Pennsylvania has passed new laws pertaining to the criminal history of anyone working at a school.  Because of its wide reach and severe restrictions, it is important that anyone working in a school should understand these laws in detail. Pennsylvania has over 3,000 schools and these laws affect:

• Teachers
• Principals
• Secretaries
• School Nurses
• Coaches
• Cafeteria Staff
• Janitors
• Landscaping Contractors
• and many more

Summary of the Important Points in the New Laws

Title 24 of the Pennsylvania Statutes chapter 1-111 details the eligibility requirements for those employed in schools (not just teachers) and their requirements related to reporting certain convictions.  This particular statute went into effect on September 28, 2011.

Subsection (b) requires administrators to have prospective employees to submit a report of their criminal history record from the Pennsylvania State Police with their employment application. The information contained in the criminal history may be no more than one year old. Subsection (c) requires prospective employees to submit a set of fingerprints to be transported to the F.B.I. for a Federal criminal history record.
Subsection (e) states that no person shall be eligible for employment at a school if they have previously been convicted of a list of offenses including offenses related to violent crimes, sexual assault, stalking, kidnapping, crimes against children, etc.  as well as any felony drug crime. The offenses listed in Subsection (e) render both current and prospective employees ineligible for employment.

Subsection (f.1)(1) details the length of ineligibility as it relates to a prospective employee with a felony conviction other than those listed in subsection (e).  It provides a period of ineligibility for the offender of ten (10) years from the date of expiration of the sentence.  For example, if an individual is convicted of Homicide by Vehicle (a felony not listed in subsection (e)) in 1985 and thereby sentenced to 2 to 20 years imprisonment in a state correctional facility.  That sentence would have expired in 2005, making that individual ineligible for prospective employment at a school until 2015.

Subsection (f.1)(2) provides that if an prospective employee has been convicted of a misdemeanor of the first degree other than those offenses listed in subsection (e) then that individual is only eligible for prospective employment five (5) years after the expiration of the sentence.

Subsection (f.1)(3) provides specifically for convictions related to section 3802 of the motor vehicle code (DUI).  This subsection only calls for a three (3) year ineligibility period for a prospective employee convicted of a second DUI if it is graded as a misdemeanor of the first degree.  Any second offense DUI where the driver’s BAC is above .16% or a refusal of chemical test,  and any third or subsequent DUI offense with a BAC of .10% or higher (or an accident is involved) is graded as a misdemeanor of the first degree.  For example: In 2009 an individual is convicted of a second DUI while their BAC was .17% and received a sentence of 5 years intermediate punishment.  That person would be ineligible for prospective employment in a school until 2017 – the 2009 sentence expires in 2014 at which point the three year ineligibility period begins to run.

It must be noted that as it applies to current school employees, the new statute renders them ineligible for life if they have ever been convicted of an offense listed in subsection (e). This includes offenses that occurred prior to the new law be enacted. On the other hand, the offenses contained in Subsections (f.1)(1, 2, and 3) only apply to prospective employment. Therefore, a current school employee is not automatically rendered ineligible for the offenses contained in Subsections (f.1)(1, 2, and 3) which include DUI’s graded as a first degree misdemeanor. Interestingly, subsection (h) provides that any person who has in the past obtained the information required by this statute may transfer to another school within the same district without having to first obtain new information.
The fact that a DUI is not an offense that requires automatic period of ineligibility should be of little comfort to employees with DUI’s graded as first degree misdemeanor. As a practical matter, it is still probable that they could be subjected to the ineligibility provisions. Subsection (f.2) states that nothing in this subsection shall interfere with a schools ability to make employment, discipline, or termination decisions. Accordingly, the school is free to terminate a current employee because of the DUI. In which case, the employee would then be seeking prospective employment. Therefore, because a prospective employee is ineligible for three years from the expiration of their sentence, the terminated employee would not be able to gain new employment at a school until the period of ineligibility ended. Additionally, current teachers with a qualifying DUI would not be able to move to a new school district under any circumstances until the completion of their period of eligibility.

Subsection (j)(1) contains information relative to a standardized form that is to be used by schools and their employees.  Long story short, the form will provide a space for employees to indicate they have not been convicted of any of the disqualifying offenses listed in Subsection (e). Employees will not be required to indicate whether they have been convicted of the offenses contained in Subsections (f.1)(1, 2, and 3) which includes DUI.   In addition, the form contains language informing the employee that failure to accurately report an arrest or conviction shall subject them to prosecution under section 4904 of the Pennsylvania Crimes Code  – Unsworn Falsification to Authorities. Subsection (j)(1) only requires the employee to report offenses listed in Subsection (e). Therefore, this statute does not require an employee to report a DUI. School employees should be aware that each individual school district is still free to set their own policies regarding whether the DUI should be reported.

Subsection (j)(2) mandates all current school employees to complete the form and return it within 90 days of September 28, 2011.

Subsection (j)(3) mandates that any employee refusing to submit the form provide a new report of criminal history to an administrator.

Subsection (j)(4) requires the reporting to administrators any new arrest or conviction of any of the offenses detailed in Subsection (e) after September 28, 2011.

Subsection (j)(5) gives administrators the ability to require an employee to submit a new report of criminal history if the administrator has a reasonable belief that the employee was arrested or convicted of an offense in Subsection (e).

Subsection (6) provides that any employee who willfully fails to report a conviction of an offense listed in subsection (e)(1) be subject to discipline up to and including termination and criminal prosecution.  Any employee who fails to report a conviction of any other offense required to be reported by this section may be subject to criminal prosecution.

These laws are complex and can severely damage your future and your career.  If you have any questions or concerns in regards to these new laws,  please call 1-866-MCSHANE or use the comments box for this post.

Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.