The Department can pursue discipline against an educator either on the basis of the indictment or conviction of a specific crime or on the basis of certain facts that establish a ground for discipline. The latter avenue of prosecution is often referenced as “non-criminal” conduct. In certain cases brought as “non-criminal”, a crime may be involved; however, the Department is not relying on the conviction alone but must rather prove the factual allegations.
With respect to non-criminal conduct, the Act provides that the Commission shall discipline any educator found guilty of immorality, incompetency, intemperance, cruelty, negligence, sexual misconduct, sexual abuse or exploitation, the illegal use of a professional title and the forgery or alteration of a teaching certificate, failure to comply with duties under the Act including mandatory reporting and threatening, discriminating or retaliating against an individual who participates in the disciplinary system in good faith. In addition, violations of the Code of Professional Practice and Conduct for Educators can serve as the basis for disciplinary action. When the charges against an educator are based solely on violation of the Code, however, the Act limits the range of applicable discipline to a public or private reprimand. The Commission has defined these terms as follows:
Immorality - Immorality is conduct which offends the morals of the Commonwealth and is a bad example to the youth whose ideals a professional educator or a charter school staff member has a duty to foster and elevate.
Incompetency - Incompetency is a continuing or persistent mental or intellectual inability or incapacity to perform the services expected of a professional educator or a charter school staff member.
Intemperance -- Intemperance is a loss of self-control or self-restraint, which may result from excessive conduct.
Cruelty - Cruelty is the intentional, malicious and unnecessary infliction of physical or psychological pain upon living creatures, particularly human beings.
Negligence -- Negligence is a continuing or persistent action or omission in violation of a duty. A duty may be established by law, by promulgated school rules, policies or procedures, by express direction from superiors or by duties of professional responsibility, including duties prescribed by Chapter 235 (relating to Code of Professional Practice and Conduct for Educators).
Sexual Misconduct - Sexual misconduct means any act, including but not limited to, any verbal or nonverbal, written or electronic communication or physical activity, directed towards or with a child or a student regardless of age that is designed to establish a romantic or sexual relationship with the child or student. Prohibited acts include, but are not limited to: (1) sexual or romantic invitations; (2) dating or soliciting dates; (3) engaging in sexualized or romantic dialogue; (4) making sexually suggestive comments; (5) self-disclosure or physical exposure of a sexual, romantic or erotic nature; or (6) any sexual, indecent, romantic or erotic contact with the child or student.
Sexual abuse or exploitation - is defined in the Child Protective Services Act (23 Pa.C.S. Ch. 63).
** Note that the consent of a child or student to engage in sexual misconduct or sexual abuse or exploitation may not be a defense or a mitigating factor in any disciplinary proceeding under this Act.
Typically, charges initiated against an educator on any of the grounds listed above may result in a hearing before a Commission hearing officer. If an educator elects not to contest or respond to the charges; however, a decision on the matter may be made on default without a hearing. When charges are brought against an educator on non-criminal grounds, the Commission has discretion to determine if the conduct occurred, if the conduct constitutes one of the grounds for discipline, and what discipline should be imposed, if any. In contrast to cases arising on criminal grounds, the Commission maintains full adjudicatory discretion in cases filed on the above-described grounds.
Notice of Charges can be filed against an educator on the sole basis that the educator has been convicted of certain crimes. The Educator Discipline Act mandates that the Commission revoke the certificate of any educator convicted of a crime involving moral turpitude or a crime listed in section 111(e)(1)-(3) of the Public School Code. If the crime does not fall within either of these categories, then the Department must pursue discipline against the educator based on the non-criminal grounds listed above. Similarly, if an educator is charged but acquitted of an included crime, the Department must proceed on non-criminal grounds.
Crimes Involving Moral Turpitude
A crime constitutes moral turpitude if it involves:
(1) That element and personal misconduct in the private and social duties which a person owes to his fellow 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.
(2) Conduct done knowingly contrary to justice, honesty or good morals.
(3) 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)).
In determining whether any specific crime meets the definition of moral turpitude, the Commission is restricted to a review of the elements of the crime as defined by statute juxtaposed against the above-definition of moral turpitude. The Commission cannot consider the underlying facts that led to the conviction. Crimes that the Commission previously has concluded meet the definition of moral turpitude include, but are not limited to:
Access Device Fraud; Aggravated Assault; Aggravated Indecent Assault; Aggravated Sexual Assault; Aggravated Sexual Battery (PA); Attempted Aggravated Indecent Assault; Bank Robbery; Bribery in Official & Political Matters; Burglary; Carnal Knowledge of a Child Between Thirteen and Fifteen Years of Age (VA); Child Abuse; Child Pornography (all crimes on federal and state level); Coercion and Enticement of a Minor (Fed); Complicity to Commit Aggravated Assault, Conspiracy to Distribute Illegal Drugs; Contributing to Delinquency of a Minor (NJ, SC, VA, FL); Corruption of Minors; Cruelty and Neglect of Children (NJ); Defrauding Public Welfare; Delivery of Controlled Substances; Deviate Sexual Intercourse; DUI-Manslaughter (FL); Disseminating Explicit Sexual Materials to a Minor; Endangering the Welfare of Children (NY); Entering Dwelling House, etc. within intent to Commit Larceny; Assault and Battery or Other Felony (VA); False Declarations Before a Grand Jury (Fed); False Reports to Law Enforcement; Falsely Altering Military Records; Falsifying Business Records; Felonious Assault (OH); Forcible Sodomy (VA); Forgery; Fraudulent Use of Credit Cards; Grand Larceny; Gross Sexual Imposition (Ohio); Homicide by Vehicle; Impairing the Morals of a Minor (NJ); Indecent Assault; Indecent Exposure; Indecency with a Child (TX); Insurance Fraud; Invasion of Privacy; Involuntary Deviate Sexual Intercourse; Involuntary Manslaughter; Lewd and Lascivious Assault on Child; Lewdness (Honduras); Mail Fraud (NJ, NV, NY); Making False Statements to Federal Agency; Money Laundering of Drug Trafficking Proceeds; Murder; Obscene Communications (FL); Obscene and Other Sexual Materials and Performances; Obstruction of Justice; Open or Gross Lewdness (NV); Patronizing Prostitution; Pharmacy Act; Violation of; Perjury; Possession of Child Pornography; Possession of a Controlled Substance (if felony under Controlled Substance, Drug, Devise and Cosmetic Act); Possession of Controlled Substance with Intent to Deliver; Public Indecency (VT, OH); Rape; Receiving Child Pornography; Receiving Stolen Property; Recklessly Endangering Another Person; Sexual Abuse by a Custodian (W.Va.); Sexual Abuse of Children (PA, OH); Sexual Assault; Sexual Battery (Ohio); Statutory Rape; Statutory Sexual Assault; Taking Liberties with Child by Person in Custodial/Supervisory Role (VA); Tampering with Evidence (OH, NY, NJ, PA, GA); Terroristic Threats; Theft by Deception; Theft by Failure to Make Required Disposition of Funds; Theft by Unlawful Taking; Trafficking in Counterfeit Goods; Transportation of Minors - Travel with Intent to Engage in Illicit Conduct (Fed); Unlawful Contact or Communication with Minor (DE); Unlawful Restraint; Unlawful Sexual Contact with a Minor (CA); Unlawful Sexual Intercourse with a Minor (CA) and Wire Fraud.
As a general rule, the Commission is hesitant to find that a crime meets the definition of moral turpitude per se unless it is quite clear. The hesitancy arises since a determination of per se moral turpitude eliminates the Commission's discretion and ability to review the underlying facts. Typically, however, crimes that involve deception, lying or fraud are considered universally to be crimes involving moral turpitude.
Section 111(e) Crimes
Among other things, section 1-111(e) of the Public School Code of 1949 requires all prospective employees of all public and private schools (includes independent contractors with direct contact with children) to submit a state and federal criminal history record prior to employment. The school entity is prohibited from employing the candidate if the criminal history record indicates a conviction of one of the crimes listed below:
- criminal homicide
- aggravated assault
- unlawful restraint
- luring a child into a motor vehicle or structure
- statutory sexual assault
- involuntary deviate sexual intercourse
- sexual assault
- institutional sexual assault
- aggravated indecent assault
- indecent assault
- indecent exposure
- sexual intercourse with an animal
- endangering welfare of children
- dealing in infant children
- felony offense under sections relating to prostitution
- obscene and other sexual materials and performances
- corruption of minors
- sexual abuse of children
- unlawful contact with minor
- solicitation of minors to traffic drugs
- sexual exploitation of children
- felony under Controlled Substance, Drug, Device and Cosmetic Act
- out-of-state, out-of-country or federal crimes similar in nature to any of the Pennsylvania crimes listed above
For purposes of discipline, the Commission must direct the Department to revoke the certificate or employment eligibility of any educator convicted of the crimes listed above or the attempt, solicitation or conspiracy to commit any of these crimes. In addition, whenever an educator is indicted for one of these crimes or the attempt, solicitation or conspiracy to commit any of these crimes, the Commission may immediately suspend, after a hearing if requested, the educator’s certification or employment eligibility if it determines that the educator poses a threat to the health, safety or welfare of students or other persons in the school of this Commonwealth.