PRIOR PRINTER'S NO. 2055

PRINTER'S NO.  2139

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

1459

Session of

2012

  

  

INTRODUCED BY SMUCKER, PICCOLA, ERICKSON, RAFFERTY, WAUGH, ORIE, BRUBAKER, WILLIAMS, BROWNE AND MENSCH, MARCH 28, 2012

  

  

SENATOR PICCOLA, EDUCATION, AS AMENDED, MAY 1, 2012   

  

  

  

AN ACT

  

1

Amending the act of December 12, 1973 (P.L.397, No.141),

2

entitled "An act relating to certification of teachers in the

3

public schools of the Commonwealth and creating a

4

Professional Standards and Practices Commission," making

5

extensive substantive and editorial changes; and providing

6

for imposition of discipline on additional grounds, for

7

imposition of discipline on founded and indicated reports,

8

for confidentiality, for subpoenas and for disposition of

9

fees and fines collected.

10

The General Assembly of the Commonwealth of Pennsylvania

11

hereby enacts as follows:

12

Section 1.  Sections 1.1 and 1.2 of the act of December 12,

13

1973 (P.L.397, No.141), known as the Professional Educator

14

Discipline Act, added December 20, 2000 (P.L.918, No.123), are

15

amended to read:

16

Section 1.1.  Short Title.--This act shall be known and may

17

be cited as the [Professional] Educator Discipline Act.

18

Section 1.2.  Definitions.--When used in this act, the

19

following words and phrases shall have the following meanings:

20

"Administrator" shall mean [a person who is a commissioned

21

officer or holds a valid administrative certificate.] an

 


1

educator who holds a letter of eligibility, an administrative

2

certificate or a supervisory certificate or who serves in a

3

school entity in a position that supervises the academic 

<--

4

educational operations of a school building, a school program or

<--

5

a school system.

6

"Certificate" shall mean any Commonwealth of Pennsylvania

7

certificate, letter of eligibility or permit issued under the

8

act of March 10, 1949 (P.L.30, No.14), known as the "Public

9

School Code of 1949," or under the act of January 28, 1988

10

(P.L.24, No.11), known as the "Private Academic Schools Act."

11

The term includes a certificate or letter of eligibility that is

12

invalid or inactive as defined in 22 Pa. Code § 49.2 (relating

<--

13

to inactivity and invalidity).

14

"Charter or cyber charter school" shall mean a school

15

established pursuant to Article XVII-A of the act of March 10,

16

1949 (P.L.30, No.14), known as the "Public School Code of 1949."

17

"Charter or cyber charter school staff member" shall mean an

18

individual employed by a charter or cyber charter school in a

19

position for which [State] certification would be required in a

20

public school other than a charter or cyber charter school but

21

who is not required to hold [State] certification under section

22

1724-A of the act of March 10, 1949 (P.L.30, No.14), known as

23

the "Public School Code of 1949." The term includes an

24

individual who is an administrator, including the chief

<--

25

administrator or the individual with primary responsibility for

26

the administration of the charter or cyber charter school.

27

"Chief school administrator" shall mean the superintendent or

28

chief executive officer of a school district, the executive

29

director of an intermediate unit, the director of an area

30

vocational-technical school, the chief administrator of a

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1

charter or cyber charter school, the director of a private

2

academic school or the chief administrator of any other entity

<--

3

contracted to provide direct educational services to students

4

enrolled in a school district, intermediate unit, area

5

vocational-technical school, private academic school or charter

6

or cyber charter school a contracted educational provider.

<--

7

"Child" shall mean an individual who is less than 18 years of

<--

8

age.

9

"Commission" shall mean the Professional Standards and

10

Practices Commission.

11

"Contracted educational provider" shall mean a person who:

<--

12

(1)  serves in a position for which certification would be

13

required in a public school but who is exempted under the act of

14

March 10, 1949 (P.L.30, No.14), known as the "Public School Code

15

of 1949"; and

16

(2)  is employed by an entity with which a school entity has

17

contracted to provide direct educational services to its

18

students or is an individual who directly contracts with a

19

school entity to provide educational services to its students an

<--

20

entity with which a school entity has contracted to provide

21

direct educational services to its students.

22

"Contracted educational provider staff member" shall mean a

23

person who:

24

(1)  serves in a position for which certification would be

25

required in a public school; and

26

(2)  is employed by a contracted educational provider.

27

The term includes an individual who is an administrator,

28

including the chief administrator or the individual with primary

29

responsibility for the administration of a contracted

30

educational provider.

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1

"Department" shall mean the Department of Education of the

2

Commonwealth.

3

"Discipline" shall mean [any one of the following actions]

4

any of the following:

5

(1)  [Issue a private] Private reprimand.

6

(2)  [Issue a public] Public reprimand.

7

(3)  [Direct the department to suspend the certificate of a

8

professional educator] Suspension.

9

(4)  [Direct the department to revoke the certificate of a

10

professional educator] Revocation.

11

[(5)  For a charter school staff member, the term shall

12

include an order suspending the person's eligibility to be

13

employed by a charter school or prohibiting the person from

14

being employed by a charter school.

15

(6)  Accept a professional certificate surrendered in lieu of

16

discipline.]

17

(5)  Surrender.

18

(6)  Supplemental sanctions.

<--

19

[The commission may require a professional educator to meet

20

certain conditions or take corrective action in conjunction with

21

any discipline.]

22

"Educational specialist" shall mean a person who holds an

23

educational specialist certificate issued by the Commonwealth,

24

including, but not limited to, a certificate [endorsed] in the

25

area of elementary school counselor, secondary school counselor,

26

social restoration, school nurse, home and school visitor,

27

school psychologist, dental hygienist, instructional technology

28

specialist or nutrition service specialist.

29

"Educator" shall mean a person who holds a certificate, who

30

is a charter or cyber charter school staff member or who is a

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1

contracted educational provider staff member.

<--

2

"Indictment" shall include a bill of indictment, police

3

criminal complaint, criminal information or other similar

4

document.

5

"Private academic school" shall mean a school that is

6

licensed to operate under the act of January 28, 1988 (P.L.24,

7

No.11), known as the "Private Academic Schools Act."

8

["Professional educator" shall mean a person who is

9

certificated as a teacher, educational specialist or an

10

administrator in the Commonwealth.]

11

"Revocation" shall mean the termination of a certificate or

<--

12

eligibility to be employed in a charter or cyber charter school

13

or any other entity contracted to provide educational services

14

to students enrolled in a school district, intermediate unit,

15

area vocational-technical school, private academic school or

16

charter or cyber charter school, the termination of the

<--

17

eligibility to be employed as a charter or cyber charter school

18

staff member or the termination of the eligibility to be

19

employed as a contracted educational provider staff member.

20

"School entity" shall mean a school district, intermediate

21

unit [or], area vocational-technical school, charter [school,

22

Scotland School for Veterans' Children, Scranton State School

23

for the Deaf and Thaddeus Stevens College of Technology] or

24

cyber charter school, private academic school or any other

<--

25

entity contracted to provide educational services to students

26

enrolled in a school district, intermediate unit, area

27

vocational-technical school, private academic school or charter

28

or cyber charter school contracted educational provider.

<--

29

"Secretary" shall mean the Secretary of Education of the

30

Commonwealth.

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1

"Sexual abuse or exploitation" shall [mean the employment,

2

use, persuasion, inducement, enticement or coercion of a child

3

or student to engage in or assist any other person to engage in

4

any sexually explicit conduct or a simulation of any sexually

5

explicit conduct for the purpose of producing a visual

6

depiction, including photographing, videotaping, computer

7

depicting or filming, of any sexually explicit conduct or

8

conduct that constitutes an offense under 18 Pa.C.S. Ch. 31

9

(relating to sexual offenses) or section 6312 (relating to

10

sexual abuse of children) or other forms of sexual exploitation

11

of children or students.] have the meaning given to the term by

12

23 Pa.C.S. Ch. 63 (relating to child protective services).

13

"Sexual misconduct" shall mean any act, including, but not

14

limited to, any verbal, nonverbal, written or electronic

15

communication or physical activity, directed toward or with a

16

child or a student regardless of the age of the child or student

17

that is designed to establish a romantic or sexual relationship

18

with the child or student. Such prohibited acts include, but are

19

not limited to, the following:

20

(1)  sexual or romantic invitations;

21

(2)  dating or soliciting dates;

22

(3)  engaging in sexualized or romantic dialogue;

23

(4)  making sexually suggestive comments;

24

(5)  self-disclosure or physical exposure of a sexual,

25

romantic or erotic nature; or

26

(6)  any sexual, indecent, romantic or erotic contact with

27

the child or student.

28

The consent of a child or a student to engage in sexual

<--

29

misconduct may not be a defense or a mitigating factor in any

30

discipline proceeding under this act.

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1

"State Board" shall mean the State Board of Education.

2

"State Board of Private Academic Schools" shall mean the

3

departmental administrative board as established by the act of

4

January 28, 1988 (P.L.24, No.11), known as the "Private Academic

5

Schools Act."

6

"Student" shall mean an individual enrolled in a public,

<--

7

nonpublic, nonlicensed, private or charter or cyber charter

8

school, intermediate unit or area vocational-technical school or

9

in any other entity contracted to provide direct educational

10

services to students enrolled in a school district, intermediate

11

unit, area vocational-technical school, private academic school

12

or charter or cyber charter school:

<--

13

(1)  a public school, including an intermediate unit, area

14

vocational-technical school and a charter or cyber charter

15

school;

16

(2)  a private school, including a nonpublic, nonlicensed

17

school, private academic school and accredited school; or

18

(3)  a contracted educational provider.

19

"Supplemental sanctions" shall mean private or public

20

disciplinary sanctions that focus on remediation or restitution,

21

including, but not limited to, fees, fines, prescribed

22

coursework, evaluations, treatment plans, impaired educator

23

programs and other corrective action plans.

24

"Surrender" shall mean the termination by consent of a

25

certificate or eligibility to be employed by as a charter or

<--

26

cyber charter school or contracted educational provider whenever

<--

27

the certificate or eligibility is surrendered to the department

28

after the educator receives notice of allegations of misconduct

29

by a school entity, after the educator is dismissed for cause by

30

a school entity, after the educator resigns, retires or

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1

otherwise separates from employment after the school entity

2

receives notice of misconduct, after the educator is removed

3

from any employment eligibility lists, including substitute or

4

guest teacher lists, after the department receives a report

5

concerning the educator under section 9.1, after the department

6

receives a complaint concerning the educator under section 9 or

7

after the educator is indicted or charged for a crime set forth

8

in section 111(e)(1) through (3) of the act of March 10, 1949

9

(P.L.30, No.14), known as the "Public School Code of 1949," a

10

crime involving moral turpitude or the attempt, solicitation or

11

conspiracy to commit any crime set forth in section 111(e)(1)

12

through (3) of the "Public School Code of 1949" or any crime

13

involving moral turpitude staff member or as a contracted

<--

14

educational provider staff member whenever the surrender occurs

15

at any time after the issuance of the certificate or the

16

employment in a charter or cyber charter school or contracted

17

educational provider.

18

"Suspension" shall mean the temporary termination of a

19

certificate or eligibility to be employed in a charter or cyber

<--

20

charter school or any other entity contracted to provide direct

21

educational services to students enrolled in a school district,

22

intermediate unit, area vocational-technical school, private

23

academic school or charter or cyber charter school for a

24

specific period of time, for an indefinite period of time or

25

until specific conditions are met, the temporary termination of

<--

26

the eligibility to be employed as a charter or cyber charter

27

school staff member or the temporary termination of the

28

eligibility to be employed as a contracted educational provider

29

staff member for a specific period of time, for an indefinite

30

period of time or until specific conditions are met.

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1

["Teach" shall mean to engage in the practice of teaching in

2

the public schools of the Commonwealth or to provide related

3

educational specialist, administrative or supervisory services

4

in such schools.]

5

"Teacher" shall mean [a] any person who holds a [valid]

6

Pennsylvania teaching certificate[.] or who is employed as a

7

contracted educational provider staff member or by a charter or

<--

8

cyber charter school in a position for which certification would

9

be required in a public school other than a charter or cyber

10

charter school, but who is not required to hold certification

11

under the act of March 10, 1949 (P.L.30, No.14), known as the

12

"Public School Code of 1949."

13

Section 2.  Section 2 of the act is amended to read:

14

Section 2.  Certification Requirements.--No Requirements.--

<--

15

(a)  No [person shall teach in a public school] educator shall

16

be employed by a school entity in the Commonwealth unless he has

17

met the certification requirements which are applicable to the

18

institution in which he is employed as established by the State

19

Board [of Education which are applicable to the institution

20

where he is employed], the State Board of Private Academic

21

Schools or the department. An educator whose certificate or

<--

22

eligibility to be employed as a contracted educational provider

23

or by a charter or cyber charter school has been revoked,

24

suspended or surrendered is not eligible for employment in a

25

school entity or eligible for any certificate until the

26

certificate or eligibility is reinstated in accordance with this

27

act.

28

(b)  An educator whose eligibility to be employed as a

<--

29

charter or cyber charter school staff member or as a contracted

30

educational provider staff member has been revoked, suspended or

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1

surrendered is not eligible for employment in a school entity or

2

eligible for any certificate until eligibility is reinstated in

3

accordance with this act.

4

Section 3.  Sections 3, 4, 5 and 6 of the act, amended

5

December 20, 2000 (P.L.918, No.123), are amended to read:

6

Section 3.  Professional Standards and Practices

7

Commission.--(a)  There is hereby created a Professional

8

Standards and Practices Commission consisting of thirteen

9

members appointed by the Governor with the advice and consent of

10

a majority of the members elected to the Senate.

11

(b)  The term of office of members of the commission shall be

12

three years [except that:], with members serving fixed and

13

staggered terms so that in the first two of every three years,

14

the terms of four members expire, and in the third of every

15

three years, the terms of five members expire.

16

[(1)  the terms of office of four members appointed in the

17

calendar year 2000 shall expire on the third Tuesday of January

18

2001;

19

(2)  the terms of office of four members appointed in the

20

calendar year 2000 shall expire on the third Tuesday of January

21

2002; and

22

(3)  the terms of office of five members appointed in the

23

calendar year 2000 shall expire on the third Tuesday of January

24

2003.]

25

(c)  Vacancies shall be filled for an unexpired term in the

26

same manner as original appointments. No person shall serve for

27

more than two consecutive terms as a member of the commission;

28

however, members may continue to serve after the expiration of

29

their term until a replacement appointed by the Governor is

30

confirmed. The Governor may remove any member from the

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1

commission for misconduct or malfeasance in office, incapacity,

2

or neglect of duty. All members of the commission shall be

3

residents of the Commonwealth of Pennsylvania.

4

Section 4.  Membership and Qualifications.--(a)  The

5

membership of the Professional Standards and Practices

6

Commission shall consist of:

7

(1)  [Seven classroom teachers, including one educational

8

specialist, broadly representative of the teaching profession

9

from public schools] Six classroom teachers broadly

10

representative of the education profession, with not more than

11

one from a school entity other than a public school.

12

(2)  Three administrators from [public schools] a school

13

entity, at least one of whom shall be a commissioned officer and

14

one a principal, with not more than one from a school entity

15

other than a public school.

16

(3)  One administrator from an approved institution of higher

17

learning in the Commonwealth offering approved teacher education

18

programs.

19

(4)  Two members from the general public, at least one of

20

whom shall be an elected public school director.

21

(5)  One educational specialist.

22

(b)  Except for the representatives of the general public,

23

the Governor in making appointments shall consider

24

recommendations from panels of nominees submitted by Statewide

25

educational organizations [of professional educators] which

26

certify that the panels include only representatives of the

27

category of professional personnel for which the panel or panels

28

of nominees are submitted. However, the Governor shall not be

29

limited to nominating members of Statewide organizations for

30

appointments to the commission.

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1

(c)  All members of the commission except the persons

2

representing the general public shall have been actively engaged

3

in teaching or providing related educational, administrative or

4

supervisory services in a [public school] school entity or

5

approved institution of higher education with approved teacher

6

education programs for at least five of the eight years

7

immediately preceding their appointment. A person appointed to

8

the commission who leaves the Commonwealth to become domiciled

9

in another state shall have his position on the commission

10

deemed vacated. A person whose status changes to a category

11

different from that for which that person was appointed may

12

continue to serve on the commission for the remainder of that

13

person's appointment or until replaced.

14

(d)  The chairman of the State Board [of Education], or a

15

member of the [board] State Board designated by the chairman,

16

shall be an ex officio member of the commission without voting

17

privileges.

18

(e)  The members of the commission, employes of the

19

commission and agents of the commission shall in all of their

20

deliberations consider the public interest, including ensuring

21

the health, safety and welfare of students or other individuals

22

in school entities.

23

Section 5.  Power and Duties.--(a)  The Professional

24

Standards and Practices Commission shall have the power and its

25

duty shall be:

26

(1)  To recommend to the State Board [of Education] rules and

27

regulations defining positions for which certification should be

28

required and criteria to determine qualifications, consistent

29

with this act, necessary to hold such a certificate.

30

(2)  To recommend to the State Board [of Education] rules and

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1

regulations providing for making a certificate permanent upon

2

evidence of such teaching experience and additional preparation

3

as may by rule be required.

4

(3)  To recommend to the State Board [of Education] rules and

5

regulations providing for [the Department of Education] the

6

department's investigation and determination of the

7

acceptability of programs of professional education in colleges

8

and universities of this Commonwealth issuing degrees to persons

9

who may desire to teach in the schools of this Commonwealth. The

10

commission may recommend as its own, with or without

11

modification, standards used by other organizations engaged in

12

the evaluation of teacher preparation programs. In

13

[establishing] recommending standards pursuant to this clause,

14

the commission shall consider, among other factors, the

15

following:

16

(i)  Ongoing research and developing theories in education.

17

(ii)  The knowledge and skills necessary to effectively

18

perform professional education functions.

19

(iii)  The liberal arts and general education requirements

20

that are the foundation of a teacher preparation program.

21

(iv)  The value of student [teacher] teaching, laboratory

22

work and other professional experience as preparation for

23

certification.

24

(v)  The cultural and demographic diversity of relevant

25

student populations.

26

(vi)  Other interests of the public.

27

The commission shall assess the effectiveness of educator

28

preparation programs and recommend changes to the State Board

29

[of Education] as indicated by such evaluations.

30

(4)  To recommend to the State Board [of Education] changes

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1

in teacher education programs based on commission conducted

2

assessments of these programs.

3

(5)  To recommend to the State Board [of Education] rules and

4

regulations providing for acceptance or approval of certificates

5

to teach issued by other states, countries and bodies.

6

(6)  To recommend to the State Board [of Education] rules and

7

regulations providing for the department to enter into

8

agreements with agencies of other states for reciprocal approval

9

of teacher preparation programs.

10

(7)  To recommend to the State Board [of Education] rules and

11

regulations governing examinations for the initial certification

12

of teachers.

13

(8)  To cooperate with a national board for professional

14

education certification recognized by the commission to such

15

degree as, in the commission's judgment, shall bring advantage

16

to the Commonwealth.

17

(9)  To establish procedures for [conducting hearings

18

pursuant to section 13 and for hearings regarding reinstatement

19

of certificates] the commission's adjudication of educator

20

misconduct and applications for reinstatement and for conducting

21

public hearings, including the imposition of fines and fees.

22

(9.1)  To adopt requirements regarding the submission of

23

reports by the department on the processing of complaints in

24

order to ensure the timely and effective resolution of

25

complaints.

26

(10)  To adopt and maintain a code for professional practice

27

and conduct that shall be applicable to any educator as defined

28

in this act, pursuant to the act of July 31, 1968 (P.L.769,

29

No.240), referred to as the Commonwealth Documents Law. Nothing

30

in the code for professional practice and conduct shall be an

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1

independent basis for [the suspension or revocation of a

2

certificate] discipline other than a public or private

3

reprimand, nor shall it pertain to questions of membership or

4

affiliation or nonaffiliation in an employe organization, or

5

participation in the actions of an employe organization, or

6

participation or nonparticipation in the actions of an employe

7

organization related to the negotiation of a collective

8

bargaining agreement, a strike or other work stoppage as defined

9

under the act of July 23, 1970 (P.L.563, No.195), known as the

10

"Public Employe Relations [Act," provided that the code may

11

specify those sections the violation of which may constitute a

12

basis for reprimand.] Act."

13

[(11)  To discipline any professional educator or charter

14

school staff member found guilty upon hearings before the

15

commission of immorality, incompetency, intemperance, cruelty or

16

negligence or for violation of any provision of the act of May

17

29, 1931 (P.L.210, No.126), entitled, as amended, "An act to

18

regulate the certification and the registration of persons

19

qualified to teach in accredited elementary and secondary

20

schools in this State; imposing certain duties upon the

21

Department of Public Instruction and the State Board of

22

Education; defining violations; providing penalties, and for

23

appeal to the court of common pleas of Dauphin County." The

24

commission shall establish definitions consistent with this

25

clause.]

26

(11.1)  To direct the department to [suspend or revoke the

27

certificate of a professional educator or charter school staff

28

member] discipline any educator in accordance with section 9.2,

29

9.3, 9.4 or 9.5.

30

(11.2)  To impose supplemental sanctions or other conditions,

<--

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1

corrective action, fines or fees for violations of this act or

2

for reinstatement, including requiring an educator, at the

3

educator's own expense, to submit to the evaluation or care,

4

counseling or treatment of a physician, psychologist, therapist

5

or psychiatrist as designated by the commission or enter an

6

impaired educator program or similar program approved by the

7

commission.

8

(11.3)  To issue subpoenas in accordance with procedures set

9

forth in this act.

10

(12)  To establish procedures which assure that actions

11

concerning discipline and reinstatement of [professional]

12

educators shall comply with due process requirements.

<--

13

(12.1)  To establish and participate in alternative dispute

14

resolution programs to allow for flexibility, early resolution

15

and cooperation in resolving charges filed under section 13.

16

(12.2)  To develop outreach programs, professional

17

development and courses designed to improve the quality of

18

practice and ethical conduct in the teaching profession.

19

(13)  To keep minutes of its meetings and report annually to

20

the Governor, the General Assembly, the State Board [of

21

Education], the education profession and the public and to

22

publish, from time to time, such other reports as it deems

23

appropriate.

24

(14)  To adopt, pursuant to the act of July 31, 1968

25

(P.L.769, No.240), referred to as the Commonwealth Documents

26

Law, operating and procedural rules and regulations necessary to

27

carry out the purposes of this act. The commission shall hold

28

public hearings and take testimony concerning proposed

29

recommendations which shall be presented to the State Board [of

30

Education].

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1

(a.1)  Nothing in this act shall be construed to prevent

2

organizations of the education profession from adopting measures

3

designed to improve the standards and practices of ethics and

4

academic freedom among their members and in their relationships

5

with other persons and groups.

6

(b)  All teachers' certificates in force in this Commonwealth

7

on [the effective date of this amendatory act] February 17,

8

2001, shall continue in full force and effect, subject to all

9

the terms and conditions under which they were issued, until

10

they expire by virtue of their own limitations, unless they are

11

sooner annulled for the reasons and in the manner provided by

12

law.

13

(c)  Recommendations as outlined in subsection (a) shall be

14

presented publicly at a scheduled State Board [of Education]

15

meeting. This presentation shall be prior to any board action on

16

regulations, standards or guidelines affecting teacher

17

certification, professional practices, accreditation of teacher

18

education programs and long range plans.

19

Section 6.  Organization and Meetings of the Commission.--(a)

20

The Governor shall annually select a chairman from among the

21

membership of the commission. The chairman, or a commission

22

member designated by the chairman, shall be an ex officio member

23

of the State Board [of Education] without voting privileges or

24

assignment to either council.

25

(b)  Meetings shall be held at least five times per year at

26

the call of the chairman or upon request in writing of a

27

majority of the commission. A majority shall constitute a quorum

28

and a majority of such quorum shall have authority to act upon

29

any matter properly before the commission unless otherwise

30

specified in this act. [In the case of the discipline of an

- 17 -

 


1

administrator, the commission shall act by a majority vote of a

2

special panel of at least nine members selected by the chairman,

3

to include no more than three teachers. The first meeting of the

4

commission shall be held within six months of the effective date

5

of this act.] Meetings of the commission shall be open to the

6

public and the executive director of the commission shall be

7

responsible for seeing that notices of meetings of the

8

commission are properly circulated.

9

Section 4.  Sections 7 and 8 of the act, amended December 14,

10

1989 (P.L.612, No.71), are amended to read:

11

Section 7.  Expenses.--Members of the commission shall

12

receive no compensation for their services, but shall be

13

reimbursed for their actual and necessary expenses incurred in

14

the performance of official commission business. A member of the

15

commission, who is an employe of an agency of the Commonwealth,

16

or any of its political subdivisions [including school

17

districts], or of a school entity, shall be permitted to attend

18

commission meetings and perform other commission duties without

19

loss of income or other benefits. A State agency or any

20

political subdivision of this Commonwealth, including a school

21

entity, required to employ a substitute for a member of the

22

commission who is absent from his employment while performing

23

commission business shall be reimbursed by the [Department of

24

Education] department from funds appropriated for the general

25

government operations of the [Department of Education]

26

department for the actual amount of any costs incurred upon

27

presentation of a request for reimbursement and documentation of

28

such cost. A member of the commission who is employed by a

29

private employer shall be reimbursed by the [Department of

30

Education] department, from funds appropriated for the general

- 18 -

 


1

government operations of the [Department of Education]

2

department, for any income lost, pursuant to guidelines

3

established by the commission, as a result of attendance at

4

commission meetings or performance of other official commission

5

duties upon presentation of a request for reimbursement and

6

documentation of such loss.

7

Section 8.  Commission Staff.--(a)  There shall be an

8

executive director of the commission who shall serve as the

9

executive officer and secretary of the commission. The

10

commission and the secretary shall jointly employ and fix the

11

compensation of the executive director. The executive director,

12

with approval of the commission and the secretary, may employ

13

additional professional and clerical personnel as may be

14

necessary to carry out the duties and responsibilities of the

15

commission. The [Department of Education] department shall

16

provide adequate space and equipment to facilitate the

17

activities of the commission.

18

(b)  The Governor, through his General Counsel, shall provide

19

such legal advice and assistance as the commission may require.

20

Section 5.  Sections 9, 9.1 and 9.2 of the act, amended or

21

added December 20, 2000 (P.L.918, No.123), are amended to read:

22

Section 9.  Complaints and Department Investigations.--(a)

23

[A proceeding to discipline a professional educator shall be

24

initiated by the filing of a complaint with the department by

25

any interested party within one year from the date of the

26

occurrence of any alleged action specified under section

27

5(a)(11), or from the date of its discovery. Complaints

28

involving sexual abuse or exploitation of a child or a student

29

may be filed beyond the date of the alleged occurrence or date

30

of its discovery up until five years after the child or student

- 19 -

 


1

reaches 18 years of age. If the alleged action is of a

2

continuing nature, the date of its occurrence is the last date

3

on which the conduct occurred.] The filing of a written educator

4

misconduct complaint with the department will initiate the

5

department's review and investigation of an educator.

6

(b)  For purposes of this act, the department may file an

7

educator misconduct complaint.

8

(c)  The department may by regulation prescribe standards for

9

the filing of complaints. The complaint shall, at a minimum:

10

(1)  be in a written form prescribed by the department;

11

(2)  specify the nature and character of the [charges]

12

allegations of misconduct; and

13

(3)  be verified [under oath by the complaining party] by the

14

complainant or a duly authorized agent of the [complaining

15

party] complainant and made subject to the penalties of 18

16

Pa.C.S. § 4904 (relating to unsworn falsification to

17

authorities).

18

(d)  The commission[, and its individual members,] may not

19

file a complaint [or initiate a disciplinary proceeding on their

20

own motion, except that if,]. If an individual commissioner in 

21

his or her personal capacity or in the performance of

<--

22

[commission business, the commission, or any of its individual

23

members,] his or her professional responsibilities as an employe

24

of a school entity uncovers evidence of educator misconduct that

25

would appear to [require discipline, the commission may transmit

26

such evidence to the department where such evidence will be

27

treated as] warrant discipline under this act, the individual

28

commissioner may file a complaint in accordance with the

29

provisions of this act.

30

[(f)] (e)  Upon receipt of a complaint, the department shall

- 20 -

 


1

promptly review it and all other complaints and information

2

relating to the [professional] educator.

3

(1)  If the facts alleged are not legally sufficient to

4

warrant discipline under this act, the department shall dismiss

5

the complaint and provide written notice of such dismissal to

6

the [complaining party and to the affected professional]

7

complainant and to the educator.

8

(2)  If the facts alleged are deemed legally sufficient to

9

warrant discipline[, the department shall notify the affected

10

professional educator and the complaining party in writing of

11

the sufficiency of the complaint and] under this act, the

12

department shall provide written notice of the legal sufficiency

13

of the complaint to the educator, the current and former school

14

entity in which the educator is or was employed and the

15

complainant.

16

(2.1)  If the facts alleged are deemed legally sufficient to

17

warrant discipline, the department may conduct a preliminary

18

investigation to determine whether there is probable cause to

19

believe that grounds for discipline exist. The department shall

20

be provided, upon request to the complainant, the educator and

21

the current and former school entity in which the educator is or

22

was employed, any [documents] relevant information and

23

documentary and physical evidence it may reasonably require in

24

pursuit of its preliminary investigation. [Such request shall be

25

made in writing to the professional educator or the current or

26

prior employer.]

27

(3)  If the department determines that probable cause does

28

not exist, [it shall issue a written notice to the affected

29

professional educator, the complaining party and the current or

30

prior employer if the employer was notified of the complaint. If

- 21 -

 


1

a finding of probable cause is made, the department shall so

2

notify the affected professional educator and the complaining

3

party and may immediately conduct an investigation pursuant to

4

section 12 or transmit its preliminary findings to the local

5

school governing board of the school entity in which the

6

affected professional educator is or was last serving, to allow

7

the local school board to investigate and comment upon the

8

appropriateness of professional discipline.] the department

9

shall dismiss the complaint and provide a written notice of such

10

dismissal to the educator, the complainant and the current and

11

former school entity in which the educator is or was employed.

12

(4)  If the department determines that probable cause exists,

13

the department shall provide written notice to the educator, the

14

complainant and the current and former school entity in which

15

the educator is or was employed and may immediately conduct an

16

investigation, which may include directing the school entity to

17

investigate and comment upon the appropriateness of professional

18

discipline in accordance with section 11.

19

(f)  In conducting its investigations under this act, the

20

department may investigate any and all allegations of misconduct

21

in the complaint or complaints and any other misconduct

22

concerning the educator that is discovered in the course of the

23

investigations.

24

Section 9.1.  [Reporting to Department] Mandatory

25

Reporting.--(a)  The [superintendent, assistant superintendent,

26

executive director of an intermediate unit, chief administrator

27

of an area vocational-technical school, administrator of a

28

charter school or their designees shall report any] chief school

29

administrator or his designee shall file all of the following

30

[to] information with the department in writing on a form

<--

- 22 -

 


1

prescribed by the department:

2

(1)  [The dismissal of a certificated employe] Any educator

3

who has been provided with notice of intent to dismiss or remove

<--

4

for cause, notice of nonrenewal for cause, notice of removal

<--

5

from eligibility lists for cause or notice of a determination

6

not to reemploy for cause. The report shall be filed within [30]

7

15 days after [an administrative decision by an arbitrator or

8

the local board of school directors] notice is provided by a

9

school entity.

10

(2)  [Conduct that has resulted in a criminal indictment or

11

conviction for a crime set forth in section 111(e)(1) through

12

(3) of the act of March 10, 1949 (P.L.30, No.14), known as the

13

"Public School Code of 1949," or other crime that involves moral

14

turpitude. The report shall be filed within 30 days of the

15

receipt of information and shall include all available

16

information relating to the conduct resulting in the charge or

17

conviction.] Any educator who has been arrested or indicted for

<--

18

or convicted of any crime that is graded a misdemeanor or

19

felony. For purposes of this section, the term conviction shall

20

include a plea of guilty or nolo contendere. The report shall be

21

filed within 15 days of discovery of the indictment or

22

conviction.

23

(3)  [Information which constitutes reasonable cause to

24

believe that a certificated employe has] Any educator against

25

whom allegations have been made that the educator has:

26

(i)  caused physical injury to a child or student [or child] 

<--

27

as a result of negligence or malice [or has];

28

(ii)  committed sexual abuse or exploitation involving a 

29

child or student [or child[.]; or

<--

30

(iii)  engaged in sexual misconduct with a student or child.

- 23 -

 


1

The report shall be filed within [60] 15 days of the [receipt of

2

the information.] discovery of the allegations of misconduct.

3

(4)  Any educator who has resigned, retired or otherwise

4

separated from employment after a school entity has received

5

notice of alleged misconduct under this act. The report shall be

<--

6

filed within 15 days of the separation from employment,

7

notwithstanding any termination agreement to the contrary that

8

the school entity may enter into with the educator.

9

(5)  Any educator who is the subject of a report filed by the

<--

10

school entity under the reporting requirements of 23 Pa.C.S. Ch.

11

63 (relating to child protective services). The report shall be

12

filed within 15 days of the filing of the child protective

13

services report.

14

[(b)  The superintendent, assistant superintendent, executive

15

director of an intermediate unit, chief administrator of an area

16

vocational-technical school and administrator of a charter

17

school or their designees shall comply with the provisions of

18

subsection (a). Failure to comply shall be deemed a violation of

19

subsection (a) by the chief school administrator of that school

20

entity and may result in disciplinary action against the chief

21

school administrator.]

22

(c)  An educator who is arrested or indicted for or convicted

<--

23

of any crime graded as a misdemeanor or felony shall report the

24

indictment or conviction to the school entity at which the

25

educator is currently employed within 72 hours of the indictment

26

or conviction.

27

(d)  An educator who knows of any action, inaction or conduct

<--

28

which constitutes misconduct under this act shall report such

29

misconduct to his or her chief school administrator and

30

immediate supervisor. If the misconduct involves sexual

- 24 -

 


1

misconduct or sexual abuse or exploitation, the educator shall

2

file a mandatory report with the department and inform his or

3

her chief school administrator and immediate supervisor of the

4

filing.

5

(d) (e)  All reports submitted to the department shall

<--

6

include an inventory of all information and documentary and

<--

7

physical evidence in possession or control of the school entity

8

relating to the misconduct resulting in the report and the name

<--

9

and contact information for the current custodian of the items

10

listed in the inventory. The school entity shall provide

11

promptly to the department any documents or items requested

12

after the department reviews the inventory.

13

Section 9.2.  [Imposition of Discipline.--] Discipline for

14

Criminal Offenses.--(a)  The commission shall [do all of the

15

following regarding suspension or revocation of a professional

16

certificate]:

17

(1)  Direct the department to immediately suspend the

18

certificate [of a professional] and employment eligibility of an 

19

educator indicted for a crime set forth in section 111(e)(1)

20

through (3) of the act of March 10, 1949 (P.L.30, No.14), known

21

as the "Public School Code of 1949," or the attempt,

22

solicitation or conspiracy to commit any crime set forth in that

23

section if the commission, after notice and hearing if

24

requested, determines that the [professional] educator poses a

25

threat to the health, safety or welfare of [a student] students 

26

or other [individual in a school] persons in the schools of this

27

Commonwealth in accordance with the following:

28

(i)  Within 15 days of [the receipt] service of notice of

29

charges issued by the department, the [professional] educator

30

may request a hearing before the commission on the question of

- 25 -

 


1

whether the certification or employment eligibility should be

2

immediately suspended. The commission or a [committee] panel of

3

members of the commission shall hold a hearing within 15 days of

4

the receipt of the request for hearing. If the educator fails to

5

request a hearing, the commission or a panel of members of the

6

commission promptly shall convene a meeting to consider the

7

request for immediate suspension. The commission or [committee]

8

panel shall issue a decision within 20 days after the conclusion

9

of the meeting or hearing, including receipt of the transcript

10

or filing of any briefs. The [professional] educator may appeal

11

the decision of the commission pursuant to section [15] 15(a),

12

except that an appeal filed shall not operate as a stay of the

13

discipline.

14

(ii)  The commission may elect not to direct the department

15

to suspend the certificate [of a professional] and employment

16

eligibility of any educator indicted for a crime under this

17

subsection if the [professional] educator files an affidavit

18

attesting that during the pendency of the criminal [charge the

19

professional] proceeding the educator will not be employed in a

20

position that requires [professional] certification or involves

21

direct contact with children or students. The commission shall

22

not accept an affidavit when the allegations that form the basis

23

of the criminal proceeding involve sexual misconduct or sexual

24

abuse or exploitation of a student or child child or student.

<--

25

(iii)  The commission shall direct the department to

26

immediately lift a suspension upon receipt of certified court

27

documents establishing that the charges have been dismissed or

28

otherwise removed.

29

(iv)  [The commission may reinstate the certificate of a

30

professional] Upon petition by the educator, the commission may

- 26 -

 


1

direct the department to reinstate the certificate and

2

employment eligibility of an educator suspended under this

3

paragraph or release the [professional] educator from an

4

affidavit under subparagraph (ii) if the [professional educator

5

participates in] educator successfully completes is admitted

<--

6

into an accelerated rehabilitative disposition program as a

7

result of the indictment and the commission determines that the

8

[professional] educator does not pose a threat to the health,

9

safety or welfare of students or other individuals in a school.

10

The commission shall conduct an expedited hearing, if requested, 

11

for an applicant for reinstatement or release under this

12

subparagraph. [Notwithstanding the provisions of this

<--

13

subparagraph, an applicant shall not be reinstated if the

14

indictment was for an offense under 18 Pa.C.S. Ch. 31 (relating

15

to sexual offenses) [where the victim is a minor.] prior to

<--

16

successful completion of the accelerated rehabilitative

17

disposition program and dismissal of the criminal charges.

18

(2)  Direct the department to revoke the certificate [of a

19

professional] and employment eligibility of an educator who has

20

been convicted of a crime set forth in section 111(e)(1) through

21

(3) of the "Public School Code of 1949," [or] a crime involving

22

moral turpitude, [or] an equivalent crime in Federal court or a

23

court of another state, territory or nation[,] or the attempt,

24

solicitation or conspiracy to commit any crime set forth in this

25

section upon the filing of a certified copy of the verdict or

26

judgment or sentence of the court with the commission. The

27

commission shall direct the department to immediately reinstate

28

a certificate and employment eligibility upon receipt of

29

certified court documents establishing that the conviction was

30

reversed [on appeal]. For purposes of this paragraph, the term

<--

- 27 -

 


1

"conviction" shall include a plea of guilty or nolo contendere.

2

[(3)  Direct the department to discipline a professional

3

educator upon receipt of a certified copy of an adjudication

4

from the appropriate licensing authority in another state,

5

territory or nation imposing discipline for grounds, other than

6

a conviction under paragraph (2), that are comparable to grounds

7

for discipline under this act. Upon receipt of the adjudication,

8

the commission shall issue an order directing that the

9

professional educator show cause why the imposition of identical

10

or comparable discipline in this Commonwealth would be

11

unwarranted. The professional educator shall respond within 30

12

days of receipt of the order. The final adjudication by an

13

appropriate licensing authority of another jurisdiction shall be

14

conclusive as to the misconduct of a professional educator under

15

this act. Within 30 days after the time alloted for the

16

professional educator to respond to the order to show cause, the

17

commission may impose the identical or comparable discipline

18

unless the professional educator demonstrates that:

19

(i)  the discipline would result in a grave injustice;

20

(ii)  the discipline is substantially different from what

21

would have been imposed for similar conduct in this

22

Commonwealth; or

23

(iii)  the procedure used in the other jurisdiction did not

24

provide due process.

25

(4)  Direct reinstatement of a certificate revoked, suspended

26

or surrendered in lieu of discipline in accordance with this

27

act.]

28

(b)  Nothing in this section shall be construed to prevent

29

the department from pursuing discipline under this act against

30

any educator who has been acquitted, who has participated in an

- 28 -

 


1

alternative disposition program or for whom the criminal charges

2

were otherwise withdrawn or dismissed.

3

Section 6.  The act is amended by adding sections to read:

4

Section 9.3.  Imposition of Discipline on Additional

5

Grounds.--(a)  The commission shall direct the department to

6

impose discipline against any educator for conduct found by the

7

commission to constitute:

8

(1)  Immorality.

9

(2)  Incompetency.

10

(3)  Intemperance.

11

(4)  Cruelty.

12

(5)  Negligence.

13

(6)  Sexual misconduct.

14

(7)  Sexual abuse or exploitation.

15

(8)  A violation of the code for professional practice and

16

conduct adopted pursuant to section 5(a)(10).

17

(9)  Illegal use of professional title as set forth in the

18

act of May 29, 1931 (P.L.210, No.126), entitled "An act to

19

regulate the certification and the registration of persons

20

qualified to teach in accredited elementary and secondary

21

schools in this State; imposing certain duties upon the

22

Department of Public Instruction and the State Board of

23

Education; defining violations; providing penalties, and for

24

appeal to the court of common pleas of Dauphin County."

25

(10)  Failure to comply with duties under this act, including

26

the mandatory reporting duties set forth in section 9(a).

27

(11)  Failure to file reports under the act of March 10, 1949

28

(P.L.30, No.14), known as the "Public School Code of 1949."

29

(12)  Actions taken by an educator to threaten, coerce or

30

discriminate or otherwise retaliate against an individual who in

- 29 -

 


1

good faith reports actual or suspected misconduct under this act

2

or against complainants, victims, material witnesses or other

<--

3

individuals participating or cooperating in proceedings under

4

this act.

5

(b)  The commission shall establish definitions consistent

6

with this section.

7

Section 9.4.  Imposition of Discipline on Founded and

8

Indicated Reports.--(a)  The Notwithstanding any provision of 23

<--

9

Pa.C.S. Ch. 63 (relating to child protective services), the 

10

commission shall:

11

(1)  Direct the department to revoke the certificate and

12

employment eligibility of an educator who is named as the

13

perpetrator of a founded report of child abuse or named as an

14

individual responsible for injury or abuse in a founded report

15

for a school employe under 23 Pa.C.S. Ch. 63 (relating to child

<--

16

protective services) upon receipt of a certified copy of the

17

founded report.

18

(2)  Direct the department to discipline an educator who is

19

named as the perpetrator of an indicated report of child abuse

20

or named as an individual responsible for injury or abuse in an

21

indicated report for a school employe under 23 Pa.C.S. Ch. 63.

22

Upon receipt of a certified copy of the indicated report after

23

final determination by the Department of Public Welfare, the

24

department shall issue an order directing that the educator show

25

cause why the revocation of the educator's certificate and

26

employment eligibility would be unwarranted. The educator shall

27

respond within 30 days of service of the order. The indicated

28

report shall be conclusive evidence of immorality as defined

29

under this act. The commission shall order the revocation of the

30

educator's certificate and employment eligibility unless the

- 30 -

 


1

educator demonstrates that:

2

(i)  the revocation would result in a grave injustice; or

3

(ii)  the procedure used in the administrative procedure

4

under 23 Pa.C.S. Ch. 63 did not provide due process.

5

(3)  Direct the department to immediately reinstate a

6

certificate and employment eligibility upon receipt of a

7

certified document establishing that a founded or indicated

8

report of child abuse or founded or indicated report for a

9

school employe was reversed or determined to be unfounded.

10

(b)  Nothing in this section shall be construed to prevent

11

the department from pursuing discipline under this act against

12

any educator for whom a founded or indicated report of child

13

abuse or founded or indicated report for a school employe was

14

reversed or determined to be unfounded.

15

(c)  For purposes of this section, "final determination"

<--

16

shall mean a final order issued by the Department of Public

17

Welfare Bureau of Hearings and Appeals or the Secretary of

18

Public Welfare in resolution of any administrative appeal of an

19

indicated report or the expiration of the time period in which

20

the subject of an indicated report may request an administrative

21

appeal.

22

Section 9.5.  Reciprocal Discipline.--(a)  Upon receipt of a

23

certified copy of an adjudication from the appropriate licensing

24

authority in another state, territory or nation imposing

25

discipline for grounds, other than a conviction under section

<--

26

9.2, that are comparable to the grounds for discipline under

27

this act, the department may issue an order directing that the

28

educator show cause why the imposition of identical or

29

comparable discipline in this Commonwealth would be unwarranted.

30

The final adjudication by an appropriate licensing authority of

- 31 -

 


1

another jurisdiction shall be conclusive as to the misconduct of

2

an educator under this section. The educator shall respond

3

within 30 days of service of the order to show cause. The

4

commission may direct the department to impose the identical or

5

comparable discipline unless the educator demonstrates that:

6

(1)  the discipline would result in a grave injustice;

7

(2)  the discipline is substantially different from what

8

would have been imposed for similar conduct in this

9

Commonwealth; or

10

(3)  the procedure used in the other jurisdiction did not

11

provide due process.

12

(b)  Nothing in this section shall be construed to prevent

13

the department from pursuing discipline against any educator

14

disciplined in another state, territory or nation under other

15

sections of this act.

16

Section 9.6.  Unavailability of Certain Defense and

<--

17

Mitigating Factor.--The consent of a child or a student to

18

engage in sexual misconduct or sexual abuse or exploitation may

19

not be a defense or a mitigating factor in any discipline

20

proceeding under this act.

21

Section 7.  Section 10 of the act, amended December 20, 2000

22

(P.L.918, No.123), is repealed:

23

[Section 10.  Confidentiality.--(a)  All information relating

24

to any complaints, including the identity of the complainant, or

25

any proceedings relating to or resulting from such complaints,

26

shall remain confidential, unless or until discipline, other

27

than a private reprimand, is ordered, any provision of law to

28

the contrary notwithstanding. Should proceedings, after all

29

appeals, result in discipline, other than private reprimand,

30

such discipline and all records pertaining thereto shall become

- 32 -

 


1

public. There shall be no ex-parte communication on any pending

2

matter regarding discipline.

3

(b)  This section shall not prohibit any person from

4

disclosing information previously made public as a result of

5

action by a school entity to dismiss a certified employe for

6

cause or as a result of a certified employe having been formally

7

charged with or convicted of a crime of moral turpitude or

8

another offense requiring mandatory revocation of a certificate.

9

(c)  The provisions of this section shall not apply to

10

reinstatements.

11

(d)  Nothing in this section shall be construed to deny a

12

professional educator access to information necessary to prepare

13

a defense in a disciplinary proceeding under this act.]

14

Section 8.  Sections 11, 12, 13, 14, 15 and 16 of the act,

15

amended December 20, 2000 (P.L.918, No.123), are amended to

16

read:

17

Section 11.  Duties of [Local School Board Officials] School

18

Entities.--(a)  Upon receipt of [the preliminary findings]

19

notification in writing from the department, a [local school

20

board shall investigate] school entity shall investigate the

21

allegations of misconduct as directed by the department and may

22

pursue the local disciplinary procedures established by law or

23

by collective bargaining agreement for adjudication of

24

complaints against [professional educators. The local school

25

board shall inform the department within 90 days of receipt of

26

the preliminary findings whether the local school board will

27

pursue disciplinary action and whether the board believes that

28

professional disciplinary action by the commission is warranted]

29

an educator.

30

(b)  [The school board, when its local investigation is

- 33 -

 


1

completed, may make a definite] Within 90 days of receipt of the

2

written notification from the department directing the school

3

entity to conduct an investigation, the school entity shall

4

inform the department of the outcome of its investigation and

5

whether it will pursue local employment action and may make a 

6

recommendation concerning discipline[. The school board shall

7

notify the affected professional educator of any such

8

recommendation and shall provide to the department] under this

9

act. The department, upon request by a school entity, may extend

<--

10

the 90-day reporting period. In reporting the outcome of its

11

investigation, the school entity shall provide the department

12

with:

13

(1)  Its findings [and], a summary of the evidence gathered

14

and an inventory of all documentary and physical evidence

<--

15

related to the allegations of misconduct and the name and

<--

16

contact information for the current custodian of items listed in

17

the inventory.

18

(2)  Any other relevant information which the department may

19

request, including information related to individuals

20

interviewed by the [local school board.] school entity.

21

(b.1)  If the school entity makes a recommendation concerning

22

discipline, it shall notify the educator of such recommendation.

23

(c)  A school [district, intermediate unit, area vocational-

24

technical school or charter school,] entity and any official or

25

employe thereof[,] shall cooperate with the department during

26

[all stages of the disciplinary process.] its review,

27

investigation or prosecution and promptly shall provide the

<--

28

department with any relevant information and documentary and

29

physical evidence that the department may reasonably request.

30

(d)  When the department receives information at any time

- 34 -

 


1

during the course of its review, investigation or prosecution of

2

misconduct that the educator is currently employed by a school

3

entity not previously notified under this act, the department

4

shall notify the school entity of the complaint, investigation

5

and charges so that the school entity may exercise its duties

6

and rights under this act.

7

(e)  A school entity is prohibited from entering into any

8

agreement with an educator or educator association whereby a

9

school entity agrees not to comply with its mandatory reporting

10

duties or other duties outlined in this act. Any agreement or

11

provision of an agreement contrary to this subsection is void

12

and unenforceable.

13

Section 12.  Department Action After Investigation.--After

14

completion of [an] a preliminary or full investigation, the

15

department may dismiss the [charges] complaint, determine that

16

appropriate and sufficient punishment has been imposed by the

17

[local school board, or initiate hearing procedures] school

18

entity, participate in alternative dispute resolution process,

19

enter into a written settlement agreement with the educator or

20

initiate the formal adjudicatory hearing process with the filing

21

of charges with the commission. If the complaint is dismissed or

22

[it is determined that appropriate and sufficient punishment has

23

been imposed by the local school board] otherwise resolved

24

without the filing of charges with the commission, the

25

department shall inform the [professional] educator, the

26

complainant and the [local school board of the determination]

27

school entity of its resolution of the complaint.

28

Section 13.  Hearing.--(a)  Upon determination to initiate

29

[hearing procedures] the formal adjudicatory hearing process,

30

the department shall[,] within 30 days[,] send a written notice

- 35 -

 


1

to the [affected professional] educator advising of the charges

2

and of his right to request a hearing within 30 days of

3

[receipt] service of such notice. A copy of the written notice

4

of the charges shall be served upon the [professional educator's

5

current or prior employer] current and former school entity in

6

which the educator is or was employed. The notice of charges

7

shall set forth all acts or omissions which the department

8

asserts constitute misconduct and warrant discipline, which need

9

not be limited to the allegations in the complaint or

10

complaints, and may include allegations of misconduct that were

11

discovered in the course of the department's investigation of a

12

complaint or complaints.

13

(b)  Notwithstanding any other provision of this act, if the

14

department in its discretion determines that immediate

15

discipline is necessary to protect the health, safety or welfare

16

of students or other persons in the schools of this

17

Commonwealth, it [shall] may request that the commission modify

18

the procedure set forth in this section and schedule an

19

expedited hearing.

20

(c)  The hearing shall be held in accordance with the

21

following procedures unless otherwise specified in this act or

22

ordered by the commission:

23

(1)  Within [45] 15 days of receiving a request for a

24

hearing, the commission shall appoint a hearing officer from a

25

list of impartial third parties qualified to conduct such

26

hearings. The list shall have been previously agreed upon

27

jointly by the Governor's General Counsel and at least two-

28

thirds of the commission, and shall have at least five names

29

which shall be chosen on a rotating basis.

30

(2)  The burden of proof shall be on the department, which

- 36 -

 


1

shall act as prosecutor, to establish by a preponderance of the

2

evidence that grounds for discipline exist.

3

(3)  The [professional] educator against whom the [charge is]

4

charges are made shall have the right to be represented by

5

counsel and to present evidence and argument in accordance with

6

rules of procedure promulgated by the commission.

7

(4)  [The governing board of the school entity in which the

8

affected professional educator is or was last employed may

9

intervene, for cause shown, in accordance with 1 Pa. Code §

10

35.28] After the filing of charges against an educator with the

11

commission, the current or former school entity in which the

12

educator is or was employed may intervene as of right in the

<--

13

disciplinary proceeding. The hearing officer may limit the

<--

14

intervener's participation in the hearing where appropriate. 

15

Admission as an intervener shall not be construed as conferring

16

full party status on the school entity, and interveners are

17

granted no rights which survive discontinuance or resolution of

18

the disciplinary matter before the commission.

19

(5)  The hearing shall be closed[, unless the affected

20

professional educator requests that it be open to the public. If

21

the hearing is open, the hearing officer, in his discretion, may

22

close any portion of the hearing for good cause shown. If the

23

hearing is closed,] and only the department, commission members

24

and staff, the [affected professional educator and his or her

25

representatives, any intervenors] educator and his or her

26

counsel, any intervener or its counsel, if applicable, and any

27

[material] witnesses shall be permitted to attend. [Students

<--

28

attending school in the district which employs the professional

29

educator shall not be permitted to attend any hearing except as

30

witnesses duly subpoenaed to testify with respect to the charges

- 37 -

 


1

made.] Where a witness is a child or student, the commission or

2

its hearing officers may in their discretion permit a parent or

3

guardian to be in attendance during the testimony of the child

4

or student.

5

(6)  The department may recommend to the hearing officer and

6

commission appropriate discipline.

7

(7)  [The hearing officer shall, within 60] Within 90 days

8

after the conclusion of the hearing, [issue a decision

9

concerning whether] submission of written legal memoranda and

10

receipt of the transcript, the hearing officer shall issue a

11

proposed report concerning whether the department has met its

12

burden of establishing that misconduct has occurred and whether 

13

discipline should be imposed. [A decision] The proposed report 

14

shall include findings of fact and conclusions of law and

15

specify the recommended discipline.

16

Section 14.  [Decision] Proposed Report by Hearing Officer.--

17

(a)  The [decision] proposed report of the hearing officer shall

18

[become final unless] be accepted by the commission unless:

19

(1)  the [professional] educator or the department files

20

[exceptions or a brief on] exceptions in accordance with 1 Pa.

21

Code §§ 35.211 (relating to procedure to except to proposed

22

report) and 35.212 (relating to content and form of briefs on

23

exceptions) within 30 days of the date of the [recommended

24

decision.] proposed report;

25

(2)  within 60 days of the date of the proposed report, the

<--

26

commission initiates a review of the proposed report in the

27

absence of exceptions; or

28

(3)  within 60 days of the date of the proposed report, the

<--

29

commission reopens the proceeding for the reception of further

30

evidence in accordance with 1 Pa. Code § 35.233 (relating to

- 38 -

 


1

reopening by agency action).

2

(b)  [The commission shall promptly consider] After

3

consideration of exceptions to the hearing officer's [decision.

4

The commission by a majority vote of the full membership]

5

proposed report or further evidence or its review under this

6

section, the commission shall accept, modify or reject the

7

hearing officer's [decision, except that, in the case of

8

discipline of an administrator, all exceptions shall be taken by

9

a special panel of at least nine members of the commission

10

selected by the chairperson, which will include no more than

11

three teachers] proposed report.

12

[(c)  Within 45 days after receiving the decision from the

13

hearing officer and the exceptions thereto, the commission shall

14

issue a written opinion and order affirming, reversing or

15

modifying the hearing officer's decision and imposing

16

discipline, if any.]

17

Section 15.  Appeal.--(a)  An order of the commission

18

regarding discipline [of a professional] or reinstatement of an 

19

educator may be appealed only by the department or the

20

[professional] educator as an adjudication by a [State] 

21

Commonwealth agency in the manner provided by law.

22

(b)  An appeal filed under subsection (a) shall operate as a

23

stay of the discipline [until the determination] imposed under

24

this act until the resolution of the appeal, except where the

25

commission's decision to discipline is accompanied by a finding

26

that immediate discipline is necessary to protect the health,

27

safety or welfare of students or other persons in the schools of

28

this Commonwealth or the discipline imposed is the result of a

29

negotiated settlement between the parties or is imposed under

30

section 9.2.

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1

(c)  Where the commission's adjudication [is in favor of the

2

professional educator] finds no educator misconduct under this

3

act, the charges pertaining to the disciplinary proceeding shall

4

be expunged from any personal or professional file of the

5

[professional] educator maintained by the department [and/or the

6

local school entity.] and the school entity unless the school

7

entity is actively pursuing local disciplinary action against

<--

8

the educator under Article XI of the act of March 10, 1949 

<--

9

(P.L.30, No.14), known as the "Public School Code of 1949.".

<--

10

(d)  The commission shall make all adjudications imposing

11

discipline, other than a private reprimand, available to the 

<--

12

public on a publicly accessible Internet website and shall 

<--

13

cooperate with the department in maintaining a central online

14

registry on a publicly accessible Internet website of charter

15

and cyber charter school staff members and contracted

16

educational provider staff members whose eligibility for

17

employment has been suspended, revoked, surrendered or otherwise

18

disciplined pursuant to this act.

19

Section 16.  Reinstatement.--(a)  [Any professional] An 

20

educator whose certificate [has] or employment eligibility has 

21

been suspended, revoked or surrendered may apply to the

22

commission for an order lifting the suspension or reinstating

23

the certificate. The commission shall order the lifting of the

24

suspension or reinstatement if the commission determines it

25

would be just and proper. The commission shall seek and consider

26

recommendations from the department prior to ordering the

27

lifting of the suspension or reinstatement of the certificate

28

and employment eligibility and shall conduct hearings on the

29

application at the request of the [professional] educator in

30

accordance with procedures [of this act] established by the

- 40 -

 


1

commission in accordance with this act. The commission may also

2

seek and consider recommendations from the school entity or

3

entities in which the educator was employed. For purposes of

4

determining whether it is just and proper to lift a suspension

5

or reinstate a certificate, the commission may consider:

6

(1)  The conduct which resulted in discipline.

7

(2)  Other past conduct of the applicant.

8

(3)  The applicant's current attitude toward past conduct.

9

(4)  Rehabilitation efforts and activities.

10

(4.1)  Evidence of compliance with any conditions imposed as

11

part of the discipline.

12

(5)  References and letters of support [or] of or in 

13

opposition to reinstatement.

14

(b)  The commission shall not lift the suspension or

15

reinstate the certificate [of a professional] or employment

16

eligibility of an educator if the suspension or revocation

17

resulted from any of the following:

18

(1)  A finding of guilt by the commission for sexual abuse or

19

exploitation.

20

(2)  Surrender of a certificate [in lieu of discipline] or

21

employment eligibility for conduct relating to sexual abuse or

22

exploitation.

23

(c)  The commission shall not lift the suspension or

24

reinstate the certificate or employment eligibility of [a

25

professional] an educator convicted of an offense [under 18

<--

26

Pa.C.S. (relating to crimes and offenses)] set forth in section

<--

27

111(e)(1) through (3) of the act of March 10, 1949 (P.L.30,

28

No.14), known as the "Public School Code of 1949" for the time

29

period set forth in that section.

30

Section 9.  Section 17 of the act, amended December 20, 2000

- 41 -

 


1

(P.L.918, No.123), is repealed:

2

[Section 17.  Unauthorized Release of Information.--(a)

3

Except as otherwise provided in section 10, a member, staff

4

member or employee of the commission, the Department of

5

Education, or any local school entity who releases or gives out

6

information received at a commission meeting or hearing or

7

through any disciplinary proceedings conducted pursuant to this

8

act, without authorization of the commission, is guilty of a

9

misdemeanor of the third degree.

10

(b)  Any material witness or his or her representative who

11

releases or gives out information received at a commission

12

meeting or hearing involving disciplinary proceedings, or who

13

releases or gives out information obtained as a result of direct

14

involvement in the investigation of a professional educator or

15

in any disciplinary proceedings conducted pursuant to this act,

16

without authorization of the commission, is guilty of a

17

misdemeanor of the third degree unless this information was

18

known to the material witness or his or her representative prior

19

to that meeting, hearing or investigation.]

20

Section 10.  Section 17.1 of the act, added December 20, 2000

21

(P.L.918, No.123), is amended to read:

22

Section 17.1.  Immunity From Liability.--(a)  Notwithstanding

23

any other provision of law, no person shall be subject to civil

24

liability for filing a complaint or a mandatory report or for

<--

25

providing information to or cooperating with the department or

26

the commission in the course of an investigation or proceeding

27

conducted under this act. This section shall not apply to

28

malicious action by any person or the provision of false

29

information if the person knew or had reason to know that the

30

information was false.

- 42 -

 


1

(b)  A school entity which provides information about the

2

professional conduct of a former or current employe to a

3

prospective employer of that employe is immune from civil

4

liability for the disclosure of the information.

5

(c)  This section shall not apply to malicious action by any

6

person or school entity or the provision of false information if

7

the person or school entity knew, or had reason to know, that

8

the information was false.

9

Section 11.  The act is amended by adding a section to read:

10

Section 17.2.  Confidentiality.--(a)  All Except as otherwise

<--

11

provided in this act, all information relating to any complaints

12

or any proceedings relating to or resulting from such

13

complaints, including the identity of the complainant, shall

14

remain confidential, unless or until discipline is imposed,

15

other than a private reprimand or a supplemental sanction deemed

16

private by the commission, any provision of law to the contrary

17

notwithstanding unless otherwise specified in this act. All

18

records pertaining to proceedings resulting in public

19

discipline, excluding those records that are privileged or

20

otherwise protected from release, shall become public after the

21

exhaustion of all appeals except where the commission has

22

determined that immediate discipline is necessary. Records

23

pertaining to immediate discipline proceedings are public at the

24

time that the immediate discipline is imposed.

25

(b)  Any person who releases or gives out information

26

received at a commission meeting or hearing or through any

27

disciplinary proceedings, including investigations conducted

28

pursuant to this act, without authorization of the commission or

<--

29

as authorized by this act commits a misdemeanor of the third

30

degree.

- 43 -

 


1

(c)  This section shall not prohibit any person from

2

disclosing information previously made public as a result of

3

action by a school entity to dismiss an employe for cause or as

4

a result of an employe's having been formally indicted for or

5

convicted of a crime or from disclosing information that was

6

known prior to or available independently of the disciplinary

<--

7

proceeding.

8

(d)  The provisions of this section shall not apply to

9

information relating to reinstatements or to proceedings under

10

section 9.2 or 9.5 or to information developed in the course of

<--

11

investigations conducted by school entities whether conducted

12

independently or by direction of the department.

13

(e)  The commission may order the release of confidential

14

information upon petition of any interested party when it is

15

just and proper. Petitions for release of information deemed

16

confidential under this section shall be filed with the

17

commission in accordance with procedures established by the

18

commission.

19

(f)  Nothing in this section shall be construed to:

20

(1)  Deny an educator access to information contained in a 

<--

21

complaint, if the information is necessary to prepare a defense

22

in a disciplinary proceeding under this act.

23

(2)  Prevent the department or a school entity from

24

investigating or prosecuting allegations of misconduct.

<--

25

Individuals contacted in the course of the department's 

<--

26

investigation and prosecution are subject to the confidentiality

27

proscriptions set forth in this section.

28

(3)  Prevent the department or a school entity from providing

29

information to, or consulting with, a law enforcement, child

30

protective services or licensing agency of the Commonwealth or

- 44 -

 


1

other state or jurisdiction.

2

(g)  An individual contacted in the course of the

<--

3

department's investigation and prosecution shall be subject to

4

the confidentiality provisions of this section.

5

Section 12.  Section 18 of the act, amended December 20, 2000

6

(P.L.918, No.123), is amended to read:

7

Section 18.  Commission Proceedings and Procedures.--(a)  The

8

commission shall conduct its disciplinary proceedings in

9

accordance with the provisions of this act and Title 2 of the

10

Pennsylvania Consolidated Statutes (relating to administrative

11

law and procedure), unless otherwise specified in this act; if

12

any inconsistency arises, the provisions of this act shall be

13

controlling. [Any] In all disciplinary proceedings conducted by

14

or on behalf of the commission, the educator is entitled to

15

represent himself or be represented by legal counsel. In all

16

public hearings conducted by the commission, a person is

17

entitled to be heard by the commission in person, in writing,

18

through counsel or through his or her designated

19

representative[,] in accordance with procedures adopted pursuant

20

to this act. The commission shall enter as a matter of record

21

the minutes of each meeting, every vote taken by the commission

22

and every official act of the commission.

23

[(b)  In all investigations or disciplinary proceedings, the

24

commission is authorized to issue subpoenas as provided for by

25

law to compel the attendance and testimony of witnesses and the

26

production of books, records, documents and other evidentiary

27

material. A professional educator shall have five days from

28

service to respond to a subpoena.]

29

(c)  No commissioner shall vote in any case where:

30

(1)  the [professional] educator who is the subject of the

- 45 -

 


1

proceeding is employed by the same school entity[; or] as the

2

commissioner;

3

(2)  the [professional] educator who is the subject of the

4

proceeding is a member of a Statewide [professional] educator

5

organization of which the commissioner is an officer, director

6

or employe[.];

7

(3)  the commissioner has filed a misconduct complaint as

8

permitted under this act against the educator; or

9

(4)  the commissioner has any personal and independent

10

knowledge of the educator or issues in the case that would

11

compromise the commissioner's ability to make an impartial

12

decision.

13

Section 13.  The act is amended by adding sections to read:

14

Section 18.2.  Subpoenas.--(a)  The commission or its legal

15

counsel, as its designee, shall have the power:

16

(1)  To issue investigatory subpoenas upon petition by the

17

department for purposes of reviewing a complaint and

18

investigating alleged educator misconduct under this act.

19

(2)  To issue subpoenas upon petition by the parties after

<--

20

the filing of charges as provided for under the provisions of

21

this act, commission bylaws and 2 Pa.C.S. (relating to

<--

22

administrative law and procedure) to compel the attendance and

23

testimony of witnesses and the production of books, records,

24

documents and other evidentiary material.

25

(b)  A subpoena issued under this act shall clearly indicate

26

on its face that the subpoena is issued in connection with a

27

confidential proceeding and a breach of confidentiality by the

28

persons or entity subpoenaed may result in a civil penalty or

29

misdemeanor.

30

Section 18.3.  Disposition of Fees and Fines Collected.--All

- 46 -

 


1

fees, fines and civil penalties shall be paid into the State

2

Treasury through the department and credited to a restricted

3

revenue account in the General Fund, which is hereby

4

established. Funds in the account may be utilized to the extent

5

of expenditures incurred by the department and the commission in

6

the implementation of their respective duties under this act.

7

Section 14.  This act shall take effect in 60 days.

- 47 -