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hb268_05_EN
(136th General Assembly)
(House Bill
Number 268)
AN ACT
To amend section 2953.25 of the
Revised Code to modify when a person may file a petition for a
certificate of qualification for employment.
Be
it enacted by the General Assembly of the State of Ohio:
Section
1.
That
section 2953.25 of the Revised Code be amended to read as follows:
Sec.
2953.25.
(A)
As used in this section:
(1)
"Collateral sanction" means a penalty, disability, or
disadvantage that is related to employment or occupational licensing,
however denominated, as a result of the individual's conviction of or
plea of guilty to an offense and that applies by operation of law in
this state whether or not the penalty, disability, or disadvantage is
included in the sentence or judgment imposed.
"Collateral
sanction" does not include imprisonment, probation, parole,
supervised release, forfeiture, restitution, fine, assessment, or
costs of prosecution.
(2)
"Decision-maker" includes, but is not limited to, the state
acting through a department, agency, board, commission, or
instrumentality established by the law of this state for the exercise
of any function of government, a political subdivision, an
educational institution, or a government contractor or subcontractor
made subject to this section by contract, law, or ordinance.
(3)
"Department-funded program" means a residential or
nonresidential program that is not a term in a state correctional
institution, that is funded in whole or part by the department of
rehabilitation and correction, and that is imposed as a sanction for
an offense, as part of a sanction that is imposed for an offense, or
as a term or condition of any sanction that is imposed for an
offense.
(4)
"Designee" means the person designated by the deputy
director of the division of parole and community services to perform
the duties designated in division (B) of this section.
(5)
"Division of parole and community services" means the
division of parole and community services of the department of
rehabilitation and correction.
(6)
"Offense" means any felony or misdemeanor under the laws of
this state.
(7)
"Political subdivision" has the same meaning as in section
2969.21 of the Revised Code.
(8)
"Discretionary civil impact," "licensing agency,"
and "mandatory civil impact" have the same meanings as in
section 2961.21 of the Revised Code.
(B)(1)
An individual who is subject to one or more collateral sanctions as a
result of being convicted of or pleading guilty to an offense and who
either has served a term in a state correctional institution for any
offense or has spent time in a department-funded program for any
offense may file a petition with the designee of the deputy director
of the division of parole and community services for a certificate of
qualification for employment.
(2)
An individual who is subject to one or more collateral sanctions as a
result of being convicted of or pleading guilty to an offense and who
is not in a category described in division (B)(1) of this section may
file for a certificate of qualification for employment by doing
either of the following:
(a)
In the case of an individual who resides in this state, filing a
petition with the court of common pleas of the county in which the
person resides or with the designee of the deputy director of the
division of parole and community services;
(b)
In the case of an individual who resides outside of this state,
filing a petition with the court of common pleas of any county in
which any conviction or plea of guilty from which the individual
seeks relief was entered or with the designee of the deputy director
of the division of parole and community services.
(3)
A petition under division (B)(1) or (2) of this section shall be made
on a copy of the form prescribed by the division of parole and
community services under division (J) of this section, shall contain
all of the information described in division (F) of this section,
and, except as provided in division (B)(6) of this section, shall be
accompanied by an application fee of fifty dollars and may be
accompanied by a local court fee of not more than fifty dollars.
(4)(a)
Except as provided in division (B)(4)(b) of this section, an
individual may file a petition under division (B)(1) or (2) of this
section at any time after the expiration of whichever of the
following is applicable:
(i)
If the offense that resulted in the collateral sanction from which
the individual seeks relief is a felony, at any time after the
expiration of one year from the date of release of the individual
from any period of incarceration in a state or local correctional
facility that was imposed for that offense
and
all periods of supervision imposed after release from the period of
incarceration
or,
if the individual was not incarcerated for that offense, at any time
after the expiration of one year from the date of the individual's
final release from all other sanctions imposed for that offense.
(ii)
If the offense that resulted in the collateral sanction from which
the individual seeks relief is a misdemeanor, at any time after the
expiration of six months from the date of release of the individual
from any period of incarceration in a local correctional facility
that was imposed for that offense and all periods of supervision
imposed after release from the period of incarceration or, if the
individual was not incarcerated for that offense, at any time after
the expiration of six months from the date of the final release of
the individual from all sanctions imposed for that offense including
any period of supervision.
(b)
The department of rehabilitation and correction may establish
criteria by rule adopted under Chapter 119. of the Revised Code that,
if satisfied by an individual, would allow the individual to file a
petition before the expiration of six months or one year from the
date of final release, whichever is applicable under division
(B)(4)(a) of this section.
(5)(a)
A designee that receives a petition for a certificate of
qualification for employment from an individual under division (B)(1)
or (2) of this section shall review the petition to determine whether
it is complete. If the petition is complete, the designee shall
forward the petition, the application fee, and any other information
the designee possesses that relates to the petition, to the court of
common pleas of the county in which the individual resides if the
individual submitting the petition resides in this state or, if the
individual resides outside of this state, to the court of common
pleas of the county in which the conviction or plea of guilty from
which the individual seeks relief was entered.
(b)
A court of common pleas that receives a petition for a certificate of
qualification for employment from an individual under division (B)(2)
of this section, or that is forwarded a petition for such a
certificate under division (B)(5)(a) of this section, shall attempt
to determine all other courts in this state in which the individual
was convicted of or pleaded guilty to an offense other than the
offense from which the individual is seeking relief. The court that
receives or is forwarded the petition shall notify all other courts
in this state that it determines under this division were courts in
which the individual was convicted of or pleaded guilty to an offense
other than the offense from which the individual is seeking relief
that the individual has filed the petition and that the court may
send comments regarding the possible issuance of the certificate.
A
court of common pleas that receives a petition for a certificate of
qualification for employment under division (B)(2) of this section
shall notify the county's prosecuting attorney that the individual
has filed the petition.
A
court of common pleas that receives a petition for a certificate of
qualification for employment under division (B)(2) of this section,
or that is forwarded a petition for qualification under division
(B)(5)(a) of this section may direct the clerk of court to process
and record all notices required in or under this section. Except as
provided in division (B)(6) of this section, the court shall pay
thirty dollars of the application fee into the state treasury and
twenty dollars of the application fee into the county general revenue
fund.
(6)
Upon receiving a petition for a certificate of qualification for
employment filed by an individual under division (B)(1) or (2) of
this section, a court of common pleas or the designee of the deputy
director of the division of parole and community services who
receives the petition may waive all or part of the application fee of
fifty dollars described in division (B)(3) of this section, for an
applicant who presents a poverty affidavit showing that the applicant
is indigent. If an applicant pays an application fee, the first
twenty dollars or two-fifths of the fee, whichever is greater, that
is collected shall be paid into the county general revenue fund. If
an applicant pays an application fee, the amount collected in excess
of the amount to be paid into the county general revenue fund shall
be paid into the state treasury.
(C)(1)
Upon receiving a petition for a certificate of qualification for
employment filed by an individual under division (B)(2) of this
section or being forwarded a petition for such a certificate under
division (B)(5)(a) of this section, the court shall review the
individual's petition, the individual's criminal history, except for
information contained in any record that has been sealed under
section 2953.32 of the Revised Code, all filings submitted by the
prosecutor or by the victim in accordance with rules adopted by the
division of parole and community services, the applicant's military
service record, if applicable, and whether the applicant has an
emotional, mental, or physical condition that is traceable to the
applicant's military service in the armed forces of the United States
and that was a contributing factor in the commission of the offense
or offenses, and all other relevant evidence. The court may order any
report, investigation, or disclosure by the individual that the court
believes is necessary for the court to reach a decision on whether to
approve the individual's petition for a certificate of qualification
for employment, except that the court shall not require an individual
to disclose information about any record sealed under section 2953.32
of the Revised Code.
(2)
Upon receiving a petition for a certificate of qualification for
employment filed by an individual under division (B)(2) of this
section or being forwarded a petition for such a certificate under
division (B)(5)(a) of this section, except as otherwise provided in
this division, the court shall decide whether to issue the
certificate within sixty days after the court receives or is
forwarded the completed petition and all information requested for
the court to make that decision. Upon request of the individual who
filed the petition, the court may extend the sixty-day period
specified in this division.
(3)
Except as provided in division (C)(5) of this section and subject to
division (C)(7) of this section, a court that receives an
individual's petition for a certificate of qualification for
employment under division (B)(2) of this section or that is forwarded
a petition for such a certificate under division (B)(5)(a) of this
section may issue a certificate of qualification for employment, at
the court's discretion, if the court finds that the individual has
established all of the following by a preponderance of the evidence:
(a)
Granting the petition will materially assist the individual in
obtaining employment or occupational licensing.
(b)
The individual has a substantial need for the relief requested in
order to live a law-abiding life.
(c)
Granting the petition would not pose an unreasonable risk to the
safety of the public or any individual.
(4)
The submission of an incomplete petition by an individual shall not
be grounds for the designee or court to deny the petition.
(5)
Subject to division (C)(6) of this section, an individual is
rebuttably presumed to be eligible for a certificate of qualification
for employment if the court that receives the individual's petition
under division (B)(2) of this section or that is forwarded a petition
under division (B)(5)(a) of this section finds all of the following:
(a)
The application was filed after the expiration of the applicable
waiting period prescribed in division (B)(4) of this section;
(b)
If the offense that resulted in the collateral sanction from which
the individual seeks relief is a felony, at least three years have
elapsed since the date of release of the individual from any period
of incarceration in a state or local correctional facility that was
imposed for that offense and all periods of supervision imposed after
release from the period of incarceration or, if the individual was
not incarcerated for that offense, at least three years have elapsed
since the date of the individual's final release from all other
sanctions imposed for that offense;
(c)
If the offense that resulted in the collateral sanction from which
the individual seeks relief is a misdemeanor, at least one year has
elapsed since the date of release of the individual from any period
of incarceration in a local correctional facility that was imposed
for that offense and all periods of supervision imposed after release
from the period of incarceration or, if the individual was not
incarcerated for that offense, at least one year has elapsed since
the date of the final release of the individual from all sanctions
imposed for that offense including any period of supervision.
(6)
An application that meets all of the requirements for the presumption
under division (C)(5) of this section shall be denied only if the
court that receives the petition finds that the evidence reviewed
under division (C)(1) of this section rebuts the presumption of
eligibility for issuance by establishing, by clear and convincing
evidence, that the applicant has not been rehabilitated.
(7)
A certificate of qualification for employment shall not create relief
from any of the following collateral sanctions:
(a)
Requirements imposed by Chapter 2950. of the Revised Code and rules
adopted under sections 2950.13 and 2950.132 of the Revised Code;
(b)
A driver's license, commercial driver's license, or probationary
license suspension, cancellation, or revocation pursuant to section
4510.037, 4510.07, 4511.19, or 4511.191 of the Revised Code if the
relief sought is available pursuant to section 4510.021 or division
(B) of section 4510.13 of the Revised Code;
(c)
Restrictions on employment as a prosecutor or law enforcement
officer;
(d)
The denial, ineligibility, or automatic suspension of a license that
is imposed upon an individual applying for or holding a license as a
health care professional under Title XLVII of the Revised Code if the
individual is convicted of, pleads guilty to, is subject to a
judicial finding of eligibility for intervention in lieu of
conviction in this state under section 2951.041 of the Revised Code,
or is subject to treatment or intervention in lieu of conviction for
a violation of section 2903.01, 2903.02, 2903.03, 2903.11, 2905.01,
2907.02, 2907.03, 2907.05, 2909.02, 2911.01, 2911.11, 2919.123, or
2919.124 of the Revised Code;
(e)
The immediate suspension of a license, certificate, or evidence of
registration that is imposed upon an individual holding a license as
a health care professional under Title XLVII of the Revised Code
pursuant to division (C) of section 3719.121 of the Revised Code;
(f)
The denial or ineligibility for employment in a pain clinic under
division (B)(4) of section 4729.552 of the Revised Code;
(g)
The mandatory suspension of a license that is imposed on an
individual applying for or holding a license as a health care
professional under Title XLVII of the Revised Code pursuant to
section 3123.43 of the Revised Code.
(8)
If a court that receives an individual's petition for a certificate
of qualification for employment under division (B)(2) of this section
or that is forwarded a petition for such a certificate under division
(B)(5)(a) of this section denies the petition, the court shall
provide written notice to the individual of the court's denial. The
court may place conditions on the individual regarding the
individual's filing of any subsequent petition for a certificate of
qualification for employment. The written notice must notify the
individual of any conditions placed on the individual's filing of a
subsequent petition for a certificate of qualification for
employment.
If
a court of common pleas that receives an individual's petition for a
certificate of qualification for employment under division (B)(2) of
this section or that is forwarded a petition for such a certificate
under division (B)(5)(a) of this section denies the petition, the
individual may appeal the decision to the court of appeals only if
the individual alleges that the denial was an abuse of discretion on
the part of the court of common pleas.
(D)(1)
A certificate of qualification for employment issued to an individual
lifts the automatic bar of a collateral sanction, and a
decision-maker shall consider on a case-by-case basis whether to
grant or deny the issuance or restoration of an occupational license
or an employment opportunity, notwithstanding the individual's
possession of the certificate, without, however, reconsidering or
rejecting any finding made by a designee or court under division
(C)(3) of this section.
(2)
The certificate constitutes a rebuttable presumption that the
person's criminal convictions are insufficient evidence that the
person is unfit for the license, employment opportunity, or
certification in question. Notwithstanding the presumption
established under this division, the agency may deny the license or
certification for the person if it determines that the person is
unfit for issuance of the license.
(3)
If an employer that has hired a person who has been issued a
certificate of qualification for employment applies to a licensing
agency for a license or certification and the person has a conviction
or guilty plea that otherwise would bar the person's employment with
the employer or licensure for the employer because of a mandatory
civil impact, the agency shall give the person individualized
consideration, notwithstanding the mandatory civil impact, the
mandatory civil impact shall be considered for all purposes to be a
discretionary civil impact, and the certificate constitutes a
rebuttable presumption that the person's criminal convictions are
insufficient evidence that the person is unfit for the employment, or
that the employer is unfit for the license or certification, in
question.
(E)
A certificate of qualification for employment does not grant the
individual to whom the certificate was issued relief from the
mandatory civil impacts identified in division (A)(1) of section
2961.01 or division (B) of section 2961.02 of the Revised Code.
(F)
A petition for a certificate of qualification for employment filed by
an individual under division (B)(1) or (2) of this section shall
include all of the following:
(1)
The individual's name, date of birth, and social security number;
(2)
All aliases of the individual and all social security numbers
associated with those aliases;
(3)
The individual's residence address, including the city, county, and
state of residence and zip code;
(4)
The length of time that the individual has resided in the
individual's current state of residence, expressed in years and
months of residence;
(5)
A general statement as to why the individual has filed the petition
and how the certificate of qualification for employment would assist
the individual;
(6)
A summary of the individual's criminal history, except for
information contained in any record that has been sealed or expunged
under section 2953.32 or 2953.39 of the Revised Code, with respect to
each offense that is a disqualification from employment or licensing
in an occupation or profession, including the years of each
conviction or plea of guilty for each of those offenses;
(7)
A summary of the individual's employment history, specifying the name
of, and dates of employment with, each employer;
(8)
Verifiable references and endorsements;
(9)
The name of one or more immediate family members of the individual,
or other persons with whom the individual has a close relationship,
who support the individual's reentry plan;
(10)
A summary of the reason the individual believes the certificate of
qualification for employment should be granted;
(11)
Any other information required by rule by the department of
rehabilitation and correction.
(G)(1)
In a judicial or administrative proceeding alleging negligence or
other fault, a certificate of qualification for employment issued to
an individual under this section may be introduced as evidence of a
person's due care in hiring, retaining, licensing, leasing to,
admitting to a school or program, or otherwise transacting business
or engaging in activity with the individual to whom the certificate
of qualification for employment was issued if the person knew of the
certificate at the time of the alleged negligence or other fault.
(2)
In any proceeding on a claim against an employer for negligent
hiring, a certificate of qualification for employment issued to an
individual under this section shall provide immunity for the employer
as to the claim if the employer knew of the certificate at the time
of the alleged negligence.
(3)
If an employer hires an individual who has been issued a certificate
of qualification for employment under this section, if the
individual, after being hired, subsequently demonstrates
dangerousness or is convicted of or pleads guilty to a felony, and if
the employer retains the individual as an employee after the
demonstration of dangerousness or the conviction or guilty plea, the
employer may be held liable in a civil action that is based on or
relates to the retention of the individual as an employee only if it
is proved by a preponderance of the evidence that the person having
hiring and firing responsibility for the employer had actual
knowledge that the employee was dangerous or had been convicted of or
pleaded guilty to the felony and was willful in retaining the
individual as an employee after the demonstration of dangerousness or
the conviction or guilty plea of which the person has actual
knowledge.
(H)
A certificate of qualification for employment issued under this
section shall be revoked if the individual to whom the certificate of
qualification for employment was issued is convicted of or pleads
guilty to a felony offense committed subsequent to the issuance of
the certificate of qualification for employment. The department of
rehabilitation and correction shall periodically review the
certificates listed in the database described in division (K) of this
section to identify those that are subject to revocation under this
division. Upon identifying a certificate of qualification for
employment that is subject to revocation, the department shall note
in the database that the certificate has been revoked, the reason for
revocation, and the effective date of revocation, which shall be the
date of the conviction or plea of guilty subsequent to the issuance
of the certificate.
(I)
A designee's forwarding, or failure to forward, a petition for a
certificate of qualification for employment to a court or a court's
issuance, or failure to issue, a petition for a certificate of
qualification for employment to an individual under division (B) of
this section does not give rise to a claim for damages against the
department of rehabilitation and correction or court.
(J)
The division of parole and community services shall adopt rules in
accordance with Chapter 119. of the Revised Code for the
implementation and administration of this section and shall prescribe
the form for the petition to be used under division (B)(1) or (2) of
this section. The form for the petition shall include places for all
of the information specified in division (F) of this section.
(K)
The department of rehabilitation and correction shall maintain a
database that identifies granted certificates and revoked
certificates and tracks the number of certificates granted and
revoked, the industries, occupations, and professions with respect to
which the certificates have been most applicable, and the types of
employers that have accepted the certificates. The department shall
annually create a report that summarizes the information maintained
in the database and shall make the report available to the public on
its internet web site.
Section
2.
That
existing section 2953.25 of the Revised Code is hereby repealed.
Speaker
___________________ of the House of Representatives.
President
___________________ of the Senate.
Passed
________________________, 20____
Approved
________________________, 20____
Governor.
The section numbering of law
of a general and permanent nature is complete and in conformity with
the Revised Code.
Director, Legislative
Service Commission.
Filed
in the office of the Secretary of State at Columbus, Ohio, on the
____ day of ___________, A. D. 20____.
Secretary of State.
File
No. _________ Effective Date ___________________