R.W. v. Dep't of Educ.

304 A.3d 79

R.W., Petitioner v. DEPARTMENT OF EDUCATION (PROFESSIONAL STANDARDS AND PRACTICES COMMISSION), Respondent

No. 277 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued February 8, 2023

Decided October 18, 2023

Richard S. McEwen, Edinboro; Joseph F. Canamucio and Scott P. Stedjan, Harrisburg, for Petitioner.

Nadya J. Chmil, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge

CASE SEALED

OPINION BY JUDGE WOJCIK

R.W. (Educator) ¹ petitions for review of the March 1, 2022 order of the Professional Standards and Practices Commission (Commission) that denied Educator's petition for complete reinstatement of his teaching certificate or expungement of his discipline listing on the Commission's and Department of Education's (Department) websites. ² Educator argues that the Commission's order denying expungement was in error, its findings were not supported by substantial evidence, and it violated Educator's constitutional rights to pursue lawful employment as a teacher and to his reputation. Educator argues that because the criminal charges against him were nolle prossed³ and later expunged, the Department and the Commission (together, Respondents) should have removed his suspension from their websites. Educator argues that his constitutional rights to pursue his lawful occupation as a teacher and to his reputation have been harmed by Respondents’ maintenance of his discipline records that include a description of criminal charges which were nolle prossed and expunged. We are presented with the question of whether Section 15(d) of the Educator Discipline Act (Act), 24 P.S. § 2070.15(d), ⁴ which requires Respondents to make all adjudications imposing discipline available on their websites, is unconstitutional as applied to Educator by harming his right to pursue lawful employment as a teacher and to his reputation, when the Commission's listing references criminal charges which were nolle prossed and expunged. After careful review, we affirm in part and reverse in part the Commission's March 1, 2022 order. Specifically, because expungement of Educator's discipline record of his suspension under the facts presented here is not supported under the Act, we affirm the portion of the Commission's order that denied Educator's petition to expunge the record of his suspension from Respondents’ websites. However, because we conclude that Respondents’ maintenance of Educator's discipline record that continues to list the criminal charges which were nolle prossed and expunged on their websites is unconstitutional as applied to Educator, we reverse that portion of the Commission's order and remand with the direction that Respondents remove reference to Educator's criminal charges from his discipline history on the Commission's website.

The facts as summarized by the Commission in its March 1, 2022 opinion and order are as follows. On October 25, 2018, Educator was charged with institutional sexual assault, corruption of minors, harassment, and indecent assault for allegedly touching the buttocks of two female colleagues without their consent, for making inappropriate sexual comments to them, and for allegedly touching the buttocks of four female students. Commission, 3/1/22, Opinion at 1, Reproduced Record (R.R.) at 70a. After a hearing in which Educator chose not to participate, on February 15, 2019, Educator's teaching certificate was immediately suspended pursuant to Section 9.2(a)(1) of the Act, 24 P.S. § 2070.9b(a)(1), added by the Act of December 20, 2000, P.L. 918, which requires the Commission to direct the Department to suspend a teacher's certificate upon being indicted with a crime set forth in Section 111(e)(1) through (3) of the Public School Code of 1949 (School Code), ⁵ when accompanied by a finding that the educator poses a threat to the health, safety, or welfare of students or other persons in the schools of the Commonwealth. R.R. at 70a. Pursuant to Section 15(d) of the Act, a record of Educator's immediate suspension was posted on Respondents’ websites. On February 24, 2020, the criminal charges against Educator were nolle prossed "due to circumstances beyond the Commonwealth's control" and dismissed by the trial court. Id. at 50a, 71a. On March 10, 2020, the Commission lifted Educator's suspension, effective as of the date the criminal charges were dismissed, as required by Section 9.2(a)(1)(iii) of the Act, 24 P.S. § 2070.9b(a)(1)(iii). Id. at 18a-20a, 71a. By order dated February 5, 2021, the trial court expunged the criminal charges against Educator. Id. at 71a. Notice that Educator's suspension was lifted appears on Respondents’ websites, but the charges underlying his immediate suspension continue to be listed on the Commission's website. Educator did not appeal from the Commission's suspension order of February 15, 2019, or from the Commission's March 10, 2020 order lifting the suspension. Instead, on October 27, 2021, Educator filed a petition asking the Commission to completely reinstate his teaching certificate retroactive to the date of his immediate suspension rather than the date the criminal charges were dismissed, or to fully expunge the discipline record of his suspension. ⁶ Id. at 21a-69a. The Department opposed Educator's petition, and the Commission heard oral arguments on January 10, 2022. Id. at 71a.

At the time he was criminally charged, Educator was employed as a teacher by a school district in Pennsylvania. While this matter was pending, Educator surrendered his teaching certificate effective April 1, 2022. Educator is no longer certified to teach in Pennsylvania. ⁷ Respondents’ Brief at 5.

In its opinion denying Educator's petition to expunge the discipline history regarding his suspension, the Commission addressed the various legal issues raised. The Commission first found that Educator failed to timely appeal from the March 10, 2020 reinstatement adjudication, because he waited 19 months to raise his concerns, and that he also failed to timely appeal from the earlier February 15, 2019 suspension adjudication. R.R. at 72a. The Commission concluded that Educator's claims were barred under the doctrine of administrative finality, citing in support Doheny v. Department of Transportation , 171 A.3d 930, 934-35 (Pa. Cmwlth. 2017). R.R. at 72a. The Commission concluded that both orders, suspension and reinstatement, are adjudications because they are final determinations that affect personal or property rights. Id. The Commission concluded that because Educator failed to timely appeal these final adjudications, he was precluded by the doctrine of administrative finality from bringing any action to challenge the effects of those adjudications. Id.

Even though it determined that Educator's petition to expunge was barred, the Commission addressed his arguments anyway. Educator argued that the Commission's pre-suspension hearing violated his procedural due process rights because he was unable to participate without the risk of self-incrimination. The Commission rejected this argument because Educator received notice and had the opportunity to be heard before his certificate was suspended, which he waived. R.R. at 73a. The Commission also concluded that Educator received notice of both the suspension and reinstatement orders and that he could have sought reconsideration or appealed the orders and did not. Id.

Educator further argued that the word "lift" in Section 9.2(a)(1)(ii) of the Act should be interpreted to mean "revoke by taking back" or "nullify." R.R. at 74a. The Commission declined to interpret "lifting" a suspension in this way. The Commission concluded that lifting Educator's suspension to the date the criminal charges were dismissed is consistent with the Act. Id. The Commission described the process of immediate suspension for criminal charges in Section 9.2(a)(1) of the Act as a three-step process. First, the Department presents evidence of criminal charges through an indictment. Second, the Department presents evidence of an educator's threat of harm to the school community, for which the allegations underlying the criminal charges may serve as a basis to show threat of harm. Id. at 74a-75a. The Commission explained that the filing of charges will support a finding of threat of harm "in some cases but not in others." Id. at 75a. Third, the educator is given the opportunity to present evidence as to why he does not pose a threat of harm to the school community. Id. An educator may appeal his suspension to Commonwealth Court, the suspension is effective as of the date of the Commission's order, and a suspension where the grounds for discipline include sexual misconduct may not be stayed on appeal under Section 15(b)(1) of the Act, 24 P.S. § 2070.15(b)(1). All records relating to suspension are public at the time the suspension is imposed, and the Commission is required to make its order available on its website. Id.

The Commission rejected Educator's interpretation of lifting a suspension, concluding as follows:

This statutory scheme does not support a conclusion that the General Assembly intended that a suspension simply "vanish" upon dismissal of the criminal charges. Contrary to [Educator's] repeated assertion, mere charges alone will not support an immediate suspension under Section [9.2](a)(1) [of the Act]. As noted above, the Commission must also determine that the accused educator poses a threat and must afford the educator, upon request, a hearing at which facts relevant to that determination can be considered. A determination, based upon the totality of the evidence presented, that an educator poses a threat and is, therefore, unfit to teach at the moment in time when that determination

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