As Passed by the House                        1            

123rd General Assembly                                             4            

   Regular Session                            Am. H. B. No. 364    5            

      1999-2000                                                    6            


 REPRESENTATIVES GOODMAN-TIBERI-PETERSON-O'BRIEN-PATTON-TAYLOR-    8            

     BENDER-TRAKAS-CLANCY-FLANNERY-ALLEN-VERICH-WILLAMOWSKI-       9            

     METZGER-HARRIS-EVANS-BRADING-MYERS-SALERNO-BUCHY-MEAD-        10           

                          OLMAN-WIDENER                            11           


_________________________________________________________________   12           

                          A   B I L L                                           

             To amend section 2921.41 of the Revised Code to       14           

                increase the penalty for theft in office in all    15           

                cases to a felony of the third degree.                          




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        17           

      Section 1.  That section 2921.41 of the Revised Code be      19           

amended to read as follows:                                        20           

      Sec. 2921.41.  (A)  No public official or party official     29           

shall commit any theft offense, as defined in division (K) of      30           

section 2913.01 of the Revised Code, when either of the following  31           

applies:                                                           32           

      (1)  The offender uses the offender's office in aid of       34           

committing the offense or permits or assents to its use in aid of  35           

committing the offense;                                            36           

      (2)  The property or service involved is owned by this       38           

state, any other state, the United States, a county, a municipal   39           

corporation, a township, or any political subdivision,             40           

department, or agency of any of them, is owned by a political      41           

party, or is part of a political campaign fund.                    42           

      (B)  Whoever violates this section is guilty of theft in     44           

office.  Except as otherwise provided in this division, theft in   45           

office is a felony of the fifth degree.  If the value of property  47           

or services stolen is five hundred dollars or more and is less     48           

than five thousand dollars, theft in office is a felony of the     49           

                                                          2      


                                                                 
fourth degree.  If the value of property or services stolen is     50           

five thousand dollars or more,theft in office is, a felony of the  51           

third degree.                                                      52           

      (C)(1)  A public official or party official who is           54           

convicted of or pleads guilty to theft in office is forever        55           

disqualified from holding any public office, employment, or        56           

position of trust in this state.                                   57           

      (2)(a)  A court that imposes sentence for a violation of     59           

this section based on conduct described in division (A)(2) of      60           

this section shall require the public official or party official   61           

who is convicted of or pleads guilty to the offense to make        62           

restitution for all of the property or the service that is the     63           

subject of the offense, in addition to the term of imprisonment    64           

and any fine imposed.  A court that imposes sentence for a         65           

violation of this section based on conduct described in division   66           

(A)(1) of this section and that determines at trial that this      67           

state or a political subdivision of this state if the offender is  68           

a public official, or a political party in the United States or    69           

this state if the offender is a party official, suffered actual    70           

loss as a result of the offense shall require the offender to      71           

make restitution to the state, political subdivision, or           72           

political party for all of the actual loss experienced, in         73           

addition to the term of imprisonment and any fine imposed.         74           

      (b)(i)  In any case in which a sentencing court is required  76           

to order restitution under division (C)(2)(a) of this section and  77           

in which the offender, at the time of the commission of the        78           

offense or at any other time, was a member of the public           79           

employees retirement system, the Ohio police fire and pension      81           

fund, the state teachers retirement system, the school employees   82           

retirement system, or the state highway patrol retirement system;  83           

was an electing employee, as defined in section 3305.01 of the     85           

Revised Code, participating in an alternative retirement plan                   

provided pursuant to Chapter 3305. of the Revised Code; was a      87           

participating employee or continuing member, as defined in         89           

                                                          3      


                                                                 
section 145.71 of the Revised Code, in a deferred compensation     90           

program offered by the Ohio public employees deferred              91           

compensation board; was an officer or employee of a municipal      93           

corporation who was a participant in a deferred compensation       94           

program offered by that municipal corporation; was an officer or   96           

employee of a government unit, as defined in section 145.74 of     97           

the Revised Code, who was a participant in a deferred                           

compensation program offered by that government unit,; or was a    98           

participating employee, continuing member, or participant in any   99           

deferred compensation program described in this division and a     100          

member of a retirement system specified in this division or a      101          

retirement system of a municipal corporation, the entity to which  102          

restitution is to be made may file a motion with the sentencing    103          

court specifying any retirement system, any entity providing any   104          

benefit under an alternative retirement plan, and any deferred     105          

compensation program of which the offender was a member, electing  106          

employee, participating employee, continuing member, or            107          

participant and requesting the court to issue an order requiring   108          

the specified retirement system, the specified entity providing    109          

the benefit under the alternative retirement plan, or the          110          

specified deferred compensation program, or, if more than one is   111          

specified in the motion, the applicable combination of these, to   112          

withhold the amount required as restitution from any payment that  114          

is to be made under a pension, annuity, or allowance, under a      115          

participant account, as defined in section 145.71 of the Revised   116          

Code, or under any other type of benefit, other than a             117          

survivorship benefit, that has been or is in the future granted    118          

to the offender, from any payment of accumulated employee          119          

contributions standing to the offender's credit with that          120          

retirement system, that entity providing the payment under the     121          

alternative retirement plan, or that deferred compensation                      

program, or, if more than one is specified in the motion, the      123          

applicable combination of these, and from any payment of any       125          

other amounts to be paid to the offender upon the offender's                    

                                                          4      


                                                                 
withdrawal of the offender's contributions pursuant to Chapter     126          

145., 742., 3307., 3309., or 5505. of the Revised Code.  A motion  127          

described in this division may be filed at any time subsequent to  128          

the conviction of the offender or entry of a guilty plea.  Upon    129          

the filing of the motion, the clerk of the court in which the      130          

motion is filed shall notify the offender, the specified           131          

retirement system, the specified entity providing the benefit      132          

under the alternative retirement plan, or the specified deferred   133          

compensation program, or, if more than one is specified in the     134          

motion, the applicable combination of these, in writing, of all    136          

of the following:  that the motion was filed; that the offender    137          

will be granted a hearing on the issuance of the requested order   138          

if the offender files a written request for a hearing with the     139          

clerk prior to the expiration of thirty days after the offender    140          

receives the notice; that, if a hearing is requested, the court    141          

will schedule a hearing as soon as possible and notify the         142          

offender, any specified retirement system, any specified entity    143          

providing any benefit under an alternative retirement plan, and    144          

any specified deferred compensation program of the date, time,     145          

and place of the hearing; that, if a hearing is conducted, it      146          

will be limited only to a consideration of whether the offender    147          

can show good cause why the requested order should not be issued;  148          

that, if a hearing is conducted, the court will not issue the      149          

requested order if the court determines, based on evidence         150          

presented at the hearing by the offender, that there is good       151          

cause for the requested order not to be issued; that the court     152          

will issue the requested order if a hearing is not requested or    153          

if a hearing is conducted but the court does not determine, based  154          

on evidence presented at the hearing by the offender, that there   155          

is good cause for the requested order not to be issued; and that,  156          

if the requested order is issued, any retirement system, any       157          

entity providing any benefit under an alternative retirement       158          

plan, and any deferred compensation program specified in the       159          

motion will be required to withhold the amount required as         160          

                                                          5      


                                                                 
restitution from payments to the offender.                         161          

      (ii)  In any case in which a sentencing court is required    163          

to order restitution under division (C)(2)(a) of this section and  164          

in which a motion requesting the issuance of a withholding order   165          

as described in division (C)(2)(b)(i) of this section is filed,    166          

the offender may receive a hearing on the motion by delivering a   167          

written request for a hearing to the court prior to the            168          

expiration of thirty days after the offender's receipt of the      169          

notice provided pursuant to division (C)(2)(b)(i) of this          170          

section.  If a request for a hearing is made by the offender       171          

within the prescribed time, the court shall schedule a hearing as  172          

soon as possible after the request is made and shall notify the    173          

offender, the specified retirement system, the specified entity    174          

providing the benefit under the alternative retirement plan, or    175          

the specified deferred compensation program, or, if more than one  177          

is specified in the motion, the applicable combination of these,   179          

of the date, time, and place of the hearing.  A hearing scheduled  180          

under this division shall be limited to a consideration of         181          

whether there is good cause, based on evidence presented by the    182          

offender, for the requested order not to be issued.  If the court  183          

determines, based on evidence presented by the offender, that      184          

there is good cause for the order not to be issued, the court      185          

shall deny the motion and shall not issue the requested order.     186          

If the offender does not request a hearing within the prescribed   187          

time or if the court conducts a hearing but does not determine,    188          

based on evidence presented by the offender, that there is good    189          

cause for the order not to be issued, the court shall order the    190          

specified retirement system, the specified entity providing the    191          

benefit under the alternative retirement plan, or the specified    192          

deferred compensation program, or, if more than one is specified   193          

in the motion, the applicable combination of these, to withhold    195          

the amount required as restitution under division (C)(2)(a) of     196          

this section from any payments to be made under a pension,         197          

annuity, or allowance, under a participant account, as defined in  198          

                                                          6      


                                                                 
section 145.71 of the Revised Code, or under any other type of     199          

benefit, other than a survivorship benefit, that has been or is    200          

in the future granted to the offender, from any payment of         201          

accumulated employee contributions standing to the offender's      202          

credit with that retirement system, that entity providing the      203          

benefit under the alternative retirement plan, or that deferred    204          

compensation program, or, if more than one is specified in the     205          

motion, the applicable combination of these, and from any payment  207          

of any other amounts to be paid to the offender upon the           208          

offender's withdrawal of the offender's contributions pursuant to  209          

Chapter 145., 742., 3307., 3309., or 5505. of the Revised Code,    210          

and to continue the withholding for that purpose, in accordance    211          

with the order, out of each payment to be made on or after the     212          

date of issuance of the order, until further order of the court.   213          

Upon receipt of an order issued under this division, the public    214          

employees retirement system, the Ohio police and fire pension      215          

fund, the state teachers retirement system, the school employees   216          

retirement system, the state highway patrol retirement system, a   217          

municipal corporation retirement system, the entity providing the  218          

benefit under the alternative retirement plan, and the deferred    219          

compensation program offered by the Ohio public employees          220          

deferred compensation board, a municipal corporation, or a         221          

government unit, as defined in section 145.74 of the Revised       222          

Code, whichever are applicable, shall withhold the amount          223          

required as restitution, in accordance with the order, from any    224          

such payments and immediately shall forward the amount withheld    225          

to the clerk of the court in which the order was issued for        226          

payment to the entity to which restitution is to be made.          227          

      (iii)  Service of a notice required by division              229          

(C)(2)(b)(i) or (ii) of this section shall be effected in the      230          

same manner as provided in the Rules of Civil Procedure for the    231          

service of process.                                                232          

      (D)  Upon the filing of charges against a person under this  234          

section, the prosecutor, as defined in section 2935.01 of the      235          

                                                          7      


                                                                 
Revised Code, who is assigned the case shall send written notice   236          

that charges have been filed against that person to the public     237          

employees retirement system, the Ohio police and fire pension      239          

fund, the state teachers retirement system, the school employees   240          

retirement system, the state highway patrol retirement system,     241          

the entity providing any benefit under an alternative retirement   242          

plan, any municipal corporation retirement system in this state,   243          

and the deferred compensation program offered by the Ohio public   244          

employees deferred compensation board, a municipal corporation,    245          

or a government unit, as defined in section 145.74 of the Revised  246          

Code.  The written notice shall specifically identify the person   247          

charged.                                                                        

      Section 2.  That existing section 2921.41 of the Revised     249          

Code is hereby repealed.                                           250