PROFESSIONAL STANDARDS AND PRACTICES COMMISSION [22 PA. CODE CH. 237] Definitions of Statutory Terms [32 Pa.B. 2994] The Professional Standards and Practices Commission (Commission) proposes to amend Chapter 237 (relating to definitions of statutory terms) to read as set forth in Annex A. The proposed amendments are made under the authority of sections 5(a)(11) and 9.2 of the Professional Educator Discipline Act (act) (24 P. S. §§ 2070.5(a)(11) and 2070.9b).
The Commission was created by the act of December 12, 1973 (P. L. 397, No. 141) as amended by the act of November 21, 2000 (P. L. 918, No. 123) (Act 123). By virtue of the act, the General Assembly has empowered the Commission to discipline professional educators and charter school staff members. In addition, the General Assembly directed the Commission to establish definitions consistent with its authority to discipline under sections 5(a)(11) and 9.2 of the act. Accordingly, the Commission did promulgate definitions in May of 1994.
Purpose
This chapter establishes definitions under sections 5(a)(11) and 9.2 of the act. The act recently was amended by Act 123 and this proposed rulemaking reflects the amendments to the act.
Requirements of the Propose Amendments
The most significant new requirements under the proposed amendments to this chapter are:
1. The recognition of the extended jurisdiction of the Commission to discipline charter school staff members, as well as professional educators, as contemplated by the recent amendments to the act.
2. The standard for ''morals of a community'' within the definition of immorality has been changed from a local standard to a Statewide standard to comport with the overall mission of the Commission.
3. A definition for the term ''surrender in lieu of discipline'' has been added to this chapter to reflect the recent amendments to the act, which designated a surrender in lieu of discipline as a specific type of discipline. The most significant impact of this designation is that surrenders in lieu of discipline are now considered public under the act.
Affected Parties
This chapter primarily affects professional educators who have been certified by the Department of Education (Department) as well as charter school staff members who are employed by a charter school in a position for which Pennsylvania certification would be required in a public school other than a charter school but who are not required to hold State certification under section 1724-A of the School Code of 1949 (24 P. S. § 17-1724-A).
Cost and Paperwork Estimates
It is not anticipated that the proposed amendments will engender any additional costs or paperwork for affected parties, which include professional educators, charter school staff members, local school districts and the Department.
Effective Date
This proposed rulemaking would become effective upon final-form publication in the Pennsylvania Bulletin.
Sunset Date
The Commission will review the effectiveness of Chapter 237 on an ongoing basis. Thus, no sunset date is necessary.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 11, 2002, the Commission submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees on Education. In addition to submitting the proposed rulemaking, the Commission has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed rulemaking, it will notify the Commission within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion of the proposed rulemaking. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the amendments, by the Commission, the General Assembly and the Governor of objections raised.
Public Comments and Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding this proposal to Carolyn Angelo, Executive Director, Professional Standards and Practices Commission, 333 Market Street, Harrisburg, PA 17126-0333 within 30 days following publication in the Pennsylvania Bulletin. Persons needing additional information regarding this proposal may contact Carolyn Angelo at (717) 787-6576.
Persons with disabilities who need an alternative means of providing public comment may make arrangements by calling Carolyn Angelo at (717) 787-6576. Alternative formats of this proposed rulemaking (such as, Braille, large print, cassette tape) can be made available to members of the public upon request to Carolyn Angelo at the telephone number previously listed.
CAROLYN ANGELO,
Executive DirectorFiscal Note: 6-274. No fiscal impact; (8) recommends adoption.
Annex A TITLE 22. EDUCATION PART XIV. PROFESSIONAL STANDARDS AND PRACTICES COMMISSION CHAPTER 237. DEFINITIONS OF STATUTORY TERMS Subchapter A. DEFINITIONS § 237.1. Purpose
(a) Under [section] sections 5(a)(11) and 9.2 of the [act of December 12, 1973 (P. L. 397, No. 141) (act) (24 P. S. § 12-1255(a)(11)), known as the Teacher Certification Law] Professional Educator Discipline Act (act) (24 P. S. §§ 2070.5(a)(11) and 2070.9b), the Professional Standards and Practices Commission (Commission) is vested with the duty and granted the power to discipline professional educators [charged with or convicted of certain criminal offenses or found guilty by the Commission, after hearing, of certain statutory offenses] and charter school staff members and to consider the reinstatement applications of professional educators and charter school staff members who seek to have previously revoked or suspended certificates or eligibility reinstated.
(b) Under section 5(a)(11) of the act, the Commission has adopted this subchapter to define terms in [section 5(a)(11) of] the act which describe the conduct for which discipline of a professional educator or charter school staff member might be imposed by the Commission.
(c) This subchapter is not the sole authority for defining terms under [section] sections 5(a)(11) and 9.2 of the act. Judicial interpretations and adjudications of the Commission will authoritatively define the statutory terms. Judicial decisions and decisions of the Secretary under Article XI, Part C of the Public School Code of 1949 (24 P. S. §§ 11-1121--11-1133)[--], known as the Teachers' Tenure Act [--], and decisions of the Secretary under the Teachers' Tenure Act are not binding upon the Commission but [will] may be regarded as persuasive authority.
(d) The standards and conduct expected of a professional educator or charter school staff member are also prescribed by Chapter 235 (relating to Code of Professional Practice and Conduct for Educators), the violation of which may be grounds for discipline.
(e) The definitions found in section 1.1 of the act (24 P. S. § 2070.1b) are incorporated herein by reference.
§ 237.2. Scope and effect.
(a) Applicability. This subchapter applies to the terms in [section] sections 5(a)(11) and 9.2 of the [act of December 12, 1973 (P. L. 397, No. 141) (act), known as the Teacher Certification Law] Professional Educator Discipline Act (24 P. S. §§ 2070.5(a)(11) and 2070.9b), and proceedings before the Commission. This subchapter does not apply to similar or identical terms used in other regulations or statutes, including section 1122 of the Public School Code of 1949 (24 P. S. § 11-1122), or to proceedings before a board of school directors or the Secretary under Article XI of the Public School Code of 1949 (24 P. S. §§ 11-1121--11-1133), known as Teachers Tenure Act, or to proceedings before the Secretary under [sections] section 2(i) and (j) of the act of May 29, 1931 (P. L. 210, No. 126), and section 1211 of the Public School Code of 1949, which were partially preserved from repeal by section 2 of the act of April 26, 1990 (P. L. 122, No. 33).
(b) Statewide effect. The act and this subchapter will be construed and applied by the Commission in the context of the Commission's power and duty to determine the present, continuing and future fitness and ability of a person to properly perform in this Commonwealth the duties and responsibilities of a professional educator [in the area of the person's certification] or charter school staff member.
§ 237.3. Immorality.
[(a) Definition.] Immorality is conduct which offends the morals of [a community] the Commonwealth and is a bad example to the youth whose ideals a professional educator or a charter school staff member has a duty to foster and elevate.
[(b) Morals of a community. For purposes of the definition of the term ''immorality'' set forth in subsection (a), the ''morals of a community'' means the morals of the community in which the professional educator is employed.]
§ 237.4. Incompetency.
Incompetency is a continuing or persistent mental or intellectual inability or incapacity to perform the services expected of a professional educator or a charter school staff member.
§ 237.6. [Habitual use of drugs or narcotics] (Reserved).
[(a) Definition. Habitual use of drugs or narcotics is the illegal or improper use of drugs or narcotics on a frequent or regular basis.
(b) Drugs and narcotics. The terms ''drug or narcotics'' as used in section 5(a)(11) of the act of December 12, 1973 (P. L. 397, No. 141), known as the Teacher Certification Law (24 P. S. § 12-1225(a)(11)) are defined as the terms ''drug'' and ''narcotic'' are defined in section 2 of The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § 780-102), and as the term ''drug'' is defined by section 2 of the Pennsylvania Drug and Alcohol Abuse Control Act (71 P. S. § 1690.102).]
§ 237.8. Negligence.
(a) Definition. Negligence is a continuing or persistent [actions] action or [omissions] omission in violation of a duty.
(b) Duty. A duty may be established by law, by [duly] promulgated school rules, policies or procedures, by express direction from superiors or by duties of professional responsibility, including duties prescribed by Chapter 235 (relating to Code of Professional Practice and Conduct for Educators).
§ 237.9. Crimes [and misdemeanors] involving moral turpitude.
(a) Definition. Moral turpitude includes the following:
(1) That element [and] of personal misconduct in the private and social duties which a person owes to his fellow human beings or to society in general, which characterizes the act done as an act of baseness, vileness or depravity, and contrary to the accepted and customary rule of right and duty between two human beings.
* * * * * (b) Elements of the crime [or misdemeanor]. A determination of whether a crime [or misdemeanor] involves moral turpitude will be determined based solely upon the elements of the crime [or misdemeanor]. The underlying facts or details of an individual criminal charge, indictment or conviction [is] are not relevant to the issue of moral turpitude. [The actual guilt or professed innocence of the charged, indicted or convicted professional educator is not relevant.]
(c) Specific crimes [or misdemeanors]. Crimes [or misdemeanors] involving moral turpitude per se include the following:
(1) An offense under 18 Pa.C.S. (relating to crimes and offenses) listed in section 111(e)(1) of the Public School Code of 1949 (24 P. S. § 1-111(e)(1)). At any time subsequent to the adoption of this chapter if section 111(e)(1) is amended to add or delete crimes, the Commission will consider each additional or deleted crime to determine if the crime involves moral turpitude per se and will vote at a public meeting whether the crime will be designated as involving moral turpitude per se for purposes of cases coming before the Commission under section 9.2 of the Professional Educator Discipline Act (24 P. S. § 2070.9.2) (act).
* * * * * (3) An offense of a criminal law of the Commonwealth, the Federal government or another state or territory of the United States, or another nation, an element of which offense is delivery of a controlled substance or possession of a controlled substance with intent to deliver.
(4) A State offense, out-of-State offense or Federal offense or an offense of another nation similar in nature to crimes [listed] in paragraphs (1)--(3).
(d) Certified copy. For purposes of section [5(a)(11)] 9.2 of the [act of December 12, 1973 (P. L. 397, No. 141), known as the Teacher Certification Law] (act) (24 P. S. § [12-1225(a)(11) (act)] 2070.9b) and this section, a document certified by the clerk of court or other judicial officer designated by law as the official custodian of criminal court records or certified by the official custodian of the appropriate licensing authority in another state, territory or nation will be treated by the Commission as a certified copy of the document.
(e) Indictment. Indictment under section [5(a)(11)] 9.2 of the act includes a criminal complaint, criminal information or other similar document filed in a court of competent jurisdiction.
(f) Conviction. The term conviction under section [5(a)(11)] 9.2 of the act is defined to mean the [entry of a judgment of sentence] verdict, judgment or sentence or the entry of an order which constitutes a final order by the sentencing court. [Judgment of sentence following a] A plea of guilty or nolo contendere constitutes a conviction for purposes of this section.
§ 237.10. Surrender in lieu of discipline.
A professional educator's teaching certificate or a charter school staff member's eligibility to teach will be considered surrendered in lieu of discipline whenever the certificate or eligibility is surrendered to the Department after a local school entity furnishes the educator or charter school staff member with a written statement of charges for dismissal under section 1127 of the Public School Code of 1949 (24 P. S. § 11-1127), or after the educator or charter school staff member is discharged for cause by a local school entity, or after the Department receives a report concerning the educator or charter school staff member under section 9.1 of the Professional Educator Discipline Act (24 P. S. § 2070.9b) (act), or after the Department receives a complaint concerning the educator or charter staff member under section 9 of the act (24 P. S. § 2070.9).
[Pa.B. Doc. No. 02-1097. Filed for public inspection June 21, 2002, 9:00 a.m.]
