Can the actions which resulted in three DUI convictions, but not the convictions themselves,   constitute “immorality and intemperance" justifying indefinite suspension of an educator’s  teaching certificate?  Pennsylvania Department of Education (PDE) v. Nada S. Reese, DI-18-210 (2019)
16 August, 2022 by
Thomas W. Bailey
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Background regarding DUI convictions and teaching in Pennsylvania:  The Public School Code of 1949, Article 1, Section 111(e), establishes criminal charges an educator may not be convicted of when first applying to teach or while already teaching in our state.  Driving Under the Influence (DUI) is not listed in this section if the offense is graded as a second degree misdemeanor or less.  This is a major exception because of the number of DUI convictions.

 However, should you be convicted of DUI graded as a first degree misdemeanor or higher, Article 1, Section 111(f.1)(1) would apply.  This section permits the local education agency to restrict when you could return to work. It states the convicted educator “shall be eligible for current or prospective employment only if a period of three years has elapsed…” from the date of expiration of that sentence.  As a result, the Pennsylvania General Assembly has created a right to return from work after having been convicted of DUI charges graded as a first degree misdemeanor and higher.

 Section (j)(6) requires educators charged or convicted with any offense under Section 111(e) to notify their school entity of same.

 Section (f.2) however, statesNothing in this section shall be construed to interfere with the ability of a public or private school, intermediate unit or area career and technical school to make employment, discipline or termination decisions, provided that this subsection shall not be construed to conflict with subsection (e), (f.1) or (j)(6).”   This provision apparently allows these education administrators to discipline educators convicted of DUI as they see fit unless the discipline is “construed to conflict” with Section 111(e).  “Construed to conflict” in my opinion infers an adverse opinion by a Pennsylvania appellate court. 

 

With that said, lets see what happened in Nada Reese’s case.

 Background: Ms. Reese held an Educational Specialist 1 PA certificate in the area of Elementary School Counselor K-6 and a Day-to-Day Substitute Emergency Permit for All Subject Areas PK-12.  

 In 2018, PDE filed a Notice of Charges alleging Ms. Reese engaged in conduct constituting immorality, intemperance and negligence and requested the Professional Standards & Practices Commission (PSPC) indefinitely suspend her educator certificate.  To support their case, PDE presented the evidence of Ms. Reese's three prior convictions.  In April, 2012, Ms. Reese's motor vehicle was stopped by police.  She had been seen driving erratically and appeared to be intoxicated.  She was charged with DUI.  I do not see a date of conviction within the adjudication for this charge, yet it is referred to as the 1st offense.

 In October, 2014, Ms. Reese was charged with a second DUI.  She was convicted of this offense on June 1, 2015 and the adjudication refers to this as the 2nd offense.

 In December, 2014, Ms. Reese was again charged with DUI, a third offense.  She was convicted of this third offense also on June 1, 2015 and yet the adjudication refers to this also as the 2nd offense. With two prior DUI convictions, this third offense was graded as second degree misdemeanor.

 

As we saw earlier, the Public School Code, Article 1, Section 111(e) does not call for a professional employee to report DUI convictions for third offense to their employer.  Section 9b of the Educator Discipline Act, also written by the General Assembly, does not require the PSPC to suspend a teaching certificate of an educator found guilty of this degree of DUI.  However, the Mandatory Reporting requirements of 9a(2) require educators to report an arrest for a misdemeanor to his/her chief school administrator.  I do not know if Ms. Reese complied with this or not.

Immorality, intemperance and negligence are defined within Section 9c of the Educator Discipline Act, entitled “Imposition of Discipline on Additional Grounds".   These same three terms are defined within PDE’s regulations for the PSPC at 22 Pennsylvania Code, Part XIV, Chapter 237  "Definitions of Statutory Terms."

 

According to the PSPC order, Ms. Reese apparently did not respond to the Notice of Charges.  As a result, PDE filed a Motion for Judgment on Default.

   

Issue before PSPC: Do the actions that led to the three DUI convictions constitute evidence of immorality, intemperance and negligence to justify the suspension of an educator’s certificate?

 

PSPC's Decision:  The PSPC agreed with PDE and found Ms. Reese's conduct to constitute immorality and intemperance, quoting the Commission's definition of "immorality" set forth in it's regulations at 22 Pa Code Section 237.3. 

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.

 

Thereafter, the adjudication cites Zelno v. Lincoln Intermediate Unit No. 12 Board of Directors, 786 A2d 1022 (2001). In Zelno, an educator had been convicted of three DUI charges as was Ms. Reese.  Zelno was charged with immorality by the local school entity and terminated.  “Immorality” for local discipline is defined in a different location within the Public School Code of 1949.  Article 11, Section 1122 identifies the actions for which a local school entity may terminate an educator’s contract.  Immorality, intemperance and negligence are listed in Section 1122.  

 On Ms. Reese’s charge of intemperance, the PSPC determined that her conduct constituted intemperance due to her loss of self-control.  Ms. Reese's choice to drive a vehicle while under the influence of alcohol was sufficient evidence of intemperance to the PSPC.

 The Zelno case involved an educator charged under a different statute and facing the loss of his/her employment.  Ms. Reese was charged with violating the Educator Discipline Act and faced the indefinite suspension of her teaching certificate.

 The Commission found Ms. Reese's actions to constitute misconduct and ordered an indefinite suspension of her educator certifications.  It specifically stated Ms. Reese could apply to end the suspension.  

 

Reasons for Discussion Here:  The Commission cited Zelno as authority to claim Ms. Reese's three DUI convictions constitute "immorality" thereby justifying suspension of her PDE certification.  Footnote 3 states "Conduct constituting 'immorality' is cause for termination of a tenured professional employee under the Public School Code of 1949.  Immorality has been defined by courts as a course of conduct that offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and elevate.  Zelno at 1024.  While not binding on the Commission, the court's decision in Zelno may be regarded as persuasive authority.  See 22 Pa Code Section 237.1.”  


This is a precedent setting Commission order based upon PDE’s interpretation of Section 1-111(f.2) of the Public School Code of 1949.

This section granted “a public or private school, intermediate unit or area career and technical school to make employment, discipline or termination decisions” regarding their employees as long as these decisions were not construed to conflict with the other provisions of Section 1-111.  No mention was made of PDE or the PSPC suspending an educator's teaching certificate.  Without the certificate, they can't teach.

This statute specifically stated that educators convicted of first degree misdemeanors “shall be eligible for current or prospective employment only if a period of three years has elapsed from the date of expiration of the sentence for the most recent offense.”  Ms. Reese most recent offense was a second degree misdemeanor.  I see no statutory authority for the PSPC to suspend her teaching certificate for an indefinite term. 

 The facts remain that Ms. Reese did not contest the Notice of Charges and I see no evidence that an attorney made an appearance on her behalf.  Perhaps these are the reasons this decision was written.

 If you want to read the PSPC Order in Ms. Reese's case, go to the PSPC website (pspc.education.pa.gov), click on "Discipline System & Reporting" across top menu bar and then pull down to "Search Adjudications & Orders" at the bottom right.  Type "DI-18-210" inside the search bar.

8-16-22

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