Revisions to the Professional Educator Discipline Act (Act) became effective February 16, 2014. The Act increases an educator’s responsibility to report and expands the instances in which a report to the Pennsylvania Department of Education (PDE) is required.

New Requirements:

The Act requires that Superintendents, IU and Vo-Tech Executive Directors, and chief administrators of charter, cyber-charter or private academic schools report the following to PDE:
1. Any educator who was issued a “for cause” notice of intent to dismiss or remove, nonrenewal, removal from eligibility lists, or determination not to reemploy. The report must be filed when the notice is issued, regardless of the basis for the notice.
2. Any educator who has been arrested or indicted for or convicted (including a plea of guilty or nolo contendere) of any crime that is graded a misdemeanor or felony. This now includes all misdemeanors and felonies, not just the School Code Section 111 offenses.
3. Any educator alleged to have committed sexual abuse or exploitation or engaged in sexual misconduct with a child or student. “Sexual misconduct” is defined as any act, including, but not limited to, any verbal, nonverbal, written or electronic communication or physical activity, directed toward or with a child or student regardless of their age that is designed to establish a romantic or sexual relationship with them. Prohibited acts include, but are not limited to:
i. Sexual or romantic invitations;
ii. Dating or soliciting dates;
iii. Engaging in sexualized or romantic dialogue;
iv. Making sexually suggestive comments;
v. Self-disclosure or physical exposure of a sexual, romantic or erotic nature; or
vi. Any sexual, indecent, romantic or erotic contact with the child or student.
4. When there is reasonable cause to suspect that an educator has caused physical injury to a child or student as a result of negligence or malice.
5. Any educator who has resigned, retired or otherwise separated from employment after a school has received information of alleged misconduct under the Act. In effect, any resignation/separation in lieu of termination for cause must be reported. The report must be filed regardless of any confidentiality provision in a Separation Agreement.
6. Any educator who has been reported under the Child Protective Services Law.
7. Any educator named as the perpetrator of an indicated or founded report of child abuse or named as an individual responsible for injury or abuse in an indicated or founded report for a school employe under the Child Protective Services Law.

Mandated reports must be filed within fifteen (15) days of the above triggering events. The Act defines Educator as a person who holds a certificate, who is a public, charter or cyber charter school staff member or who is a contracted educational provider staff member. Child is defined as an individual who is less than eighteen years of age, while Student is one who is enrolled in a public school including an intermediate unit, area vocational-technical school or a charter or a cyber charter school; a private school, including a nonpublic, nonlicensed school, private academic school and accredited school; or a contracted educational provider.

Under the Act, a child’s or student’s consent to engage in sexual misconduct or sexual abuse or exploitation may not be used as a defense or mitigating factor in any discipline under the Act. Further, the Self-Reporting Requirement under the School Code requires an educator who is arrested, indicted for, or convicted of any crime listed in School Code Section 111(e) and (f.1) to report it to the school where the educator is employed within 72 hours of the indictment or conviction. This does not change existing law but is included in the new statute as a reminder. The new direct reporting requirements for educators under the Act requires an educator, who knows of any action, inaction, or conduct which constitutes sexual abuse, exploitation or sexual misconduct under the Act, to file a mandatory report with PDE and report such misconduct to his or her chief school administrator and immediate supervisor. The report shall be filed within 15 days of the discovery of the act.

The Act also contains a process for submitting the required reports of misconduct which includes:
Reporting by Chief School Administrators: All reports submitted to PDE shall include a summary of all information, including any documentary and physical evidence relating to the misconduct.

PDE Form: Complaints must be submitted on PDE’s form, which as a convenience. The form requires specific information on the allegations with supporting documentation, and be verified by the complainant. Previously, the form had to be notarized but is now subject only to the penalties relating to unsworn falsification to authorities.

PDE Review: PDE will first review the complaint to determine whether the facts alleged are legally sufficient. If they are, PDE will investigate to determine whether there is probable cause for discipline. If PDE finds that probable cause does not exist, it will dismiss the complaint. If probable cause exists, PDE will investigate further to determine the appropriateness of professional discipline.

District Investigation: Upon receipt of written notification from PDE, a school must investigate the allegations of misconduct as directed by PDE and may pursue its own disciplinary procedure. The revisions to the Act are silent as to whether the school may conduct an investigation prior to notification from PDE.

Notification to PDE: Within 90 days of receipt of notification (extensions may be requested), the school must report to PDE the outcome of its investigation and whether it will pursue local employment action. The school may make a recommendation to PDE concerning discipline under the Act. A school is prohibited from entering into any agreement with an educator or the educator’s union not to comply with mandatory reporting.

The Act’s new requirements may require new procedures, processes, and training of District personnel. Also, there are several unanswered questions, and it will take time to determine all the implications. One of the major changes is to require the reporting of allegations of sexual misconduct without a prior District investigation or confirmation of the truth of those allegations. As always, any allegation should be investigated thoroughly after consulting with your solicitor. Depending on the educator involved and the nature of the allegations, it may be appropriate to have another agency conduct the investigation. Our firm will continue to monitor the Act’s implementation and will provide further updates as developments or clarifications are announced.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.