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Sub. S. B. No. 310 As Reported by the Senate Judiciary--Criminal Justice CommitteeAs Reported by the Senate Judiciary--Criminal Justice Committee
127th General Assembly | Regular Session | 2007-2008 |
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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
Revised
Code be amended to read as follows:
Sec. 2921.41. (A) No public official or party official
shall
commit any theft offense, as defined in division (K) of
section
2913.01 of the Revised Code, when either of the following
applies:
(1) The offender uses the offender's office in aid of
committing the
offense or permits or assents to its use in aid of
committing the
offense;
(2) The property or service involved is owned by this
state,
any other state, the United States, a county, a municipal
corporation, a township, or any political subdivision,
department,
or agency of any of them, is owned by a political
party, or is
part of a political campaign fund.
(B) Whoever violates this section is guilty of theft in
office. Except as otherwise provided in this division, theft in
office is a
felony of the fifth degree. If the value of property
or services stolen is
five hundred dollars or more and is less
than five thousand dollars, theft in
office is a felony of the
fourth degree. If the value of property or services
stolen is
five
thousand dollars or more, theft in office is a felony of
the
third
degree.
(C)(1) A public official or party official who is
convicted
of or pleads guilty to theft in office and whose
plea is accepted
by the court or a public official or party
official against whom
a verdict or finding of guilt for committing
theft in office is
returned is forever
disqualified
from holding
any public office,
employment, or
position of trust
in this state.
(2)(a) A court that imposes sentence for a violation of
this
section based on conduct described in division (A)(2) of
this
section shall require the public official or party official
who is
convicted of or pleads guilty to the offense to make
restitution
for all of the property or the service that is the
subject of the
offense, in addition to the term of imprisonment
and any fine
imposed. A court that imposes sentence for a
violation of this
section based on conduct described in division
(A)(1) of this
section and that determines at trial that this
state or a
political subdivision of this state if the offender is
a public
official, or a political party in the United States or
this state
if the offender is a party official, suffered actual
loss as a
result of the offense shall require the offender to
make
restitution to the state, political subdivision, or
political
party for all of the actual loss experienced, in
addition to the
term of imprisonment and any fine imposed.
(b)(i) In any case in which a sentencing court is required
to
order restitution under division (C)(2)(a) of this section and
in
which the offender, at the time of the commission of the
offense
or at any other time, was a member of the public
employees
retirement system, the Ohio police and fire
pension fund, the
state teachers retirement system, the
school employees retirement
system, or the state highway patrol
retirement system; was an
electing employee, as defined in
section
3305.01 of the Revised
Code, participating in an alternative retirement plan
provided
pursuant to Chapter 3305. of the Revised Code; was a participating
employee or continuing
member, as defined in section 148.01 of the
Revised
Code, in a
deferred compensation program offered by the
Ohio public
employees deferred compensation board; was an officer
or
employee
of a municipal corporation who was a participant in a
deferred
compensation program offered by that municipal
corporation; was
an
officer or employee of a government unit, as
defined in section
148.06 of the Revised Code, who was a
participant in a
deferred
compensation program offered by that
government unit, or was a
participating employee, continuing
member, or participant in any
deferred compensation program
described in this division and a
member of a retirement system
specified in this division or a
retirement system of a municipal
corporation, the entity to which
restitution is to be made may
file a motion with the sentencing
court specifying any retirement
system, any provider as defined in
section 3305.01 of the Revised
Code, and any deferred
compansation
compensation program of which
the offender
was a member, electing
employee, participating
employee,
continuing member, or participant
and requesting the
court to
issue an order requiring the specified
retirement system,
the
specified
provider under the
alternative retirement plan, or
the
specified deferred compensation
program, or, if more than one
is
specified in the
motion, the applicable combination of these,
to
withhold the
amount
required as restitution from any payment
that
is to be made under
a pension, annuity, or allowance, under
an
option in the alternative
retirement plan, under a participant
account, as
defined in section 148.01 of the Revised Code, or
under
any other
type of benefit, other than a survivorship
benefit, that has been
or is in the future granted to the
offender, from any payment of
accumulated employee contributions
standing to the offender's
credit with that retirement system,
that provider
of the option under
the alternative retirement
plan,
or that deferred compensation
program, or, if more than one
is
specified in the
motion, the applicable combination of
these,
and
from any payment of
any other amounts to be paid to the
offender
upon the offender's withdrawal
of the offender's
contributions
pursuant to Chapter 145., 148., 742.,
3307.,
3309.,
or 5505. of
the Revised Code. A motion described in this
division
may be filed
at any time subsequent to the conviction of
the
offender or entry
of a guilty plea. Upon the filing of
the
motion, the clerk of the
court in which the motion is filed
shall
notify the offender, the
specified retirement system, the
specified
provider under the
alternative
retirement plan, or the
specified deferred
compensation program, or, if more than
one is
specified in the
motion, the applicable combination of these,
in
writing, of all of
the
following: that the motion was filed; that
the offender will
be
granted a hearing on the issuance of the
requested order if the
offender files a written request for a
hearing with the clerk
prior to the expiration of thirty days
after the offender
receives
the notice; that, if a hearing is
requested, the court
will
schedule a hearing as soon as possible
and notify the
offender,
any specified retirement system, any
specified provider under an
alternative retirement plan, and any
specified
deferred
compensation program of the date, time, and
place of the
hearing;
that, if a hearing is conducted, it will be
limited only
to a
consideration of whether the offender can show
good cause
why the
requested order should not be issued; that, if
a hearing
is
conducted, the court will not issue the requested
order if the
court determines, based on evidence presented at the
hearing by
the offender, that there is good cause for the
requested order
not
to be issued; that the court will issue the
requested order
if a
hearing is not requested or if a hearing is
conducted but
the
court does not determine, based on evidence
presented at the
hearing by the offender, that there is good cause
for the
requested order not to be issued; and that, if the
requested
order
is issued, any retirement system, any provider
under an
alternative retirement plan, and any
deferred
compensation program
specified in the motion will be required to
withhold the amount
required as restitution from payments to the
offender.
(ii) In any case in which a sentencing court is required
to
order restitution under division (C)(2)(a) of this section and
in
which a motion requesting the issuance of a withholding order
as
described in division (C)(2)(b)(i) of this section is filed,
the
offender may receive a hearing on the motion by delivering a
written request for a hearing to the court prior to the
expiration
of thirty days after the offender's receipt of the
notice provided
pursuant to division (C)(2)(b)(i) of this
section. If a request
for a hearing is made by the offender
within the prescribed time,
the court shall schedule a hearing as
soon as possible after the
request is made and shall notify the
offender, the specified
retirement system, the specified provider under the alternative
retirement plan, or the
specified deferred
compensation program,
or, if more than one is specified
in the motion, the
applicable
combination of these, of the date, time, and place of
the hearing.
A hearing scheduled
under this division shall be limited to a
consideration of
whether there is good cause, based on evidence
presented by the
offender, for the requested order not to be
issued. If the court
determines, based on evidence presented by
the offender, that
there is good cause for the order not to be
issued, the court
shall deny the motion and shall not issue the
requested order.
If the offender does not request a hearing
within the prescribed
time or if the court conducts a hearing but
does not determine,
based on evidence presented by the offender,
that there is good
cause for the order not to be issued, the court
shall order the
specified retirement system, the specified
provider under the alternative retirement plan, or the specified
deferred
compensation program, or, if more than one is specified
in the motion, the applicable
combination of these, to withhold
the amount required as restitution under division (C)(2)(a) of
this section from any payments to be made under a pension,
annuity, or allowance, under a participant account,
as defined in
section 148.01 of the Revised Code,
under an option in the
alternative retirement plan,
or under any other
type of
benefit,
other than a survivorship benefit, that has been or is
in the
future granted to the offender, from any payment of
accumulated
employee contributions standing to the offender's
credit with that
retirement system, that
provider under the alternative retirement
plan, or that deferred
compensation program, or, if more than one
is specified in the
motion, the applicable combination of these,
and from any payment of
any other amounts to be paid to the
offender upon the offender's withdrawal
of the offender's
contributions pursuant to Chapter 145., 148., 742.,
3307.,
3309.,
or 5505. of the Revised Code, and to continue the
withholding for
that purpose, in accordance with the order, out
of each payment to
be made on or after the date of issuance of
the order, until
further order of the court. Upon receipt of an
order issued under
this division, the public employees retirement
system, the Ohio
police and
fire pension fund, the
state teachers retirement
system, the school employees retirement
system, the state highway
patrol retirement system, a municipal
corporation retirement
system, the
provider under the
alternative retirement plan, and
the deferred compensation
program offered by the Ohio public
employees deferred
compensation board, a municipal corporation, or
a government
unit, as defined in section 148.06 of the Revised
Code,
whichever
are applicable, shall withhold the amount required
as
restitution, in accordance with the order, from any such
payments
and immediately shall forward the amount withheld to the
clerk of
the court in which the order was issued for payment to
the entity
to which restitution is to be made.
(iii) Service of a notice required by division
(C)(2)(b)(i)
or (ii) of this section shall be effected in the
same manner as
provided in the Rules of Civil Procedure for the
service of
process.
(D) Upon the filing of charges against a person under this
section, the prosecutor, as defined in section 2935.01 of the
Revised Code, who is assigned the case shall send written notice
that charges have been filed against that person to the public
employees retirement system, the Ohio police and fire
pension
fund, the state teachers retirement system, the
school employees
retirement system, the state highway patrol
retirement system, the
provider
under an alternative
retirement plan, any municipal
corporation retirement system in
this state, and the deferred
compensation program offered by the
Ohio public employees deferred
compensation board, a municipal
corporation, or a government unit,
as defined in section
148.06 of the Revised Code. The written
notice shall specifically
identify the person charged.
Sec. 2961.01.
(A)(1) A person convicted of who pleads
guilty to a felony under the
laws of
this or any
other state or
the United States and whose plea is accepted
by the court or a
person against whom a verdict or finding of
guilt for committing
a felony under any law of that type is
returned, unless the
conviction plea, verdict, or finding is
reversed or
annulled,
is
incompetent to be an
elector or juror or to hold an
office of
honor, trust, or profit.
When
(2) When any person convicted of a felony
under any law of
that type
who under division (A)(1) of this section is incompetent
to be an elector or juror or to hold an office of honor, trust, or
profit is granted
parole, judicial
release,
or
a conditional
pardon or is
released under a
non-jail community
control
sanction
or a
post-release control
sanction, the person is
competent to be
an
elector during the period of
community control,
parole,
post-release
control, or release or until the
conditions
of the
pardon
have been performed
or have transpired and is
competent to
be an elector thereafter
following final discharge.
The
full
pardon of a person convicted of a felony who under
division (A)(1) of this section is incompetent to be an
elector
or juror or to hold an office of honor, trust, or profit restores
the
rights and
privileges so
forfeited under this
division
(A)(1) of this section, but a
pardon shall
not release the
person convicted of a felony from
the costs of
a
conviction in
this state,
unless so specified.
(B)
A person convicted of who pleads guilty to a felony
under laws of this state
or any other state or the United States
and whose plea is accepted
by the court or a person against whom
a verdict or finding of
guilt for committing a felony under any
law of that type is returned
is incompetent to
circulate or serve
as a witness for the signing
of any declaration
of candidacy and
petition, voter registration
application, or
nominating,
initiative, referendum, or recall
petition.
(C) As used in this section:
(1)
"Community control sanction" has the same meaning as in
section 2929.01 of the Revised Code.
(2)
"Non-jail community control sanction" means a community
control sanction that is neither a term in a community-based
correctional facility nor a term in a jail.
(3)
"Post-release control" and
"post-release control
sanction"
have the same meanings as in section 2967.01 of the
Revised
Code.
Sec. 2961.02. (A) As used in this section:
(1) "Disqualifying offense" means an offense that has both of
the following characteristics:
(a) It is one of the following:
(i) A theft offense that is a felony;
(ii) A felony under the laws of this state,
another state, or
the
United States, that is not
covered by division
(A)(1)(a)(i)
of this section and that involves
fraud,
deceit, or theft.
(b) It is an offense for which the laws of this state,
another state, or the United States do not otherwise contain a
provision specifying permanent disqualification, or
disqualification for a specified period, from holding a public
office or position of public employment, or from serving as an
unpaid volunteer, as a result of conviction of the offense,
including, but not limited to, a provision such as that in
division (C)(1) of section 2921.41 of the Revised Code.
(2) "Political subdivision" has the same meaning as in
section 2744.01 of the Revised Code.
(3) "Private entity" includes an individual, corporation,
limited liability company, business trust, estate, trust,
partnership, or association that receives any funds from
a state
agency or political
subdivision to perform an activity on behalf
of the state agency
or political subdivision.
(4) "State agency" has the same meaning as in section 1.60
of
the Revised Code.
(5) "Theft offense" has the same meaning as in section
2913.01 of the Revised Code.
(6) "Volunteer" means a person who serves as a
volunteer
without compensation with a state agency or political
subdivision
or who serves as a volunteer without compensation with a private
entity, including, but not limited to, an
uncompensated auxiliary
police officer, auxiliary deputy sheriff,
or volunteer
firefighter.
(B) Any person who is convicted of pleads guilty to a
disqualifying offense and whose plea is
accepted by the court or
any person against whom a verdict or
finding of guilt for
committing a disqualifying offense is
returned is
incompetent to
hold a
public office or
position of public
employment
or to serve
as a
volunteer, if
holding the public
office or position of
public
employment or
serving as the
volunteer involves
substantial
management or
control over the
property of a state
agency,
political
subdivision, or private
entity.
(C) Division (B) of this section does not apply if a
conviction of plea,
verdict, or finding of the type described in
that division
regarding a disqualifying offense is reversed,
expunged, or
annulled.
The
full pardon of a person convicted of
who has pleaded guilty to a disqualifying
offense
and whose plea
was
accepted by the court or a person against whom a verdict or
finding of guilt for committing a disqualifying offense was
returned restores the privileges
forfeited under division (B) of
this
section, but the pardon does
not release the person from the
costs
of the person's conviction
in this state, unless so
specified.
Section 2. That existing sections 2921.41, 2961.01, and
2961.02 of the
Revised Code are hereby repealed.
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