The purpose of this rule is to
provide for the safety and well-being of students using pupil transportation
services, and pursuant to sections 3327.10 , 3319.39 and 3319.40 of the Revised
Code, set employment eligibility and rehabilitation standards for those
individuals with certain criminal convictions seeking employment as a school
transportation driver and those individuals currently employed as school
transportation drivers.
The rule establishes offenses for
which employment and a determination of rehabilitation for a position as a
school transportation driver are expressly forbidden and sets forth conditions
under which a determination of rehabilitation is possible.
If a person who is employed by a
school or school transportation provider is arrested, summoned, or indicted for
an alleged violation of a listed offense, the superintendent of the school or
chief executive officer of the transportation provider shall suspend that
person from all duties that require the care, custody, or control of a child
during the pendency of the criminal action against the person.
(A) Definitions
(1) "Applicant" means one who is under final
consideration for appointment or employment as a pupil transportation
driver.
(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 or
employer, which shall be time-stamped by the district on the date of receipt by
the district.
(3) "School" 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 department of
developmental disabilities, a chartered non-public school, or a preschool
program.
(4) "Employee" means a
current employee of a school district or employer as a school transportation
driver who is subject to the requirements of a background check pursuant to
section 3327.10 of the Revised
Code.
(5) "Offense" for the
purposes of this rule means an offense as listed in sections of the Revised
Code as listed in this rule 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 this rule.
(6) "Non-rehabilitative offense" means a
criminal offense that would prohibit an employer from hiring or continuing
employment of such an individual, and are the following:
(a) Sexually-oriented offenses: section
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: section
2905.01(kidnapping),
2905.02(abduction),
2905.05 (criminal child
enticement), or 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, division (B)(1), (B)(2), (B)(3), or (B)(4) of
section 2919.22 (endangering children)
of the Revised Code.
(c) Violent
offenses: section 2903.01 (aggravated murder),
2903.02(murder),
2903.03 (voluntary
manslaughter), 2903.04 (involuntary
manslaughter), 2903.06 (vehicular manslaughter
and assault), 2903.08 (vehicular manslaughter
and assault), 2903.09 (vehicular manslaughter
and assault), or 2909.24(terrorism)
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 as a school
transportation driver or, for a current employee, 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 as a school transportation driver or, for a current employee, within
ten years prior to the date of the current criminal records check: section
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), or
2925.06 (illegal administration
or distribution of anabolic steroids) of the Revised Code.
(f) "Non-violent 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 as
school transportation driver with the district or, for a current employee,
within ten years prior to the date of the current criminal records
check.
(g) "Major motor vehicle
offenses," which means a violation of section
4511.19 (operating a motor
vehicle under the influence)
of the Revised Code, that
occurred within ten years prior to the date of the current application for a
position as a student transportation driver or within ten years prior to
current records check for a current employee; and
4511.20 (reckless operation),
4510.11 (driving under
suspension),
4510.14 (driving under OVI
suspension), or
4511.194 (physical control while
under the influence) of the Revised Code
,
; that occurred either within six years prior to
the date of the current application for a position as student transportation
driver, or for a current employee, within six years prior to the date of the
current records check.
(h) "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 as school transportation driver, or for a current employee, 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), or
2925.11 (possession of a
controlled substance that is not a minor drug possession offense) of the
Revised Code.
(i) "Other motor
vehicle offenses," which means a violation of section
4511.75 (violation of school bus
warning lights), 4511.21 (school zone speed
limit) while operating a school vehicle, or
4511.62 (railroad crossing
violation) of the Revised Code; that occurred either within one year prior to
the date of the current application for a position as student transportation
driver, or for a current employee, within one year prior to the date of the
current records check.
(B) No provider of school transportation
services 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) A provider of
school transportation services maintains the discretion whether to employ or
retain in employment an individual who has been deemed rehabilitated pursuant
to this rule. A provider of school transportation services 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 school.
(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 employer 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 employer, 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 and/or employer;
(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) If the employer is a private employer,
information regarding the individual's criminal background check and any
subsequent actions by the contractor must be disclosed to any entity
contracting for school transportation services;
(l) Any entity contracting for transportation
services is not bound by the determination of a private employer to re-employ
an individual in accordance with this section; and
(m) Any other factor the employer considers
relevant.
(D)
It is the applicant or employee's duty to provide written evidence that the
conditions specified in paragraph (C) of this rule are met. If the applicant or
employee fails to provide such evidence or if the employer 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 school transportation
provider.
(E) 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.
(F) 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..
(G)
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.
(H) Prior to rendering
a decision on employment, the employer 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.
(I) The decision of the
employer on whether to employ or continue to employ an individual pursuant to
the requirements of this rule
cannot
can not be appealed to the Ohio department of
education or state board of education.
(J)
If a person who
is employed by a school or school transportation provider is arrested,
summoned, or indicted for an alleged violation of a listed offense, the
superintendent of the school or chief executive officer of the transportation
provider shall suspend that person from all duties that require the care,
custody, or control of a child during the pendency of the criminal action
against the person.
(J)
(K) This rule is
promulgated under the state board and
the
department's
of education's rule-making
authority under division (E) of section
3319.39 of the Revised
Code.