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November 11, 2011, School Law Bullet Number 77,
Act 24 Expands Background Checks, But Who Pays?
By:and , Esquires
On June 30, 2011, Governor Tom Corbett signed into law House Bill 1352 including the School Code amendments collectively known as “Act 24.” The Act 24 amendments include school and student safety measures, the removal of PDE approval requirements, enrollment clarification, reduced requirements for superintendents, and controversial budget-related amendments. Among the controversy, background checks have been expanded for all who come in contact with children. But who should pay for these safety measures?
As we discussed in PDE created Form 6004 for employees to report any arrests and convictions. The deadline for completion by current employees is December 27, 2011. Based upon our intrepretation of Act 24, employees who refuse to complete the form by the deadline must apply for and fund their own background checks.
Initially, it was our advice (consistent with PSBA’s position) that Act 24 requires school districts to bear the cost of a background check for any person who fails to timely submit PDE-6004. Upon further reflection, we believe that Act 24 should be interpreted to require employees to fund their own background checks if they refuse to complete and submit PDE-6004 by December 27, 2011. We offer the following guidance for proceeding should employees fail to submit PDE-6004 as instructed.
Intrepretation of The Provisions of Section 111(j) of the School Code
The provisions of Section 111(j):
• Section 111(j)(1) Requires PDE to create and publish a form for the reporting of arrests and convictions of Section 111(e) offenses.
• Section 111(j)(2) Provides a deadline for current employees to report, via the PDE form, whether they have been convicted of a Section 111(e) offense.
• Section 111(j)(3) States that the district must immediately require any employee who refuses to submit the form to provide the administration with a current report of criminal history.
• Section 111(j)(4) Mandates employees to report any Section 111(e) arrest or conviction within 72 hours after the arrest or conviction.
• Section 111(j)(5) Provides that administrators must require employees to submit to a background check if the administrator reasonably believes that the employee was convicted or arrested for a Section 111(e) offense. “The cost of the criminal background check shall be borne by the employing entity.”
• Section 111(j)(6) States that any employee who willfully fails to disclose a Section 111(e) arrest or conviction shall be subject to discipline, up to and including termination.
Because of the statutory language and policy considerations, we believe that the Section 111(j)(5) requirement that the district “bear the cost of the criminal background check” applies only when an administrator suspects that an employee failed to report an offense, not when the employee refuses to complete and submit PDE-6004 by December 27.
Statutory Language
Sections 111(j)(2) and (3) place the onus on the employee. Section 111(j)(2) states that “all current employees…shall complete the form described in paragraph 1.”
Further Section 111(j)(3) explains that when “an employee refuses to submit the form described in paragraph 1, the administrator or other person responsible for employment decisions in a school… shall immediately require the employee to submit to the administrator a current report of criminal history record information.”
Because the necessity for a background check under Section 111(j)(3) is based upon the employee’s refusal to submit PDE-6004, we believe that the employee should be deemed responsible for funding the background check.
In contrast, Section 111(j)(5) places the burden on the administration to require an employee to submit to a background check when the administration has a “reasonable belief” that the employee “was arrested or has a conviction for a [Section 111(e)] offense.” Under Section 111(j)(5), the employer must have some reasonable basis to believe that the employee failed to report a Section 111(e) offense. We do not believe that the mere failure to submit PDE-6004 could give rise to a reasonable belief that the employee is hiding a reportable offense.
Because the necessity for a background check under Section 111(j)(5) is based upon the employer’s suspicions, which may be incorrect, the employer is responsible for funding the background check.
Policy
Under the rules of statutory construction, laws must be interpreted to be internally consistent and not to produce absurd results. We believe that the legislature would not have intended for employees to cause a financial burden for the district by the employees’ refusal to complete the PDE form. Moreover, the burden on the employee to complete PDE-6004 is minimal: the employee is only required to truthfully and accurately complete one form. This is not a heavy burden and, in most cases, requires a very minimal amount of time. It would be absurd for the legislature to place such a light burden on the employee and then financially punish the district for every non-compliant employee.
However, if the administration believes that an employee failed to report an actual arrest or conviction for a Section 111(e) offense, the legislature expressly places the onus on the administration to fund the investigation of its own belief.
Bottom Line for Districts
In the absence of the aid of case law and guidance from PDE, we believe that Section 111(j)(2) mandates employees to complete PDE-6004 or obtain a current Pennsylvania State Criminal History Report and Federal Criminal History Report, and that the employee, not the district, should be responsible for the cost of the background checks required by the School Code. If you have any additional questions regarding the provisions detailed in Act 24, please contact your legal counsel or the education attorneys at KingSpry.
This School Law Bullet is meant to be informational and does not constitute legal advice.
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