HB 268

(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
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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
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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
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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
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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
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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:
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  (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
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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.
H. B. No. 268  136th G.A.
     Speaker ___________________ of the House of Representatives.
  President ___________________ of the Senate.
Passed ________________________, 20____
Approved ________________________, 20____
  Governor.
H. B. No. 268  136th G.A.
  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 ___________________