non-licensed employees of school boards and/or schools.

THIS ARTICLE CANNOT POSSIBLY ADDRESS ALL OF THE RAMIFICATIONS AND EFFECTS OF A CRIMINAL CONVICTION ON THOSE WHO ARE EMPLOYED BY, OR INTEND TO SEEK EMPLOYMENT WITH, SCHOOL BOARDS AND/OR SCHOOLS. PRACTITIONERS WITH

CLIENTS WHO FALL INTO THESE CATEGORIES SHOULD CONSULT OHIO REVISED CODE CHAPTER 3319 AND OHIO ADMINISTRATIVE CODE CHAPTER 3301.

CRIMINAL RECORDS

CHECKS: INTRODUCTION

Among the various statutory and regulatory requirements for licensure and employment in the teaching profession is that all applicants submit to a criminal records check.  While such a requirement seems rather straightforward, the laws concerning such criminal records checks for teachers and other licensed school employees are complex and ever-changing. Therefore, practitioners that represent school districts, educational service centers, chartered non-public schools or the employees of any of these organizations, must have a thorough understanding of the criminal records check requirements imposed by Ohio law and the ramifications for non0compliance with such requirements, Moreover, to properly advise clients who have been charged with a criminal offense, attorneys must be aware of the potential consequences of a conviction on their client’s ability to seek and maintain employment at an educational institution, Also, because the laws and regulations related to criminal records checks have changed frequently in recent years, attorneys are well advised to keep themselves apprised of the latest developments in this area of the law.  Section A of this article provides an overview of the laws related to criminal records checks for licensed school employees and highlights recent legislative and regulatory developments in this area of the law. Section B discusses in greater detail some of the specific provisions of the criminal records check laws, including the consequences of past convictions, rehabilitation criteria, and issues related to confidentiality. Finally, Section C discusses the effects of the Retained Applicant Fingerprint Database.

A. Ohio’s Criminal Records Check Laws

For several years, teachers and other licensed school employees of Ohio have been required to undergo criminal records checks. As a general rule, licensed school employees are subject to criminal records checks as part of their initial licensure application and renewal, and when they apply for employment. With regard to licensure-based background checks, under R.C. 3319.291, the state board of education requires fingerprinting and criminal background checks, by the Bureau of Criminal Identification and Investigation (BCI & I) as well as the Federal Bureau of Investigation (FBI), for the following classes of individuals. unless the person has undergone a records check less than five (5) years prior to the time specified below:

a. Any person initially applying for any certificate, license, or permit described in R.C. Chapter 3319, R.C. 3301.071(B) (serving in a nonpublic school chartered by the state board of education), or R.C. 3301.074 (school district treasurer or business manager), at the time the application is made:

b. Any person applying for renewal of any certificate, license, or permit described above at the time the application for renewal is made;

c. Any person who is teaching under a professional teaching certificate issued under former R.C. 3319.222 upon a date prescribed by the state board; and

d. Any person who is teaching under a permanent teaching certificate issued under former R.C. 3319.22 as it existed prior to October 29, 1996, or under former R.C. 3319.222 upon a date prescribed by the state board and every five years thereafter.

The state board will inactivate the license of any person listed in paragraphs ( c) and (d) above who fails to submit to background check requirements. See, R.C. 3319.291(B), and R.C. 109.57.

That said, under Ohio law, not all licensed employees are required to submit to a licensure-based criminal records check. For example, a records check is not required if the licensed school employee has undergone an employment-based criminal records check within the preceding year or a licensure-based check less than five years before the application for a license or renewal. See, R.C. 3319.291(A) & (D), Moreover, pursuant to R.C. 3319.291(B) only a criminal records check by the FBI is required if the state board previously requested a criminal records check from BCI & I and the person presents proof that he has been a resident of this state for  the five-year period immediately prior to the date upon which the person becomes subject to a criminal records check.

If, as a result of the above-described criminal records check, the board of education learns of a conviction of certain specified offenses, the board shall take action to deny issuance or renewal of a license, suspend, revoke, or limit a license that has been issued, See, R.C. 3319.311(A)(2) and R.C. 3319.31(B) and ©.

Moreover, R.C. 3319.39 requires a criminal records check (from BCI &I and the FBI) with respect to any person who has applied to a school district, educational service center, or school for employment in any position unless all of the following apply with respect to said applicant:

a. The applicant is applying to be an instructor of adult education;

b. The duties of the position for which the applicant is applying do not involve”routine interaction” with a child or regular responsibility for the care, custody, or control of a child” or, if such duties are involved, another employee will be present with the applicant during such time; and

c. The applicant presents proof that the applicant has been a resident of this state for five-year period immediately preceding the date on which the criminal records check is requested or provides proof that within said five-year period the superintendent of BCI & I has requested information about the applicant from the FBI in a criminal records check.

Accordingly, with very limited exception, as set forth above, all persons applying for employment with a school district, educational service center, or school are subject to criminal records checks by BCI & I and the FBI and any such person who has been convicted of certain criminal offenses cannot be hired, unless such person meets standards in regard to rehabilitation as set by the Department of Education for certain such offenses.

Finally, it is important to know that not only the laundry list of offenses set forth in ORC.3319.31( C) will result in a refusal to issue, limit, suspend, and/or revoke a certificate, license, or permit issued pursuant to ORC Chapter 3319. ORC3319.31 further grants the state board of education discretion to refuse to issue a license and/or discretion to limit a license it issues, suspend, revoke, or limit an existing license for any of the following reasons:

(1) Engaging in an immoral act, incompetence, negligence, or conduct that is unbecoming to the applicant’s or person’s position;

(2) A plea of guilty to, a finding of guilt by a jury or court of, or a conviction of any of the following:

(a) A felony other than a felony listed in ORC 3319.31( C)

(b) An offense of violence other than an offense of violence listed in ORC 3319.31

( c) A theft offense, as defined in ORC 2913.01, other than a theft offense listed in ORC 3319.31( C)

(d) A drug abuse offense, as defined in ORC 2925.01, that is not a minor misdemeanor, other than a drug abuse offense listed in ORC 3319.31( C)

(e) A violation of an ordinance of a municipal corporation that is substantively comparable to an offense listed above.

Accordingly, essentially any criminal conviction, with very few exceptions, may, and possibly will (depending on the offense), have some negative consequences on a licensed employee of a school board or school. Obviously, clients who are so license and/or employed must be advised of the consequences of a plea and/or conviction of such criminal offenses.

B. Rehabilitation

As seen herein, under Ohio law a criminal conviction can have a significant impact not only on an educator’s eligibility to obtain licensure and employment in the teaching profession, but also on virtually anyone else who seeks employment with a school district or school. Indeed, individuals convicted of “non-rehabilitative offenses” are disqualified from ever obtaining initial licensure and/or employment by a school district. “Non-rehabilitative offenses” are defined by OAC 3301-20-01 as those offenses listed in R.C. 3319.31( C)

If however, an educator has pled guilty to, been found guilty of, or been convicted of any offense, other than the “non-rehabilitative offenses”, the educator may apply for rehabilitation for purposes of licensure and/or employability. Rehabilitation criteria are listed in OAC 3301-20-01(2) and include the following:

(a) At the time of the offense, the victim of the offense was not under 18 years of age or enrolled as a student in a district;

(b) If the offense was a felony, at least 5 years have elapsed since the applicant was fully discharged from imprisonment, probation, or parole or the applicant has had the record sealed. If the offense was a misdemeanor, at least 5 years have elapsed since the date of conviction or the applicant has had his or her record sealed;

( c) The applicant has not pled guilty to, been found guilty of, or been convicted of any of the offenses listed in R.C.3319.39(B)(1) and RC. 3319.31 or any municipal ordinance of law of this state, another state, or the United States substantially similar to the offenses listed in R.C. 3319.39(B)(1) and R.C. 3319.31 two or more times in separate criminal actions, with the exception of two or more misdemeanor theft related convictions as defined in R.C. 2913.02, 2913.03, 2913.04, 2913.11, and 2913.51.

(d) The applicant provides written confirmation of his or her efforts at rehabilitation and the results of those efforts. Such written confirmation may include a statement by a court, parole officer, probation officer, and/or counselor that the applicant has been rehabilitated;

(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.

Thus, under some circumstances, and depending on the offense of conviction, educators may seek to be deemed rehabilitated. The possibility of rehabilitation may be a crucial aspect of plea negotiation and, accordingly, practitioners are urged to review the appropriate Ohio Revised Code and Ohio Administrative Code statutes and regulations when representing a licensed educator.

C. Retained Applicant Fingerprint Database:

It should also be noted that BCI & I is required to maintain a “retained applicant fingerprint database” that includes applicants who were initially screened for employment after the database was created. R.C. 109.5721 requires BCI & I to establish and maintain a database of fingerprints of “individuals on whom the bureau has conducted criminal records checks for the purpose of determining eligibility for employment with, licensure by, or approval for adoption by a public office.” When an individual whose name is in the retained fingerprint database has been arrested, convicted of, or pled guilty to any offense, the superintendent of BCI & I is mandated to notify the public office that employs, licenses, or has approved the individual of the arrest, conviction, or guilty plea.

D. Conclusion

Anyone who is employed by a school district or school and/or who is a licensed educator and who is charged with a criminal offense must be informed of the effects of a plea or conviction to said offense. It is crucial that practitioners be aware of the possible effects of a plea or conviction to properly represent such a client.