In response to questions we have received about HB392, which was passed in the 2020 Regular Session, we are providing the following explanation and clarification of this legislation.
HB392 made changes to Va. Code § 22.1-296.1, which previously prohibited school boards from employing any person with any felony conviction. The new law does three things with regard to hiring.
First, the new law requires school boards to include on all employment applications a certification that the application must complete indicating whether the applicant has ever been convicted of any "violent felony" (see Definitions, below); any offense involving the sexual molestation, physical or sexual abuse, or rape of a child; or any crime of moral turpitude (see Definitions, below). This is different that the certifications previously required so school boards should be sure to update all employment applications to include this new certification.
Second, the new law prohibits school boards from employing any person who has been convicted of any violent felony or any offense involving the sexual molestation, physical or sexual abuse, or rape of a child.
Third, the new law allows school boards to employ individuals with felony convictions other than those listed above but only if the individual has had his civil rights restored by the Governor. Additionally, school boards may also employ individuals who have convictions for misdemeanor crimes of moral turpitude. (This last sentence is not new.)
The new law also makes the same changes to the provisions regarding contractors with employees who have direct contact with students on school property during regular school hours or during school-sponsored activities. Thus, contractors have to make the same certification as described above and are subject to the same limitations on employing felons as described above.
Definitions
A "crime of moral turpitude" is a crime involving lying, cheating, or stealing.
The new law uses the term "violent felony" and refers to Va. Code §19.2-392.02, which includes a very long list of crimes known as "barrier crimes." These "barrier crimes" include the following: violation of a protective order; murder; felony homicide; manslaughter; malicious wounding by mob; assault or battery by mob; certain street gang crimes; crimes related to terrorism; kidnapping; abduction for immoral purpose; threatening attempting or assisting in such abduction; shooting, stabbing, etc. with intent to maim or kill; malicious bodily injury to law-enforcement officers, firefighters, search and rescue personnel, or emergency medical service providers; aggravated malicious wounding; reckless endangerment by throwing objects from places higher than one story; maiming of another resulting from driving while intoxicated; maiming of another resulting from operating a watercraft while intoxicated; strangulation; malicious bodily injury by means of any caustic substance or explosive or fire; possession of infections biological substances or radiological agents; shooting etc. in committing or attempting a felony; use or display of firearm in committing a felony; attempt to poison; adulteration of food, drink, drugs, cosmetics, etc.; bodily injuries caused by prisoners, state juvenile probationers, and state and local adult probationers or adult parolees; hazing of youth gang members, hazing of student at any school, college or university, reckless handling of firearms; allowing access to firearms by children; assault and battery; pointing a laser and a law enforcement officer; disarming a law enforcement or correctional officer; assault and batter against a family or household member; robbery; carjacking; extortion by threat; threats of death or bodily injury; threatening the Governor or his immediate family; stalking; rape, carnal knowledge of minors; carnal knowledge of inmate, parolee, probationer, detainee, or pretrial or post trial offender; forcible sodomy; object sexual penetration; aggravated sexual battery; sexual battery; infected sexual battery; sexual abuse of a child under 15 years of age; attempted aggravated sexual battery; attempted forcible sodomy; attempted object sexual penetration; attempted rape; attempted sexual battery; sexual assault, repeat offender; burning or destroying a dwelling house; burning or destroying a meeting house; burning or destroying any other building or structure; burning or destroying personal property; burning a building or structure with intent to commit a felony; threats to bomb or damage buildings or means of transportation; causing or inciting threats to bomb or damage buildings or means of transportation; manufacture, possession, use of fire bombs or explosive materials or devices; setting fire to woods, fences, grass etc.; setting woods etc. on fire intentionally; setting off chemical bombs capable of producing smoke in certain public buildings; carelessly damaging property by fire; discharging firearms or missiles within or at building or dwelling house; willfully discharging firearms in public places; setting spring gun or other deadly weapon; pointing, holding or brandishing a firearm, air or gas operated weapon or object similar in appearance; brandishing a machete or other bladed weapon with intent to intimidate; shooting from vehicles so as to endanger persons; wearing body armor while committing a crime; use of a machine gun for crime of violence; use of machine gun for aggressive purpose; possession of a sawed off shotgun or rifle; possession of firearms while in possession of certain substances; failing to secure medical attention for injured child; prostitution; aiding prostitution; using vehicles to promote prostitution; human trafficking; receiving money for procuring person; receiving money from earnings of prostitutes; commercial sex trafficking; crimes against nature; incest; abuse and neglect of incapacitated adults; indecent liberties with children; indecent liberties with child by person in custodial or supervisory relationship; sex offenses prohibiting proximity to children; sex offenses prohibiting residing in proximity to children; sex offenses prohibiting working on school property; sex offenses prohibiting entry onto school or other property; penetration of mouth of child with lascivious intent; abuse and neglect of children; employing or permitting a minor to assist in production, publication, sale, financing etc. of child pornography; employing or permitting a minor to assist in possession , reproduction, distribution, solicitation and facilitation of child pornography; employing or permitting a minor to assist in use of communication systems to facilitate certain offenses involving children; employing or permitting a minor to assist in display of child pornography or grooming video or materials to a child; employing or permitting a minor to assist in coercing acceptance of obscene articles or publications; employing or permitting a minor to assist in offense under article 5 of Chapter 8 of Title 18.2 (obscenity and related offenses); employing or permitting a minor to assist in creation of image of another; employing or permitting a minor to assist in unlawful dissemination of sale of images of another; rioting; unlawful assembly; conspiracy, incitement to riot; commission of certain offenses in location in state of riot or insurrection; injury to property or persons by persons unlawfully or riotously assembled; burning cross on property of another or public place with intent to intimidate; burning object on property of another or a highway or other public place with intent to intimidate; placing a swastika on certain property with intent to intimidate; displaying noose on property of another or a highway or other public place with intent to intimidate; paramilitary activity; providing false information or failing to provide registration information; delivery of drugs to prisoners; escape from jail; escapes from juvenile facility; certain offenses committed within a secure juvenile facility or detention home; escape from jail or custody by force or violence without setting fire; escape from jail or custody without force or violence or setting fire; escape by setting fire to jail; treason; advocacy of change in government by force, violence or other unlawful means; conspiring to incite one race to insurrection against another race; escape of persons committed to facility for sexually violent predators; felonies by prisoners; burglary; entering dwelling house with intent to commit murder, rape, robbery, arson; entering dwelling house with intent to commit larceny, assault and battery or other felony; breaking and entering dwelling house with intent to commit other misdemeanor; entering bank armed with intent to commit larceny; possession of burglarious tools; manufacturing etc, a controlled substance or imitation controlled substance; transporting controlled substance into the Commonwealth; allowing a minor or incapacitated person to be present during manufacture or attempted manufacture of methamphetamine; manufacturing etc. methamphetamine; sale, gift, distribution or possession with intent to sell, give, distribute marijuana; manufacturing etc. any anabolic steroid; possession and distribution of flunitrazepam; possession and distribution of gamma-butyrolactone; 1, 4-butanediol; distribution of certain drugs to persons under 18; sale or manufacture of drugs on or near certain properties; certain premises deemed common nuisance; maintaining a fortified drug house; obtaining drugs, controlled substances by fraud, deceit, or forgery; assisting individuals in unlawfully procuring prescription drugs; possession of controlled substances; any offense set forth in 9.1-902 that results in a requirement to register with the Sex Offender and Crimes Against Minors Registry; and any other felony unless five years have elapsed from the date of the conviction.
