Opinion
No. 294 M.D. 2012
12-13-2012
Anthony Jones and Nathaniel Pearson, Petitioners v. Penn Delco 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 of the Pennsylvania Department of Education (Department) filed in response to a complaint filed by Anthony Jones and Nathaniel Pearson seeking declaratory and injunctive relief to prevent the Penn Delco School District (District) from terminating their employment under Section 111(e)(2) 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). 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....
* * *
(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 March 1986, when he was 20 years old, Anthony Jones (Jones) pleaded guilty to a felony violation of Section 13(a)(30) of the Drug Act, 35 P.S. §780-113(a)(30). Jones was released from probation after completing the 12-month probationary sentence that was imposed. Jones disclosed his criminal history to the District and a background check was conducted when he applied for a bus driver position in 2006. At that time, 24 P.S. §1-111(e) provided that a conviction for one of its enumerated offenses within the preceding five years, which included a felony offense under the Drug Act, precluded an applicant's employment by a school district in the Commonwealth. However, Jones' felony drug conviction was outside the five-year timeframe of 24 P.S. §1-111(e). As a result, Jones was hired by the District in 2006. Jones left his employment with the District in 2007, but he again revealed his criminal history and another background check was conducted when he was again hired by the District as a bus driver in 2008. Jones has faithfully discharged the responsibilities of his position since his hire.
In September 1991, Nathaniel Pearson (Pearson) pleaded guilty to a felony violation of 35 P.S. §780-113(a)(30). Pearson was released from probation following the completion of the one-year probationary sentence that was imposed. Pearson disclosed his criminal history and a background check was conducted when Pearson was hired by the District as a custodian in 2006. Pearson has faithfully discharged the duties of his position since his hire.
The five-year impediment for those convicted of felony offenses under the Drug Act 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 has 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).
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 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).
Accordingly, on December 28, 2011, the District suspended Jones' and Pearson's employment and Jones and Pearson voluntarily submitted to updated criminal background checks at the District's request. On January 12, 2012, the District suspended Jones' and Pearson's employment pending termination based solely on their pre-employment disqualifying convictions. On January 25, 2012, the District terminated Jones' and Pearson's employment effective January 26, 2012.
On February 10, 2012, Jones and Pearson filed a complaint in the Court of Common Pleas of Delaware County (trial court) seeking a declaration that their termination:
• violates their 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 their ability to perform the duties of their positions.
• violates their due process rights under the Pennsylvania Constitution because it retroactively removes their right to continued employment based on acts predating the amendments and retroactively making them unemployable when they were 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 their past crimes by preventing their current or future school employment.
In all counts, Jones and Pearson also asked the trial court to permanently enjoin the District from terminating their employment pursuant to 24 P.S. §1-111(e)(1) based on their pre-employment convictions.
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 their complaint, Jones and Pearson 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)(2), 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 ... [a]n offense designated as a felony under the [(Drug Act)...]." (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 Jones and Pearson 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 Jones' and Pearson's complaint is now moot and Count I and the Department's preliminary objection thereto are dismissed.
The Department filed a motion to intervene as an indispensable party and to transfer the case to this Court. By order dated February 16, 2012, the trial court granted Jones and Pearson a preliminary injunction restoring them to their positions, granted the Department's motion to intervene, and transferred the case to this Court.
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 May 3, 2012, the Department filed the instant preliminary objections in the nature of a demurrer to Jones' and Pearson'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 school employee 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 26, 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 school employees.
• 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). Jones and Pearson ask this Court to declare that 24 P.S. §1-111(e)(2) is unconstitutional as applied to their employment with the District, and to preliminarily and permanently enjoin the District from terminating their employment based upon their prior remote criminal convictions.
I.
In Count II, Jones and Pearson argue that the per se lifetime employment ban of 24 P.S. §1-111(e)(2) violates due process because it is unreasonable and irrational because it does not relate to their present ability to perform the duties of their 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 Jones' and Pearson's employment as a bus driver and a custodian, respectively, we have previously determined that "nonprofessional public school employees have a property right in their expectation of continued employment and the Board must comply with procedural due process safeguards when dismissing them for cause." Lewis v. School District of Philadelphia, 690 A.2d 814, 817 (Pa. Cmwlth. 1997) (citations omitted). See also Dingel v. State Employees' Retirement System, 435 A.2d 664, 668 (Pa. Cmwlth. 1981) ("Where employment is either contractually or statutorily guaranteed, this Court has recognized, as a protected property right, an employee's 'enforceable expectation of continued employment.'") (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 school employees who have been convicted of a 24 P.S. §1-111(e)(2) 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. Jones and Pearson counter 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 school employees to perform the duties of their positions.
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 to record 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 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]...." However, an "as applied" constitutional analysis would result in such an equal protection infirmity because current employees would be protected from termination under 24 P.S. §1-111(e)(2) while applicants would still be subject to its lifetime ban from employment.
In this case, the felony drug offenses that Jones and Pearson committed are not ones that pose a danger specifically to school students. Moreover, there has not been proffered a sufficient reason to explain why the crime of which Jones was convicted over 25 years ago or of which Pearson was convicted over 20 years ago is at all predictive of future behavior and continues to warrant the harsh result of a complete ban from their employment with a school. Because 24 P.S. §1-111(e)(2) creates a lifetime ban for felony drug offenses that have no temporal proximity to their present ability to perform the duties of their positions, 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)(2) imposes unusual and unnecessary restrictions upon Jones' and Pearson's lawful employment as a bus driver and a custodian, respectively, and it is unconstitutional as violative of their substantive due process rights as guaranteed by Article 1, Section 1 of the Pennsylvania Constitution. Accordingly, the Department's preliminary objection to Count II of Jones' and Pearson's complaint is overruled.
II.
In Count III, Jones and Pearson argue that the per se lifetime employment ban of 24 P.S. §1-111(e)(2) 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. 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 Jones and Pearson have an enforceable property right in their expectation of continued employment as a bus driver and a custodian which requires due process prior to their removal. Lewis; Dingel. However, they do not possess a vested right in their continued employment. Section 514 of the School Code, 24 P.S. §5-514, states, in pertinent part:
The board of school directors in any school district ... shall after due notice, giving the reasons therefor, and after hearing if demanded, have the right at any time to remove any of its ... employes ... for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct.
As we have previously noted, "Section 514 ... provides the nonprofessional school employee, such as appellant, with certain limited protection from dismissal." Swartley v. Norristown Area School District, 414 A.2d 153, 154 (Pa. Cmwlth. 1980). Such an enforceable property right does 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, Jones and Pearson do not possess a sufficient vested right to support their claim that 24 P.S. §1-111(e)(2) violates due process as an impermissible retroactive law. Accordingly, the Department's preliminary objection to Count III of Jones' and Pearson's complaint is sustained and Count III is dismissed.
Moreover, the provisions of 24 P.S. §1-111(e)(2) 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, Jones and Pearson argue that the per se lifetime employment ban of 24 P.S. §1-111(e)(2) 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 their past crimes by preventing their current or future school 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....Galena, 551 A.2d at 679-80.
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.
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)(2) 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)(2) 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(2) 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 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)(2) to Jones' and Pearson's employment does not violate the Ex Post Facto Clause of the Pennsylvania Constitution. Accordingly, the Department's preliminary objection to Count IV of Jones' and Pearson'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 Anthony Jones and Nathaniel Pearson and Count I of the complaint are dismissed; the Department's preliminary objection filed to Count II of Jones' and Pearson'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 Counts III and IV of Jones' and Pearson's complaint are sustained and Counts III and IV of the complaint is 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 Anthony Jones (Jones) and Nathaniel Pearson (Pearson), 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 Jones and Pearson failed to properly plead a violation of the Ex Post Facto Clause, Pa. Const. art. 1, sec. 17. However, I respectfully dissent from the Majority's conclusion that section 111(e) is not an impermissible retroactive law for the reasons stated in my concurring and dissenting opinion in Croll v. Harrisburg School District (Pa. Cmwlth., No. 210 M.D. 2012, filed December 13, 2012).
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §1-111(e).
Section 111(e) of the School Code was amended in 2012 to state, in pertinent part, 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]." Act 82 of 2012, Act of June 30, 2012, P.L. 684, effective July 1, 2012 (emphasis added). Pursuant to section 111(j)(1), the Department is mandated to develop a standardized form for applicants and current employees to report convictions. 24 P.S. §1-111(j)(1). One of the enumerated crimes that subject an individual to the consequence of section 111(e) is a felony drug offense. 24 P.S. §1-111(e)(2).
As I noted in Croll, I believe that the petitioner, a teacher, sufficiently pled a claim under Article 1, section 17 of the Pennsylvania Constitution, commonly referred to as the Contract Clause, which states that "[n]o ... law impairing the obligation of contracts ... shall be passed." Pa. Const. art. 1, sec. 17. My conclusion is based on the fact that the petitioner's employment contract with the school district permitted his termination only for specified reasons; the contract preexisted the effective date of the amendment to section 111(e); section 111(e) retroactively annuls the petitioner's contract with the school; section 111(e) mandates the petitioner's termination for a reason that is not provided for in the contract - i.e., a conviction occurring 12 years before he was employed by the school district, namely a corruption of a minor conviction for accompanying a minor into an unoccupied barn and stealing objects; and the Department failed to articulate how the amendment to section 111(e) was reasonable and necessary to advance its interest in protecting schoolchildren. Croll, slip. op. at 8-12.
I believe that the above analysis employed in Croll is equally applicable to the instant case. The only notable differences are that Jones and Pearson were employed as a bus driver and a custodian, respectively, with the Penn Delco School District (District). Jones was convicted of a felony drug offense in 1986 and hired by the District in 2008, while Pearson was convicted of a felony drug offense in 1991 and hired by the district in 2006. (Complaint, ¶¶6-38.)
Like the petitioner in Croll, Jones and Pearson have a contractual right to be terminated only for specified reasons occurring during the course of their employment. Specifically, Jones and Pearson's contracts with the District were made pursuant to section 514 of the School Code, which states, in relevant part, that "[t]he board of school directors in any school district ... shall ... have the right at any time to remove any of its officers, employes, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct." 24 P.S. §5-514. See Coleman v. Board of Education, 477 Pa. 414, 423, 383 A.2d 1275, 1280 (1978) ("Section 514 establishes rights in a School District employee not to be dismissed without specific cause"). Moreover, 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). There is nothing in these statutory provisions or Jones' and Pearson's employment contracts to warrant their termination based upon a criminal conviction that predated their employment contracts with the District.
Akin to the facts in Croll, Jones' and Pearson's employment contracts with the District predate the amendment to section 111(e), and their convictions occurred 22 and 15 years, respectively, prior to their hiring by the District. As in Croll, retroactive application of section 111(e) to Jones' and Pearson's existing employment contracts results in their termination for a reason not provided for in their contracts. Finally, as the Majority holds, the Department has failed to explain how the amendment to section 111(e) was reasonable and necessary to advance its interest in protecting schoolchildren. This is especially true in light of the then-applicable, prior version of section 111(e), which prohibited a school district from employing a person who was convicted of an enumerated crime, including a felony drug offense, within the preceding five years. The former version of section 111(e) essentially declared that those individuals who were convicted of a felony drug offense were rehabilitated at the end of five years; the Department does not explain how this former version of section 111(e) was ineffective legislation, nor does it articulate how or why a person is more likely to reoffend following the five-year waiting period.
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...." One of the enumerated offenses was a felony drug conviction. Act 34 of 1985, Act of July 1, 1985, P.L.129. --------
Applying my reasoning in Croll to the facts presented here, I reach the same conclusion: Jones and Pearson have adequately averred a claim in Count III of their complaint that application of section 111(e) in these instances violates the Contract Clause. Accordingly, I dissent from the portion of the Majority's opinion that dismisses Count III from the complaint. I join the Majority's decision in all its remaining respects.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Nixon II, 576 Pa. at 401 n.15, 839 A.2d at 288 n.15.