For the § 18.2-57 misdemeanor exception to Virginia child day center hiring restrictions, does an offense committed while employed include conduct outside the scope of work?

Plain-English summary

Delegate Garrett asked how to read "while employed in a child day center" in the exception to Virginia's child day center hiring restriction. The exception in § 63.2-1720(C) addresses a person convicted of not more than one misdemeanor offense under § 18.2-57 after 10 years have elapsed. It does not apply if the offense was committed while the person was employed in a child day center or if the victim was a minor.

The question was whether "while employed" meant any time during the person's period of employment, or only conduct within the scope of the job. The AG concluded that it meant the period of employment, regardless of whether the offense occurred within the scope of work.

The AG compared a related exception for children's residential facilities in § 63.2-1726. That statute uses the narrower phrase "in the scope of his employment." Because the General Assembly chose different words for the two exceptions, the AG concluded that "while employed in" refers to the period of employment and is not limited to work duties.

What this means for you

If you administer a child day center

For the § 18.2-57 misdemeanor exception addressed by this opinion, an offense committed during the person's employment at a child day center falls within "while employed" even if it occurred outside work duties. The opinion does not decide the effect of other misdemeanor convictions.

If you are an applicant

The opinion interprets an exception to a child day center's hiring restriction. It does not resolve a particular person's eligibility or address whether an existing employee may remain employed after a conviction.

Currency note

The opinion was issued in 2015 and interprets the statutes then in force. Check the current text and later authority before applying it to a current hiring decision.

Common questions

Does the opinion apply to all off-duty misdemeanors?
No. The question and analysis concern the exception for not more than one misdemeanor under § 18.2-57 after 10 years have elapsed.

Why did the AG compare children's residential facilities?
Section 63.2-1726 uses "in the scope of his employment" for a related exception. The AG treated the different wording as evidence that "while employed in" has a different meaning.

Does an offense have to arise from child care duties?
No. The AG concluded that the phrase includes an offense during the period of employment, whether or not it was committed within the scope of work.

Background and statutory framework

Section 63.2-1720 generally bars child day centers from hiring a person convicted of a "barrier crime" as defined in § 63.2-1719. Its narrow § 18.2-57 misdemeanor exception requires that 10 years have passed after the conviction and excludes an offense committed while employed in a child day center or one whose victim was a minor. The AG resolved only the meaning of "while employed" by comparing that wording with § 63.2-1726.

Citations and references

• Va. Code § 63.2-1719 (barrier crime definition)
• Va. Code § 63.2-1720(C) (child day center hiring exception)
• Va. Code § 63.2-1726 (children's residential facilities exception)
• Va. Code § 18.2-57 (offense named in the child day center exception)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/15-003_Garrett.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071

July 31, 2015

The Honorable T. Scott Garrett, M.D.
Member, House of Delegates
2255 Langhorne Road, Suite 4
Lynchburg, Virginia 24501

Dear Delegate Garrett:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

By statute, § 63.2-1720(C) of the Code of Virginia, a person who has been convicted of certain offenses "while employed in a child day center" may not be employed there. The precise question presented is whether that phrase refers to (1) an offense committed during the period of time an individual is employed in a child day center, or (2) an offense committed within the scope of employment in a child day center.

Applicable Law and Discussion

Child day centers licensed by the Department of Social Services are required to conduct background checks on their prospective employees. Section 63.2-1720 generally prohibits these facilities from hiring any person who has been convicted of a "barrier crime" as defined in § 63.2-1719. However, § 63.2-1720 provides an exception that allows a child day center to hire a person who has been "convicted of not more than one misdemeanor offense under § 18.2-57 if 10 years have elapsed following the conviction, unless the person committed [the] offense while employed in a child day center or the object of the offense was a minor."

In this context, the phrase "while employed in a child day center" is ambiguous. It could mean an offense committed during the period of employment at a child day center, or it could mean an offense committed within the scope of employment in a child day center. Because the statute is ambiguous, we must examine the language of related statutes to determine the intent of the General Assembly.

Section 63.2-1726 is a related statute. It provides that children's residential facilities, like licensed child day centers, are prohibited from employing persons with certain criminal convictions. It lists the offenses that generally bar an individual from employment at a children's residential facility and provides an exception that allows a children's residential facility to hire "persons who have been convicted of not more than one misdemeanor offense under § 18.2-57 or 18.2-57.2, if 10 years have elapsed following the conviction, unless the person committed such offense in the scope of his employment, volunteer, or contractual services."

Although similar to the exception in § 63.2-1720(C) that applies to employees at child day centers, the exception in § 63.2-1726 for children's residential facilities has a key difference: it refers to "in the scope of his employment" rather than "while employed in." It must be assumed that the General Assembly chose its words with care in enacting the two statutes. Because the two statutes use different words in similar contexts, the General Assembly must have intended the different words to mean different things. The phrase "in the scope of his employment" means the offense must have occurred in connection with the individual's work at a covered facility. It must therefore be concluded that the different phrase "while employed in" means the offense happened during the period of employment, but not necessarily in the scope of employment.

Conclusion

Accordingly, it is my opinion that the phrase "while employed in a child day center" in § 63.2-1720(C) refers to an offense committed during the period of time an individual is employed at a child day center, regardless of whether or not the offense was committed within the scope of employment there.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General