PA Schools: Firing Employees with Old Convictions

The Pennsylvania Department of Education is taking a hard-lined and politicized view on what has to happen to an employee who self-reports an old conviction for an offense listed in §1-111(e).  Although not supported by the statute, in a new Basic Education Circular issued December 12, 2011, PDE tells school officials that they have a duty to fire such an employee.

I am not taking a position here whether it would be better or not to fire those school employees, but the statute says what it says. If the legislature wanted such people fired, it would have had to say so in the statute. As you can see, this issue has me all fired up.  You can read more of my thoughts about it below.  (I usually try to keep my posts fairly short, but this one is a bit longer than my norm, sorry).

A little background: prior to the amendment, there is no question that the statute only applied to prospective employees.  PDE even says as much in the BEC.  So, where the preliminary portion of §1-111(e) in the pre-amendment version of the statute used to say:

No person subject to this Act shall be employed in a [school] where the report of criminal history record information indicates the applicant has been convicted, within five (5) years immediately preceding the date of the report, of any of the [listed] offenses

the "no person ... shall be employed" needs to be understood to mean "hired."  That  is partially because the whole statute was read as applying to applicants, but partially because the above quoted language actually says it only applies to applicants.

All of that above quoted preliminary language survives in the amendment -- including the word "applicant" -- with only a change that is not relevant to this issue.  That change was to eliminate the limiting parenthetical (the "within five (5) years immediately preceding the date of the report").

The first rule of statutory interpretation is to use the statute's "plain meaning."  In doing so, the courts are required to give meaning to every word in the statute. The assumption is that the legislature chose their words with some care.  Therefore, the "plain meaning" of a statute must incorporate all the statute's words.  Here, and as above, to interpret the "no person" phrase, one must do so without ignoring the later part of the sentence which says "... where the [rap sheet] indicates the applicant has been convicted ...."  Using the later phrase, "no person" therefore means "applicant", which emans that the "shall be employed" means "hired."  This excludes current employees from that prohibition.

Another interpretation rule is that where only some of the language of a statute changes, the unchanged portion retains the same meaning as it had previously.  Here, as I noted, the only change to this language was to remove the limitation language, making it so no applicant who had ever been convicted of a listed offense could ever be employed by the school.  But the rest of the language -- and especially the part giving meaning to the "no person" phrase -- must keep the same meaning as it had before.

I noted above that even PDE admits within the BEC that the pre-amendment version of the statute only applied to prospective applicants. Since this language is unchanged, there is no basis to change its meaning.

There are more reasons in the event this ever gets to a court and we have to argue about this.  Which brings up the final point: school administrators are now caught in the middle and schools may want to get a court to indicate the correct path to follow.

PDE's position is that any current employee with a prior §1-111(e) conviction must be fired even if the person was properly hired previously.  Further, the statute gives PDE authority to take action against any administrator that does not do as required.  On the other hand, the employee, and especially one represented by a union with the means to fight such a termination, will likely fight such an action.  Thus, where an administrator finds an employee with a prior conviction either step will be wrong from someone's perspective.

This is the type of problem where the courts can get involved to issue a "declaratory judgment" to clarify the law and indicate people's responsibilities under it.

If you wish to review the BEC on your own, it can be found here.

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