Conduct that Can Trigger Professional Discipline
The Professional Educator Discipline Act
While the Code identifies the ethical responsibilities and commitments that a teacher accepts upon certification, the actual contours of the professional educator discipline system are established in the Professional Educator Discipline Act (Act) (24 P.S. §2070.1a et seq.). Professional discipline refers to action against an educator's professional certificate or eligibility to work in a charter or cyber charter school as a result of a finding of misconduct by the PSPC. Action against an educator's professional certificate or eligibility to work should be distinguished from disciplinary actions taken by a local school entity. The Act sets forth the types of actionable misconduct for professional discipline, which includes violations of the Code. The Act also defines the various types of professional discipline that can be imposed for misconduct.
While there is no definitive laundry list of actions that will result in discipline by the PSPC, there are certain categories of conduct that may, or in some cases will, trigger professional discipline. On a macro level, misconduct under the Act can be characterized as either criminal or non-criminal. The distinction between criminal or non-criminal misconduct rests with the discretion that the PSPC has to fashion specific discipline if the misconduct is established. In the case of misconduct that is prosecuted before the PSPC based on a specific crime or crimes, the Act typically mandates a specific sanction, which in all likelihood will be revocation. As discussed below, it is important to note that not all criminal conduct falls within this prosecutorial category. For example, if a teacher is convicted of Simple Assault, which is not an offense that falls within the "automatic" criminal classification, the Department may still elect to file charges against the educator, but the charges would be based on the conduct underlying the conviction and not on the conviction itself. In contrast, if a teacher is convicted of a crime that falls within the "automatic" criminal classification, the PSPC makes its determination based on the conviction itself and does not look at the underlying conduct.
With respect to non-criminal conduct, the Act provides that the PSPC shall discipline any teacher found guilty of immorality, incompetency, intemperance, cruelty, negligence or for violation of the Act of May 29, 1931, which penalizes the illegal use of a professional title and the forgery or alteration of a teaching certificate. (24 P.S. §1231).
In addition, violations of sections 6 - 11 of the Code of Professional Practice and Conduct for Educators also 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 reprimand. In Chapter 237, Title 22, of the Pennsylvania Code, the PSPC 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).
Typically, charges initiated against a teacher on any of the grounds listed above may result in a hearing before a PSPC hearing officer. If an educator elects not to contest the charges; however, a decision on the matter may be made without a hearing. When charges are brought against an educator on non-criminal grounds, the PSPC 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 PSPC maintains full adjudicatory discretion in cases filed on the above-described grounds.
You may also note that the non-criminal grounds for professional discipline against a teacher's certification mirror to some extent many of the grounds permitted by the Tenure Act for dismissal of a tenured teacher from a local school entity. Section 1122 of the Public School Code of 1949 sets forth the grounds for dismissal, including immorality, incompetency, intemperance, unsatisfactory teaching performance, cruelty, persistent negligence in the performance of duties, willful neglect of duties, persistent and willful violation of school laws, physical or mental disability and conviction or plea to a felony. In addition, section 527(a) of the Public School Code of 1949 mandates dismissal of teachers who are convicted while employed of delivery of a controlled substance or of possession of a controlled substance with the intent to deliver and conviction of any of the crimes enumerated in section 111(e) of the Public School Code of 1949 as listed below.
Notice of Charges can be filed against a teacher on the sole basis that the teacher has been convicted of certain crimes. The Act mandates that the PSPC revoke the certificate of any teacher convicted of a crime involving moral turpitude or a crime listed in section 111(e)(1)-(3) of the Public School Code of 1949. 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:
- 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.
- 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, section 237.9. In determining whether any specific crime meets the definition of moral turpitude, the PSPC is restricted to a review of the elements of the crime as defined by statute juxtaposed against the above definition of moral turpitude. The PSPC cannot consider the underlying facts that led to the conviction. Crimes that the PSPC previously has concluded meet the definition of moral turpitude include, but are not limited to:
Aggravated Assault, Aggravated indecent Assault, Aggravated Sexual Assault, Attempted Aggravated Indecent Assault, Bank Robbery; Burglary, Child Abuse, Child Pornography, Complicity to Commit Aggravated Assault, Conspiracy to Distribute Illegal Drugs, Corruption of Minors, Cruelty and Neglect of Children (NJ), Defrauding Public Welfare; Delivery of Controlled Substances, Deviate Sexual Intercourse, Disseminating Explicit Sexual Materials to a Minor, Endangering the Welfare of Children, Falsely Altering Military Records, Falsifying Business Records; Felonious Assault (Ohio), Forcible Sodomy, Forgery, Fraudulent Use of Credit Cards, Grand Larceny, Gross Sexual Imposition (Ohio), Homicide by Vehicle, Indecent Assault Indecent Exposure, Insurance Fraud; Involuntary Deviate Sexual Intercourse, Lewd and Lascivious Assault on Child, Lewdness (Honduras), Mail Fraud, Making False Statements to Federal Agency, Money Laundering of Drug Trafficking Proceeds, Murder, Obscene and Other Sexual Materials and Performances, Obstruction of Justice, Patronizing Prostitution, Pharmacy Act Violation, Possession of Child Pornography, Possession (Felony) of Controlled Substance with Intent to Deliver, Rape, Receiving Child Pornography, Receiving Stolen Property, Reckless Endangerment, Sexual Abuse by a Custodian (W. VA.), Sexual Abuse of Children, Sexual Battery (Ohio), Sexual Exploitation of Minor (Federal), Statutory Rape, Statutory Sexual Assault, Theft by Deception, Theft by Failure to Make Required Disposition of Funds; Theft by Unlawful Taking; Trafficking in Counterfeit Goods; Unlawful Contact or Communication with Minor, Unlawful Restraint, and Wire Fraud.
As a general rule, the PSPC is hesitant to find that a crime meets the definition of moral turpitude per se [AC1] unless it is quite clear. The hesitancy arises since a determination of per se moral turpitude eliminates the PSPC'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 1-111(e)(1) – (3)of the Public School Code of 1949 requires all prospective employees of all public and private schools 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. Under the Act and its regulations, the crimes listed below are crimes involving moral turpitude per se and for purposes of discipline, the PSPC must direct the Department to revoke the certificate of any teacher convicted of these crimes or crimes from other jurisdictions that are similar in nature. In addition, under section 527 of the Public School Code of 1949, a conviction for any of these offenses while employed mandates dismissal from public employment.
- 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
- concealing death of a child
- 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 or federal crimes similar in nature to any of the Pennsylvania crimes listed above.
Act 24 of 2011 recently amended section 111 of the Public School Code of 1949 to provide for three additional employment prohibitions:
- 10 year prohibition for prospective employees after any conviction of any felony other than those listed in section (e) (1) – (3);
- 5 year prohibition for prospective employees after any conviction of any misdemeanors of the first degree; and
- 3 year prohibition for prospective employees after conviction more than once of an offense related to driving under the influence of alcohol or controlled substance that is graded as a misdemeanor of the first degree.
Many educators who hold Pennsylvania certification may be serving as educators in other states or jurisdictions. Under the Act, if one of Pennsylvania's sister states or jurisdictions impose discipline against a Pennsylvania certificate holder within their jurisdiction, the PSPC may impose comparable discipline if the misconduct would be actionable under Pennsylvania's Act.