The State Board of Education has filed new draft rehabilitation rules with the Joint Committee on Agency Rule Review (JCARR). This act begins the formal rule-making process and triggers a public hearing before the State Board. The hearing on these rules is June 18 at 11:00am.

HB 428, enacted in 2008, prohibited boards of education from employing, and required them to release, employees who committed certain crimes. Under prior law, the State Board adopted a rehabilitation rule that allowed educators who committed some less serious crimes to be rehabilitated and thus eligible to work. HB 428 required the State Board to adopt a similar rule for non-licensed employees. The State Board has proposed three separate rules:3301-20-01 (licensed educators), 3301-20-03 (non-licensed individuals) and 3301-83-23 (school bus and van drivers). Each of the rules operates a bit differently. For licensed employees, ODE determines whether a person is sufficiently rehabilitated to receive a license. For employment purposes, the district decides based on the rehabilitation criteria in the rules. The rehabilitation rule for licensed educators and transportation operators requires a five-year time period between the occurrence of a felony offense and eligibility for rehabilitation. The school district determines whether drivers or non-licensed applicants are rehabilitated and can be hired or continued in employment. The time period between an offense eligible for rehabilitation and the application or background check varies based on the offense. For example, a non-licensed individual with a domestic violence or public indecency conviction more than five years prior to the date of the background check or employment application would be eligible for a rehabilitation determination by the school district at that time. A non-licensed individual with a drug trafficking conviction would not be eligible for a rehabilitation determination until 10 years after the offense. In each of these situations, the district would have to make a determination about the applicant prior to hiring or continuing to employ him or her. Rehabilitation is not an automatic right. The employee must provide evidence of his or her rehabilitation, and either the district makes an employment decision or ODE makes a licensure decision after weighing a number of factors about the individual, the crime and the circumstances. Notably, these rules establish eligibility for rehabilitation for certain crimes where no rehabilitation opportunity existed last year. It is possible that a district released an individual last year, and under these rules the person could be rehired this year if the district determines the individual is rehabilitated. In those situations, board counsel should be consulted on how to proceed. We expect these rules will be finalized near the start of the 2009-2010 school year. As always, if you have questions about these rules, contact OSBA.

Posted by OSBA Legal Ledger on 5/22/2009