The Franklin County Board of Developmental Disabilities had the right to terminate an adult-services worker for failing to disclose his sealed criminal conviction on applications to renew his state registration during the 18 years he worked there, the Ohio Supreme Court ruled today.
In a unanimous opinion, the Supreme Court ruled Michael Gyugo was obligated to honestly answer questions about his sealed conviction and the board had the right to fire him for affirmatively denying the conviction.
Writing for the Court, Justice Judith L. French noted that while Ohio law generally does not permit questions on employment and licensure applications about sealed convictions, those questions are permitted—and disclosure is required—when the questions bear a “direct and substantial relationship” to the position.
The decision affirms the ruling of the State Personnel Board of Review, the Franklin County Common Pleas Court, and the Tenth District Court of Appeals, all having rejected Gyugo’s appeal of his firing.
Record Sealed in 1992
In 1992, an Ohio common pleas court sealed the record of Gyugo’s prior conviction for an offense that is not identified in the Court’s record. In 1995, Gyugo applied with the developmental disabilities board to be a training specialist. The application asked whether Gyugo had ever been convicted of or pleaded guilty to a felony or similar serious offense. He answered “no.”
Gyugo was informed that he would be subject to a criminal-background investigation, but the investigation did not reveal his sealed conviction. He received an employment policy manual that said giving false information or withholding pertinent information when applying for the job and dishonesty would be grounds for termination.
From 1995 to 2013, Gyugo trained and instructed employees with developmental disabilities. The position required that he maintain registration with the state as an adult-services worker, and he applied to renew his registration every four years beginning in 1996. Each registration application asked whether Gyugo had ever been convicted of a felony or a misdemeanor other than a minor traffic offense and stated that he had to “answer this question even if the record of [his] conviction(s)” had been sealed or expunged. The 2008 application also stated that he had to answer the question regardless of whether or not the conviction appears on a criminal background check. On each registration application, Gyugo answered “no” to the question.
In 2013, when completing a criminal record check on all its employees, the Franklin County board learned of Gyugo’s sealed conviction. He was provided a predisciplinary hearing, and then was terminated in October 2013 for dishonesty because he misrepresented his past criminal record on the application for employment and on each of four applications for registration.
Gyugo Appeals Termination
Gyugo appealed to the State Personnel Board of Review. A review board administrative law judge found that Gyugo’s belief that he was not required to disclose the sealed conviction on his 1995 employment application was reasonable because the application did not refer to sealed or expunged records. However, the administrative law judge concluded that Gyugo’s belief was unreasonable with respect to the registration applications, based on the wording of the questions.
The review board upheld the termination, and Gyugo appealed to the common pleas court, which affirmed the review board’s decision. In a 2-1 ruling, the Tenth District affirmed Gyugo’s termination. He appealed to the Supreme Court, arguing that when criminal convictions are sealed under R.C. 2953.32, an applicant is not required to disclose the conviction when asked and may not be disciplined for declining to do so. The Court agreed to hear his case.
Gyugo argues that R.C. 2953.33(B)(1) does not permit questions on employment or licensure applications about sealed convictions. Justice French wrote the Supreme Court reviewed a “confusing array of statutes, including many that the General Assembly amended — in some cases, multiple times — during the course of Gyugo’s employment by the board.”
The opinion explained that when a court seals a record, the underlying case “shall be considered not to have occurred,” and restores all rights to the offender. However, a sealed conviction is not shielded for all purposes, and the Court noted that the Ohio Bureau of Criminal Identification and Investigation (“BCI”) is permitted to inspect sealed records in order to provide information about applicants seeking employment to county boards of development disabilities.
Records Law Contains Exception
The law Gyugo cited contains an exception. It does not permit application questions with respect to sealed convictions “unless the question bears a direct and substantial relationship to the position for which the person is being considered.”
Other state laws prohibited the board from hiring any person convicted of certain criminal offenses and required the state to deny or revoke the registration of any applicant convicted of the specified offenses unless that person had been rehabilitated. Sealing of a record itself was not sufficient to qualify as rehabilitation, the opinion noted. When Gyugo was hired, state law required the board to obtain a criminal-background check of any applicant from BCI, which would include relevant information contained in sealed records.
Gyugo stipulated that his sealed conviction was for an offense that, if disclosed, would have disqualified him for the job when he applied for his position. He argued the sealing of his conviction, however, removed his disqualification. He also argued that the registration application questions did not list the offenses that bear a direct and substantial relationship to his positon.
The Court rejected his argument and found the state is not obliged to list in an application question all of the many possible offenses that bear a direct and substantial relationship to a particular position.
“Here, we conclude that the prior-conviction application questions explicitly requiring disclosure of sealed convictions bore a direct and substantial relationship to Gyugo’s position, for which registration as an adult-services worker was required. Determination of both Gyugo’s qualifications for employment by the board and qualifications for the required adult-services registration involved consideration of Gyugo’s criminal history, including any convictions that had been sealed,” the Court concluded.