Opinion
No. 210 M.D. 2012
12-13-2012
Eric Croll, Petitioner v. Harrisburg School District, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court are the preliminary objections filed by the Pennsylvania Department of Education (Department) in response to a complaint filed by Eric Croll (Croll) seeking declaratory and injunctive relief to prevent the Harrisburg School District (District) from terminating his employment as a teacher under Section 111(e)(1) of the Public School Code of 1949 (School Code).
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §1-111(e)(1). As presently enacted through the amendments of Act 82 of 2012, Act of June 30, 2012, P.L. 684, effective July 1, 2012, Section 111 of the School Code states, in pertinent part:
Criminal History of Employes and Prospective Employes; Conviction of [Employes of] Certain Offenses. -24 P.S. §1-111(a.1), (e)(1), (2).
(a.1) Beginning April 1, 2007, this section shall apply to all current and prospective employes of public and private schools, intermediate units and area vocational-technical schools, including, but not limited to, teachers....
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(e) No person subject to this act shall be employed or remain employed in a public or private school, intermediate unit or area vocational-technical school where a report of criminal history record information or a form submitted by an employe under subsection (j) indicates the person has been convicted of any of the following offenses:
(1) An offense under one or more of the following provisions of Title 18 of the Pennsylvania Consolidated Statutes:
Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 2709.1 (relating to stalking).
Section 2901 (relating to kidnapping).
Section 2902 (relating to unlawful restraint).
Section 2910 (relating to luring a child into a motor vehicle or structure).
Section 3121 (relating to rape).
Section 3122.1 (relating to statutory sexual assault).
Section 3123 (relating to involuntary deviate sexual intercourse).
Section 3124.1 (relating to sexual assault).
Section 3124.2 (relating to institutional sexual assault).
Section 3125 (relating to aggravated indecent assault).
Section 3126 (relating to indecent assault).
Section 3127 (relating to indecent exposure).
Section 3129 (relating to sexual intercourse with animal).
Section 4302 (relating to incest).
Section 4303 (relating to concealing death of child).
Section 4304 (relating to endangering welfare of children).
Section 4305 (relating to dealing in infant children).
A felony offense under section 5902(b) (relating to prostitution and related offenses).
Section 5903(c) or (d) (relating to obscene and other sexual materials and performances).
Section 6301(a)(1) (relating to corruption of minors).
Section 6312 (relating to sexual abuse of children).
Section 6318 (relating to unlawful contact with minor).
Section 6319 (relating to solicitation of minors to traffic drugs).
Section 6320 (relating to sexual exploitation of children).
(2) An offense designated as a felony under the act [known as "The Controlled Substance, Drug, Device and Cosmetic Act" (Drug Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 - 780-144....]
In 1993, when he was 20 years old, Croll and a 17-year-old friend broke into an unoccupied barn and stole several items. Croll pleaded guilty to theft, receiving stolen property and corruption of minors graded as a first degree misdemeanor. Croll was sentenced to serve two days to two years in jail and immediately paroled for time served. In 2004, Croll graduated from college with a bachelor's degree in Education and Mathematics. Croll disclosed his criminal history to the Department when he applied for a teaching certificate, and the Department conducted a "good moral character review" of his application requiring the submission of additional information relating to his conviction and his fitness to teach. In January 2005, the Department issued Croll a certificate of instruction.
Section 1201 of the School Code, 24 P.S. §12-1201, provides that only those individuals holding one of its enumerated teaching certificates is qualified to teach in the public schools of this Commonwealth. See also Section 2 of the Professional Educator Discipline Act (PEDA), Act of December 12, 1973, P.L. 397, 24 P.S. §2070.2 ("No person shall teach in a public school in the Commonwealth unless he has met the certification requirements as established by the State Board of Education which are applicable to the institution where he is employed."). Section 1202, 24 P.S. §12-1202, states, in pertinent part, that "[n]o teacher shall teach, in any public school, any branch which he has not been properly certificated to teach...."
Section 1209(2), 24 P.S. §12-1209(2), states that "[n]o teachers certificate shall be granted to any person who ... [d]oes not have good moral character." The review process is found at http://www.education.state.pa.us/portal/server.pt/community/pa_certification/8635/good_moral_character/725533.
Croll also disclosed his criminal history to the District when he applied for employment as a teacher in 2005. At that time, 24 P.S. §1-111(e)(1) provided that a conviction for one of its enumerated offenses within the preceding five years, which included the crime of corruption of minors, precluded an applicant's employment by a school in the Commonwealth. However, Croll's corruption of minors' conviction was outside the five-year timeframe of 24 P.S. §1-111(e)(1). Croll was hired by the District in August 2005 and has been teaching mathematics in the District and has received satisfactory employment evaluations since that time.
Section 1101(a), 24 P.S. §11-1101(a), states that "[t]he term 'professional employe' shall include those who are certificated as teachers...." Section 1109(a), 24 P.S. §11-1109(a), states that "[e]very teacher employed to teach in the public schools of this Commonwealth must be a person of good moral character, must be at least eighteen years of age, and must be a citizen of the United States..."
Section 1121(a), (b)(2), 24 P.S. §11-1121(a), (b)(2) provides:
(a) In all school districts, all contracts with professional employes shall be in writing, in duplicate, and shall be executed on behalf of the board of school directors by the president and secretary and signed by the professional employe.
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[(b)](2) Each board of school directors in all school districts shall hereafter enter into contracts, in writing, with each professional employe initially employed by a school district, on or after June 30, 1996, who has satisfactorily completed three (3) years of service in any school district of this Commonwealth.
The five-year impediment for those convicted of misdemeanor corruption of minors was converted to a lifetime ban by Section 1 of Act 24 of 2011 (Act 24) which amended 24 P.S. §1-111(e) and which also added new offenses to the list of disqualifying convictions. As required by 24 P.S. §1-111(j)(1), the Department developed a Form PDE-6004 to be used by current and prospective employees to report arrests or convictions for 24 P.S. §1-111(e) offenses. On December 12, 2011, the Department also issued a Basic Education Circular (BEC) to provide school administrators with guidance concerning the duties imposed on them under Act 24. In the BEC, the Department indicates that the Act 24 amendments prohibit the continued employment of any current employee who has a conviction for a 24 P.S. §1-111(e) reportable offense. The Department also informed school administrators, including the District's Superintendent, that it will move to sanction administrators who fail to act as required by 24 P.S. §1-111(e). Accordingly, the administrators in the District informed Croll that they intended to suspend his employment without pay and initiate termination proceedings.
Act of June 30, 2011, P.L. 112, effective September 28, 2011.
Act 24 added Subsection (f.1) establishing ten, five and three-year bans to employment for applicants convicted for offenses not listed in 24 P.S. §1-111(e). The ten-year ban relates to convictions for all other offenses graded as a first, second or third-degree felony; the five-year ban relates to convictions for all other offenses graded as a first-degree misdemeanor; and the three-year ban relates to more than one conviction for 75 Pa. C.S. §3802(a), (b), (c) or (d) (relating to driving under the influence of alcohol or a controlled substance). 24 P.S. §1-111(f.1)(1), (2) and (3). Act 24 also added Subsection (j)(1) requiring the Department to develop a standardized form for applicants and current employees to report convictions for offenses listed in 24 P.S. §1-111(e); Subsection (j)(2) requiring current employees to report convictions within 90 days; Subsection (j)(4) requiring employees to report an arrest or conviction for one of the enumerated offenses on an ongoing basis within 72 hours of the arrest or conviction; Subsection (j)(5) requiring administrators to compel employees to submit a current report of criminal history record information if there is a reasonable belief that the employee has had an arrest or conviction that must be reported; and Subsection (j)(6) providing that the failure to report an arrest or conviction for a listed crime may result in discipline or conviction for 18 Pa. C.S. §4904 (relating to unsworn falsification to authorities).
Section 1122(a) of the School Code, 24 P.S. §11-1122(a), provides, in pertinent part:
(a) The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality; incompetency; unsatisfactory teaching performance based on two (2) consecutive ratings of the employe's teaching performance that are to include classroom observations, not less than four (4) months apart, in which the employe's teaching performance is rated as unsatisfactory; intemperance; cruelty; persistent negligence in the performance of duties; wilful neglect of duties; physical or mental disability as documented by competent medical evidence, which ... substantially interferes with the employe's ability to perform the essential functions of his employment; advocation of or participating in un-American or subversive doctrines; conviction of a felony or acceptance of a guilty plea or nolo contendere therefor; persistent and wilful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors); on the part of the professional employe....
On February 3, 2012, Croll filed a complaint in the Court of Common Pleas of Dauphin County (trial court) seeking a declaration that his termination:
• violates his due process rights as guaranteed by Article 1, Section 1 of the Pennsylvania Constitution because it is not rationally related to any interest sought to be protected because it is based on a remote conviction and it is unrelated to his ability to teach.
• violates his due process rights under the Pennsylvania Constitution because it retroactively removes his right to continued employment based on acts predating the amendments and retroactively making him unemployable when he was legally employable by the District prior to the amendments.
• violates the Ex Post Facto Clause of Article 1, Section 17 of the Pennsylvania Constitution because it is
penal in nature and increases the punishment for his past crime by preventing his current or future school employment.In all counts, Croll also asked the trial court to permanently enjoin the District from terminating his employment pursuant to 24 P.S. §1-111(e)(1) based on his pre-employment conviction.
Article 1, Section 1 states:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.Pa. Const. art. I, §1.
Article 1, Section 17 states:
No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.Pa. Const. art. I, §17.
Article 1, Section 1 states:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.Pa. Const. art. I, §1.
Article 1, Section 17 states:
No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.Pa. Const. art. I, §17.
In Count I of his complaint, Croll also sought a declaration that 24 P.S. §1-111(e) does not require the termination of employees with pre-employment convictions who were employed prior to Act 24's effective date because it retained the word "applicant" and it did not state that it applies to all current employees. Subsequent to the filing of the instant complaint, the General Assembly enacted Act 82 of 2012, effective July 1, 2012, which further amended 24 P.S. §1-111(e)(1) which now states, in pertinent part, that "[n]o person subject to this act shall be employed or remain employed in a public ... school ... where a report of criminal history record information or a form submitted by an employe under subsection (j) indicates the person has been convicted of ... Section 6301(a)(1) (relating to corruption of minors)." (emphasis added). Thus, the superseding version of 24 P.S. §1-111(e)(1) applies to current employees by its plain language, clearly precludes the hiring of applicants who have been convicted of one of its enumerated offenses, and requires the termination of current employees like Croll who have such a conviction. As a result, the question of whether the Act 24 version of 24 P.S. §1-111(e) applies to current employees as contained in Count I of Croll's complaint is now moot and Count I and the Department's preliminary objection thereto are dismissed.
By order dated February 6, 2012, the trial court issued a preliminary injunction prohibiting the District from terminating Croll's employment, and by order dated February 27, 2012, the trial court granted the Department's motion to intervene in the matter as an indispensable party and to transfer the case to this Court's original jurisdiction.
See 42 Pa. C.S. §5103(a) ("If an appeal or other matter is taken to or brought in a court ... of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court ... shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth....").
On April 17, 2012, the Department filed the instant preliminary objections in the nature of a demurrer to Croll's complaint alleging:
When ruling on preliminary objections, this Court shall sustain such objections and dismiss the complaint only in cases that are clear and free from doubt that the law will not permit recovery. Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 616 A.2d 1060, 1063 (Pa. Cmwlth. 1992). In ruling on a preliminary objection in the nature of a demurrer, this Court must accept as true all well-pleaded allegations in the complaint and all inferences reasonably deduced therefrom. Id. We need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Id. A demurrer will not be sustained unless the face of the complaint shows that the law will not permit recovery, and any doubts should be resolved against sustaining the demurrer. Id.
• Count II should be dismissed because the lifetime ban of the employment of a teacher who has been convicted of a 24 P.S. §1-111(e) offense has a rational basis by furthering the important public interest in regulating the employment qualifications of school employees and the important public safety purpose of maintaining a safe school environment for students.On April 4, 2012, the District filed an answer to the complaint.
• Count III should be dismissed because the application of 24 P.S. §1-111(e) does not constitute retroactive legislation, serves the legitimate public safety purpose of regulating the employment qualifications of school employees and the legitimate public safety purpose of maintaining a safe school environment for students, and does not implicate the fundamental rights of teachers.
• Count IV should be dismissed because 24 P.S. §1-111 does not violate the Ex Post Facto Clause of the Pennsylvania Constitution because it does not constitute a new punishment for prior crimes, and its amendments are a legitimate attempt by the General Assembly to regulate the employment qualifications of school employees, to insure public safety, and create additional protections for students.
As a preliminary matter, it must be noted that a statute that has been duly enacted by the General Assembly is presumed to be valid and will not be declared to be unconstitutional unless it clearly, palpably and plainly violates the constitution. West Mifflin Area School District v. Zahorchak, 607 Pa. 153, 163, 4 A.3d 1042, 1048 (2010). Further, a party who questions the constitutionality of a statute bears a heavy burden of persuasion to overcome this presumption. Barrel of Monkeys, LLC v. Allegheny County, 39 A.3d 559, 563 (Pa. Cmwlth. 2012).
There are two kinds of constitutional challenges: they either attack a statute on its face or as it is applied in a particular case. Lehman v. Pennsylvania State Police, 576 Pa. 365, 380, 839 A.2d 265, 275 (2003). As the Pennsylvania Superior Court has explained:
A facial attack tests a law's constitutionality based on its text alone and does not consider the facts or circumstances of a particular case. An as-applied attack, in contrast, does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right....Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011) (citation omitted). Croll asks this Court to declare that 24 P.S. §1-111(e)(1) is unconstitutional as applied to his employment with the District, and to preliminarily and permanently enjoin the District from terminating his employment based upon his prior remote criminal conviction.
I.
In Count II, Croll argues that the per se lifetime employment ban of 24 P.S. §1-111(e)(1) violates due process because it is unreasonable and irrational because it does not relate to his present ability to perform the duties of his school employment. To determine whether a statute is unconstitutional under Article 1, Section 1 of the Pennsylvania Constitution, a substantive due process inquiry must take place. When making that inquiry, we take into consideration the rights of the parties involved subject to the public interests sought to be protected. The Due Process Clause under the Pennsylvania Constitution protects life, liberty and property interests. Diwara v. State Board of Cosmetology, 852 A.2d 1279, 1283 (Pa. Cmwlth. 2004). The substantive protections of due process are meant to protect citizens from arbitrary and irrational actions of the government. Gresock v. City of Pittsburgh Civil Service Commission, 698 A.2d 163, 169 (Pa. Cmwlth. 1997).
Article 1, Section 1 has been consistently interpreted as guaranteeing an individual's right to engage in any of the common occupations of life. Warren County Human Services v. State Civil Service Commission, 844 A.2d 70, 73 (Pa. Cmwlth.), appeal denied, 581 Pa. 687, 863 A.2d 1152 (2004); Nixon v. Department of Public Welfare, 789 A.2d 376, 380 (Pa. Cmwlth. 2001) (Nixon I), aff'd on other grounds, 576 Pa. 385, 401, 839 A.2d 277, 288 (2003) (Nixon II); Hunter v. Port Authority of Allegheny County, 419 A.2d 631, 635 (Pa. Super. 1980). The Pennsylvania Supreme Court has explained:
[F]or substantive due process rights to attach there must first be the deprivation of a property right or other interest that is constitutionally protected. Pursuant to Article I, Section 1 of the Pennsylvania Constitution, all persons
within this Commonwealth possess a protected interest in the practice of their profession. Thus, after a license to practice a particular profession has been acquired, the licensed professional has a protected property right in the practice of that profession. Nevertheless, the right to practice a chosen profession is subject to the lawful exercise of the power of the State to protect the public health, safety, welfare, and morals by promulgating laws and regulations that reasonably regulate occupations.Khan v. State Board of Auctioneer Examiners, 577 Pa. 166, 183, 842 A.2d 936, 946 (2004) (citations omitted).
With respect to Croll's employment as a certified teacher, his employment with the District is by contract under 24 P.S. §11-1121(b)(2), and that contract may only be terminated for one of the enumerated causes in 24 P.S. §11-1122(a). Thus, Croll has a property right in his expectation of continued employment with the District. Andresky v. West Allegheny School District, 437 A.2d 1075, 1077 (Pa. Cmwlth. 1981) (holding that full-time teachers have a protected property interest in continued employment under 24 P.S. §§ 11-1122, 11-1124). See also Bowalick v. Department of Education, 840 A.2d 519, 522 (Pa. Cmwlth. 2004) ("A teaching certificate is a constitutionally protected property right entitled to due process protection."); Brown v. State Board of Pharmacy, 566 A.2d 913, 915 (Pa. Cmwlth. 1989) ("'[T]he right to practice a profession, once acquired, does constitute a property right in the license.'") (citation omitted).
While the right to engage in a particular profession is an important right, it is not a fundamental one. Nixon II, 576 Pa. at 400, 401, 839 A.2d at 287, 288; Warren County Human Services, 844 A.2d at 73. Thus, "[w]hile a state may regulate a business which affects the public health, safety and welfare, it may not, through regulation, deprive an individual of his right to conduct a lawful business unless it can be shown that such deprivation is reasonably related to the state interest sought to be protected." Secretary of Revenue v. John's Vending Corporation, 453 Pa. 488, 492, 309 A.2d 358, 361 (1973). The test for substantive due process in the areas of social and economic legislation is whether the challenged statute has a rational relationship to the valid state objective. Nixon II, 576 Pa. at 400, 839 A.2d at 287. Accordingly:
'(A) law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interests the legislature may not interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations.'Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 72, 311 A.2d 634, 640-41 (1973), cert. denied, 414 U.S. 1131 (1974), quoting Gambone v. Commonwealth, 375 Pa. 547, 551, 101 A.2d 634, 637 (1954). See also Pennsylvania Medical Society v. Foster, 608 A.2d 633, 636 (Pa. Cmwlth. 1992) ("An overbroad statute violates substantive due process by depriving a person of a constitutionally protected interest through means which are not rationally related to a valid state objective because they 'sweep unnecessarily broadly.'") (citations omitted).
Regarding the "rational basis test" used in evaluating substantive due process challenges under Article 1, Section 1, the Pennsylvania Supreme Court explained:
[W]ith regard to substantive due process challenges brought under the Pennsylvania Constitution, the rational basis test is that announced by this Court in Gambone. Although the due process guarantees provided by the Pennsylvania Constitution are substantially coextensive with those provided by the Fourteenth Amendment, a more restrictive rational basis test is applied under our Constitution. See [Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 191, 272 A.2d 487, 490-91 (1971)] (explaining that Pennsylvania courts have analyzed due process challenges under rational basis tests "more closely" than the United States Supreme Court). Needless to say, under the rational basis test applied under our Constitution, deference is still given to the General Assembly in that laws are presumed constitutional and the General Assembly therefore does not need to present evidence to sustain their constitutionality. See O'Donnell v. Casey, [405 A.2d 1006, 1009-10 (Pa. Cmwlth. 1979)].
In this case, the Department argues that the lifetime ban of the employment of teachers who have been convicted of a 24 P.S. §1-111(e)(1) offense at any prior point in time has a rational basis by furthering the important public interest in regulating the employment qualifications of school employees and the important public safety purpose of maintaining a safe school environment for students. Croll counters that a lifetime ban from employment based on a remote disqualifying conviction does not further either of those interests because such a conviction does not relate to the present suitability of a teacher to perform the duties of his position.
In Nixon I, this Court addressed the constitutionality of the provisions of the Older Adults Protective Services Act (OAPSA) which was enacted to protect individuals aged 60 years or older from abuse, neglect, exploitation and abandonment and created a system of reporting and investigating the abuse of older adults. In 1996, the OAPSA was amended to require all applicants for employment in facilities covered by the statute or workers employed in a single facility for less than a year to submit criminal records reports and prohibited facilities from hiring an applicant or retaining an employee if the applicant or employee had been convicted of certain enumerated offenses. In 1997, the OAPSA was again amended, changing the enumerated disqualifying felonies and misdemeanors and removing a ten-year limitation period for convictions involving lesser crimes. A number of former employees who were either terminated from their positions or denied a position in covered facilities under the amended OAPSA and any non-profit social service agency that hires such workers filed an action in this Court seeking a declaration that the OAPSA violated their substantive due process rights under Article I, Section 1. They argued that the amended OAPSA violated substantive due process because there were no temporal limits on the disqualifying convictions, the prohibition applied to all positions at a covered facility, and there were no exceptions or procedural protections to assess an individual worker's suitability on a case-by-case basis.
Act of November 6, 1987, P.L. 381, as amended, 35 P.S. §§10225.101 - 10225.5102.
In considering the application of substantive due process to such a blanket prohibition of employment based solely on unrelated remote conduct, we explained:
Where, as here, nearly twenty years has expired since the convictions and the record reveals that the individual has held this position of responsibility for twelve years without any allegation of impropriety, it is ludicrous to contend that these prior acts provide any basis to evaluate his present character.
[* * *]
We are also mindful that such a result runs afoul of the deeply ingrained public policy of this State to avoid
unwarranted stigmatization of and unreasonable restrictions upon former offenders. This State in recent years has been unalterably committed to rehabilitation of those persons who have been convicted of criminal offenses. To forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation.....Nixon I, 789 A.2d at 381, (quoting John's Vending Corporation, 453 Pa. at 494-95, 309 A.2d at 362) (emphasis in original).
[U]nder facts such as those presented in this appeal, where the prior convictions do not in any way reflect upon the appellant's present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a wholesaler's license.
Based on the foregoing, we determined that the application of the provisions of the OAPSA prohibiting the hiring or retention of employees based solely on a remote conviction of one of its enumerated offenses violates substantive due process because there was no rational relationship between the offending conduct and the employees' present suitability to perform the duties of their positions or the Commonwealth's interest in protecting older adults. Specifically, we explained:
Petitioners' well-pled facts vividly illustrate the constitutional infirmities present in [the OAPSA] and the draconian impact of its enforcement. They further demonstrate the arbitrary and irrational nature of the challenged provisions and establish that no rational relationship exists between the classification imposed upon Petitioners and a legitimate governmental purpose. Respondents have essentially agreed that Petitioners'
conviction records do not reflect upon their present or indeed past ability to successfully perform their jobs in facilities covered by the Act. Respondents admitted Petitioners' factual allegations and agreed that "Petitioners would make excellent care workers for older Pennsylvanians." ... Accordingly, the Court holds that the criminal records provisions of the Act are unconstitutional as applied to Petitioners and therefore overrules Respondents' preliminary objections....Nixon I, 789 A.2d at 382 (citation omitted).
On appeal, the Supreme Court affirmed our order on equal protection grounds, determining that the OAPSA created an improper classification by permitting the continued employment of those employees with a disqualifying conviction who had worked at a single facility for over one year while prohibiting the continued employment of those employees with a disqualifying conviction who had not worked at a single facility for more than a year. Nixon II, 576 Pa. at 403-04, 839 A.2d at 289-90 (citations and footnotes omitted).
In Warren County Human Services, this Court addressed the constitutionality of the provisions of the Child Protective Services Law (CPSL), which was enacted to ensure that each county children and youth agency establish a program of protective services to assess and assist families and children in need, particularly those "most at risk." 23 Pa. C.S. §6302(b). In 1994, the CPSL was amended to provide that "[i]n no case shall an administrator hire an applicant if the applicant's criminal history record information indicates the applicant has been convicted of ... Title 18 ... Section 2702 (relating to aggravated assault)...." 23 Pa. C.S. §6344(c)(2). Prior to the amendment, the CPSL provided that a conviction for one of its enumerated offenses within the preceding five years, including aggravated assault, precluded an applicant's employment.
23 Pa. C.S. §§6301 - 6385.
In 2001, Edward Roberts (Roberts) was hired as a caseworker by a combined county agency, the Forest/Warren Department of Human Services. At the time of hire, Roberts disclosed that he had a 1980 felony conviction for aggravated assault which was also indicated on a Pennsylvania State Police Criminal History that he submitted at that time. In 2002, due to a restructuring of the agency into three separate entities, Roberts was required to submit new clearances to be rehired as a caseworker by Warren County Human Services. After he submitted his criminal history and was rehired as a caseworker, he applied for a transfer to Forest County. The Forest County administrator determined that Roberts' conviction precluded his employment under 23 Pa. C.S. §6344(c)(2) and informed Warren County. Warren County realized that it applied the pre-amendment version of 23 Pa. C.S. §6344 at the time of Roberts' hire and terminated Roberts' employment based solely on the statutory ban. Roberts appealed to the State Civil Service Commission which declined to apply the ban in 23 Pa. C.S. §6344(c)(2), concluding that it violated Article 1, Section 1 based on this Court's opinion in Nixon I.
On appeal to this Court, Warren County argued, inter alia, that the Commission erred in finding that the lifetime ban in 23 Pa. C.S. §6344(c)(2) violated Article 1, Section 1. We disagreed, explaining:
[S]uch a ban "runs afoul of the deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders." John's Vending, 453 Pa. at 494-495, 309 A.2d at 362. "To
forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation." Id.; see also Justice Cappy's and Justice Castille's concurring opinions in Nixon II. Here, Warren County has failed to present any rational reason between the classification imposed upon Roberts and a legitimate governmental purpose. To the contrary, it has even admitted that but for Section 6344 of the CPSL, Roberts would not have been removed from his position as his work was exemplary—demonstrating that his remote conviction does not reflect upon his present abilities to perform the duties of a caseworker. Because Section 6344(c), as it relates to aggravated assault, creates limitations that have no temporal proximity to the time of hiring, it does not bear a real and substantial relationship to the Commonwealth's interest in protecting children and is unconstitutional.Warren County Human Services, 844 A.2d at 74 (citation and footnote omitted). See also Ake v. Bureau of Professional and Occupational Affairs, 974 A.2d 514, 520 (Pa. Cmwlth.), appeal denied, 604 Pa. 708, 987 A.2d 162 (2009) ("John's Vending teaches that the nature of the offending conduct and its remoteness in time must be considered where an agency seeks to revoke a professional license on the basis of a conviction. In this case, nearly seven years elapsed between Ake's offending conduct and his application to reactivate his Pennsylvania CPA credentials. While not as long as the 20 years in John's Vending, seven years is a substantial interval of time. Moreover, Ake's conduct was isolated to calls made over a two-week period; he has not engaged in similar conduct since his arrest.").
In Warren County Human Services, we also determined that the lifetime ban violated equal protection under Nixon II because "[l]ikewise, here, the CPSL fails to satisfy the rational basis test. Section 6344(c) prohibits the hiring of applicants previously convicted of certain enumerated crimes; however it does not ban existing employees from continuing to work in the child-care field, despite having a similar conviction." Id. at 74. There does not appear to be such an equal protection infirmity in the case sub judice because, as noted above, 24 P.S. §1-111(e)(1) now states that "[n]o person subject to this act shall be employed or remain employed in a public ... school ... where a report of criminal history record information or a form submitted by an employe under subsection (j) indicates the person has been convicted of [one of its enumerated crimes]...."
In this case, the offense that Croll committed is not one that poses a danger specifically to school students. Moreover, there has not been proffered a sufficient reason to explain why the crime of which Croll was convicted nearly 20 years ago is at all predictive of future behavior and continues to warrant the harsh result of a complete ban from his employment with the District. Because 24 P.S. §1-111(e)(1) creates a lifetime ban for Croll's 18 Pa. C.S. §6301(a)(1) corruption of minors conviction that has no temporal proximity to his present ability to perform the duties of his position, and it does not bear a real and substantial relationship to the Commonwealth's interest in protecting children, it is unreasonable, unduly oppressive and patently beyond the necessities of the offense. As a result, 24 P.S. §1-111(e)(1) imposes unusual and unnecessary restrictions upon Croll's lawful employment as a teacher and it is unconstitutional as violative of Croll's substantive due process as guaranteed by Article 1, Section 1 of the Pennsylvania Constitution. Accordingly, the Department's preliminary objection to Count II of Croll's complaint is overruled.
II.
In Count III, Croll argues that the per se lifetime employment ban of 24 P.S. §1-111(e)(1) violates due process because it constitutes an impermissible retroactive law. A "retroactive law" is one "which relates back to and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired." Imdorf v. Public School Employes' Retirement System, 638 A.2d 502, 505 (Pa. Cmwlth. 1994), quoting Department of Labor & Industry v. Pennsylvania Engineering Corp., 421 A.2d 521, 523 (Pa. Cmwlth. 1980). No statute is to be construed as retroactive unless it is clearly and manifestly intended by the General Assembly. 1 Pa. C.S. §1926; Krenzelak v. Krenzelak, 503 Pa. 373, 380, 469 A.2d 987, 990 (1983).
A statute does not operate retroactively merely because it is applied in cases arising from conduct antedating the statute's enactment or because it upsets expectations based in prior law. Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005) (citation omitted). Rather, a court must determine whether the new statutory provision attaches new legal consequences to events that were completed before its enactment. Id. Retroactive application only occurs when the statute or rule relates back and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired. Id. Retroactive application of a statute is not per se prohibited. Borough of Jefferson Hills v. Jefferson Hills Police Department Wage and Policy Committee, 904 A.2d 61, 65 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 717, 919 A.2d 959 (2007). Retroactive application of a statute is only prohibited if it violates due process. Id.
As the Pennsylvania Supreme Court has explained:
Retroactive application of new legislation will offend the due process clause if, balancing the interests of both parties, such application would be unreasonable.
Traditionally, retrospective laws which have been deemed reasonable are those which "'impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted.'"Krenzelak, 503 Pa. at 382-83, 469 A.2d at 991 (citations omitted). See also Jenkins v. Hospital of the Medical College of Pennsylvania, 535 Pa. 252, 263, 634 A.2d 1099, 1104 (1993) ("'Neither the federal constitution nor our state constitution invalidates a non-penal statute merely because it is retroactive, unless such legislation impairs contractual or other vested rights.'") (citation omitted).
A vested right is "[a] right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent." In re R.T., 778 A.2d 670, 679 (Pa. Super.), appeal denied, 568 Pa. 618, 792 A.2d 1254 (2001). Rights are only vested when they are fixed and without condition. Ashbourne School v. Department of Education, 403 A.2d 161, 165 (Pa. Cmwlth. 1979). Thus, vested rights "must be something more than a mere expectation, based upon an anticipated continuance of existing law. It must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from a demand made by another." Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 74, 953 A.2d 1231, 1242 (2008).
It is true that Croll has an enforceable property right in both his certificate to teach issued by the Department and in his continued employment with the District. Bowalick; Andresky. However, he does not possess a vested right in either. As noted above, 24 P.S. §11-1122(a) provides that the contract of a professional employee can be terminated for:
immorality; incompetency; unsatisfactory teaching performance based on two (2) consecutive ratings of the employe's teaching performance ... rated as unsatisfactory; intemperance; cruelty; persistent negligence in the performance of duties; wilful neglect of duties; physical or mental disability ... which ... substantially interferes with the employe's ability to perform the essential functions of his employment; advocation of or participating in un-American or subversive doctrines; conviction of a felony or acceptance of a guilty plea or nolo contendere therefor; persistent and wilful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors); on the part of the professional employe....
Likewise, Sections 5 and 9.2 of the Professional Educator Discipline Act provides, in pertinent part, that the Professional Standards and Practices Commission shall discipline any professional educator found guilty of "immorality, incompetency, intemperance, cruelty or negligence," to suspend the certificate of any professional educator charged with any of the crimes listed in 24 P.S. §1-111(e)(1), and to revoke the certificate of any professional educator convicted of any of those offenses.
See also Section 1124, 24 P.S. §11-1124 (providing that professional employees may be suspended for (1) a substantial decrease in pupil enrollment in the district; (2) the curtailment or alteration of the educational program resulting from a substantial decline in class or course enrollment or to conform to standards required by law or the Department; (3) the consolidation of schools making it unnecessary to retain the full staff of professional employees; and (4) when new districts are established as a result of reorganization making it unnecessary to retain the full staff of professional employees).
See also Section 1124, 24 P.S. §11-1124 (providing that professional employees may be suspended for (1) a substantial decrease in pupil enrollment in the district; (2) the curtailment or alteration of the educational program resulting from a substantial decline in class or course enrollment or to conform to standards required by law or the Department; (3) the consolidation of schools making it unnecessary to retain the full staff of professional employees; and (4) when new districts are established as a result of reorganization making it unnecessary to retain the full staff of professional employees).
Act of December 12, 1973, P.L. 397, added by Act of December 20, 2000, P.L. 918, as amended, 24 P.S. §§2070.5(a)(11), (11.1), 2070.9b(1), (2).
As the Supreme Court has previously noted, "[t]he teacher tenure provisions of the Public School Code were enacted to improve public education by protecting teachers from ouster without cause at the complete and unbridled discretion of school boards. To this end, the general assembly provided that contracts of tenured teachers could only be terminated after observance of certain prescribed procedural safeguards...." Rike v. Secretary of Education, 508 Pa. 190, 196, 494 A.2d 1388, 1391 (1985) (citation omitted). In addition, upon proof of a conviction of a crime of moral turpitude, a professional educator's due process rights are not violated by the revocation of his or her teaching certificate on summary judgment under 24 P.S. §2070.5(a)(11). Bowalick, 840 A.2d at 522. Such enforceable property rights do not rise to the level of "[a] right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent. In re R.T., 778 A.2d at 679. In short, Croll does not possess a vested right sufficient to support his claim that 24 P.S. §1-111(e)(1) violates due process as an impermissible retroactive law. Accordingly, the Department's preliminary objection to Count III of Croll's complaint is sustained and Count III is dismissed.
Moreover, the provisions of 24 P.S. §1-111(e)(1) may not be deemed to be a retroactive law in the first instance. In Doe v. Ronan, 127 Ohio St.3d 188, 195-96, 937 N.E.2d 556, 564 (2010), the Ohio Supreme Court considered whether a similar statutory provision violated the Ohio Constitution's prohibition against retroactive laws and explained:
Doe asserts that the background check legislation is unconstitutionally retroactive. In Doe's view, his vested right in continued employment was impaired when the General Assembly enacted R.C. 3319.391 and caused nonlicensed school-district employees to be terminated from current employment if a background check disclosed a criminal conviction that predated the employment relationship.
Doe's contention notwithstanding, the background-check legislation in R.C. 3319.391 is prospective in application. This legislation simply imposed a new restriction on the school district regarding the qualifications of persons it could employ after a specific date, with a focus on those persons who have had felony convictions. This legislation does not go back to the date of the employee's initial hire, terminate that person effective as of the hire date, and eliminate any of that person's accrued benefits. Doe has not been deprived of any pay, retirement credit, or other benefits he accrued during his tenure with [Cincinnati Public Schools]. Instead, the conduct that the background-check legislation prohibits, i.e., continued employment after a disqualifying criminal-background check, occurs only after the effective date of the statute, November 14, 2007.
Even if we did consider the statute to be expressly retroactive, we have already concluded in our contract-impairment analysis that R.C. 3319.391 does not impair, in Doe's circumstances, any vested right to continued employment. In view of the foregoing, we conclude that R.C. 3319.391, as expressed in H.B. 190, is not expressly retroactive, did not affect a vested right, and thus does not violate the retroactive-law proscription....
III.
Finally, in Count IV, Croll argues that the per se lifetime employment ban of 24 P.S. §1-111(e) violates the Ex Post Facto Clause of Article 1, Section 17 of the Pennsylvania Constitution because it is penal in nature and increases the punishment for his past crime by preventing his current or future professional employment. An ex post facto law is one that imposes punishment for past acts. Galena v. Department of State Professional and Occupational Affairs, 551 A.2d 676, 679 (Pa. Cmwlth. 1988). The Ex Post Facto Clause of the Pennsylvania Constitution is a restriction on the actions of the General Assembly and is an attempt to preserve an individual's right to fair warning that his conduct will result in criminal penalties. Id. A statute may violate the Ex Post Facto Clause by, inter alia, changing the punishment for a crime and making it greater than when the criminal act was committed. Lehman v. Pennsylvania State Police, 576 Pa. 365, 371, 839 A.2d 265, 269 (2003).
A statute can violate the Ex Post Facto Clause in two ways. Lehman, 576 Pa. at 373, 839 A.2d at 271. One way is when the General Assembly's intent was punitive; if so, the statute violates the Ex Post Facto Clause. Id. However, if the General Assembly's intent is found to be civil and non-punitive, a statute can still violate the Ex Post Facto Clause if it is so punitive in either its purpose or its effect so as to negate the General Assembly's intent that it be civil. Id. at 374, 839 A.2d at 271.
In Galena, we addressed whether the purpose of the Medical Practice Act of 1985 (Medical Act), effective January 1, 1986, relating to the automatic suspension of a physician's medical license based upon a conviction for a felony under the laws of another jurisdiction, was punitive. The prior repealed version of the Medical Act did not require the automatic license suspension and provided for a hearing prior to the suspension.
Act of December 20, 1985, P.L. 457, as amended, 63 P.S. §§422.1-422.45.
In 1978, the State Board of Medicine issued Galena a license to practice medicine and surgery. In October 1986, Galena, while a licensed doctor, was convicted of eight felony counts of knowingly and intentionally distributing or dispensing controlled substances between July 1982 and June 1985 in violation of federal law. In January 1988, the Board issued a notice of the automatic suspension of Galena's medical license and ordered him to surrender his licensure documents.
On appeal to this Court, Galena argued that the Medical Act violated the Ex Post Facto Clause by imposing a greater penalty for his crimes. We disagreed, stating:
[Galena] asserts that the automatic suspension provision of the [Medical] Act operates solely as an additional punishment for his crimes. We are not in agreement. As a physician and surgeon, petitioner held a position in the public trust. In De Veau v. Braisted, [363 U.S. 144 (1960)], the Supreme Court stated that our courts have long recognized provisions that disqualify convicted felons from occupying certain employments important to the public interest. The question in each case where an individual suffers unpleasant consequences for prior conduct is whether the aim of the legislature was to punish the individual for the past conduct or whether the restriction of the individual is incidental to a regulation such as proper qualifications for a profession. Id. at 159-160[].
In De Veau, the Supreme Court upheld a state statute disqualifying convicted felons from holding union office against an ex post facto challenge. The Court reasoned that the law did not seek to punish ex-felons, but rather sought to regulate the qualifications for holding union offices. Similarly, the Board in the case sub judice, contends and we agree that the purpose of the [Medical] Act is not to punish [Galena], but rather to regulate those persons who practice medicine and surgery in the Commonwealth....
The [Medical] Act specifically provides for both regulation of the medical profession and penalties for failing to abide by those regulations. Under Section 22(b) of the 1985 Act, 63 P.S. § 422.22(b), the requirement of good moral character is a condition of licensure. Section 43(b) of the [Medical] Act recognizes rehabilitation and provides for reinstatement of petitioner's license after ten years on condition that the Board is satisfied that petitioner's progress in personal rehabilitation is such that he is not expected to create a substantial risk of harm to the health and safety of his patients or the public.Galena, 551 A.2d at 679-80.
While we acknowledge the harsh consequences visited upon [Galena], we note that this was the intention of the legislature in enacting Section 40(b) of the [Medical] Act. In sum, we conclude that Section 40(b) of the [Medical] Act does not operate as an ex post facto law and that petitioner's constitutional rights have not been violated. Accordingly, the Board's suspension of petitioner's license is affirmed.
In this case, as in Galena, the purpose of 24 P.S. §1-111(e)(1) is not to punish those convicted of the enumerated offenses, but rather is incidental to the regulation of individuals who are employed in the public schools of this Commonwealth for the protection of the students.
As to whether 24 P.S. §1-111(e)(1) is so punitive in either its purpose or its effect so as to negate the General Assembly's intent that it be civil, the following seven factors are considered as "useful guideposts" in determining whether a statute unconstitutionally violates ex post facto: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether the alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Id. In applying these factors, only the "clearest proof" that a law is punitive in effect will overcome a legislative categorization to the contrary. Commonwealth v. Williams, 574 Pa. 487, 505, 832 A.2d 962, 973 (2003). There is not the "clearest proof" of the seven factors that are required to demonstrate that 24 P.S. §1-111(1) is so punitive in either its purpose or its effect so as to negate the General Assembly's intent that it be civil in violation of the Ex Post Facto Clause.
Regarding the first factor, while the lifelong ban from certain employment positions is harsh, it is not excessive and does not work as an affirmative disability or restraint for ex post facto purposes. Williams, 574 Pa. at 507, 832 A.2d at 973-74 ("Such liberty is, of course tempered by the reality that registrants deemed sexually violent predators [with respect to the statute commonly known as Megan's Law, 42 Pa. C.S. §§ 9791-9799.9] may, as a consequence of public notification, be foreclosed from certain employment positions, particularly working with children. But any such restriction is in direct furtherance of the government's compelling interest in keeping sexually violent predators away from children to the extent possible.").
Regarding the second factor, such an employment ban has not been historically regarded as punishment. See De Veau, 363 U.S. at 160 (holding that forbidding felons from working as union officials is not punishment); Hawker v. New York, 170 U.S. 189, 196 (1898) (holding that prohibiting felons from practicing medicine is not punishment).
Regarding the third factor, the employment ban is imposed on all convicted of the enumerated crimes; there is no independent finding of scienter necessary for the ban to be imposed. See Lehman, 576 Pa. at 376, 839 A.2d at 272 ("The third factor to consider is whether the sanction comes into play only on a finding of scienter. No finding of scienter is required for a person to be denied the ability to purchase a firearm. The disability is imposed on all those who have committed certain crimes in the past, regardless of intent or awareness of the statute."); Commonwealth v. Abraham, 996 A.2d 1090, 1094 (Pa. Super.), appeal granted in part, 607 Pa. 618, 9 A.3d 1133 (2010) ("[T]here is no independent finding of scienter needed to trigger forfeiture [of pension benefits]. There is an element of scienter, but that is found in the underlying criminal act....").
Regarding the fourth factor, there is no indication that the primary purpose of 24 P.S. §1-111's imposition of the lifetime ban is to promote the traditional aims of punishment-retribution and deterrence because it was enacted to prevent those convicted of its enumerated offenses from working in schools. See Lehman, 576 Pa. at 376-77, 839 A.2d at 272 ("Section 922(g) [of the Gun Control Act (GCA), 18 U.S.C. §922(g),] was not enacted to deter; it was enacted to deny firearms to those Congress concluded should not possess them. Any deterrent effect the GCA has on potential felons is secondary.") (citation omitted).
Regarding the fifth factor, the employment banned under 24 P.S. §1-111(e) is not criminal. See Lehman, 576 Pa. at 377, 839 A.2d 272-73 ("The fifth factor is whether the behavior to which the disability applies is already a crime. This factor is inapplicable here because appellant has not been charged with violating the statute."); Williams, 574 Pa. at 507, 832 A.2d at 973-74 ("[W]hile it must be acknowledged that the procedures whereby an individual is potentially subjected to registration, notification, and counseling are triggered only after conviction of a predicate offense, see 42 Pa. C.S. § 9795.4, the United States Supreme Court has concluded that this is of little significance in evaluating whether or not Megan's Law legislation is punitive; the Court explained in Smith that, where such legislation is concerned, application to past criminal conduct is 'a necessary beginning point, for recidivism is the statutory concern.'" Smith [v. Doe, 538 U.S. 84, 105 (2003)].").
Regarding the sixth factor, the lifetime ban is clearly rationally related to a non-punitive purpose. As stated above, it is to protect students by limiting the individuals employed in the public schools of this Commonwealth to be those of "good moral character." See Lehman, 576 Pa. at 377, 839 A.2d at 273 ("The sixth factor is whether the alternative purpose to which the disability may rationally be connected is assignable for it. Stated another way, this factor asks whether the statute has a rational connection to a non-punitive purpose. Prohibiting convicted felons from buying firearms is rationally connected to the remedial goal of protecting the public from the risk of firearms in the hands of convicted criminals....").
Finally, regarding the seventh factor, although the lifetime ban is based on prior criminal activity and it may be harsh, its application is not so excessive as to transform it from a civil consequence into a criminal punishment in violation of the Ex Post Facto Clause. See Williams, 574 Pa. at 520, 832 A.2d at 982 ("The Verniero panel expanded upon these observations by noting that the effects of a measure must be 'extremely onerous' to constitute punishment, as even the deprivation of one's livelihood does not qualify. See [E.B. v. Verniero, 119 F.3d 1077, 1101 (3rd Cir. 1997), cert. denied, 522 U.S. 1110 (1998)]....").
Based on the foregoing, it is clear that the application of 24 P.S. §1-111(e)(1) to Croll's employment does not violate the Ex Post Facto Clause of the Pennsylvania Constitution. Accordingly, the Department's preliminary objection to Count IV of Croll's complaint is sustained and Count IV is dismissed.
/s/_________
DAN PELLEGRINI, President Judge Judge McGinley dissents. ORDER
AND NOW, this 13th day of December, 2012, the preliminary objection filed by the Pennsylvania Department of Education to Count I of the complaint filed by Eric Croll are dismissed; the Department's preliminary objection filed to Count II of Croll's complaint is overruled and the Department is directed to file an answer to Count II of the complaint within thirty (30) days; and the Department's preliminary objections to Count III and IV of Croll's complaint are sustained and Counts III and IV of the complaint are dismissed.
/s/_________
DAN PELLEGRINI, President Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
CONCURRING & DISSENTING OPINION BY JUDGE McCULLOUGH
I concur in part and dissent in part. I join the Majority's decision to overrule the preliminary objection of the Pennsylvania Department of Education (Department) to Count I of the complaint filed by Eric Croll, which alleges a prima facie case that section 111(e) of the Public School Code of 1949 (School Code) violates substantive due process. I also join the Majority's decision to dismiss Count I of the complaint as moot and to grant the Department's preliminary objection to Count IV because Croll failed to properly plead a violation of the Ex Post Facto Clause, Pa. Const. art. 1, sec. 17.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §1-111(e).
However, I respectfully dissent from the Majority's conclusion that section 111(e) is not an impermissible retroactive law. In this regard, I believe that Croll's averments support the conclusion that section 111(e)(1), as recently amended, has the retroactive and unconstitutional effect of completely obliterating his existing employment contract with the Harrisburg School District (District). While there is a laudatory and legitimate public purpose behind the legal proscriptions to be applied before employing a teacher in a school district, the prior version of section 111(e) did in fact promote these goals; section 527(b) of the School Code, 24 P.S. §5-527(b), is adequate to deter misconduct while a teacher is employed; and the Department has not shown that terminating Croll's existing employment contract is reasonable and necessary to advance its interest in protecting schoolchildren.
In September 1992, at the age of 20, Croll and an underage companion broke into an unoccupied barn and stole several items. Croll pled guilty to theft, receiving stolen property, and corruption of a minor for accompanying his companion into the barn. The trial court sentenced Croll to 2 days to 2 years' imprisonment and immediately released him on parole. (Complaint, ¶¶7, 9.)
In 2004, Croll graduated from Bloomsburg University with a Bachelors of Science Degree in Mathematics. After obtaining his teaching certificate, Croll applied for a position as a high school math teacher at the District. As part of his application, Croll was required to disclose his prior criminal convictions and Croll complied by full disclosure. At that time, section 111(e) of the School Code prohibited a school district from employing a person who was convicted of a delineated crime, including corruption of a minor, within the preceding five years. Because Croll's corruption of a minor conviction occurred more than five years prior to his application, section 111(e) did not bar Croll's prospective employment with the District. (Complaint, ¶¶13, 23, 25-28.)
As originally enacted in 1985, section 111(e) applied only to prospective employees. It provided, in pertinent part, that "[n]o person ... shall be employed in a public or private school ... where the report of criminal history record information indicates the applicant has been convicted, within five (5) years immediately preceding the date of the report, of any of the following offenses...." The convictions that required a five-year waiting period included: criminal homicide; aggravated assault; kidnapping; unlawful restraint; rape; statutory rape; involuntary deviate sexual intercourse; indecent assault; indecent exposure; concealing the death of a child born out of wedlock; endangering welfare of children; dealing in infant children; prostitution and related offenses; obscene and other sexual materials; corruption of minors; sexual abuse of children; and felony possessor offenses. Act 34 of 1985, Act of July 1, 1985, P.L.129.
During his pre-employment interview with the District, Croll discussed in detail the facts surrounding the crimes to which he pled guilty. With full knowledge of Croll's criminal history, including his conviction for corruption of a minor, and after engaging in the required vetting process, the District hired Croll in August 2005 as a mathematics teacher. As a certified teacher, Croll's written employment contract with the District was made in accordance with sections 1121 and 1122 of the School Code, 24 P.S. §§11-1121 and 1122. Consequently, the contract between Croll and the District provides that Croll may only be terminated for specific reasons. Sections 1122(a) reads, in pertinent part, as follows:
The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality; incompetency; unsatisfactory teaching performance based on two (2) consecutive ratings of the employe's teaching performance that are to include classroom observations, not less than four (4) months apart, in which the employe's teaching performance is rated as unsatisfactory; intemperance; cruelty; persistent negligence in the performance of duties; wilful neglect of duties; physical or mental disability as documented by competent medical evidence, which after reasonable accommodation of such disability as required by law substantially interferes
with the employe's ability to perform the essential functions of his employment; advocation of or participating in un-American or subversive doctrines; conviction of a felony or acceptance of a guilty plea or nolo contendere therefor; persistent and wilful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors); on the part of the professional employe...24 P.S. §11-1122(a). In addition, section 527(b) of the School Code provides that "any person subject to this section who, while employed in a public or private school .... is convicted of any of the offenses enumerated in subsection (e) of section 111 of this act shall be immediately terminated from such employment." 24 P.S. §5-527(b) (emphasis added). There is nothing in these statutory provisions or Croll's employment contract to warrant Croll's termination based upon a criminal conviction that predated his employment contract with the District.
During his employment with the District, Croll was evaluated as a "fully satisfactory employee" and was promoted to head of the Mathematics Department. (Complaint, ¶¶13, 23, 25-28, 33-34.)
In 2012, section 111(e)(1) of the School Code was amended to provide that "[n]o person subject to this act shall be employed or remain employed in a public or private school ... where a report of criminal history record information or a form submitted by an employe under subsection (j) indicates the person has been convicted of [an enumerated crime]." Consequently, section 111(e)(1) now mandates the termination of a current employee who, among other things, was convicted for corruption of a minor at any time in the past. Following the amendment to section 111(e)(1), Croll filled out the required statutorily-designated forms and once again disclosed to the District and the Department that he had been convicted for corruption of a minor in 1992. The District informed Croll that it intended to terminate his employment pursuant to current section 111(e)(1).
As amended by Act 82 of 2012, Act of June 30, 2012, P.L. 684, effective July 1, 2012. Pursuant to section 111(j)(1), the Department is required to develop a standardized form for applicants and current employees to report convictions. 24 P.S. §1-111(j)(1).
The convictions that subject an individual to the consequences of section 111(e) include: criminal homicide; aggravated assault; stalking; kidnapping; unlawful restraint; luring a child into a motor vehicle or structure; rape; statutory sexual assault; involuntary deviate sexual intercourse; sexual assault; aggravated indecent assault; indecent exposure; sexual intercourse with an animal; incest; concealing the death of a child; endangering the welfare of children; dealing in infant children; prostitution; obscene materials and performances; corruption of minors; sexual abuse of children; unlawful contact with a minor; solicitation of minors to traffic drugs; and felony drug possessory offenses. 24 P.S. §1-111(e)(1)-(2).
On February 3, 2012, Croll filed the instant complaint for declaratory relief. In Count III, Croll asserted a due process claim, challenging the retroactive application of current section 111(e)(1) on the basis that it unreasonably impairs his contractual rights with the District or his vested right in continued employment. (Complaint, ¶¶47, 86-94.) Pennsylvania law recognizes that due process encompasses a claim under Article 1, section 17 of the Pennsylvania Constitution, which states that "[n]o ... law impairing the obligation of contracts ... shall be passed." Pa. Const. art. 1, sec. 17. Krenzelak v. Krenzelak, 503 Pa. 373, 382-83 and n. 5, 469 A.2d 987, 992 and n. 5 (1983) (stating that retroactive application of legislation will offend due process where, among other things, it impairs contractual rights).
In order to establish an impairment of contract claim under Article 1, section 17, commonly referred to as the Contract Clause, a plaintiff must demonstrate that a change in state law has "operated as a substantial impairment of a contractual relationship." South Union Township v. Department of Environmental Protection, 839 A.2d 1179, 1188 (Pa. Cmwlth. 2003) (quoting General Motors Corporation v. Romein, 503 U.S. 181, 186 (1992)). "Contracts enable individuals and public entities to order their ... affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them. The purpose of the Contract Clause is to protect the legitimate expectations that arise from such contractual relationships from unreasonable legislative interference." Transport Workers Union, Local 290 by & through Fabio v. Southeastern Pennsylvania Transportation Authority, 145 F.3d 619, 622 (3d Cir. 1998). The test for unconstitutional impairment of contract is the same under both the Pennsylvania and United States constitutions. South Union Township, 839 A.2d at 1188 n. 14.
Contract Clause analysis involves three components: "whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial." Id. Additionally, a state law must have a retroactive effect under the Contract Clause, which means that "the contract in question must preexist the passage of the state law." Mabey Bridge & Shore, Inc. v. Schoch, 666 F.3d 862, 874 (3d Cir. 2012). See Fabri v. United Technical International, Inc., 387 F.3d 109, 124 (2d Cir. 2004) ("The Contract Clause prohibits the impairment by the state of existing contracts... [T]he statute must have been passed after the contract was executed.").
If new legislation impairs existing contractual relations, the court must determine whether there is "a significant and legitimate public purpose behind the [law], such as the remedying of a broad and general social or economic problem." South Union Township, 839 A.2d at 1188-89 (quoting Energy Reserves Group, Inc. v. Kansas Power and Light Company, 459 U.S. 400, 411-412 (1983)). However, "the Contract Clause limits otherwise legitimate exercises of state legislative authority, and the existence of an important public interest is not always sufficient to overcome that limitation." United States Trust Company v. New Jersey, 431 U.S. 1, 21 (1977). Instead, a court must also decide whether the change in the law "is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation's adoption." South Union Township, 839 A.2d at 1188-89 (quoting Energy Reserves, 459 U.S. at 411-12)).
"[W]here legislation effects a substantial impairment of contract, then a careful examination of the nature and purpose of the legislation must be undertaken. The more severe the impairment, the higher the hurdle to be cleared by the state legislation." South Union Township, 839 A.2d at 1189 n. 15. The United States Supreme Court has held that, in general, the court should defer to the legislative judgment as to the necessity and reasonableness of a particular measure; however, when the contract is a public contract, complete deference is not appropriate because the state's self-interest is at stake. Id. at 1189; United States Trust Company v. New Jersey, 431 U.S. 1, 26 (1977). In fact, the United States Court of Appeals for the First Circuit has held that when a public contract is involved, "a court must scrutinize the state's asserted purpose with an extra measure of vigilance." McGrath v. Rhode Island Retirement Board, 88 F.3d 12, 16 (1st Cir. 1996). Namely,
a state must do more than mouth the vocabulary of the public weal in order to reach safe harbor; a vaguely worded or pretextual objective, or one that reasonably may be attained without substantially impairing the contract rights of private parties, will not serve to avoid the full impact of the Contracts Clause.
Id.
The Pennsylvania Supreme Court emphatically rejected the Commonwealth's attempt to forfeit a public employee's contractual pension rights by retroactively applying legislation in Commonwealth ex rel. Zimmerman v. Officers & Employees Retirement Board, 501 Pa. 293, 461 A.2d 593 (1983). In Zimmerman, the Commonwealth filed a mandamus action seeking to discontinue retirement benefits paid to John Nacrelli, who was an employee of the City of Chester from April 6, 1959 until his resignation on April 28, 1979. On July 8, 1978, the legislature enacted the Public Employee Pension Forfeiture Act (Act 140), which provides that a public employee forfeits retirement benefits if he is convicted of or pleads guilty to any crime related to his public employment. Prior to the enactment of Act 140, Nacrelli engaged in conduct that ultimately resulted in him pleading guilty to federal crimes that involved his unfaithful service in public employment. Moreover, before the legislature passed Act 140, the terms of Nacrelli's pension contract were agreed upon and Nacrelli accepted membership into the retirement system. The Commonwealth argued that Act 140 should be applied retroactively to forfeit Nacrelli's contractual right to a retirement pension because he committed a crime prohibited by Act 140.
Act of July 8, 1978, P.L. 752, as amended, 43 P.S. §§1313-1315.
On appeal, our Supreme Court concluded that Act 140 was a retroactive and unconstitutional impairment of Nacrelli's contractual rights because it constituted a unilateral, legislative nullification of Nacrelli's existing pension contract. Quoting an eloquent passage from prior case law, the court reiterated:
The Legislature may strengthen the actuarial fibers [of the retirement system] but it cannot break the bonds of contractual obligations. The permissible changes, amendments and alterations provided for by the Legislature can apply only to conditions in the future, and never to the past. According to the cardinal principle of justice and fair dealings between government and man, as well as between man and man, the parties shall know prior to entering into a
business relationship the conditions which shall govern that relationship. Ex post facto legislation is abhorred in criminal law because it stigmatizes with criminality an act entirely innocent when committed. The impairment of contractual obligations by the Legislature is equally abhorrent because such impairment changes the blueprint of a bridge construction when the spans are half way across the stream.Zimmerman, 501 Pa. at 300, 461 A.2d at 597 (quoting Hickey v. Pension Board of Pittsburgh, 378 Pa. 300, 309-10, 106 A.2d 233, 237-38 (1954) (emphasis added)).
The court took account of the fact that Nacrelli had no notice that he would be subjected to forfeiture of his pension at the time he committed the criminal acts because they preceded the effective date of Act 140. The court also discredited the Commonwealth's argument that it had "a compelling state interest" in deterring official misconduct. In doing so, the court stated that "[t]he real and practical need involved is to prevent future wrongdoing" and that retroactive application of Act 140 to Nacrelli's existing contractual rights "cannot prevent wrongdoing that has already occurred." Zimmerman, 501 Pa. at 302, 461 A.2d at 598.
Here, accepting the facts in Croll's complaint as true, the following is established. In August 2005, after full disclosure by Croll of his prior convictions and a vetting process by the District, Croll entered into a written employment contract with the District. This contract provides that Croll may be terminated only for certain enumerated reasons, all of which relate to future conduct and none of which involve his prior criminal history or conviction for corruption of a minor in 1992. On June 30, 2012, section 111(e)(1) of the School Code was amended to mandate, without exception, the termination of a current employee who was convicted of the same enumerated offenses at any time in the past. Croll's contract with the District predated the current version of section 111(e)(1), and section 111(e)(1) is retroactive for purposes of the Contract Clause because it reaches back and applies to Croll's existing contractual relationship. Moreover, section 111(e)(1) substantially impairs Croll's employment contract. Indeed, it is difficult to imagine a situation where a contract could be impaired more severely: section 111(e)(1) annuls Croll's employment contract in its entirety, terminates him for a reason not specified in the contract, and effectively prohibits him from ever working as a teacher in this Commonwealth again. See Energy Reserves, 459 U.S. at 411 ("Total destruction of contractual expectations is not necessary for a finding of substantial impairment.").
In ruling on a preliminary objection in the nature of a demurrer, this Court must accept as true all well-pleaded material allegations, as well as all inferences reasonably deduced therefrom. Moreover, in order to sustain a demurrer, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain the demurrer. Glenn v. Horan, 765 A.2d 426, 430 (Pa. Cmwlth. 2001).
The Department defends section 111(e)(1) by citing its important interest in protecting schoolchildren. The Department claims that the legislature could have concluded that individuals who have been convicted of an offense enumerated in section 111(e)(1), including corruption of a minor, pose a great risk of causing harm to schoolchildren. The Department also asserts that there is a risk that a person previously convicted of a crime will reoffend and, thus, its need to protect schoolchildren warrants the termination of current employees no matter how much time has elapsed since their convictions.
However, in analyzing Croll's Count II substantive due process claim, the Majority (of which I am a part) rejects these assertions and concludes that the Commonwealth has not "proffered a sufficient reason to explain why the crime of which Croll was convicted nearly 20 years ago is at all predicative of future behavior and continues to warrant the harsh result of a complete ban from his employment with the District." (Majority slip. op. at 20.) The Majority also concludes that section 111(e)(1) "does not bear a real and substantial relationship to the Commonwealth's interest in protecting children." (Id.) I believe that the same analysis is applicable to Count III of Croll's complaint.
Given the severity of the contractual impairment and the fact that this case involves a public contract, the Department has to clear a substantial hurdle to justify the necessity and reasonableness of the amendment to section 111(e)(1).
Although the Department has an important public interest in protecting schoolchildren, the Department merely asserts this interest in a vague manner and under the guise of potential "risks." Significantly, the Department fails to explain how former section 111(e), which prohibited a school district from employing a person who was convicted of an enumerated crime within the preceding five years, was an inadequate measure to ensure the safety of schoolchildren. Further, the Department does not sufficiently articulate how its interest in protecting schoolchildren will be advanced, as a practical matter, by the dramatic shift in legislative policy reflected in the current version of section 111(e). Nor does the Department communicate why, given the current state of affairs, the revision to section 111(e) is essential to minimize the alleged risks concerning the safety of schoolchildren. In the absence of any explanation that the former version of section 111(e) was ineffective legislation, the Department failed to demonstrate that it was necessary to invalidate Croll's employment contract with the District in order to attain its goal of protecting schoolchildren.
Similar to Act 140 in Zimmerman, application of current section 111(e) to nullify Croll's employment contract fails to achieve one of the statute's functional purposes of "preventing future wrongdoing" because retroactive application of a statute "cannot prevent wrongdoing that has already occurred." Id. at 302, 461 A.2d at 598. Notably, section 527(b) of the School Code presently satisfies the need to deter future misconduct by requiring the immediate termination of a teacher who is convicted of an enumerated crime while employed in a public or private school. The Department generally points to the risk that a person previously convicted of an enumerated offense may reoffend, but it does not explain how a person is more likely to reoffend following the five-year waiting period provided in former section 111(e). Indeed, former section 111(e) essentially declared that those individuals who were convicted of corruption of a minor were rehabilitated at the end of five years by expressly granting them the right to teach, and Croll has already satisfied this requirement; and the District independently decided to hire Croll, after the vetting process, despite his conviction for corruption of a minor. Because the Department does not explain why Croll or someone similarly situated would be more inclined to reoffend five or more years after an enumerated conviction, the Department failed to show that the new mandate in section 111(e) nullifying Croll's employment contract is reasonable. Therefore, in my view, it is not clear and free from doubt that Croll's Contract Clause claim fails as a matter of law and the Majority dismisses this claim prematurely.
Also, it is incongruous for the Commonwealth, through the Department, to find that Croll was morally fit to teach and grant him professional certification, only to later amend section 111(e) to have the practical effect of revoking Croll's certification based upon conduct that was fully disclosed and considered by the Department when it granted Croll licensure.
The Majority dismisses Croll's Contract Clause claim on the basis that Croll does not have a "vested right" in his continued employment with the District. (Majority slip op. at 21-24.) Even if this were the case, Croll's employment contract establishes that he has a vested contractual right to be terminated from employment only for the reasons stated in sections 1122(a) and 527(b) of the School Code; these reasons, in turn, do not include Croll's conviction for corruption of a minor which preceded, by some 12 years, his employment with the District. Ultimately, the Majority focuses its analysis exclusively on an abstract and theoretical right to continued employment, speculating the possibility that Croll could be fired sometime in the future, and fails to consider Croll's actual and concrete rights according to the terms of his contract.
On this note, the Majority's reliance on Bowalick v. Department of Education, 840 A.2d 519 (Pa. Cmwlth. 2004), is misplaced because that case addressed the revocation of an educator's teaching certificate where the educator committed the crime of simple assault while he was employed as an educator. --------
Citing Doe v. Ronan, 937 N.E.2d 556 (Ohio 2010), the Majority also suggests that section 111(e) is not a retroactive law. (Majority slip op. at 24 n. 22.) As noted above, in order to be retroactive for purposes of the Contract Clause, a law need only affect a contract that was entered into prior to the law's effective date. In Doe, the employee entered into a contract with the state eight months after the statute requiring a background check became effective. Doe, 937 N.E.2d at 563 ("Doe's 2008 employment contract with [the school] was executed after the date the statutory change became effective.... Thus, Doe cannot demonstrate that [the statute] impaired his employment contract with [the school], because there was no contract between Doe and [the school] to substantially impair."). Therefore, the reasoning of Doe does not apply to preclude or otherwise undermine Croll's Contract Clause claim.
Accepting the well-pleaded facts in Croll's complaint as true, I would conclude that Croll has sufficiently alleged that section 111(e) substantially impairs his employment contract with the District in violation of the Contract Clause. Given the particular circumstances of this case, I would conclude that Croll has averred a prima facie case that section 111(e) is constitutionally infirm insofar as it is applied to any preexisting contract where the individual/employee was subject to the five-year waiting period contained in former section 111(e). Unlike the Majority, I would overrule the Department's preliminary objection in this regard and direct the Department to file an answer to Count III of Croll's complaint. Accordingly, I respectfully dissent from the Majority's disposition of Count III, but join its thoughtful opinion in all other respects.
/s/_________
PATRICIA A. McCULLOUGH, Judge
See also Section 1124, 24 P.S. §11-1124 (providing that professional employees may be suspended for (1) a substantial decrease in pupil enrollment in the district; (2) the curtailment or alteration of the educational program resulting from a substantial decline in class or course enrollment or to conform to standards required by law or the Department; (3) the consolidation of schools making it unnecessary to retain the full staff of professional employees; and (4) when new districts are established as a result of reorganization making it unnecessary to retain the full staff of professional employees).
Nixon II, 576 Pa. at 401 n.15, 839 A.2d at 288 n.15.