Member alert regarding criminal background checks
PSEA MEMBER ALERT
SECTION 111 OF PENNSYLVANIA SCHOOL CODE AS AMENDED BY ACT 82 OF 2012
Prepared by the PSEA Legal Division
August 20, 2012
Note: This is a general explanation of the law and not a detailed explanation of all aspects or ramifications of Section 111. This summary should not be relied upon as specific legal advice for any particular situation. Section 111 is a complex law and any arrest or conviction of a crime listed under Section 111 may have employment consequences as well as licensure implications. Any member who was (or is) arrested or convicted of any crime should ensure that he or sure is represented by a criminal attorney and should contact the PSEA UniServ to speak to a PSEA Region Attorney regarding any reporting requirements, employment or licensure issues.
Act 82, enacted as of June 30, 2012, amended Section 111 of the School Code. The amendments are effective immediately, although to date PDE has issued no guidance regarding implementation.
The law requires that school employees immediately report certain arrests or convictions to their employers, and requires that employees be terminated if convicted of certain crimes. The law applies to employees of public and private schools, and independent contractors who work in the schools, except that it does not apply to any employee or independent contractor who has no direct contact with children.
1. All school employees must notify their employer within 72 hours of any arrest or conviction of a crime listed in Section 111(e), or referenced in Section 111(f.1), which includes all felonies and first degree misdemeanors not already appearing in (e).
Find lists of the (e) crimes and (f.1) crimes on PSEA.org (member login required).
The crimes referenced in (f.1) include arrests or convictions for more than one offense related to DUI, provided the offense is graded as a misdemeanor of the first degree. There is a chart available on the PSEA website indicating the grading of DUI offenses.
Any member charged or convicted of any crime including an (e) or (f.1) crime should immediately be in contact with a criminal law attorney. Members should contact their PSEA UniServ and ask to speak to the PSEA Region Attorney regarding any reporting obligations to the school employer. Note that reports are due to school employers within 72 hours of any arrest or conviction. It is particularly important that members speak to PSEA attorneys regarding any DUI offenses or out-of-state crimes.
When speaking with the PSEA Region Attorney, the member must provide specific information as to criminal offense involved, and the grade of the offense. The summons, citation, or other charging document will indicate the criminal offense and grade. The PSEA Region Attorney cannot advise a member regarding his/her reporting obligation without information indicating the specific criminal offense and the grade of the offense.
2. All school employees will have to notify their employer of any prior arrests or convictions for Section 111(f.1) crimes. (Recall that Section 111(e) crimes were reported in December 2011.)
The law does not contain a deadline for this report, and to date PDE has not published any form to use for reporting. Any member who has a prior arrest or conviction for any felony or first degree misdemeanor (including any out-of-state crimes) should contact the PSEA UniServ and ask to speak to a PSEA Region Attorney regarding their reporting obligation. Again, when speaking with the PSEA Region Attorney, the member must provide information regarding the specific criminal offense involved, and the grade of the offense (e.g., “misdemeanor of the first degree”). The PSEA Region Attorney cannot advise a member regarding his/her reporting obligation without this information.
3. The law contains a strict penalty provision for any school employee who willfully fails to disclose an arrest or conviction for an (e) or (f.1) crime.
The employee will be subject to discipline, up to and including termination or denial of employment, but may also be subject to criminal prosecution for unsworn falsification to authorities, which may result in pension forfeiture.
4. The law provides that any current school employee with a pre-employment conviction for an (e) crime must be fired; and any school employee convicted of an (e) crime while working must be immediately terminated. The law also provides that any current school employee who was convicted of an (f.1) crime (all other felonies and first degree misdemeanors) cannot be employed during the bars set forth in the statute. The bars are: 10 years for felonies; 5 years for first misdemeanors; and 3 years for first degree misdemeanor DUIs. A bar runs from the date the criminal sentence expires.
Depending on the facts involved, the law may violate constitutional due process rights, as it may retroactively operate to require a school employer to fire someone who was legally hirable at the time he or she was originally employed. In addition, depending on the facts there may be a constitutionally insufficient nexus between the crime involved and the determination that the person is unemployable for a period of time. PSEA is analyzing all aspects of this law and PSEA Region Attorneys will be prepared to advise and assist members as needed. PSEA is already representing members in litigation regarding earlier amendments to Section 111 and will undertake whatever legal action is needed to protect members’ constitutional and employment rights.