Can a school entity terminate an educator for “immorality” after their third DUI conviction?
12 June, 2021 by
Thomas W. Bailey
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The Pennsylvania General Assembly identifies those criminal offenses for which an educator may not be convicted within Article 1, Section 111(e)(1-3).  Driving Under the Influence (DUI) is not listed there.  DUI is discussed in Section 111(f.1)(3) of the same Article.  Educators who have been convicted of DUI more than once, with the grading as First Degree Misdemeanor, were not to begin teaching again until 3 years had passed from expiration of the prior sentence for the most recent offense.

 

Background:  N.Z. taught academic education classes to young men within a drug/alcohol treatment program in York County.  This drug/alcohol program was operated by Lincoln Intermediate Unit No.12 (IU 12) as an alternative education program.

 On May 5, 1990, N.Z. plead guilty to Driving Under the Influence of alcohol (DUI).  This was her third DUI conviction.  She was sentenced to serve her jail sentence during weekends and over the summer vacation.  

 The Board of Directors of IU 12 (Board) learned of her convictions and began termination proceedings under Article 11, Section 1122 of the Public School Code of 1949 (Section 1122).  The Board alleged the conduct displayed by N.Z. leading up to her convictions constituted immorality, intemperance, persistent negligence and willful neglect of her duties as an educator. 

 The Board did not charge N.Z. with violating Public School Code, Article 1, Section 111.  In this section, the Pennsylvania General Assembly identifies specific offenses educators may not be convicted of.  Section 111(f)(3) does require an educator convicted of a DUI, classified as a misdemeanor of the first degree by 75 Pa C.S. Section 3803, not to be employed until three years have elapsed from the date the most recent offense expired.  This is the most severe penalty for DUI.  Nowhere does is state an educator’s contract may be terminated permanently upon conviction for DUI.

 Section 1122 does identify reasons for termination of an educator’s contract.  Immorality, intemperance and willful neglect are listed, but not defined, in this section.  These terms are defined within the Professional Standards & Practices Commission regulations found in the PA Code Section 237 Definitions of Statutory Terms.  It states “Immorality is conduct which offends the morals of the Commonwealth and is a bad example to the youth whose ideals a professional educator or charter school staff member has a duty to foster and elevate.”

 At her Board hearing, N.Z. did not contest her three DUI convictions.  The Board called four witnesses: four Board administrators and the Director of the Children’s Home of York.  Each witness testified and presented exhibits showing they were members of the community within the local school district.   They testified that N.Z.’s conduct “offended the morals of the community and sets a bad example for the students.”

 The Board determined that N.Z.’s conduct leading to her convictions constituted immorality, intemperance and willful neglect.  The Board dropped the persistent negligence charge.  As a result, the Board terminated N.Z.’s employment contract. 

 

Issue before Pennsylvania Department of Education.  N.Z. appealed the Board’s dismissal to the Secretary of the Pennsylvania Department of Education (PDE).  The Secretary conducted a review of the Board’s decision.  The Secretary affirmed the Board’s finding of immorality and intemperance, but found insufficient evidence to sustain the willful neglect finding.    

 

Issue before Commonwealth Court.  N.Z. appealed the Secretary’s decision.  I’m not aware of a previous Pennsylvania educator’s contract, with three DUI convictions, being terminated.  I could be wrong.  N.Z. appealed this as a case of first impression.

 

Court’s Opinion. The Commonwealth Court ruled: "A third offense indicates not a single act of misjudgment, but rather a pattern of conduct that is not only damaging to herself, but also puts the public in serious danger.  [H]er conduct ...is per se, conduct that is a bad example to students whose ideals she as a teacher is supposed to foster.  This affects her credibility and impacts her ability to teach." 

     

Importance:  Pennsylvania statutory law did not permit school entities to terminate educators for three DUI convictions in 2001.  When a school entity convicted an educator with immorality for the same actions, PDE and this Court made new law.

6-12-21 See Zelno v. Lincoln Intermediate Unit No. 12 Board of Directors, 786 A2d 1022 (Commonwealth Court of Pennsylvania 2001)

 

Attorney Robert Glessner of York for N.Z.

Attorney Kim Robert Smith of Lancaster for Lincoln Intermediate Unit No. 12.
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