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December 15, 2011, , Number 80
Act 24 Update: P.D.E.’s Long-Awaited Guidance
By: and , Esquires
On December 13, 2011, PDE released a Basic Education Circular (“BEC”) to provide school leaders with guidance on interpreting and applying the Act 24 background check requirements. This newsletter addresses the direction provided by PDE and our thoughts about implementing Act 24 in your school district.
Background on Act 24
As you may know from our previous , Act 24 adds several additional offenses under the Pennsylvania Crimes Code that qualify under Section 111(e) as offenses barring employment, including institutional sexual assault, luring a child into a motor vehicle or structure, and solicitation of minors to traffic drugs. Under Act 24, convicted offenders of crimes listed under Section 111(e) are permanently disqualified from school district employment.
Current employees are required to complete and submit to their school administrator the form developed by PDE (commonly known as “PDE-6004”) to report arrests and convictions of Section 111(e) offenses. Also, using PDE-6004, all district employees must report within 72 hours all arrests and convictions of Section 111(e) offenses. If a school administrator has a reasonable belief that an employee was arrested or convicted of a Section 111(e) offense and the employee has not notified the administrator, the school administrator must require the employee to submit to new background checks at the expense of the employing entity.
Act 24 also removes the exclusion from background checks. This includes persons under 21, in job development or job training, and employment of 90 days or less.
PDE instructions to School Administrators
As we have previously instructed, by December 27, 2011, PDE-6004 must be completed and submitted by all school employees indicating both arrests and convictions of Section 111(e) offenses. PDE advises that this requirement also includes school administrators who must return their own PDE-6004 to the person or entity responsible for hiring them. The form must be returned to the school administrator and not directly to PDE. PDE “strongly recommends” that school administrators require prospective employees to submit PDE-6004 as part of an employment application.
Independent Contractors Must Complete PDE-6004
According to anecdotal reports, districts have been struggling with applying Act 24 to independent contractors, specifically PIAA-registered sports officials. PDE interprets Act 24 to require that PDE-6004 is completed by all independent contractors and their employees, including PIAA-registered sports officials. As independent contractors, PIAA sports officials must complete PDE-6004 by Tuesday, December 27, 2011. To assist in the organization of this process for PIAA-registered sports officials, PIAA has developed an interactive database that is available at the following link: http://www.piaa.org/officials. This form will be saved in the PIAA database and will be accessible by all PIAA member schools. Higher education administrators are responsible for collecting PDE-6004 from student teacher candidates.
Reporting of Arrests and Expunged Records
PDE is taking a broad view on what constitutes an arrest. Specifically, an “arrest” does not require, for example, that a person was taken to the police station or fingerprinted. An arrest is accomplished when any act of law enforcement personnel indicates an intention to take a person into custody and subjects the person to the control of the officer. PDE recommends that if any school employee doubts whether or not there was an arrest, the employee should err on the side of disclosing the event.
It is PDE’s view that Act 24 and PDE-6004 do not require an employee to disclose an arrest or conviction that has been legally expunged. However, PDE cautions that not all criminal charges are legally capable of being expunged and advises districts to contact their Solicitor if an employee claims that an arrest or conviction has been expunged.
What If The Employee Refuses to Submit PDE-6004?
Just as we advised in our newsletter of November 11, 2011, PDE interprets Section 111 to place the burden on the employee to pay for state and federal background checks, in the event that an employee refuses to submit PDE-6004. Also, PDE recommends that school administrators consider discipline for failure to submit PDE-6004, for failure to submit a background check, or for failure to report an offense that was reportable under Section 111(e).
PDE notes that school administrators who willfully fail to ensure that school employees return PDE-6004 in accordance with Section 111, including the requirement for background checks by non-compliant employees, may be subject to the penalties of Section 111 and appropriate educator discipline proceedings.
What To Do When PDE-6004 Is Submitted
School administrators must review PDE-6004 forms and determine if the report discloses information that requires further action. PDE-6004 should be kept in the employees personnel file together with any notation made by administrators who reviewed the form.
If a PDE-6004 is submitted incomplete, unclear, or altered, the administrator must follow up with the employee. If the employee refuses to clarify an incomplete, unclear, or altered form, PDE advises that the school administrator should treat the action as a failure to submit PDE-6004 and require to employee to submit state and federal background checks.
When a PDE-6004 indicates that an employee was convicted of a Section 111(e) offense, PDE opines that the administrator should initiate termination proceedings. However, if only an arrest is indicated, the administrator should inquire further into the facts underlying the arrest, according to PDE. We advise that you contact your solicitor before inquiring into the details of the arrest or taking any employment action pursuant to an arrest.
PDE states that administrators must report to PDE all instances when employees report an arrest or conviction noted on PDE-6004. The report must be made on a mandatory report form with supporting documentation within 30 of receipt of the information indicating an arrest or conviction.
School Administrators’ Responsibility for Reasonable Belief of Section III(e) Arrest or Conviction
PDE-6004 must also be completed within 72 hours of an arrest or conviction of a Section 111(e) offense. If a school administrator reasonably believes that an employee was arrested or convicted of a Section 111(e) offense, the school administrator must require the employee to submit to background checks as district expense. PDE advises school administrators to consider discipline of any employee who willfully fails to submit to required background checks.
Bottom Line for Districts
PDE is the administrative agency charged with enforcing Act 24 and, thus, its guidance is instructive for implementing Act 24. However, if you are in doubt about how to proceed, the best possible advice is to contact your Solicitor. The full BEC can be found at PDE’s website: http://www.education.state.pa.us.
*This School Law Bullet is meant to be informational and does not constitute legal advice.
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