The Ninth District Court of Appeals, which covers Summit County, has reversed the decision of a Summit County Court of Common Pleas that excluded certain evidence in an employment discrimination case against Nordonia Hills School District.
In that case, a bus driver had been terminated in 1998, allegedly for refusing to park her bus where it would have blocked a handicap sidewalk cutout. She subsequently filed a lawsuit and won her case after a jury trial. However, the court of appeals reversed the judgment and granted the school district a new trial. Before the new trial could take place, though, the parties reached a settlement. The bus driver was subsequently reinstated to her position in 2000.
In 2005, the bus driver was terminated again. This time, the bus driver essentially alleged that the school district terminated her in 2005 in retaliation for the prior litigation. She argued that certain individuals within the school district resented the prior litigation and the settlement she obtained. Further, she asserted that those
individuals purposefully set out to construct a documented disciplinary record that could serve as a basis for termination, not because she was an unfit bus driver, but because they intended to retaliate against her for the 1998 litigation.
The trial court, however, excluded almost all evidence of the 1998 settlement. The court of appeals found that the bus driver should have been able to submit such evidence and thus reversed the court of appeals.
Showing posts with label non-licensed employees. Show all posts
Showing posts with label non-licensed employees. Show all posts
Tuesday, July 12, 2011
Thursday, October 28, 2010
Law requiring background checks for non-licensed employees did not violate Ohio Constitution, Supreme Court rules
The Supreme Court of Ohio today upheld as constitutional two provisions of state law that 1) require Ohio school districts to conduct criminal background checks on non-licensed school employees who were not subject to such checks prior to 2007, and 2) require districts to release from employment current employees if it is determined that they have a prior conviction for certain specified criminal offenses.
The Court held that, as applied to administrative employment contracts entered into by school districts that are subject to R.C. Chapter 124, R.C. 3319.391 does not violate the provision of the Ohio Constitution that prohibits retroactive laws, and neither R.C. 3319.391 nor Ohio Admin.Code 3301-20-01 violates the constitutional provision that prohibits application of a law in a way that impairs the obligation of a pre-existing contract.
Prior to 2007, R.C. 3319.39 required that Ohio public school systems must obtain criminal background checks on all licensed employees, i.e. all teachers and other school employees “responsible for the care, custody or control of a child.” The law prohibited any person found to have a conviction for certain specified offenses from being employed in such a position unless that person could demonstrate that he or she had been rehabilitated under administrative guidelines developed by the Ohio Department of Education (ODE) found at Ohio Admin.Code 3301-20-01. The ODE guidelines specified that persons with past convictions for certain enumerated offenses, including trafficking in illegal drugs, could never demonstrate rehabilitation, in effect permanently barring a person with such a conviction from being employed in a licensed position by a public school system. The background check and unconditional bar against employment of certain former offenders did not apply to unlicensed school employees.
In 2007, as part of Sub. H.B. 190, the General Assembly enacted R.C. 3319.391. This new provision expanded the background check and employment exclusion requirements of the pre-2007 statute to all employees of Ohio public school systems – including unlicensed workers whose duties do not involve direct or unsupervised contact with students. The new statutory language specified that its requirements applied not only to new hires but also to all current unlicensed school employees. It also required that any current school employee found to have a prior conviction for a crime for which rehabilitation was precluded under the ODE administrative guidelines “shall be released from employment.”
In this case, an employee of the Cincinnati Public Schools (CPS) identified in court documents as “John Doe” had worked for CPS in unlicensed positions from 1997 to 2008 without being subject to a criminal background check. In July 2008, Doe entered into a new two-year administrative employment contract with the school district. The contract stated that Doe’s employment was “subject to confirmation of appropriate state certification.” Pursuant to the newly enacted R.C. 3319.391, CPS performed a background check on Doe and learned that he had been convicted of drug trafficking in 1976. CPS informed Doe that because drug trafficking was among the offenses designated as ineligible for rehabilitation in Admin.Code 3301-20-01, his conviction required the district to terminate his employment.
Doe filed suit in the Hamilton County Court of Common Pleas court against CPS and the district’s interim superintendent, Mary Ronan, seeking a declaratory judgment that the application of R.C. 3319.391 and Admin.Code 3301-20-01 to terminate his employment violated provisions of the U.S. and Ohio constitutions. CPS exercised its prerogative to remove the case to the U.S. District Court for the Southern District of Ohio. The district court determined that adjudication of Doe’s claims would require a constitutional analysis of Ohio R.C. 3319.391 and Admin.Code 3301-20-01. Rather than conducting that analysis itself, the federal court submitted certified questions of state law to the Supreme Court of Ohio. The Court agreed to determine whether 1) R.C. 3319.391 and Admin.Code 3301-20-01 violate the prohibition in the Ohio Constitution against laws that impair pre-existing contractual rights, and 2) whether R.C. 3319.391 violates the prohibition in the Ohio Constitution against retroactive laws.
Writing for the majority in today’s decision, Justice Cupp answered both certified questions in the negative.
With regard to Doe’s impairment of contracts claim, Justice Cupp wrote: “Doe and CPS executed the July 2008 employment contract eight months after the effective date of the provisions of H.B. 190, which imposed the new background-check requirements. Because Doe’s 2008 employment contract with CPS was executed after the date the statutory change became effective, the new background-check requirements and the employment-disqualification standards of Ohio Adm.Code 3301-20-01 became incorporated as implied terms and conditions of Doe’s contract. Thus, Doe cannot demonstrate that R.C. 3319.391 impaired his employment contract with CPS, because there was no contract between Doe and CPS to substantially impair.”
The court acknowledged that, several months after Doe’s firing in April 2009, ODE adopted a new administrative regulation, Adm.Code 3301-20-03, that permits the discretionary retention of an unlicensed school district employee with a past drug trafficking conviction if the conviction was more than 10 years in the past and the employee meets other rehabilitation criteria. Justice Cupp noted, however, that at the time CPS was informed of Doe’s conviction in 2008, the district was obliged to act under the regulation then in place, and that regulation required that Doe’s employment be terminated.
“Had Ohio Adm.Code 3301-20-03 been promulgated more quickly upon the enactment of H.B. 190, Doe’s R.C. 2925.03 drug-trafficking conviction would not have constituted a nonrehabilitative offense and he could likely have met the conditions to show rehabilitation such that CPS could have maintained its employment relationship with him,” wrote Justice Cupp. … “Unfortunately, delay is often an inherent characteristic of the rulemaking process. The effect that the delay in the administrative rulemaking process had on Doe’s career is regrettable. … Regardless, the ODE acted pursuant to its statutory grant of discretionary rulemaking authority and was under no obligation to amend the Ohio Adm.Code to make different rehabilitation provisions for nonlicensed positions.”
The court also rejected Doe’s argument that R.C. 3319.391 was unconstitutionally retroactive because it made a new condition on his employment by CPS based on conduct that took place before he was first employed by the district. He wrote: “Doe’s contention notwithstanding, the background-check legislation in R.C. 3319.391 is prospective in application. This legislation simply imposed a new restriction on the school district regarding the qualifications of persons it could employ after a specific date with a focus on those persons who have had felony convictions. … Doe has not been deprived of any pay, retirement credit, or other benefits he accrued during his tenure with CPS. Instead, the conduct that the background-check legislation prohibits, i.e., continued employment after a disqualifying criminal-background check, occurs only after the effective date of the statute, November 14, 2007.”
The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Stratton also entered a concurring opinion in which she wrote: “Although we have resolved the federal court’s legal questions under the Ohio Constitution, I believe that on remand the court may resolve this case by resorting to the doctrine of relation back. Under this doctrine, ‘an act done at a later time is, under certain circumstances, treated as though it occurred at an earlier time.’ … This doctrine applies to the amendments of pleadings, see Civ.R. 15(C), but I believe that it should apply here in the interest of equity. The Ohio Department of Education had statutory authority to formulate the rules to carry out the legislative intent of 2007 Sub.H.B. No. 190. … The department promulgated Ohio Adm.Code 3301-20-03 to carry out the legislative intent of H.B. 190. Unfortunately, Doe fell into the gap between enactment of the new law and the department’s regulations in response to the 2007 statutory revisions. The parties agree that had the 2009 regulation been in effect, Doe would have remained in his position, because he had been rehabilitated. Thus, I believe that the regulation should ‘relate back’ to the statute’s enactment.”
The Court held that, as applied to administrative employment contracts entered into by school districts that are subject to R.C. Chapter 124, R.C. 3319.391 does not violate the provision of the Ohio Constitution that prohibits retroactive laws, and neither R.C. 3319.391 nor Ohio Admin.Code 3301-20-01 violates the constitutional provision that prohibits application of a law in a way that impairs the obligation of a pre-existing contract.
Prior to 2007, R.C. 3319.39 required that Ohio public school systems must obtain criminal background checks on all licensed employees, i.e. all teachers and other school employees “responsible for the care, custody or control of a child.” The law prohibited any person found to have a conviction for certain specified offenses from being employed in such a position unless that person could demonstrate that he or she had been rehabilitated under administrative guidelines developed by the Ohio Department of Education (ODE) found at Ohio Admin.Code 3301-20-01. The ODE guidelines specified that persons with past convictions for certain enumerated offenses, including trafficking in illegal drugs, could never demonstrate rehabilitation, in effect permanently barring a person with such a conviction from being employed in a licensed position by a public school system. The background check and unconditional bar against employment of certain former offenders did not apply to unlicensed school employees.
In 2007, as part of Sub. H.B. 190, the General Assembly enacted R.C. 3319.391. This new provision expanded the background check and employment exclusion requirements of the pre-2007 statute to all employees of Ohio public school systems – including unlicensed workers whose duties do not involve direct or unsupervised contact with students. The new statutory language specified that its requirements applied not only to new hires but also to all current unlicensed school employees. It also required that any current school employee found to have a prior conviction for a crime for which rehabilitation was precluded under the ODE administrative guidelines “shall be released from employment.”
In this case, an employee of the Cincinnati Public Schools (CPS) identified in court documents as “John Doe” had worked for CPS in unlicensed positions from 1997 to 2008 without being subject to a criminal background check. In July 2008, Doe entered into a new two-year administrative employment contract with the school district. The contract stated that Doe’s employment was “subject to confirmation of appropriate state certification.” Pursuant to the newly enacted R.C. 3319.391, CPS performed a background check on Doe and learned that he had been convicted of drug trafficking in 1976. CPS informed Doe that because drug trafficking was among the offenses designated as ineligible for rehabilitation in Admin.Code 3301-20-01, his conviction required the district to terminate his employment.
Doe filed suit in the Hamilton County Court of Common Pleas court against CPS and the district’s interim superintendent, Mary Ronan, seeking a declaratory judgment that the application of R.C. 3319.391 and Admin.Code 3301-20-01 to terminate his employment violated provisions of the U.S. and Ohio constitutions. CPS exercised its prerogative to remove the case to the U.S. District Court for the Southern District of Ohio. The district court determined that adjudication of Doe’s claims would require a constitutional analysis of Ohio R.C. 3319.391 and Admin.Code 3301-20-01. Rather than conducting that analysis itself, the federal court submitted certified questions of state law to the Supreme Court of Ohio. The Court agreed to determine whether 1) R.C. 3319.391 and Admin.Code 3301-20-01 violate the prohibition in the Ohio Constitution against laws that impair pre-existing contractual rights, and 2) whether R.C. 3319.391 violates the prohibition in the Ohio Constitution against retroactive laws.
Writing for the majority in today’s decision, Justice Cupp answered both certified questions in the negative.
With regard to Doe’s impairment of contracts claim, Justice Cupp wrote: “Doe and CPS executed the July 2008 employment contract eight months after the effective date of the provisions of H.B. 190, which imposed the new background-check requirements. Because Doe’s 2008 employment contract with CPS was executed after the date the statutory change became effective, the new background-check requirements and the employment-disqualification standards of Ohio Adm.Code 3301-20-01 became incorporated as implied terms and conditions of Doe’s contract. Thus, Doe cannot demonstrate that R.C. 3319.391 impaired his employment contract with CPS, because there was no contract between Doe and CPS to substantially impair.”
The court acknowledged that, several months after Doe’s firing in April 2009, ODE adopted a new administrative regulation, Adm.Code 3301-20-03, that permits the discretionary retention of an unlicensed school district employee with a past drug trafficking conviction if the conviction was more than 10 years in the past and the employee meets other rehabilitation criteria. Justice Cupp noted, however, that at the time CPS was informed of Doe’s conviction in 2008, the district was obliged to act under the regulation then in place, and that regulation required that Doe’s employment be terminated.
“Had Ohio Adm.Code 3301-20-03 been promulgated more quickly upon the enactment of H.B. 190, Doe’s R.C. 2925.03 drug-trafficking conviction would not have constituted a nonrehabilitative offense and he could likely have met the conditions to show rehabilitation such that CPS could have maintained its employment relationship with him,” wrote Justice Cupp. … “Unfortunately, delay is often an inherent characteristic of the rulemaking process. The effect that the delay in the administrative rulemaking process had on Doe’s career is regrettable. … Regardless, the ODE acted pursuant to its statutory grant of discretionary rulemaking authority and was under no obligation to amend the Ohio Adm.Code to make different rehabilitation provisions for nonlicensed positions.”
The court also rejected Doe’s argument that R.C. 3319.391 was unconstitutionally retroactive because it made a new condition on his employment by CPS based on conduct that took place before he was first employed by the district. He wrote: “Doe’s contention notwithstanding, the background-check legislation in R.C. 3319.391 is prospective in application. This legislation simply imposed a new restriction on the school district regarding the qualifications of persons it could employ after a specific date with a focus on those persons who have had felony convictions. … Doe has not been deprived of any pay, retirement credit, or other benefits he accrued during his tenure with CPS. Instead, the conduct that the background-check legislation prohibits, i.e., continued employment after a disqualifying criminal-background check, occurs only after the effective date of the statute, November 14, 2007.”
The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Stratton also entered a concurring opinion in which she wrote: “Although we have resolved the federal court’s legal questions under the Ohio Constitution, I believe that on remand the court may resolve this case by resorting to the doctrine of relation back. Under this doctrine, ‘an act done at a later time is, under certain circumstances, treated as though it occurred at an earlier time.’ … This doctrine applies to the amendments of pleadings, see Civ.R. 15(C), but I believe that it should apply here in the interest of equity. The Ohio Department of Education had statutory authority to formulate the rules to carry out the legislative intent of 2007 Sub.H.B. No. 190. … The department promulgated Ohio Adm.Code 3301-20-03 to carry out the legislative intent of H.B. 190. Unfortunately, Doe fell into the gap between enactment of the new law and the department’s regulations in response to the 2007 statutory revisions. The parties agree that had the 2009 regulation been in effect, Doe would have remained in his position, because he had been rehabilitated. Thus, I believe that the regulation should ‘relate back’ to the statute’s enactment.”
Thursday, May 6, 2010
Supreme Court of Ohio sets oral arguments in school background check case
The Supreme Court of Ohio has set oral arguments for June 8, 2010 in a dispute over the constitutionality of a law requiring the termination of all school employees with certain convictions.
In that case, the plaintiff was terminated his contract from his position of 11 years with the Cincinnati Public Schools after it was found out that he had been convicted of selling narcotics in 1976. The conviction had been expunged from his record and the plaintiff had been rehabilitated and not committed any other crimes.
The lawsuit alleges violations of both state and federal law. The federal court asked the Supreme Court of Ohio to clarify whether the statute violated two provisions of the Ohio Constitution, namely, (1) whether the statute was impermissibly retroactive under Article II, Section 28 and (2) whether the statute violated the Contracts Clause of the Ohio Constitution.
After the Supreme Court makes its determination, the lawsuit will likely be sent back to the federal court for determination of the federal issues.
In that case, the plaintiff was terminated his contract from his position of 11 years with the Cincinnati Public Schools after it was found out that he had been convicted of selling narcotics in 1976. The conviction had been expunged from his record and the plaintiff had been rehabilitated and not committed any other crimes.
The lawsuit alleges violations of both state and federal law. The federal court asked the Supreme Court of Ohio to clarify whether the statute violated two provisions of the Ohio Constitution, namely, (1) whether the statute was impermissibly retroactive under Article II, Section 28 and (2) whether the statute violated the Contracts Clause of the Ohio Constitution.
After the Supreme Court makes its determination, the lawsuit will likely be sent back to the federal court for determination of the federal issues.
Wednesday, September 2, 2009
U.S. Sixth Circuit Court of Appeals reverses trial court on school custodian's firing
The Sixth Circuit Court of Appeals reversed last week a decision of the U.S. District Court for the Southern District of Ohio regarding the placement of a school custodian on involuntary leave in the Valley View School District. The school custodian claimed that the school district violated the Family and Medical Leave Act when it placed her on leave due to her taking leaves of absence after a car accident, on the advice of her physician.
The superintendent admitted that the school had used the custodian's leaves of absence as a factor against her in placing her on leave. The court reiterated that an employer is prohibited from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” Thus, the Court found that the lower court was incorrect in its finding for the school district.
The U.S. Sixth Circuit Court of Appeals has appellate jurisdiction over district courts in Ohio, Tennessee, Kentucky, and Michigan.
The superintendent admitted that the school had used the custodian's leaves of absence as a factor against her in placing her on leave. The court reiterated that an employer is prohibited from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” Thus, the Court found that the lower court was incorrect in its finding for the school district.
The U.S. Sixth Circuit Court of Appeals has appellate jurisdiction over district courts in Ohio, Tennessee, Kentucky, and Michigan.
Wednesday, June 17, 2009
State Board of Education considering new rules for school employees with convictions
The State Board of Education is debating a proposal that would give greater leeway to school districts to hire non-licensed personnel, such as custodians, secretaries, bus drivers, and cafeteria workers, who have nonviolent criminal convictions.
The proposal would allow districts to hire applicants (and keep current employees) who can show that they have been rehabilitated for a period of years. The proposal would not be a mandate; a school district could apply tougher standards than the state.
Generally, under the proposal, people convicted of non-violent felonies, would be required to show they have had a clean record for 20 years; drug offenders would have to stay clean for 10 years, and misdemeanor offenders would have to have a clean record for 5 years.
In addition to having no new criminal convictions, the non-licensed personnel would be required to provide the district with a statement from a court, parole officer, probation officer or counselor.
While good arguments exist on both sides, school districts should be given the opportunity to hire the most qualified, able-bodied applicants for the job, even if those applicants have a several years-old, relatively minor criminal conviction. Unless there is a good reason to exclude someone with a conviction from working in the schools (i.e. sexual conviction), first-time offenders should be given an opportunity at a second chance if they have been rehabilitated.
The proposal would allow districts to hire applicants (and keep current employees) who can show that they have been rehabilitated for a period of years. The proposal would not be a mandate; a school district could apply tougher standards than the state.
Generally, under the proposal, people convicted of non-violent felonies, would be required to show they have had a clean record for 20 years; drug offenders would have to stay clean for 10 years, and misdemeanor offenders would have to have a clean record for 5 years.
In addition to having no new criminal convictions, the non-licensed personnel would be required to provide the district with a statement from a court, parole officer, probation officer or counselor.
While good arguments exist on both sides, school districts should be given the opportunity to hire the most qualified, able-bodied applicants for the job, even if those applicants have a several years-old, relatively minor criminal conviction. Unless there is a good reason to exclude someone with a conviction from working in the schools (i.e. sexual conviction), first-time offenders should be given an opportunity at a second chance if they have been rehabilitated.
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