Human Resources Academy II for Community College Districts

4. E MPLOYMENT OF S EXUAL P SYCHOPATHS Related to the prohibition on employing individuals convicted of certain sex offenses, Education Code section 87406 prohibits employing or retaining in employment any academic employee, “who has been determined to be a sexual psychopath,” pursuant to Section 5500 of the Welfare and Institutions Code, or similar provisions of law of any other state. The section does not apply, however, if the determination is reversed and the person is determined not to be a sexual psychopath in a new proceeding, or the proceeding is dismissed. As noted above, the Education Code prohibits employment, solely on the grounds of a conviction, for only a particular crime. Where an academic employee has been convicted of an offense that does not require dismissal, then the district is not required to terminate or deny employment. If the district does not want to employ the individual, however, then it will have to establish a nexus between the nature of the offense and the employee’s job. For academic employees, this will require application of the “ Morrison Factors” to determine whether or not the conduct reasonably implicates the employee’s ability to perform his or her job duties. 4 1. C ONVICTION OF S EX O FFENSES OR C ONTROLLED S UBSTANCE O FFENSES As with academic employees, Education Code sections 88022 prohibits hiring or retaining any classified employee who has been convicted of a sex or controlled substance offense as defined in Education Code section 87010. Also similar to the provisions applying to academic employees, section 88022 provides limited circumstances under which the prohibition against employment does not apply. However, the circumstances are more narrowly drawn, and differentiate between controlled substance and sex offenses. For classified staff and applicants convicted of a sex offense , employment is not prohibited only where the “conviction is reversed and the person is acquitted of the offense in a new trial or the charges against him or her are dismissed.” A certificate of rehabilitation or pardon resulting in dismissal, or other proof of rehabilitation, does not overcome the conviction for the purposes of employment in the classified service. D. C LASSIFIED E MPLOYEES

For classified staff and applicants convicted of a controlled substance offense , Education Code sections 88022 provides the following bases on which a convicted employee may be employed:

 the conviction has been reversed and the person acquitted of the offense in a new trial or the charges against him or her are dismissed; or  the district governing board determines, from the evidence presented, that the person has been rehabilitated for at least five years.

In the latter case, the governing board has the authority to determine the type and manner of presentation of the evidence. The governing board’s determination as to whether or not the person has been rehabilitated is final.

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 13