On December 18, while schools were preparing to shut their doors for the holiday break, Governor Corbett signed into law a series of ten bills designed to improve the way that Pennsylvania handles child abuse reporting and investigations.
Slipped in among those changes, however, was a major overhaul of what was known as the “Professional Educator Discipline Act,“ (which, as a result of the changes, will now be known simply as the “Educator Discipline Act”). This law regulates educator misconduct at the state level through the PDE Professional Standards and Practices Commission (PSPC). The changes to the Act, which become effective on February 18, 2014, were comprehensive and have implications far beyond the issue of child abuse.
PART ONE: Extensive Broadening of Scope of Individuals Governed by the Law and the Commission
The scope of the law has changed dramatically. The PSPC previously regulated only certificated school personnel in Pennsylvania – those with a PDE-issued license – as well all individuals holding positions within charter schools that would have required certification within a school district. Non-certificated personnel in private and cyber-charter schools were not previously subject to the Act.
The new law significantly expands the Commission’s authority to include not only those who hold valid PA certification and/or teach within charter schools, but all administrators, including those within private schools; all cyber charter school teachers, and all contracted educational providers (such as interpreters, speech and language specialists, occupational therapy specialists, etc.).
Unlike private school administrators, who are subject to the provisions of this law, non-certificated private school teachers are not mentioned specifically in the Act. It is currently unclear whether they would fall under the very broad definition of “contracted educational provider” for the purposes of this act.
“Eligibility for Employment” – New Rules under the Expanded Scope of the Law
The PSPC now has a new, much broader authority to revoke and suspend the “employment eligibility” of all individuals that fall within the new broad scope of the Act. Under the new law, the Commission utilizes the same process to determine “eligibility for employment” as it has always used for revoking, suspending and reissuing certification for professional employees. With this process, it can now terminate “eligibility for employment” for non-certificated educators and providers, effectively prohibiting them from being employed in positions that would require certification in a public school if held by a public school employee.
The idea of terminating “eligibility for employment” is not new to the Commission. It has always been able to make the determination for non-certificated charter school staff members who were not required to have certification under the charter school law but who would have been required to have certification if their position in a public school district required certification.
The law now requires that PDE create a website that contains an online registry of all adjudications imposing discipline. This will enable the public, as well as educators and schools, to have access to all educator disciplinary information.
One thing remains glaringly unclear in the new Act, though – who is responsible for ensuring that those deemed ineligible for employment do not actually become employed? The law is silent as to whether it is the responsibility of the hiring schools to ensure that an individual has not had his/her “eligibility for employment” by a PA school revoked by the Commission.
Substantial New Power to Impose Sanctions, Corrective Action, Fines, Costs and Fees
Brand new to the PSPC are powers to assess “supplemental sanctions or other conditions, corrective action, fines, costs or fees” for violations of the Act or for reinstatement. The Act now establishes a “Professional Educator Discipline Account” into which all “fees, fines, costs and civil penalties” resulting from this Act are paid. The funds in the account “may be utilized to the extent of [sic] expenditures incurred by the department and the commission in the implementation of their respective duties under this act.” The law is silent on how/when these fines, sanctions, and other conditions may be imposed, giving the Commission broad, subjective discretion in doling out such measures.
“Supplemental sanctions or other conditions” may include “requiring an educator, at the educator’s own expense, to submit to the evaluation or care, counseling or treatment of a physician, psychologist, therapist or psychiatrist as designated by the commission or enter an impaired educator program or similar program approved by the commission.”
Further, reinstatement of certification or “eligibility for employment” could now depend upon successful completion of such “care, counseling or treatment,” although, as with the fines and sanctions, there is no guidance or delineation as to when this might be appropriate or what might be considered satisfactory treatment or counseling. Once again, the Commission has been granted broad and extremely subjective discretion and power.
Private School Impact for those with Revoked, Suspended or Surrendered Certificates – Unintended Consequences?
Under the new law, an educator whose certificate has been revoked, suspended or surrendered is not only not eligible for employment in a public school position that requires certification, which has always been the case, but the educator is now also prohibited from working in any position that, had it been in a public school, would require certification.
While this prohibition makes sense for those whose certification has been terminated or suspended for cause, private school teachers who are serving in positions that do not require certification often allow their certifications to become suspended due to the unavailability and/or cost of maintaining the 180-hour Act 48 professional development requirements. Under this new law, those teachers would then be precluded from maintaining their positions within the private schools even if certification was not required originally.
PART TWO: Expansions of the PSPC Mark Brave New World in Post-Sandusky Environment
New Definition of “Sexual Misconduct”
The law adds “sexual misconduct” to the list of offenses for which disciplinary action may be taken against an educator, including revocation of certification and/or “eligibility for employment” within PA schools. The definition comes directly from Act 126 of 2012, which requires schools to provide training on sexual misconduct of educators. The definition identifies “prohibited acts” of sexual misconduct such as: sexual or romantic invitations, dating or soliciting dates, engaging in sexualized or romantic dialogue; making sexually-suggestive comments; self-disclosure or physical exposure of a sexual, romantic or erotic nature; or any sexual, indecent, romantic or erotic contact with the child or student.
The very definition of “sexual misconduct,” however, provides sexually-inappropriate educators with one giant loophole: under the new definition, “sexual misconduct” is limited only to those actions “designed to establish a romantic or sexual relationship with the child or student.” Therefore, inappropriate conduct, however indecent, does not appear to meet the standard of “sexual misconduct” if it is generalized and/or there is no intent to establish a specific relationship with the student.
At a Glance: Mandatory Reporting to the Department
The new law includes significant changes as to what misconduct must be reported to PDE. The amendments set forth six instances in which schools must file mandatory misconduct notices with PDE, three of which are substantially revised versions of the original requirements and three of which are newly-added circumstances. The instances of required reporting are now as follows:
Change:
Dismissal for Cause / Notice of Intent to Dismiss for Cause (amended)
Old Law
Report to PDE within 30 days of the dismissal of a certificated employee for cause;
New Law
Report to PDE within 15 days educators who have been dismissed for cause or been given “notice of: intent to dismiss or remove for cause, nonrenewal for cause, removal from eligibility lists for cause or a determination not to reemploy for cause.”
Change:
Criminal Activity (amended)
Old Law
Report to PDE within 30 days conduct that resulted in a criminal indictment or conviction for an 111(e) crime under the School Code, or crimes of moral turpitude;
New Law
Reports must now be made of all arrests, indictments and/or convictions of crimes graded as a misdemeanor or felony. Pleas of guilty or nolo contendere fall under this category for mandatory reporting to PDE.
Change:
Misconduct Regarding a Child (amended)
Old Law
Must report, within 60 days, educators believed to have caused physical injury to a student or child as a result of negligence or malice;
New Law
Must report, within 15 days, any educator against whom allegations have been made that the educator has committed sexual abuse or exploitation involving a child or student or engaged in sexual misconduct with a student, or engaged in sexual misconduct with a student and/or information which constitutes reasonable cause to suspect that an educator has caused physical injury to a child or student as a result of negligence or malice.
Change:
Suspicious Resignations (new)
New Law
Required reporting, within 15 days, of any educator who has “resigned, retired or otherwise separated from employment” after the school has received information of alleged misconduct under the Act.
Change:
Subject of Child/Student Abuse Report Filed by School (new)
New Law
Schools are now required to file a report for any educator who is the subject of a Child Protective Services Law report within 15 days of the filing of the CPSL report.
Change:
Known Perpetrators of “Indicated” or “Founded” Child/Student Abuse Report (new)
New Law
Schools are also required to report indicated or founded child/student abuse reports within 15 days of the school’s discovery of the existence of such a report.
Must report, within 15 days, any educator against whom allegations have been made that the educator has committed sexual abuse or exploitation involving a child or student or engaged in sexual misconduct with a student, or engaged in sexual misconduct with a student and/or information which constitutes reasonable cause to suspect that an educator has caused physical injury to a child or student as a result of negligence or malice.
All reports submitted to PDE are now legally required to include “an inventory of all information and documentary and physical evidence in possession or control of the school entity relating to the misconduct resulting in the report and the name and contact information for the current custodian of the items listed in the inventory,” and schools are prohibited from entering into private agreements with educators or unions whereby the school agrees not to comply with the mandatory reporting duties set forth within the Act. There is one important question looming in the wake of these new reporting requirements: does PDE have the requisite staff to sift through and deal with all of these reports?
New Mandatory Reports to PDE for Reporting Conduct of Peers (“Snitch Provision”)
For the first time, the law requires PA public employees to inform on their peers, regardless of the trustworthiness of their information. The new law now requires an educator who “knows of any action, inaction or conduct which constitutes sexual abuse or exploitation or sexual misconduct under this Act” to file a mandatory report with PDE within 15 days.
The law does not require the knowledge to be firsthand, so even 3rd-party accusations may be enough to trigger this reporting. Failure to inform on a co-worker will subject the employee to discipline.
Clarification and Expansion of Disciplinary Offenses and Reciprocal Discipline
The new law also clearly sets forth PDE’s longstanding practice of reserving the right to pursue discipline for criminal activity even if the educator has been acquitted of the crime, participated in an “alternative disposition program,” or for whom the criminal charges were otherwise withdrawn or dismissed.
It also adds, as causes for disciplinary action under the Act, sexual misconduct (discussed above), sexual abuse/exploitation, illegal use of a professional title, failure to comply with the duties of the Educator Misconduct Act (including the mandatory reporting provisions) and actions taken to threaten, coerce, discriminate against or otherwise retaliate against good-faith reporters of misconduct and/or victims, complainants and/or witnesses under the Educator Misconduct Act. The law also now allows the Commission to discipline educators based upon adjudications from licensing authorities in other states and prohibits the argument that consent by the student in any sexual abuse, misconduct or exploitation case from being a mitigating factor in any disciplinary case.
The Bottom Line
It will be interesting to see how the Commission handles its new “Big Brother” role, not to mention the voluminous mandatory reports that will soon be flooding its offices, and how schools handle all of these new requirements on top of their already-overwhelming legal obligations. While these amendments may provide additional protection for the safety of students, they also carry the potential for workplace paranoia and bureacratic meltdown.
If you have any questions on the Educator Misconduct Act or Mandatory Child Abuse Reporting requirements, please contact your legal counsel or the KingSpry Education Law Practice Group.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
