Sub. S. B. No. 310 As Reported by the Senate Judiciary--Criminal Justice Committee

As Reported by the Senate Judiciary--Criminal Justice Committee

127th General Assembly

Regular Session

2007-2008

Sub. S. B. No. 310

Senator Cates

Cosponsors: Senators Schuring, Cafaro, Kearney, Schaffer, Faber

A BILL

To amend sections 2921.41, 2961.01, and 2961.02 of

the Revised Code to make existing laws

prohibiting a person who has been convicted of a

felony, including the offense of theft in office,

from holding public office and denying such

person other specified privileges applicable upon

the acceptance of the person's guilty plea or the

determination of the person's guilt.

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

Section 1. That sections 2921.41, 2961.01, and 2961.02 of the	9
Revised Code be amended to read as follows:	10

Sec. 2921.41. (A) No public official or party official shall	11
commit any theft offense, as defined in division (K) of section	12
2913.01 of the Revised Code, when either of the following applies:	13

(1) The offender uses the offender's office in aid of	14
committing the offense or permits or assents to its use in aid of	15
committing the offense;	16

(2) The property or service involved is owned by this state,	17
any other state, the United States, a county, a municipal	18
corporation, a township, or any political subdivision, department,	19
or agency of any of them, is owned by a political party, or is	20
part of a political campaign fund.	21

(B) Whoever violates this section is guilty of theft in	22
office. Except as otherwise provided in this division, theft in	23
office is a felony of the fifth degree. If the value of property	24
or services stolen is five hundred dollars or more and is less	25
than five thousand dollars, theft in office is a felony of the	26
fourth degree. If the value of property or services stolen is five	27
thousand dollars or more, theft in office is a felony of the third	28
degree.	29

(C)(1) A public official or party official who ~~is convicted~~	30
~~of or~~ pleads guilty to theft in office and whose plea is accepted	31
by the court or a public official or party official against whom	32
a verdict or finding of guilt for committing theft in office is	33
returned is forever disqualified from holding any public office,	34
employment, or position of trust in this state.	35

(2)(a) A court that imposes sentence for a violation of this	36
section based on conduct described in division (A)(2) of this	37
section shall require the public official or party official who is	38
convicted of or pleads guilty to the offense to make restitution	39
for all of the property or the service that is the subject of the	40
offense, in addition to the term of imprisonment and any fine	41
imposed. A court that imposes sentence for a violation of this	42
section based on conduct described in division (A)(1) of this	43
section and that determines at trial that this state or a	44
political subdivision of this state if the offender is a public	45
official, or a political party in the United States or this state	46
if the offender is a party official, suffered actual loss as a	47
result of the offense shall require the offender to make	48
restitution to the state, political subdivision, or political	49
party for all of the actual loss experienced, in addition to the	50
term of imprisonment and any fine imposed.	51

(b)(i) In any case in which a sentencing court is required to	52
order restitution under division (C)(2)(a) of this section and in	53
which the offender, at the time of the commission of the offense	54
or at any other time, was a member of the public employees	55
retirement system, the Ohio police and fire pension fund, the	56
state teachers retirement system, the school employees retirement	57
system, or the state highway patrol retirement system; was an	58
electing employee, as defined in section 3305.01 of the Revised	59
Code, participating in an alternative retirement plan provided	60
pursuant to Chapter 3305. of the Revised Code; was a participating	61
employee or continuing member, as defined in section 148.01 of the	62
Revised Code, in a deferred compensation program offered by the	63
Ohio public employees deferred compensation board; was an officer	64
or employee of a municipal corporation who was a participant in a	65
deferred compensation program offered by that municipal	66
corporation; was an officer or employee of a government unit, as	67
defined in section 148.06 of the Revised Code, who was a	68
participant in a deferred compensation program offered by that	69
government unit, or was a participating employee, continuing	70
member, or participant in any deferred compensation program	71
described in this division and a member of a retirement system	72
specified in this division or a retirement system of a municipal	73
corporation, the entity to which restitution is to be made may	74
file a motion with the sentencing court specifying any retirement	75
system, any provider as defined in section 3305.01 of the Revised	76
Code, and any deferred ~~compansation~~compensation program of which	77
the offender was a member, electing employee, participating	78
employee, continuing member, or participant and requesting the	79
court to issue an order requiring the specified retirement system,	80
the specified provider under the alternative retirement plan, or	81
the specified deferred compensation program, or, if more than one	82
is specified in the motion, the applicable combination of these,	83
to withhold the amount required as restitution from any payment	84
that is to be made under a pension, annuity, or allowance, under	85
an option in the alternative retirement plan, under a participant	86
account, as defined in section 148.01 of the Revised Code, or	87
under any other type of benefit, other than a survivorship	88
benefit, that has been or is in the future granted to the	89
offender, from any payment of accumulated employee contributions	90
standing to the offender's credit with that retirement system,	91
that provider of the option under the alternative retirement plan,	92
or that deferred compensation program, or, if more than one is	93
specified in the motion, the applicable combination of these, and	94
from any payment of any other amounts to be paid to the offender	95
upon the offender's withdrawal of the offender's contributions	96
pursuant to Chapter 145., 148., 742., 3307., 3309., or 5505. of	97
the Revised Code. A motion described in this division may be filed	98
at any time subsequent to the conviction of the offender or entry	99
of a guilty plea. Upon the filing of the motion, the clerk of the	100
court in which the motion is filed shall notify the offender, the	101
specified retirement system, the specified provider under the	102
alternative retirement plan, or the specified deferred	103
compensation program, or, if more than one is specified in the	104
motion, the applicable combination of these, in writing, of all of	105
the following: that the motion was filed; that the offender will	106
be granted a hearing on the issuance of the requested order if the	107
offender files a written request for a hearing with the clerk	108
prior to the expiration of thirty days after the offender receives	109
the notice; that, if a hearing is requested, the court will	110
schedule a hearing as soon as possible and notify the offender,	111
any specified retirement system, any specified provider under an	112
alternative retirement plan, and any specified deferred	113
compensation program of the date, time, and place of the hearing;	114
that, if a hearing is conducted, it will be limited only to a	115
consideration of whether the offender can show good cause why the	116
requested order should not be issued; that, if a hearing is	117
conducted, the court will not issue the requested order if the	118
court determines, based on evidence presented at the hearing by	119
the offender, that there is good cause for the requested order not	120
to be issued; that the court will issue the requested order if a	121
hearing is not requested or if a hearing is conducted but the	122
court does not determine, based on evidence presented at the	123
hearing by the offender, that there is good cause for the	124
requested order not to be issued; and that, if the requested order	125
is issued, any retirement system, any provider under an	126
alternative retirement plan, and any deferred compensation program	127
specified in the motion will be required to withhold the amount	128
required as restitution from payments to the offender.	129

(ii) In any case in which a sentencing court is required to	130
order restitution under division (C)(2)(a) of this section and in	131
which a motion requesting the issuance of a withholding order as	132
described in division (C)(2)(b)(i) of this section is filed, the	133
offender may receive a hearing on the motion by delivering a	134
written request for a hearing to the court prior to the expiration	135
of thirty days after the offender's receipt of the notice provided	136
pursuant to division (C)(2)(b)(i) of this section. If a request	137
for a hearing is made by the offender within the prescribed time,	138
the court shall schedule a hearing as soon as possible after the	139
request is made and shall notify the offender, the specified	140
retirement system, the specified provider under the alternative	141
retirement plan, or the specified deferred compensation program,	142
or, if more than one is specified in the motion, the applicable	143
combination of these, of the date, time, and place of the hearing.	144
A hearing scheduled under this division shall be limited to a	145
consideration of whether there is good cause, based on evidence	146
presented by the offender, for the requested order not to be	147
issued. If the court determines, based on evidence presented by	148
the offender, that there is good cause for the order not to be	149
issued, the court shall deny the motion and shall not issue the	150
requested order. If the offender does not request a hearing	151
within the prescribed time or if the court conducts a hearing but	152
does not determine, based on evidence presented by the offender,	153
that there is good cause for the order not to be issued, the court	154
shall order the specified retirement system, the specified	155
provider under the alternative retirement plan, or the specified	156
deferred compensation program, or, if more than one is specified	157
in the motion, the applicable combination of these, to withhold	158
the amount required as restitution under division (C)(2)(a) of	159
this section from any payments to be made under a pension,	160
annuity, or allowance, under a participant account, as defined in	161
section 148.01 of the Revised Code, under an option in the	162
alternative retirement plan, or under any other type of benefit,	163
other than a survivorship benefit, that has been or is in the	164
future granted to the offender, from any payment of accumulated	165
employee contributions standing to the offender's credit with that	166
retirement system, that provider under the alternative retirement	167
plan, or that deferred compensation program, or, if more than one	168
is specified in the motion, the applicable combination of these,	169
and from any payment of any other amounts to be paid to the	170
offender upon the offender's withdrawal of the offender's	171
contributions pursuant to Chapter 145., 148., 742., 3307., 3309.,	172
or 5505. of the Revised Code, and to continue the withholding for	173
that purpose, in accordance with the order, out of each payment to	174
be made on or after the date of issuance of the order, until	175
further order of the court. Upon receipt of an order issued under	176
this division, the public employees retirement system, the Ohio	177
police and fire pension fund, the state teachers retirement	178
system, the school employees retirement system, the state highway	179
patrol retirement system, a municipal corporation retirement	180
system, the provider under the alternative retirement plan, and	181
the deferred compensation program offered by the Ohio public	182
employees deferred compensation board, a municipal corporation, or	183
a government unit, as defined in section 148.06 of the Revised	184
Code, whichever are applicable, shall withhold the amount required	185
as restitution, in accordance with the order, from any such	186
payments and immediately shall forward the amount withheld to the	187
clerk of the court in which the order was issued for payment to	188
the entity to which restitution is to be made.	189

(iii) Service of a notice required by division (C)(2)(b)(i)	190
or (ii) of this section shall be effected in the same manner as	191
provided in the Rules of Civil Procedure for the service of	192
process.	193

(D) Upon the filing of charges against a person under this	194
section, the prosecutor, as defined in section 2935.01 of the	195
Revised Code, who is assigned the case shall send written notice	196
that charges have been filed against that person to the public	197
employees retirement system, the Ohio police and fire pension	198
fund, the state teachers retirement system, the school employees	199
retirement system, the state highway patrol retirement system, the	200
provider under an alternative retirement plan, any municipal	201
corporation retirement system in this state, and the deferred	202
compensation program offered by the Ohio public employees deferred	203
compensation board, a municipal corporation, or a government unit,	204
as defined in section 148.06 of the Revised Code. The written	205
notice shall specifically identify the person charged.	206

Sec. 2961.01. (A)(1) A person ~~convicted of~~who pleads	207
guilty to a felony under the laws of this or any other state or	208
the United States and whose plea is accepted by the court or a	209
person against whom a verdict or finding of guilt for committing	210
a felony under any law of that type is returned, unless the	211
~~conviction~~plea, verdict, or finding is reversed or annulled, is	212
incompetent to be an elector or juror or to hold an office of	213
honor, trust, or profit. ~~When~~	214

(2) When any person ~~convicted of a felony under any law of~~	215
~~that type~~who under division (A)(1) of this section is incompetent	216
to be an elector or juror or to hold an office of honor, trust, or	217
profit is granted parole, judicial release, or a conditional	218
pardon or is released under a non-jail community control	219
sanction or a post-release control sanction, the person is	220
competent to be an elector during the period of community control,	221
parole, post-release control, or release or until the conditions	222
of the pardon have been performed or have transpired and is	223
competent to be an elector thereafter following final discharge.	224
The full pardon of a person ~~convicted of a felony~~who under	225
division (A)(1) of this section is incompetent to be an elector	226
or juror or to hold an office of honor, trust, or profit restores	227
the rights and privileges so forfeited under ~~this~~ division	228
(A)(1) of this section, but a pardon shall not release the	229
person ~~convicted of a felony~~ from the costs of a conviction in	230
this state, unless so specified.	231

(B) A person ~~convicted of~~who pleads guilty to a felony	232
under laws of this state or any other state or the United States	233
and whose plea is accepted by the court or a person against whom	234
a verdict or finding of guilt for committing a felony under any	235
law of that type is returned is incompetent to circulate or serve	236
as a witness for the signing of any declaration of candidacy and	237
petition, voter registration application, or nominating,	238
initiative, referendum, or recall petition.	239

240

(1) "Community control sanction" has the same meaning as in	241
section 2929.01 of the Revised Code.	242

(2) "Non-jail community control sanction" means a community	243
control sanction that is neither a term in a community-based	244
correctional facility nor a term in a jail.	245

(3) "Post-release control" and "post-release control	246
sanction" have the same meanings as in section 2967.01 of the	247
Revised Code.	248

Sec. 2961.02. (A) As used in this section:

249

(1) "Disqualifying offense" means an offense that has both of	250
the following characteristics:	251

(a) It is one of the following:

252

(i) A theft offense that is a felony;

253

(ii) A felony under the laws of this state, another state, or	254
the United States, that is not covered by division (A)(1)(a)(i)	255
of this section and that involves fraud, deceit, or theft.	256

(b) It is an offense for which the laws of this state,	257
another state, or the United States do not otherwise contain a	258
provision specifying permanent disqualification, or	259
disqualification for a specified period, from holding a public	260
office or position of public employment, or from serving as an	261
unpaid volunteer, as a result of conviction of the offense,	262
including, but not limited to, a provision such as that in	263
division (C)(1) of section 2921.41 of the Revised Code.	264

(2) "Political subdivision" has the same meaning as in	265
section 2744.01 of the Revised Code.	266

(3) "Private entity" includes an individual, corporation,	267
limited liability company, business trust, estate, trust,	268
partnership, or association that receives any funds from a state	269
agency or political subdivision to perform an activity on behalf	270
of the state agency or political subdivision.	271

(4) "State agency" has the same meaning as in section 1.60	272
of the Revised Code.	273

(5) "Theft offense" has the same meaning as in section	274
2913.01 of the Revised Code.	275

(6) "Volunteer" means a person who serves as a volunteer	276
without compensation with a state agency or political subdivision	277
or who serves as a volunteer without compensation with a private	278
entity, including, but not limited to, an uncompensated auxiliary	279
police officer, auxiliary deputy sheriff, or volunteer	280
firefighter.	281

(B) Any person who ~~is convicted of~~pleads guilty to a	282
disqualifying offense and whose plea is accepted by the court or	283
any person against whom a verdict or finding of guilt for	284
committing a disqualifying offense is returned is incompetent to	285
hold a public office or position of public employment or to serve	286
as a volunteer, if holding the public office or position of	287
public employment or serving as the volunteer involves	288
substantial management or control over the property of a state	289
agency, political subdivision, or private entity.	290

(C) Division (B) of this section does not apply if a	291
~~conviction of~~plea, verdict, or finding of the type described in	292
that division regarding a disqualifying offense is reversed,	293
expunged, or annulled. The full pardon of a person ~~convicted of~~	294
who has pleaded guilty to a disqualifying offense and whose plea	295
was accepted by the court or a person against whom a verdict or	296
finding of guilt for committing a disqualifying offense was	297
returned restores the privileges forfeited under division (B) of	298
this section, but the pardon does not release the person from the	299
costs of the person's conviction in this state, unless so	300
specified.	301

Section 2. That existing sections 2921.41, 2961.01, and	302
2961.02 of the Revised Code are hereby repealed.	303