On April 30, 2006 the grace period extending the compliance requirements of Act 48 of 1999 expired. The full impact of Act 48 will take effect this summer, and careful attention must be given to the certification status of all professional employees. Failure to satisfy Act 48’s requirements will result in the employee’s Certificate being placed on “inactive status.” This will disqualify an employee from employment with a public school as either a professional or temporary professional employee. Continued employment under an “inactive” Certificate will expose the District to a forfeiture of subsidy under Section 2518 of the School Code. The following is a brief summary of Act 48 and what steps to take if the District receives notice that a professional employee’s Certificate becomes “inactive.”
As of July 1, 2000, Act 48 required all persons holding Pennsylvania Professional Educator Certification to complete continuing education requirements in order to maintain active Certificates. Act 48 requires all certified educators, every five years, to earn six collegiate credits or six PDE approved in-service credits or 180 continuing education hours or any combination of the above. Failure to satisfy these requirements will result in the Certificate being placed on “inactive” status. Individuals with inactive certification may only be employed as Substitute Teachers, Principals, Superintendents or Assistant Superintendents, in accordance with the endorsement on the individual certificate or letter of eligibility, for no more than 90 days during a school year.
The grace period established by Act 46 has now passed. Professional development approved providers were required to submit their final records to the Department of Education by May 31, 2006. Beginning June 9, 2006, five year notification letters will be sent by PDE to all educators who have not met the Act 48 professional and development requirements and the public school entities by whom they are employed. In the absence of an extenuating circumstance (military duty, medical disability or absence from the country) notice of non-compliance will be issued, and the Certificate of non-compliant educators will become inactive, unless an appeal of the inactive status is filed within thirty days. If an educator files a timely and valid appeal, the educator’s certificate will remain active until the appeal is resolved. While the appeal is pending, the educator will be able to continue employment as a professional educator. If the District has any doubts as to the status of the certification of any of its professional employees, information regarding the credits/hours earned and the continuing education status of all professional employees may be accessed through PDE’s website.
Also, please note that Act 5 of 2006, which took effect on April 3, 2006, waived Act 48 requirements for retired Pennsylvania certified educators. In addition, Act 5 waived the professional development requirements for the first 180 days if the retiree returns to school service in a full-time position or returns to service due to an emergency or teacher shortage. Act 48 compliance requirements become applicable on the 181st day after the retiree returns to school service and continue in effect until that educator returns to full retirement status.
Since the grace period for Act 48 compliance has just expired, there are no decisions to provide guidance in addressing an “inactive” certificate. The closest analogy would be to examine the Court decisions involving the rights of employees who have permitted their certification to lapse (see: Occhipinti v. Old Forge School District (Pa. Cmwlth. Ct., 1983; and Moiles v. Marple Newtown School District (E.D. Pa. 2002)). These cases support a conservative approach when addressing a professional or temporary professional employee whose Certificate has lapsed or, by analogy, has been placed on inactive status. An “inactive” Certificate does not, in itself, alter the employment relationship with the District. The District must first confirm whether the employee filed an appeal, as this will permit continued employment while the appeal is pending. Absent an appeal, the District must then determine whether it desires to retain the employee in a substitute capacity for 90 days to afford the employee the opportunity to comply with the Act 48 requirements and restore their certificate to “active” status. If the District does not desire to retain the employee as a substitute and/or if the 90 day period passes and the Certificate is still “inactive,” the District should then provide all of the procedural protections under Section 1127 of the School Code, including providing notice to the employee and conducting a Loudermill Hearing, issuing charges based upon incompetence and violation of the School Laws for failure to comply with Act 48 resulting in “inactive” status, and after the Board Hearing, terminating the employee. Although Act 48 provides for reinstatement to active status if the employee subsequently fulfills Act 48’s requirements, there are no provisions in the Act which require the District to re-instate a terminated employee when this occurs. However, each District should consult with its solicitor to determine whether there are any provisions in the collective bargaining agreements which also must be followed.