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.”