Facilitation Notes

Introduction

When the Professional Standards and Practices Commission first envisioned providing an on-line resource to the educational community, it wanted the focus to be on assisting educators in developing a framework for ethical decision-making and not merely a tutorial on the types of misconduct cases that come before the Commission. A key motivation to the Commission’s approach is its belief that it should not be assumed that students and/or teachers inherently have strong moral compasses. Some educators may not be prepared to handle appropriately the intricate interpersonal relationships intrinsic to the profession of teaching. The safety and well-being of students and the integrity of the education profession is too important to leave the accumulation of the requisite knowledge to chance. The Commission and its partners are committed to offering support to the education community to ensure that educators:

• understand the fiduciary nature of their relationship with students;
• recognize the appropriate student-teacher boundaries;
• internalize the values set forth in the Code of Professional Practice and Conduct;
• accept the responsibilities associated with being a role model;
• recognize ethical dilemmas;
• appreciate the consequences of engaging in misconduct; and
• understand the professional educator discipline system.

Case study approach

In fashioning the Toolkit, the Commission unanimously agreed that the dilemmas of the complex art of teaching could best be presented within the context of case studies. Case studies provide a platform for examining and considering contextual factors and varied perspectives, which often impact an understanding of professional challenges. Case studies also encourage self-reflection and the integration of professional standards into practice.

The case studies developed by Dr. Dreon were designed to elicit discussion, to assist students and/or teachers to recognize ethical dilemmas, to identify different responses to the dilemmas, and to measure the impact of the course of action selected.

Borrowing from work that the College of Teachers in Ontario has published, we offer the following structure to facilitate the cases:

Identify the facts: Who? What? Where? When? Allows the participants to have a shared and common understanding of the facts presented in the case.

Identify the issues: Identify the issues presented by the cases, and analyze the issue from differing perspectives, including the teacher, the administration, the students and the public.

Reflect on educator’s conduct: Explore the educator’s conduct and generate alternative solutions or approaches. Discuss whether there could have been any effective intervention to avoid problems triggered by educator’s choices. Consider the impact of the educator’s conduct on the student (where appropriate), colleagues, the school community, the public.

Link conduct to Code and other standards of conduct: Identify the professional standards of conduct that may have been breached or implicated by the conduct.

Generally, when facilitating the case study dialogue, you will recognize that there might not be a “bright line” response for the issue posed by the case. The many factors to consider were intended to allow for rich discussion. Nonetheless, there are certain fact patterns in some of the case studies that would, or could, have serious consequences on an educator’s certification status in Pennsylvania. We would be remiss if we did not identify those cases and provide you with some practice pointers to assist your facilitation of the discussion with your students or teachers. Such cases are discussed below by Unit by case number.

Unit 1: The Ethical Teacher

Case 1: This case is based on an actual event in Connecticut

Case 4: Despite standard acceptable use policies in every school and the myriad of cases in which educators are fired for accessing sexually explicit materials on school district equipment (including laptops), the Commission still sees several of these cases each year. Educators need to be reminded that they have no reasonable expectation in privacy in materials viewed, accessed, written or stored on a school district computer.

As a general rule, the Commission has imposed either a revocation or a suspension in cases involving such unacceptable use. Factors that may militate against a revocation include the extent/frequency of the usage, whether it was done during instructional time, whether students did or could have been exposed to the materials, and the nature of the materials accessed.

To read actual Commission cases in which educators were disciplined for accessing sexually explicit materials. Adjudications and Orders

Examples of computer misconduct cases include:
DI-03-20b
DI-08-16b
DI-00-19

Video Case The video case study addresses the issue of contract abandonment. As you know, in Pennsylvania the Public School Code of 1949 dictates the content of a professional contract, including a provision that provides for a 60 day notice prior to a resignation becoming effective (24 P.S. §11-1121). For many of our larger and/or urban districts, the failure of educators to provide such notice wreaks havoc with effective management of schools, particularly at the beginning of the school year. Teachers need to understand that they are signing a contractual agreement and to take their obligations under the contract seriously.

Unlike many states, however, Pennsylvania does not have any statutory provision providing for specific discipline when a teacher breaches his or her contract by failing to give adequate notice. Several of our sister states, like Maryland, Georgia and Nebraska (as reflected in the video), have specific statutory provisions that allow for the imposition of a suspension or revocation under these circumstances.

At a minimum, failure to provide the requisite notice (aka contract abandonment) may be a violation of the Code of Professional Practice and Conduct for Education for which a reprimand may be imposed. Teachers should be cautioned that a complaint with the Department of Education may be filed against them if they fail to provide the 60 day notice. It is always recommended that teachers work with their employer to obtain permission for less notice in the event that there are exigent circumstances.

Unit 2: Private & Professional Lives​

Under Pennsylvania law, there does not have to be a direct nexus between the alleged misconduct and the school environment. Thus, many educators are disciplined by the Commission for conduct that occurs outside of school or “off-duty” as it is colloquially known. Thus, it is important that educators keep “private, consensual behavior” private. For example, viewing sexually explicit materials on a home computer is not illegal (compare sexually explicit materials with child pornography), but the same behavior will have employment and certification consequences if done at school or on school equipment even if home (i.e., school issued laptop).

The other consideration for educators is controlling their public brand – how they want to be perceived by their students, the parents of their students, their administration, their peers and the public at large. As even more evident in the unit on technology, our notions of privacy are changing as our ability to control or protect our private lives. That is why educators must be vigilant in ensuring that they protect their privacy and ensure that their public actions comport with their vision of how they want to be perceived.

Case 2: Any conduct that results in a criminal conviction by definition calls into question an individual’s judgment and perhaps character. With the imposition of zero tolerance in our schools for alcohol use and the expectation that an educator is a role model, convictions for driving under the influence may have employment and certification consequences. While a conviction for driving under the influence is not one of the criminal offenses that necessitates revocation, factors such as the existence of similar convictions, whether anyone was specifically endangered, whether the arrest or substance abuse occurred on school property or going or leaving school, will be considered in the decision of whether you will be prosecuted and/or disciplined by the Department and the Commission, respectively.

It is also important to remind educators that under the recent amendments to section 111 of the Public School Code, schools may not hire anyone for a period of three years after more than one conviction for driving under the influence of alcohol or controlled substance when the second offense is graded as a misdemeanor of the first degree. 24 P.S. §1-111(f)(3).

Pre-service students should be cognizant that upon application for certification they will be asked to disclose: whether they have ever been convicted of a crime classified as a misdemeanor or felony in Pennsylvania or any other state, territory or country; whether there are criminal charges pending against them; or whether they are the subject of an inquiry or investigation by a law enforcement agency in Pennsylvania or any other state, territory or country. (Note misdemeanors do not need to be reported at this time)

When such an offense is reported, the Department will conduct a good moral character review to determine the candidate’s eligibility for certification.

It is important to understand that for any applicant who has committed a crime resulting in placement in an Accelerated Rehabilitative Disposition (ARD) program or who has been convicted of a crime resulting in probation or parole and who has not yet completed all of the requirements of the ARD, probation or parole, there is a strong presumption that the applicant currently lacks good moral character to receive certification.

Case 3: While felony convictions under the Controlled Substance, Drug, Device and Cosmetic Act result in mandatory revocations under the Professional Educator Discipline Act, convictions for a lesser drug offense do not mandate discipline. Accordingly, the Department of Education will, if it receives a complaint, review the conduct underlying the conviction to determine if it warrants professional discipline. The fact that the offending conduct did not occur on school grounds or during the school day is not determinative for the Department. Of course, if in fact the conduct did occur on school grounds or during the day, these factors would in all likelihood impact the Department’s prosecutorial decision.

Case 4: Once again even though the conduct was not connected to the school, the educator was arrested for conduct involving fraud/falsehood. If convicted of a theft crime that has fraud or dishonesty as one of its defined elements, the Commission would have no choice but to revoke the educator’s certification under the provisions in the Professional Educator Discipline Act relating to crimes involving moral turpitude.

Cases involving convictions for theft crimes can be found at: Adjudications and Orders

Enter the term “theft” in the search box.

Also, remember that under the new amendments to section 111 of the Public School Code of 1949, educators who have been convicted of any felony or misdemeanor of the first degree are prohibited from employment in any school for a period of 10 or 5 years, respectively.

Case 5: The facts in this case are drawn from an early discipline case in which the educator’s certification was revoked because he was convicted of the federal crime of Trafficking in Counterfeit Goods, which is a crime involving moral turpitude. The case was appealed to the Commonwealth Court of Pennsylvania, which held that the Commission had no choice but to revoke when presented with a certified copy of a conviction for any crime involving moral turpitude. In these cases, the Commission is prohibited from even considering the actual underlying facts in mitigation of a disciplinary sanction.

DI-94-23 Kinniry, Francis
Kinniry v. Professional Standards and Practices Commission, 678 A.2d 1230 (Commonwealth Ct. 1996)

Video Library: Private Life v. Public Role

I would highly recommend the fictional case study and panel discussion presented in the video library in this unit. With an escalating fact pattern, the moderator asks each participant to indicate at what point the educator’s off duty conduct implicates their continued suitability or employability.

Video Case Study
The video depicts an educator who attempted to procure a meeting with a minor from his home computer. The “minor” turned out to be a police officer ala Catch a Predator. Most likely, the educator would be charged with an offense under Chapter 31 of the Crimes Code (relating to sexual offenses) and, if convicted, would be subject to mandatory and permanent revocation of his certification. Moreover, the Commission may immediately suspend an educator who has been charged with an offense involving moral turpitude or an offense listed in section 111(e) of the Public School Code if the Commission believes that the educator poses a threat to the health, safety or welfare of a student or other individual in a school. 24 P.S. §2070.9b.

Unit 3: Relationships with Students

Approximately 60-70% of the cases that are brought under the Professional Educator Discipline Act involve sexual misconduct by educators. The misconduct may occur with students or with minors outside of school. It is irrelevant to the Commission if the student is above the age of consent in Pennsylvania. For our purposes, a student cannot consent to sexual activity with an educator.

Also, the term sexual misconduct is defined very broadly by the Commission and includes conduct known as “grooming”. Grooming refers to purposeful actions taken with the goal of befriending and establishing an emotional connection with a child/student, in order to lower the child/student's inhibitions in preparation for sexual activity with the child/student, or exploitation. The concept covers such conduct as encouraging time alone with the student, giving gifts to the student, contacting the student out of school and discussing matters of a purely personal nature with the student.

In many cases, an educator makes one decision to cross the appropriate student-teacher boundary, which leads to another poor decision and then another, until the educator finds him or herself in an untenable position. We often call this the “slippery slope” of boundary violations. Through class discussions of case studies, we hope that individuals learn to recognize the first wrong decision and develop inhibitors preventing further transgressions. Also, educators who witness such transgressions should realize that early intervention may prevent a student from becoming a victim and an educator from losing his or her profession.

Case 1: If the educator had left the party after discovering students were drinking, would she have protected herself from any negative employment or certification consequences? Does she have a duty to report the drinking to the school, to the authorities or to the parents?

Case 2: This case reflects some of those “first steps” in crossing the student-teacher boundary. At any point did the teacher’s actions stop serving a legitimate educational purpose? Is the teacher’s tutoring and reward system in concert with school policy? Is it consistently applied with all students that he tutors or only Melissa?

Case 3: The case begs the question of whose needs are being met by this relationship. Educators, like anyone else, have emotional baggage and issues. When is it, or is it ever, appropriate to discuss one’s personal life with students?

Case 4: An educator has a duty to protect students from harm. Is the teacher here fulfilling his duty? Should teachers make a promise to keep confidential information shared by a student? Is counseling a legitimate role for a classroom teacher?

Case 5: Again, whose needs are being met by the coach’s investment in the student? Did good intentions go awry?

Unit 4: The Connected Teacher

School administrators have been struggling with providing appropriate guidance concerning communications with students through social media, emails, instant messaging and texting. Many schools still do not have policies and it might be interesting to have the participants draft a policy addressing the use of social media and appropriate student-teacher interactions.

Really, the rules for appropriate interactions with students remain the same no matter whether the communications is in person, on the telephone, through social media or other digital method. The real challenge for educators is protecting their privacy in an era where the public has increased access to information. Educators need to be vigilant in keeping private behavior private.

In many of the cases involving educator behavior that may be unseemly (i.e., posting pictures reflecting poorly on an educator’s judgment or professionalism), but that does not involve misconduct with students, the repercussions are typically limited to employment. Rarely do these cases rise to the level of misconduct warranting state action against certification.

Case 1: Here we see boundary violations being acted out through the use of technology. Are there ever any legitimate reasons for a teacher to be texting students?

Case 2: Is there any misconduct in this fact scenario? How should the school have reacted when it received the report? What actions could the teacher have taken to protect her privacy?

ACLU representative states that schools should not be able to punish a teacher for off-duty conduct unless it is harmful to the school. Should this be the standard?

Case 3: Just a reminder that a district laptop, even if being used at home, still belongs to the district and should only be used for legitimate and authorized instructional purposes.

To read actual Commission cases in which educators were disciplined for accessing sexually explicit materials, visit the Commission’s website: Adjudications and Orders

Examples of computer misconduct cases include:
DI-03-20b
DI-08-16b
DI-00-19

Case 4: Was Ms. L’s conduct inappropriate? Should there be any employment consequences? Would the answer be different if the students were in the 2nd grade? In 12th grade?

Case 5: Discussion points: use of school equipment, poor judgment and intent.

Case 6: Here we have a case of purely consensual private behavior that became public by a teacher’s carelessness. Discussion point: appropriate time and place of personal cell phone use.

Unit 5: Teaching in a Diverse Society

Cases
All of the cases here demonstrate a lack of sensitivity and/or an intrusion of one’s personal beliefs into the classroom. Is it ever appropriate to offer personal/political beliefs on discussion topics?

Unit 6: Improper Personal Gain

Case 1: The fact pattern in this case study is based on an actual case that came before the Commission. Francis Kinniry was a tenured professional employee of the Abington School District. In 1993, Kinniry pled guilty to the federal offense of Trafficking in Counterfeit Goods (selling counterfeit designer watches). On September 28, 1993 the Abington School District brought charges against Kinniry on the grounds that his conduct offended the morals of the community and set a bad example for students immorality. On November 23, 1993, the Board terminated Kinniry's employment as a professional employee in the District on the grounds of immorality.

In its prosecution of this case under the then controlling decertification statute, the Department of Education argued and the Commission agreed, that Kinniry had been convicted of Trafficking in Counterfeit Goods, which was a crime of moral turpitude.

Moral turpitude has been defined as:

• That element and personal misconduct in the private and social duties which a person owes to his follow human beings or to society in general, which characterizes the act done as an act of baseness, vileness or depravity, and contrary to the accepted and customary rule of right and duty between two human beings.
• Conduct done knowingly contrary to justice, honesty or good morals.
• Intentional, knowing or reckless conduct causing bodily injury to another or intentional, knowing or reckless conduct which, by physical menace, puts another in fear of imminent serious bodily injury.

22 Pa. Code §237.9(a).

The Commonwealth Court affirmed the Commission’s decision, which can be accessed at: Adjudications and Orders

In determining whether a crime “involves” moral turpitude, the Commission reviews the definition of the crime in the Crimes Code and then compares that definition against the definition of moral turpitude. If it is determined that the crime falls within the definition of moral turpitude, then the Commission must revoke the certification. The Commission is not permitted to look at the actual facts of the case, although such facts can be reviewed in determining whether reinstatement is appropriate.

Cases 2-4 All of the cases in this Unit involve misconduct that contains an element of fraud or dishonesty. Fraud and dishonesty are the underpinnings of the concept of moral turpitude and thus in any case where there is a criminal conviction for a crime that is defined in terms of fraud and dishonesty, the Commission would most likely find that the crime involves moral turpitude thereby necessitating revocation.

Similarly, there would typically be serious employment consequences as well.

Finally, it is important to note that certain criminal convictions of public employees can lead to forfeiture of an educator’s retirement pension. The Pension Forfeiture Act requires forfeiture of all pension and retirement benefits by any SERS member who commits certain crimes that breach the member's duty of faithful and honest public service. Also forfeited are any benefits for the member's beneficiaries and survivor annuitants.

The only benefits not forfeited are the contributions paid into the pension fund, without interest. Even these contributions may be lost, however, because the law requires they be used to pay fines and restitution associated with the criminal conviction.

Forfeiture is triggered if a SERS member is convicted of or pleads guilty or no defense to any listed crime committed through the member's public office or position or when public employment puts the member in a position to commit the crime.

The Pennsylvania crimes that trigger forfeiture are listed below and are found in 43 P.S. § 1312. All federal crimes substantially the same as these state crimes also are covered.

• Any of the criminal offenses set forth in Subchapter B of Chapter 31 (relating to definition of offenses) when the criminal offense is committed by a school employee as defined in 24 Pa. C.S. §8102 (relating to definitions) against a student.
• Section 3922 (relating to theft by deception) when the criminal culpability reaches the level of a misdemeanor of the first degree or higher.
• Section 3923 (relating to theft by extortion) when the criminal culpability reaches the level of a misdemeanor of the first degree or higher.
• Section 3926 (relating to theft of services) when the criminal culpability reaches the level of a misdemeanor of the first degree or higher.
• Section 3927 (relating to theft by failure to make required disposition of funds received), when the criminal culpability reaches the level of a misdemeanor of the first degree or higher.
• Section 4101 (relating to forgery)
• Section 4104 (relating to tampering with records or identification)
• Section 4113 (relating to misapplication of entrusted property and property of government or financial institutions) when the criminal culpability reaches the level of misdemeanor of the second degree.
• Section 4701 (relating to bribery in official and political matters)
• Section 4702 (relating to threats and other improper influence in official and political matters)
• Section 4902 (relating to perjury)
• Section 4903(a) (relating to false swearing)
• Section 4904 (relating to unsworn falsification to authorities)
• Section 4906 (relating to false reports to law enforcement authorities)
• Section 4909 (relating to witness or informant taking bribe)
• Section 4910 (relating to tampering with or fabricating physical evidence)
• Section 4911 (relating to tampering with public records or information)
• Section 4952 (relating to intimidation of witnesses or victims)
• Section 4953 (relating to retaliation against witness, victim or party)
• Section 5101 (relating to obstructing administration of law or other governmental function)
• Section 5301 (relating to official oppression)
• Section 5302 (relating to speculating or wagering on official action or information)
  Article III, act of March 4, 1971 (P.L. 6, No. 2), known as the "Tax Reform Act"

Unit 7: The Ethical Colleague

Unit 8: Fostering an Ethical School Climate

The case studies in these units mostly involve inappropriate conduct by an educator that is directly observed/experienced by a colleague or communicated to a colleague. These cases explore what responsibilities a colleague has to protect students and to report misconduct of another colleague. Some of the “misconduct” may appear trifling, but it begs the question of whether there is other misconduct lurking below the surface.

What are an educator’s responsibilities to the profession at large? to the students? Do these responsibilities trump any responsibilities to one’s colleagues? The Code of Conduct does speak to the primary duty to protect students from conditions that interfere with learning or are harmful to the student’s health and safety (Section 4(10)). It also discusses professional relationships with colleagues in section 10. How does an educator reconcile what may appear to be competing interests/duties to students, colleagues and the profession generally?

Is there a climate in school organizations against reporting educators to the administration? What are appropriate interventions when an educator recognizes that a colleague may be heading for trouble?

A few of the case studies involve student assessments. Issues surrounding appropriate testing protocols have received widespread national attention. Educators in various states (Maryland, Kentucky, District of Columbia, Ohio, Georgia) including Pennsylvania have found themselves facing employment and certification sanctions for alleged “cheating.” These cases have involved both discrete instances of misconduct as well as allegations of widespread systemic cheating. In some cases, educators complain that they have been ordered to cheat or been pressured into cheating to obtain better results. Some discussion points include: how to respond to subtle and not so subtle pressure to diverge from testing protocols or cheat; what actions to take if you become aware of cheating; what is the impact of cheating on school or on students.

Conclusion

We would also like to offer you the opportunity to discuss any of the case studies or the professional educator discipline system generally with us. We welcome your suggestions and comments as well. We would also recommend that facilitators encourage students/educators to develop their own case studies for discussion. The development of a case and resultant discussion can be very meaningful for participants.

Finally, the Commission is available to provide workshops to students and/or faculty or to work with your staff in creating instructional materials related to professional ethics and professional discipline. Contact information: