Robert J. Daniels and Joseph F. Canamucio

Pennsylvania teachers live and work at the intersection of numerous laws. They are often public employees.  They are almost always professionals who must acquire and maintain certificates through the Pennsylvania Department of Education.  Their workplaces – schools – are among the most highly regulated in the Commonwealth.  And their interaction with and responsibility over children subjects them to more intense professional scrutiny – in the form of background checks, forms, reports, and tracking – than nearly any other type of licensed professional.[1]  When a teacher is accused or convicted of a crime, he or she faces severe professional consequences.  This article discusses these consequences and the unique issues facing teachers during criminal proceedings.

Entering the Profession

Besides schooling and exams, entry into the teaching profession requires the completion of a multitude of forms, background checks, and documents which require disclosure of criminal history.  Such disclosure can prevent meaningful opportunity for certification and employment as a teacher.  It is critical for a criminal attorney who represents a future teacher to understand the professional implications of pleas and convictions which, though perhaps acceptable to other clients, must be avoided by clients who endeavor to become teachers.

Every individual who wants to become a public school teacher in Pennsylvania must submit a form titled “Standard Application for Teaching Positions in Pennsylvania Public Schools.”[2]  The form contains a section titled “General Background Information,” which in turn contains three questions about the individual’s criminal history.  Applicants must disclose: (1) whether the applicant has ever been convicted of a criminal offense; (2) whether the applicant is currently facing pending criminal charges; and (3) whether the applicant ever forfeited bond or collateral in connection with a criminal offense.[3] 

The applicant may only omit minor traffic violations, offenses that were adjudicated in juvenile court, and convictions that have been successfully expunged or for which the individual has successfully completed an ARD program.[4]  The answers to these questions will be verified with police records, as the applicant is also required to submit a Pennsylvania State Police Criminal History Record and a Federal Criminal Record.[5]  For reasons explained below, disclosure of criminal history on this application can sometimes result in a formal bar to employment and is often an informal bar to employment in a competitive job market.  Therefore, attorneys representing future educators in criminal proceedings should caution their clients about the potential career-altering ramifications of convictions, current charges, and the forfeit of bond or collateral.

In addition, all individuals applying for a teaching certificate from the Pennsylvania Department of Education must register online in the Teacher Information Management System (“TIMS”).[6]  In the course of this registration, applicants are asked: (1) whether they have been convicted of a crime classified as a misdemeanor or felony in this state or any state, territory, or country; and (2) whether they have any pending criminal charges, or are currently the subject of an inquiry or investigation by a law enforcement agency in this or any other state, territory, or country.[7]  As the Department states on its website:

Please understand that there is a strong presumption that the applicant currently lacks good moral character to receive a Pennsylvania certificate if they committed a crime resulting in placement in an accelerated rehabilitative disposition (ARD) program or who have been convicted of a crime resulting in probation or parole and have not yet fully completed ARD, probation or parole.[8]

Without a teaching license, an otherwise qualified individual cannot teach students in a public school in Pennsylvania.

Act 168 of 2014 amended the Public School Code of 1949 to require school employers to conduct new and more comprehensive background checks on potential employees who will have direct contact with children.[9]  Specifically, school entities and their independent contractors cannot hire an applicant for such a position until the entity has Sexual Misconduct/Abuse Disclosure forms that have been filled out by the applicant and any former employers where the applicant held a position which had direct contact with children.[10]  This requirement applies equally to applicants who are just entering the field and veteran teachers who are merely switching jobs.  The forms, among other things, require both the applicant and the applicant’s former employers to disclose if the applicant has ever been the subject of an abuse or sexual misconduct investigation by a law enforcement agency.  Although an affirmative answer is technically not a bar to employment, in practice, an affirmative answer is a deadly blow to a career.  Act 168 of 2014 also offers no recourse to educators whose former employers fill out these forms incorrectly.

Finally, individuals entering the teaching field must comply with the background checks required by Section 111 of the Public School Code of 1949, as amended most recently by Act 24 of 2011.[11]  As explained above, Section 111 has required state and federal criminal background checks since Act 34 of 1985 and Act 114 of 2006.  Most relevantly, Act 24 of 2011 intensified Section 111 by: (1) expanding the list of offenses which result in a lifetime employment ban; and (2) created a tiered system of ten-year, five-year, and three-year employment bans for certain criminal offenses.  The full list of offenses and bans is contained at 24 P.S. § 1-111(e).

Current Employees

More often than not, criminal defense attorneys finds themselves representing a teacher who has made it through the licensing process and is currently employed at a public school.  (Often, the attorney will also read about this arrest in the newspaper, or see it on television, because arrests of school employees always seem to make headlines.)  When a criminal defense attorney gets the call to represent a teacher client, the “public school employee” flag should go up right away; what might otherwise be a rough patch in a client’s life can end a career if the criminal case is not properly handled.

Perhaps most pressing is the requirement that a public school employee must report to his or her employer, within seventy-two (72) hours, the fact that they have been arrested for, charged with, or convicted of any of the crimes listed in Section 111(e) or 111(f.1) of the School Code.[12]  If a teacher fails to self-report when required to do so, the teacher can be subject to professional[13] and employment[14] discipline.  Moreover, in the case of certified teachers, their school’s administration is required to report the incident to the Department of Education, which, in turn, generates proceedings against the teacher’s certificate.[15]

After reporting obligations are met, a teacher accused of criminal activity can face as many as four distinct investigations and proceedings.  First, and often most pressing, are the proceedings taking place in the criminal justice system.  The readers of this article are well aware of the many difficulties involved in that process.   Second, if the alleged criminal incident involves a minor, whether or not the minor is a student, ChildLine is called, which generates an investigation by the relevant county’s Children and Youth Services agency.  (ChildLine is almost always called when a suspect is a teacher because essentially all school employees in Pennsylvania are mandatory reporters under the Child Protective Services Law.[16])  The employee will have to vigorously defend against these proceedings as well – an indicated or founded report of child abuse must be disclosed on almost every form mentioned in this article, and often leads to dismissal from employment and the inability to find employment in the teaching profession.

Third, the employer may choose to take an adverse employment action based on the alleged criminal incident.  If a plea or conviction triggers the three-year, five-year, ten-year, or lifetime employment bans contained in Section 111 of the School Code, the employer will have no choice but to terminate the employee.  Otherwise, this decision will be subject to the language of the employer’s collective bargaining agreement, if any,[17] and the grounds for discipline listed in the Public School Code of 1949.[18]  Fourth, the Department of Education will often seek discipline against the teacher’s certificate based on the alleged criminal incident.[19]  Such cases are prosecuted by the Department’s Office of Chief Counsel and adjudicated by the Professional Standards and Practices Commission.

A Pennsylvania teacher must clear all four of these hurdles in order to return to life and work as usual.  Critically, all four hurdles involve distinct legal standards that can be impacted by the representation that begins as soon as an arrest occurs.  It is imperative for criminal defense practitioners to have a working knowledge of these procedures; mistakes made by the teacher and his or her counsel during the course of a criminal proceeding can ruin a teacher’s chances of continuing in his or her chosen profession.

Tips for Working with Other Counsel

Guiding teachers through this maze of legal proceedings almost always involves different attorneys for the criminal and administrative/disciplinary processes.  Often, the proceedings occur simultaneously or in immediate succession.  Therefore, it is paramount for criminal defense attorneys representing teachers in criminal proceedings to communicate with attorneys representing the teacher in their CYS, employment, and licensure proceedings.  To that end, the following tips can help ensure cooperative representation:

• Keep the lines of communication open.  Attorneys representing the individual in other arenas generally understand that criminal proceedings happen most quickly and are often the most pressing for the individual.  Still, it is best to keep all of the attorneys in the loop so that they can hold the other proceedings in abeyance until the results of the criminal proceedings become clear.  Communication is essential, and decisions should be made jointly if possible.  The individual should always understand the impact that the criminal proceedings will have on the administrative/disciplinary proceedings, and vice versa.

• Decide which proceedings will be the “driver.”  The prioritization of the proceedings requires the attorneys and the individual teacher to weigh the risks and possible outcomes of each proceeding.  While criminal liability is generally the “worst” outcome, sometimes, where the crime is minor but has dire employment or licensure implications, these implications may drive criminal strategy.

• Involve the relevant union.  If the teacher is represented by an employee union, they should contact the union as soon as possible.  These institutions have tremendous resources, can guide individuals through the various proceedings, and may even provide counsel in some instances.

There can be no doubt that a Pennsylvania teacher faces an intimidating range of possible negative consequences when they are accused of a criminal offense.  However, a working knowledge of these consequences, effective communication with other counsel, and a firm understanding of the teacher’s priorities will enable any criminal attorney to assure the best possible outcome for their teacher client.

[1] The laws discussed in this article apply to all certificated public school teachers.  They may apply differently, or not apply at all, based on whether a given teacher works in a setting other than a public school district and whether he or she has not been granted a certificate by the Department of Education.

[2] The form, published by the Pennsylvania Department of Education pursuant to Section 1204.1 of the Public School Code of 1949, is available at http://www.education.pa.gov/Documents/Teachers-Administrators/Teacher%20Application.pdf.

[3] The form defines “criminal offense” to include felonies, misdemeanors, summary offenses, and convictions resulting from a plea of nolo contendere.

[4] The form does not define “minor traffic violations.”

[5] The submissions of a Pennsylvania State Police Criminal History Record and a Federal Criminal Record are required by Act 34 of 1985 and Act 114 of 2006, respectively.

[6] This requirement is stated on the webpage which contains the Department’s forms: http://www.education.pa.gov/Teachers%20-%20Administrators/Certifications/Pages/Certification-Fees-and-Forms.aspx.  A form with identical criminal background questions, now used for the re-issuance of emergency permits, can be found at: http://www.education.pa.gov/Documents/Teachers-Administrators/Certifications/Fees%20and%20Forms/PDE%20338%20G.pdf.

[7] For the purposes of these questions, “convicted” includes pleas of nolo contendere and guilty pleas. Notably, the Department interprets the term to encompass participation in an ARD program. Also of note, summary offenses do not need to be acknowledged. 

[8]http://www.education.pa.gov/Teachers%20-%20Administrators/Certifications/Pennsylvania%20Certification/Pages/Good-Moral-Character.aspx#tab-1

[9] In relevant part, Act 168 of 2014 added Section 111.1 to the Public School Code, found at 24 P.S. § 1-111.1.

[10] Links to the “Sexual Misconduct/Abuse Disclosure Information Request” and the “Sexual Misconduct/Abuse Disclosure Release” authorized by Act 168 of 2014, along with answers to certain frequently asked questions, can be found at: http://www.education.pa.gov/Documents/Codes%20and%20Regulations/Basic%20Education%20Circulars/Purdons%20Statutes/Act%20168%20-%20FAQs.pdf. 

[11] The citation for the part of the School Code containing these background check requirements is 24 P.S. §1-111(e).  

[12] All of the crimes listed in 24 P.S. §1-111(e) must be reported.  In addition, §1-111(f.1) requires the reporting of all felonies and first-degree misdemeanors, and certain DUI offenses where the individual has prior DUI convictions.

[13] Failure to report a reportable offense is a violation of the Educator Discipline Act.  24 P.S. §2070.9a(c).  It is therefore grounds for professional discipline by the Department of Education. 

[14] It is left to the discretion of the school entity to decide whether and what employment discipline should result from a teacher’s failure to self-report.

[15] 24 P.S. §2070.9a(a) provides that the “chief school administrator” shall inform the Department whenever an educator “has been arrested or indicted for or convicted of any crime that is graded a misdemeanor or felony.”  The term “conviction” includes pleas of guilty or nolo contendere.  The report must be filed by the chief school administrator within 15 days.

[16] The Child Protective Services Law is contained at 23 Pa.C.S. §6351 et seq.

[17] Many collective bargaining agreements entered into by school districts in Pennsylvania require a district to have “just cause” to terminate the employment of a professional employee.  Just cause analysis, often reviewed by labor arbitrators, can be impacted by the existence of a guilty plea or conviction.

[18]  Section 11-1122 of the Public School Code of 1949 lists the various grounds for termination of the employment of a tenured teacher, which include: immorality, incompetency, unsatisfactory teaching performance, intemperance, cruelty, persistent negligence in the performance of duties, willful neglect of duties, conviction of a felony or acceptance of a guilty plea of nolo contendere therefor, and persistent and willful violation of or failure to comply with school laws of the Commonwealth, including official directives and policies of the school board.

[19] It is noteworthy that, even in the absence of a criminal conviction, the Department of Education can bring charges against a teacher’s certificate based on the alleged underlying conduct.

Robert J. Daniels, Esquire, is the managing partner of Killian & Gephart, LLP in Harrisburg, PA.  Bob frequently represents teachers in criminal proceedings, as well as proceedings conducted by various Children and Youth agencies and the Pennsylvania Department of Human Services.

[1] The laws discussed in this article apply to all certificated public school teachers.  They may apply differently, or not apply at all, based on whether a given teacher works in a setting other than a public school district and whether he or she has not been granted a certificate by the Department of Education.

[1] The form, published by the Pennsylvania Department of Education pursuant to Section 1204.1 of the Public School Code of 1949, is available at http://www.education.pa.gov/Documents/Teachers-Administrators/Teacher%20Application.pdf.

[1] The form defines “criminal offense” to include felonies, misdemeanors, summary offenses, and convictions resulting from a plea of nolo contendere.

[1] The form does not define “minor traffic violations.”

[1] The submissions of a Pennsylvania State Police Criminal History Record and a Federal Criminal Record are required by Act 34 of 1985 and Act 114 of 2006, respectively.

[1] This requirement is stated on the webpage which contains the Department’s forms: http://www.education.pa.gov/Teachers%20-%20Administrators/Certifications/Pages/Certification-Fees-and-Forms.aspx.  A form with identical criminal background questions, now used for the re-issuance of emergency permits, can be found at: http://www.education.pa.gov/Documents/Teachers-Administrators/Certifications/Fees%20and%20Forms/PDE%20338%20G.pdf.

[1] For the purposes of these questions, “convicted” includes pleas of nolo contendere and guilty pleas. Notably, the Department interprets the term to encompass participation in an ARD program. Also of note, summary offenses do not need to be acknowledged. 

[1]http://www.education.pa.gov/Teachers%20-%20Administrators/Certifications/Pennsylvania%20Certification/Pages/Good-Moral-Character.aspx#tab-1

[1] In relevant part, Act 168 of 2014 added Section 111.1 to the Public School Code, found at 24 P.S. § 1-111.1.

[1] Links to the “Sexual Misconduct/Abuse Disclosure Information Request” and the “Sexual Misconduct/Abuse Disclosure Release” authorized by Act 168 of 2014, along with answers to certain frequently asked questions, can be found at: http://www.education.pa.gov/Documents/Codes%20and%20Regulations/Basic%20Education%20Circulars/Purdons%20Statutes/Act%20168%20-%20FAQs.pdf. 

[1] The citation for the part of the School Code containing these background check requirements is 24 P.S. §1-111(e).  

[1] All of the crimes listed in 24 P.S. §1-111(e) must be reported.  In addition, §1-111(f.1) requires the reporting of all felonies and first-degree misdemeanors, and certain DUI offenses where the individual has prior DUI convictions.

[1] Failure to report a reportable offense is a violation of the Educator Discipline Act.  24 P.S. §2070.9a(c).  It is therefore grounds for professional discipline by the Department of Education. 

[1] It is left to the discretion of the school entity to decide whether and what employment discipline should result from a teacher’s failure to self-report.

[1] 24 P.S. §2070.9a(a) provides that the “chief school administrator” shall inform the Department whenever an educator “has been arrested or indicted for or convicted of any crime that is graded a misdemeanor or felony.”  The term “conviction” includes pleas of guilty or nolo contendere.  The report must be filed by the chief school administrator within 15 days.

[1] The Child Protective Services Law is contained at 23 Pa.C.S. §6351 et seq.

[1] Many collective bargaining agreements entered into by school districts in Pennsylvania require a district to have “just cause” to terminate the employment of a professional employee.  Just cause analysis, often reviewed by labor arbitrators, can be impacted by the existence of a guilty plea or conviction.

[1]  Section 11-1122 of the Public School Code of 1949 lists the various grounds for termination of the employment of a tenured teacher, which include: immorality, incompetency, unsatisfactory teaching performance, intemperance, cruelty, persistent negligence in the performance of duties, willful neglect of duties, conviction of a felony or acceptance of a guilty plea of nolo contendere therefor, and persistent and willful violation of or failure to comply with school laws of the Commonwealth, including official directives and policies of the school board.

[1] It is noteworthy that, even in the absence of a criminal conviction, the Department of Education can bring charges against a teacher’s certificate based on the alleged underlying conduct.

Robert J. Daniels, Esquire, is the managing partner of Killian & Gephart, LLP in Harrisburg, PA.  Bob frequently represents teachers in criminal proceedings, as well as proceedings conducted by various Children and Youth agencies and the Pennsylvania Department of Human Services.