IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rebecca C. Jones, :
Petitioner :
:
v. : No. 1690 C.D. 2017
: ARGUED: September 12, 2018
Pennsylvania Department of :
Education, :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: October 4, 2018
Petitioner Rebecca C. Jones (Petitioner), a 40-year-old art teacher employed
by the School District of Philadelphia (School District), petitions for review of an
Order issued by the Commonwealth of Pennsylvania’s Professional Standards and
Practices Commission (Commission) on October 24, 2017. Therein, the
Commission denied Petitioner’s exceptions to Commission Hearing Officer Marc
A. Moyer’s March 3, 2017 Proposed Report, as well as Petitioner’s Amended
Motion to Dismiss All Charges Based on Expungement (Amended Motion to
Dismiss). In addition, the Commission directed the Pennsylvania Department of
Education (Department) to revoke Petitioner’s educator certification and
employment eligibility pursuant to the Educator Discipline Act,1 due to Petitioner’s
guilty plea for theft by deception conviction in New Jersey. Petitioner had obtained
1
Act of December 12, 1973, P.L. 397, as amended, 24 P.S. §§ 2070.1a-2070.18c.
“an Instructional I Pennsylvania teaching certificate in the area of Art K-12 which
was issued by the Department on July 1, 2004.” Proposed Report at 1. We affirm.
In 2011, while working as a full-time employee at a “Gap” store in
Moorestown, New Jersey, Petitioner was arrested for stealing a total of $481.57 in
Gap funds, which she had done by creating fake gift receipts and then exchanging
some for cash and crediting the dollar value of others to her personal credit card.
Commission’s Notice of Charges at 1 & Ex. 1; Petitioner’s Br. at 5. On April 26,
2011, Petitioner pled guilty to a misdemeanor-graded theft by deception2 in the
Superior Court of New Jersey, Chancery Division – Criminal Part, Burlington
County (Superior Court of New Jersey). Petitioner was sentenced that same day,
receiving a fine of $1139.57 for costs, fines, and restitution, and “ordered not to
return to the Gap store in Moorestown.” Commission’s Notice of Charges, Ex. 1.
2
Pursuant to the relevant New Jersey statute, N.J.S. 2C:20-4:
A person is guilty of theft if he purposely obtains property of another by deception.
A person deceives if he purposely:
a. Creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind,
and including, but not limited to, a false impression that the
person is soliciting or collecting funds for a charitable
purpose; but deception as to a person’s intention to perform
a promise shall not be inferred from the fact alone that he did
not subsequently perform the promise;
b. Prevents another from acquiring information which would
affect his judgment of a transaction; or
c. Fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver
knows to be influencing another to whom he stands in a
fiduciary or confidential relationship.
The term “deceive” does not, however, include falsity as to matters
having no pecuniary significance, or puffing or exaggeration by
statements unlikely to deceive ordinary persons in the group
addressed.
2
Approximately 16 months later, on August 23, 2012, Petitioner applied for a
teaching position with the School District. A criminal background check was
conducted as part of the application process. Proposed Report at 6. This background
check turned up Petitioner’s theft by deception conviction, leading the School
District to eventually hold a disciplinary hearing on January 23, 2014. Id. at 9.3
Inexplicably, the School District has yet to issue a formal decision regarding this
hearing, despite the fact that it occurred nearly five years ago.
In January 2014, the Department notified Petitioner that the Department had
lodged a misconduct complaint against her due to her theft by deception conviction.
Id. Nearly two years later, on December 18, 2015, the Department filed a Notice of
Charges, informing Petitioner that it intended to seek revocation of her educator
certification and employment eligibility, as required by Section 9.2 of the Educator
Discipline Act, since her conviction was for a crime of moral turpitude. Notice of
Charges at 1-4. Section 9.2 states, in relevant part,
(a) The [C]ommission shall . . . [d]irect the [D]epartment
to revoke the certificate and employment eligibility of an
educator who has been convicted of a crime set forth in
section 111(e)(1) through (3) of the “Public School Code
of 1949,”[4] a crime involving moral turpitude, or the
attempt, solicitation or conspiracy to commit any crime set
forth in this section upon the filing of a certified copy of
the verdict or judgment or sentence of the court with the
commission. The [C]ommission shall direct the
department to immediately reinstate a certificate and
3
There is nothing in the record that accounts for why so much time elapsed between the
background check and the School District taking action, but this delay seems to have stemmed
from the School District’s baffling tardiness in reviewing the results of the background check and
Petitioner failing to proactively inform the School District about either the results of the
background check or the underlying conviction itself. See N.T., 9/21/16 at 53-55 (transcript of
Commission disciplinary hearing before Hearing Officer Moyer); Proposed Report at 7-9.
4
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1–101-27–2702.
3
employment eligibility upon receipt of certified court
documents establishing that the conviction was reversed.
For purposes of this paragraph, the term “conviction” shall
include a plea of guilty or nolo contendere.
24 P.S. § 2070.9b.
At the same time the Department lodged the Complaint, it also submitted a
Motion for Summary Judgment to the Commission, arguing that there was no
genuine issue of material fact as to whether such a sanction was warranted, due to
Petitioner’s criminal conviction. Motion for Summary Judgment at 1-5. Petitioner
replied in opposition to the Motion for Summary Judgment denying the
Department’s factual allegations and legal conclusions, raising the defenses of
estoppel and laches, and arguing that the Department’s sought-after revocation was
“an illegal ex post facto determination” that violated both her procedural and
substantive due process rights. Reply to Motion for Summary Judgment at 1-4.
Petitioner and the Department appeared before Hearing Officer Moyer on
September 21, 2016, in order to address the Department’s Motion for Summary
Judgment. At this hearing, Petitioner and the Department presented evidence and
testimony regarding the propriety of revoking Petitioner’s educator certification and
employment eligibility. Following the hearing, both parties submitted post-hearing
briefs. Proposed Report at 3. Hearing Officer Moyer issued his Proposed Report on
March 3, 2017, ruling that Petitioner’s theft by deception conviction was a crime of
moral turpitude and that she had “failed to sustain her burden of proving the merits
of her affirmative defenses[,]” concluding on this basis that “the Commission is
statutorily required to direct the Department to revoke [Petitioner’s] teaching
4
certificate and employment eligibility in accordance with [Section 9.2 of the
Educator Discipline Act].” Id. at 10-11, at 31.5
On March 30, 2017, Petitioner filed exceptions to the Proposed Report and
requested oral argument before the Commission,6 to which the Department
responded in opposition on April 14, 2017. On April 21, 2017, Petitioner submitted
a Motion to Dismiss All Charges Based on Expungement, followed by an Amended
Motion to Dismiss on May 18, 2017. Therein, Petitioner provided documentation
showing that her theft by deception conviction had been expunged by the Superior
Court of New Jersey on April 5, 2017. Amended Motion to Dismiss at 1. On this
5
Hearing Officer Moyer never explicitly recommended granting the Motion for Summary
Judgment, but he effectively concluded in his Proposed Report that there was no genuine issue of
material fact as to whether Petitioner had committed a crime of moral turpitude or whether the
Commission was required to direct the Department to revoke her certification.
6
Section 14 of the Educator Discipline Act states:
(a) The proposed report of the hearing officer shall be accepted by
the [C]ommission unless:
(1) the educator or the department files exceptions in
accordance with 1 Pa. Code §§ 35.211 (relating to procedure
to except to proposed report) and 35.212 (relating to content
and form of briefs on exceptions) within 30 days of the date
the proposed report was mailed;
(2) within 60 days of the date the proposed report was
mailed, the [C]ommission initiates a review of the proposed
report in the absence of exceptions; or
(3) within 60 days of the date the proposed report was
mailed, the [C]ommission reopens the proceeding for the
reception of further evidence in accordance with 1 Pa. Code
§ 35.233 (relating to reopening by agency action).
(b) After consideration of exceptions to the hearing officer’s
proposed report or further evidence or its review under this section,
the [C]ommission shall accept, modify or reject the hearing officer’s
proposed report.
24 P.S. § 2070.14.
5
basis, Petitioner argued that the Commission should terminate the disciplinary
proceedings pending against her, as “the charge set forth in the [Department’s]
Notice of Charges arose solely out of this conviction[,]” and the United States
Constitution’s Full Faith and Credit Clause7 essentially required the Commission to
take notice of, and give full effect to, the New Jersey expungement order. Id. at 1-3.
The Department contested the Amended Motion for several reasons. First, the
Department argued it had met its burden of proving that Petitioner had been
convicted for a crime of moral turpitude. Department’s Objection to Petitioner’s
Motion to Dismiss All Charges Based on Expungement at 4-5 (Dismissal Objection).
Second, the Department stated that since Petitioner’s criminal conviction had not
been expunged at the time of the disciplinary hearing, the Commission was required
to deem the “conviction for a crime involving moral turpitude . . . as competent
evidence for purposes of the revocation of [Petitioner’s] Pennsylvania teaching
certificate and employment eligibility.” Id. at 5-6. Third, the Department maintained
that Petitioner waived her ability to raise expungement before the Commission, as
she had not included that issue in her exceptions to the Proposed Report. Id. at 6-7.
Finally, the Department asserted that the Full Faith and Credit Clause was
inapplicable, as terminating the disciplinary proceedings on the basis of the New
Jersey expungement order would run counter to Pennsylvania public policy
7
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. CONST.
ART. IV, § 1.
6
considerations, as embodied in both the Educator Discipline Act and the
Commonwealth’s laws regarding expungement of criminal convictions. Id. at 7-10.8
The Commission heard oral argument regarding Petitioner’s exceptions to the
Proposed Report and her Amended Motion to Dismiss on September 17, 2017, and
subsequently issued its decision in favor of the Department on October 24, 2017.
The Commission adopted the Hearing Officer’s proposed findings of fact and
conclusions of law, stating that “[Petitioner] has been convicted of a crime involving
moral turpitude and that [Petitioner] failed to sustain her burden of proving the
merits of her affirmative defenses.” Commission’s Final Memorandum and Order at
3-4 (footnote omitted).
Additionally, the Commission agreed with the Department regarding
Petitioner’s expungement argument on substantive grounds.9 According to the
Commission, there was no question that Petitioner’s conviction stemmed from her
commission of a crime of moral turpitude. Id. at 6. Second,
the New Jersey expungement statute does not require the
Commission to treat [Petitioner] as if she has never been
convicted of a crime . . . and [n]either the New Jersey
expungement order nor the statute under which it was
issued obliterates the fact of [Petitioner’s] conviction or
precludes the Commission from maintaining and using the
record of [Petitioner’s] conviction.
Id. at 7-8. Finally, the Commission determined that “[i]gnoring [Petitioner’s]
conviction . . . on the basis of the New Jersey expungement order would be clearly
8
Petitioner replied to the Department’s Dismissal Objection on June 5, 2017, reiterating
the argument she had made in her Amended Motion to Dismiss. See Reply to Dismissal Objection
at 1-4.
9
Consequently, the Commission elected not to address the merits of the Department’s
procedural waiver argument. See Commission’s Final Memorandum and Order at 5 n.2.
7
contrary to the public policy of this Commonwealth.” Id. at 9. This Petition for
Review followed.10
Petitioner raises two issues for our consideration. First, Petitioner argues that
the Commission erred by declining to terminate the disciplinary proceedings against
her, as the expungement effectively wiped her slate clean, from the standpoint of her
criminal record, and removed the sole basis upon which the Department sought
revocation of her educator certification and employment eligibility (i.e., her theft by
deception conviction). Petitioner’s Br. at 11-13, 17.11 Petitioner believes the
Commission misapplied the doctrine underpinning the Full Faith and Credit Clause
and suggests that the Commission should have instead given full faith and credit to
the expungement. Id. at 13-14. In addition, Petitioner maintains that the case law
cited by the Commission in its Final Memorandum and Order regarding this clause
is “inapposite,” without elaborating on that conclusory statement, and cites to a
Tennessee case, Butler v. Tennessee Board of Nursing, No.
M201600113COAR3CV, 2016 WL 6248028 (Tenn. Ct. App. Oct. 25, 2016), in
support of her proposition that expunged out-of-state convictions cannot be used as
the basis for occupational license revocation. Petitioner’s Brief at 14. Petitioner then
discusses Kearney v. Bureau of Professional & Occupational Affairs, State Board
of Medicine, 172 A.3d 127 (Pa. Cmwlth. 2017), a case in which our Court held that
10
When considering a challenge to a decision made by the Commission, our standard of
review is limited to determining whether the Commission violated a petitioner’s constitutional
rights, committed an error of law, or issued findings of fact that were not supported by substantial
evidence. Gow v. Dep’t of Educ., 763 A.2d 528, 531 (Pa. Cmwlth. 2000).
11
Petitioner argues, without citation to case law or statute, that her failure to raise the matter
of expungement in her exceptions to the Proposed Report did not result in waiver of that issue,
because the Department “had ample time to address [her Amended] Motion to Dismiss[.]”
Petitioner’s Br. at 22.
8
the Commonwealth’s State Board of Medicine had erred in denying Kearney’s
application for reinstatement of his physician’s assistant license, which had been
automatically suspended after he pled guilty to a felony drug offense, subsequently
withdrew his plea, entered a drug court program, and then had all information
relating to the drug offense expunged after successfully completing a probationary
sentence. Petitioner’s Br. at 14-17; see Kearney, 172 A.3d at 128-29, 138.
Second, Petitioner claims that Section 9.2 of the Educator Discipline Act, as
applied to her, violated her due process rights under Article 1, Section 1 of the
Pennsylvania Constitution, because she was given a suspension of indefinite length
due to an irrebuttable presumption contained in this portion of the Act (i.e., all
educators who have been convicted of crimes of moral turpitude should have their
educator certification and employment eligibility revoked). Petitioner’s Br. at 18.
Petitioner then cites to several cases,12 all of which deemed specific statutory,
criminal conviction-based lifetime employment bans to be unconstitutional as-
applied on substantive due process grounds, in support of her argument that the
Commission violated her due process rights. Petitioner maintains there is
functionally no difference between an indefinite suspension and a lifetime ban, or a
reasonable justification for imposing such a sanction upon her. Petitioner’s Br. at
18-22.13
12
Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003); Peake v. Commonwealth, 132 A.3d
506 (Pa. Cmwlth. 2015); and Croll v. Harrisburg School District, (Pa. Cmwlth. No. 210 M.D.
2012, filed December 13, 2012), 2012 WL 8668130.
13
A literal reading of the statute in question would indicate that
[Petitioner] is facing an indefinite suspension, which could be a
lifetime ban. The limiting factor in the recent cases cited by
[Petitioner] and the Department . . . is not the lifetime ban, as the
Department . . . would argue, but the imposition of a one-size-fits-
9
Neither of Petitioner’s claims, however, stand up to scrutiny. With regard to
Petitioner’s first argument, we hold that the Full Faith and Credit Clause did not
compel the Commission to give full effect to the Superior Court of New Jersey’s
expungement of Petitioner’s theft by deception conviction.
The full faith and credit clause is one of the provisions
incorporated into the [United States] Constitution by its
framers for the purpose of transforming an aggregation of
independent, sovereign States into a Nation. The full faith
and credit clause, however, does not compel a state to
substitute the statutes of other states for its own statutes
dealing with a subject matter over which it is competent to
legislate. Further, full faith and credit does not mean that
States must adopt the practices of other States regarding
the time, manner, and mechanisms for enforcing
judgments. . . . [Moreover,] [t]he full faith and credit
clause does not require a State to subordinate its public
policy with respect to persons and their actions within its
borders to the laws of any other State, where the
enforcement of the right conferred elsewhere would be
obnoxious to the public policy of the forum.
Gies v. Dep’t of Trans., Bureau of Driver Licensing, 770 A.2d 799, 802-03 (Pa.
Cmwlth. 2001) (internal citations and some punctuation omitted).
Our General Assembly has enacted the Criminal History Record Information
Act (CHRIA), 18 Pa. C.S. §§ 9101-9183, which allows for records pertaining to
most criminal offenses, including theft by deception, to be expunged in extremely
rare situations. Section 9122(b) of CHRIA declares that
Criminal history record information may be expunged
when:
all approach to every crime of moral turpitude. The doctrine that
irrebuttable presumptions, where untrue, violate a teacher’s right[ ]
to due process, is the cornerstone of the cases cited by [Petitioner].
The Department has no rational basis to conclude that [Petitioner] is
unfit to teach at this time.
Petitioner’s Br. at 21-22.
10
(1) An individual who is the subject of the
information reaches 70 years of age and has been
free of arrest or prosecution for ten years following
final release from confinement or supervision.
(2) An individual who is the subject of the
information has been dead for three years.
(3)(i) An individual who is the subject of the
information petitions the court for the expungement
of a summary offense and has been free of arrest or
prosecution for five years following the conviction
for that offense.
(ii) Expungement under this paragraph shall only be
permitted for a conviction of a summary offense.
18 Pa. C.S. § 9122(b).14 Consequently, recognizing the expungement of Petitioner’s
New Jersey theft by deception conviction would run contrary to the public policy
decisions embodied by this statute, which is far more conservative and restrictive
than that governing expungement in New Jersey. Compare id. with N.J.S.A. §
2C:52-2 (New Jersey statute governing expungement of records pertaining to
“Indictable Offenses”). Therefore, the Commission did not err by declining to deem
14
The Department raises the CHRIA argument in its brief:
The Commission strives to ensure that similar violations result in
similar outcomes. See 22 Pa. Code § 233.113. It is noted that had
[Petitioner] been convicted of the same crime in Pennsylvania, she
would not be eligible for expungement of her crime. The
expungement of criminal convictions varies greatly across the
jurisdictions. In Pennsylvania, there is limited basis for the
expungement of a criminal conviction. See generally 18 Pa.C.S. §
9122. In New Jersey, expungements of criminal convictions are
granted far more liberally than in Pennsylvania pursuant to state
statute. See N.J.S.A. § 2C:52-2, N.J.S.A. § 2C:52-3.
Department’s Br. at 31 n.25.
11
Petitioner’s theft by deception conviction expunged and terminate disciplinary
proceedings against her on that basis.15
Furthermore, the Commission did not violate Petitioner’s due process rights
by revoking her educator certification and employment eligibility, as Section 16 of
the Educator Discipline Act provides a mechanism by which educators can seek
reinstatement of their revoked teaching licenses:
(a) An educator whose certificate or employment
eligibility has been suspended, revoked or surrendered
may apply to the commission for an order lifting the
suspension or reinstating the certificate. The commission
shall order the lifting of the suspension or reinstatement if
the commission determines it would be just and proper.
The commission shall seek and consider recommendations
from the department prior to ordering the lifting of the
suspension or reinstatement of the certificate and
employment eligibility and shall conduct hearings on the
application at the request of the educator in accordance
with procedures established by the commission in
accordance with this act. The commission shall also seek
15
The case law cited by Petitioner in no way alters this conclusion. Butler is a Tennessee
case applying Tennessee law and does not include analysis of, or even a single reference to, the
Full Faith and Credit Clause, which severely limits its persuasive value. See 2016 WL 6248028,
at *10-*16. As for Kearney, that case is entirely distinguishable, as it did not deal with a conviction
from a foreign jurisdiction or necessitate any Full Faith and Credit Clause analysis. Rather,
Kearney revolved around a license revocation based upon a withdrawn guilty plea given in the
Court of Common Pleas of Lackawanna County to one felony count of obtaining a controlled
substance by misrepresentation or fraud, in violation of Section 13(a)(12) of The Controlled
Substance, Drug, Device and Cosmetic Act (Controlled Substance Act), Act of April 14, 1972,
P.L. 233, as amended, 35 P.S. § 780–113(a)(12). See 172 A.3d at 129. Our holding in favor of
Kearney was based upon a relatively unique feature of the Controlled Substance Act, by which
Kearney was able to have the records related to his criminal proceeding expunged after completing
a sentence that we found “was the functional equivalent of a probation without a verdict[.]”
Kearney, 172 A.3d at 131-38. Because all of the information relating to Kearney’s drug offense
had been expunged, we determined that CHRIA barred the State Board of Medicine (Board) from
considering that information when determining whether Kearney should have his physician’s
assistant license reinstated, reversing the Board’s denial of Kearney’s application on that basis and
remanding for further proceedings. Id. at 136-38.
12
and may consider recommendations from the school entity
or entities in which the educator was employed at the time
of the misconduct. For purposes of determining whether it
is just and proper to lift a suspension or reinstate a
certificate, the commission may consider:
(1) The conduct which resulted in discipline.
(2) Other past conduct of the applicant.
(3) The applicant’s current attitude toward past
conduct.
(4) Rehabilitation efforts and activities.
(4.1) Evidence of compliance with any
conditions imposed as part of the discipline.
(5) References and letters of support of or in
opposition to reinstatement.
(b) The commission shall not lift the suspension or
reinstate the certificate or employment eligibility of an
educator if the suspension or revocation resulted from any
of the following:
(1) A finding of guilt by the commission for sexual
abuse or exploitation.
(2) Surrender of a certificate or employment
eligibility for conduct relating to sexual abuse or
exploitation.
(c) The commission shall not lift the suspension or
reinstate the certificate or employment eligibility of an
educator convicted of an offense set forth in section
111(e)(1) through (3) of the . . . Public School Code of
1949, for the time period set forth in that section.
24 P.S. § 2070.16 (quotation marks omitted); see also Bowalick v. Dep’t of Educ.,
840 A.2d 519, 522 (Pa. Cmwlth. 2004) (“Upon proof of a conviction of a crime of
moral turpitude, revocation on summary judgment [of an educator’s certification and
employment eligibility] does not violate due process.”).
[This] two-step process [i.e., automatic revocation,
followed by potential reinstatement upon application] . . .
recognizes that some educators, despite their conviction
for crimes of moral turpitude, should be re-admitted to
13
their profession and therefore, the Department is required
to reinstate a [teaching] certificate after a hearing if [the
Commission] deems reinstatement to be just and proper.
A two-step decertification/reinstatement process
constitutes a rational way for the General Assembly to
protect its children and further the State’s legitimate
interest in ensuring that state-certified educators are fit to
work closely with students.
Startzel v. Dep’t of Educ., 562 A.2d 1005, 1007-08 (Pa. Cmwlth. 1989) (discussing
24 P.S. § 1225(j),16 a predecessor to 24 P.S. § 2070.16). Therefore, Petitioner’s due
process rights were not violated by the Commission’s revocation of her educator
certification and employment eligibility, as this sanction represents a rational
exercise of the Commonwealth’s police power and, in addition, can potentially be
undone at this point if Petitioner chooses to avail herself of the aforementioned
reinstatement process. Consequently, we affirm the Commission’s October 24, 2017
Order, in full.
__________________________________
ELLEN CEISLER, Judge
16
Section 2 of the Act of May 29, 1931, P.L. 210, added by section 2 of the Act of August
13, 1963, P.L. 689, formerly 24 P.S. § 1225(j) (repealed by Act 71 of December 14, 1989).
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rebecca C. Jones, :
Petitioner :
:
v. : No. 1690 C.D. 2017
:
Pennsylvania Department of :
Education, :
Respondent :
ORDER
AND NOW, this 4th day of October, 2018, the Professional Standards and
Practices Commission’s October 24, 2017 Order is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge