Opinion
No. 1414 C.D. 2012
02-25-2013
T.T., Petitioner v. Department of Education, Bureau of School Leadership and Teacher Quality, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
T.T. petitions for review of an order of the Secretary of Education (Secretary) affirming the Department of Education (Department), Bureau of School Leadership and Teacher Quality's (Bureau) denial of his application for a Vocational Instructional II Certificate because he failed to provide satisfactory evidence of good moral character. For the reasons that follow, we vacate the Secretary's order and remand for further proceedings consistent with this Opinion.
Section 1209 of the Public School Code, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §12-1209, prohibits the Department from granting a teaching certificate to any person who lacks "good moral character." The Department's regulations also require that "every professional employee certified or permitted to serve in the schools of this Commonwealth shall...[b]e of good moral character." 22 Pa. Code §49.12(1).
T.T. began employment as a vocational welding instructor with the Crawford County Career and Technical Center in 2000. The Department issued T.T. a Vocational Instructional I Certificate in the area of welding in November 2003. In April 2009, T.T. submitted an application to the Bureau for Vocational Instructional II certification, but did not provide answers to the application's questions related to good moral character. After receiving T.T.'s application, the Bureau sent him a letter in September 2009 requesting additional information, including his child abuse clearance, and FBI and State police background check. In response, T.T. informed the Bureau that Crawford County Children and Youth Services (CYS) issued an indicated report of child abuse naming him as the perpetrator based on allegations of abuse made by his then 20-year-old step-daughter.
Those questions, in the "Background" section of the application, were:
1. Have you ever been the subject of a child abuse investigation or report?(Secretary's Finding of Fact No. 6)
* * *
4. Is there disciplinary action pending by a licensing agency in this or any other state, territory or country?
* * *
7. Are criminal charges pending against you or are you the subject of an inquiry or investigation by a law enforcement agency in this or any other state, territory or country?
CYS issued the aforementioned indicated report of child abuse against T.T. in May 2009. T.T. filed a timely appeal of the indicated report, and an expungement hearing was held before a Department of Public Welfare (DPW) Administrative Law Judge (ALJ). Based on those hearings, the ALJ concluded that there was substantial evidence to support a finding of abuse and recommended that the indicated report be maintained. In June 2010, DPW issued an order adopting the ALJ's recommendation in its entirety. T.T. sought reconsideration of that order, which DPW granted. In September 2011, DPW entered a final order upholding its June 2010 order. T.T. filed a petition for review of DPW's final order with this Court on October 5, 2011, arguing, inter alia, that DPW's use of the substantial evidence standard in the expungement proceedings violated his constitutional rights.
While his appeal of the indicated report was still pending before DPW, the Bureau, by letter dated June 2, 2010, informed T.T. that it was denying his application for Vocational Instructional II certification because he failed to provide satisfactory evidence of good moral character. The Bureau's denial specifically referenced the fact that T.T. "knowingly refused" to answer all the application questions and the allegations of sexual abuse against him as reasons for its determination. T.T. appealed the Bureau's determination and an evidentiary hearing was held before a hearing officer in July 2011.
At the hearing, T.T. and nine supporting witnesses provided testimony regarding T.T.'s good moral character. T.T. also testified as to his reasons for the omissions on his application, explaining that he left the three questions blank because he was uncertain how to honestly answer them in light of the unclear status of the sexual abuse allegations. When asked if he was trying to mislead the Department in any way, T.T. replied "No. I was trying to be as honest as possible by leaving it blank because I wasn't sure." (July 1, 2011 Hearing Transcript at 166). The Bureau called no witnesses and submitted no additional documentary evidence.
After the hearing on his moral character before the Department but before the hearing officer issued her proposed Adjudication and Order on that issue, T.T. filed his petition for review of DPW's decision to maintain the indicated report with this Court. With that appeal pending, the hearing officer issued her proposed Adjudication and Order finding that T.T.'s failure to answer questions on his application was not, per se, immoral, absent an intent to mislead the Department. Moreover, she found that the indicated report of child abuse was not conclusive evidence that the alleged misconduct occurred or that T.T. lacked the moral fitness to serve as a teacher. In so finding, she noted that the Child Protective Services Law (CPSL) prohibits a school administrator from hiring the subject of a founded report of child abuse, but contains no similar prohibition for subjects of indicated reports of child abuse. Accordingly, the hearing officer concluded:
23 Pa. C.S. §§6301 - 6386.
As an indicated report is neither a legal determination of abuse nor a conclusive statutory reason to bar [T.T.] from obtaining his teaching certificate, I must weigh this finding standing alone against the other evidence
of his good moral character. I find [T.T.'s] testimony credible and the other evidence of good moral character presented by him at the Hearing to be strong and uncontroverted. ... Since [T.T.] has demonstrated good moral character and has fulfilled all other regulatory requirements for his certificate, [T.T.'s] certificate will be granted.(Hearing Officer's February 29, 2012 Proposed Adjudication at 11-12). Because she concluded that T.T. proved good moral character even with an indicated report of child abuse against him, the hearing officer had no reason to address the fact that an appeal of the indicated report was still pending at that time.
With T.T.'s appeal of the indicated report of child abuse still pending before this Court, the Secretary then issued his final Adjudication and Order. The Secretary agreed with the hearing officer that the failure to answer questions on an application, without more, is not, per se, immoral, and concluded based on T.T.'s credible testimony that T.T. did not intend to mislead the Department in leaving the background questions on his application blank. However, the Secretary disagreed with the hearing officer's analysis of the effect of the indicated report of child abuse. The Secretary explained that although the CPSL does not expressly prohibit a school from hiring the subject of an indicated report of child abuse, such a report is nonetheless an important factor in evaluating the perpetrator's moral character and may be assigned significant evidentiary weight. Without addressing the fact that T.T. was still in the process of challenging the inclusion of the indicated report of child abuse on the ChildLine Registry, the Secretary concluded:
[T.T.] had every opportunity to present credible evidence to support a conclusion that the sexual abuse at issue here did not occur, but he failed to do so. In my opinion, [T.T.'s] denials regarding the abuse simply are not credible. I find that the evidence presented by [T.T.] does not outweigh the fact that he is the subject of an indicated report of child sexual abuse issued pursuant to the CPSL. While I do not give the report preclusive effect...I do assign the existence of the report greater evidentiary weight than the testimony and documents that have been presented by [T.T.]. Accordingly, I find that [T.T.] has failed to meet his burden of establishing good moral character.(Secretary's July 2, 2012 Adjudication and Order at 10-11) (emphasis added). Accordingly, notwithstanding the hearing examiner's recommendation, the Secretary affirmed the Bureau's denial of T.T.'s application.
Shortly after the Secretary's final Adjudication and Order, this Court acted on T.T.'s appeal from the refusal of DPW to reverse the indicated report. Citing our recent adoption of the clear and convincing evidence standard for child abuse expungement proceedings in G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012), we vacated DPW's order refusing to expunge T.T.'s indicated report and remanded for DPW "to issue a new determination as to whether the evidence was clear and convincing that expungement of the indicated child abuse report summary from the ChildLine Registry was not warranted." T.T. v. Department of Public Welfare, 48 A.3d 562, 567 (Pa. Cmwlth. 2012).
In the instant appeal, T.T. argues, inter alia, that the Secretary's Adjudication and Order finding that he failed to prove good moral character is not supported by substantial evidence. Specifically, he contends that the indicated report of child abuse is not competent evidence to support the Secretary's decision because DPW's order to maintain the report on the statewide registry was vacated and remanded by this Court in T.T. v. Department of Public Welfare. We agree.
Our review of the Department's decision is limited to a determination of whether constitutional rights were violated, whether an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Pardue v. Department of Education, 815 A.2d 1162, 1165 n.10 (Pa. Cmwlth. 2003).
Here, the Secretary's decision to affirm the Bureau's denial of T.T.'s application was based solely upon the conclusion that T.T.'s possession of an indicated report of child abuse outweighed any other evidence of his good moral character. The Department reiterates that position in its brief, stating, "[t]he fact that T.T. cannot supply a current clean child abuse clearance to the Department because he continues to be listed on the Statewide Registry as a result of an indicated report for child abuse should be giv[en] serious weight in the determination of T.T.'s moral character." (Department's Brief at 17). However, DPW's prior decision to maintain T.T.'s indicated report on the statewide registry was reached using the incorrect evidentiary standard and, thus, the decision cannot be afforded any evidentiary weight. Because DPW has yet to reach a determination on remand applying the correct clear and convincing evidence standard, it remains to be seen whether T.T. can supply a "clean child abuse clearance." If DPW expunges his indicated report on remand, there will be no evidence to support a finding that T.T. failed to demonstrate good moral character and he presumably will be entitled to receive his certification. The Department essentially admits as much in its brief, stating that if DPW determines that the decision to deny T.T.'s expungement was not based upon clear and convincing evidence, "the Secretary would have to deny T.T. based upon additional evidence." Id. at 28. Accordingly, we must vacate the Secretary's order and remand to the Secretary to reconsider his decision following DPW's determination of whether to maintain T.T.'s indicated report using the clear and convincing evidence standard.
T.T. also argues that the Secretary's Adjudication contains errors of law and violates his constitutional rights. Because we can decide the matter on substantial evidence grounds, we will not address those arguments. --------
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 25th day of February, 2013, the order of the Secretary of Education, dated July 2, 2012, at No. CA-10-13, is vacated and remanded to the Secretary to reconsider his decision following the Department of Public Welfare's determination of whether to maintain T.T.'s indicated report using the clear and convincing evidence standard.
Jurisdiction relinquished.
/s/_________
DAN PELLEGRINI, President Judge