Constitutionality of Section 15(d) of the Educator Discipline Act’s requirement to make all adjudications imposing discipline available on Department of Education websites
T.G.A. v. Dep’t of Educ. (Pro. Standards & Pracs. Comm’n), 302 A.3d 830 (Pa. Cmwlth. 2023) (sealed), direct appeal, appeal docket 21 WAP 2023 (sealed); R.W. v. Dep’t of Educ. (Pro. Standards & Pracs. Comm’n), 304 A.3d 79 (Pa. Cmwlth. 2023), allocatur granted June 25, 2024, appeal docket 17 WAP 2024 (sealed)
In these appeals, filed under seal and scheduled to be argued simultaneously, the Pennsylvania Supreme Court will consider the constitutionality of Section 15(d) of the Educator Discipline Act (Act), which requires the state to publicize suspensions of teachers who are charged with serious crimes, as applied to teachers’ whose criminal charges were resolved in the teachers’ favor.
T.G.A. v. Dep’t of Education, 302 A.3d 830 (Pa. Cmwlth. 2023)
T.G.A. (Educator) filed an original jurisdiction petition for review seeking declaratory, injunctive, and mandamus relief from Department of Education (Department) and Professional Standards and Practices Commission (Commission, together with the Department, the Respondents) to compel Respondents to remove Educator’s discipline listing from their websites on the basis that Section 15(d) of the Act, 24 P.S. § 2070.15(d), which requires the Commission and Department to make all adjudications imposing discipline available on their websites, is unconstitutional. Commonwealth Court summarized the factual background as follows:
On August 21, 2017, Educator was charged with aggravated indecent assault, unlawful restraint, and indecent assault for actions involving an adult he met on a dating website. T.G.A. I, slip op. at 1-2. After a hearing on February 28, 2018, in which Educator chose not to participate, Educator’s teaching certificate was immediately suspended pursuant to Section 9.2(a)(1) of the Act, added by the Act of December 22, 2000, P.L. 918, 24 P.S. § 2070.9b(a)(1), 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), 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. T.G.A. I, slip op. at 2. Pursuant to Section 15(d) of the Act, a record of Educator’s immediate suspension was posted on Respondents’ websites. Id. On October 11, 2018, Educator was acquitted of all criminal charges in a bench trial. Id. Thereafter, the Commission directed the Department to lift Educator’s suspension as required by Section 9.2(a)(1)(iii) of the Act, 24 P.S. § 2070.9b(a)(1)(iii), because Educator was acquitted of the charges. Id. 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 continues to reside in Pennsylvania, his Pennsylvania certificate is inactive for reasons unrelated to any discipline, and he remains employed as a teacher by a school district in Ohio, which is not far from his home. Id. In a letter dated June 9, 2022, Educator, through counsel, wrote to the Department requesting that the Department remove its publication of his criminal charges from its website, which the Department did not do. Id. See Petitioner’s Brief in Support of Summary Relief, Exhibit I.
The Court overruled Respondents’ first preliminary objection because the defense of sovereign immunity does not apply to the relief sought by Educator. T.G.A. I, slip op. at 6-8. The Court concluded that because Educator “seeks to restrain Respondents from engaging in conduct he alleges is unconstitutional, the sovereign immunity defense does not apply.” Id. at 8. The Court overruled Respondents’ second preliminary objection in the nature of a demurrer because it was not clear and free from doubt that Educator is not entitled to relief. Id. at 8. The Court also denied Educator’s request for a preliminary injunction because Educator failed to show that a preliminary injunction was necessary to prevent any immediate harm or that he was denied employment as a teacher because of the Department’s listing. Id. at 8-11.
302 A.3d at 836-837. Respondents and Educator filed Cross-Applications for Summary Relief raising a number of arguments. First, Educator submitted that maintenance of his discipline history on the Respondents’ websites unconstitutionally deprived Educator of his property right to teach in the state, arguing that:
…he was unable to participate in the hearing before his immediate suspension was imposed, because he would have been compelled to potentially incriminate himself while criminal charges were pending. Educator argues that Respondents did not notify him of the option to provide an affidavit agreeing not to teach while criminal charges were pending. See Section 9.2(a)(1)(ii) of the Act, 24 P.S. § 2070.9b(a)(1)(ii). Educator argues that his continued association with criminal charges of which he was acquitted and which were expunged is not rationally related to Respondents’ legitimate governmental interest in either student or staff safety. In the alternative, Educator argues that Respondents’ actions in maintaining his discipline record are arbitrary.
302 A.3d at 839. Respondents countered “that their right to regulate Educator’s employment is a legitimate exercise of their police powers, and that maintenance of Educator’s discipline listing is rationally related to the Act’s purpose, which is to safeguard school students and staff” and objected to Educator’s request for declaratory relief on the basis that Educator:
… has not exhausted the administrative processes available to him. Respondents argue that Educator could have participated in the pre-suspension hearing without incriminating himself by offering argument only, or by offering testimony or evidence from others to show that he was not a danger to students or staff. Respondents also note that, as specifically provided in Section 9.2(a)(1)(ii) of the Act, Educator could have avoided an immediate suspension, and thus would have had no discipline listing, if he filed an affidavit agreeing not to work as a teacher while his criminal charges were pending, but he did not do so. Respondents also argue that Educator failed to sufficiently aver that his right to work as a teacher has been infringed upon by Respondents’ discipline listing, because, in fact, Educator remains employed in Ohio as a teacher, and he presented no evidence that he was denied teaching employment in Pennsylvania because of Respondents’ discipline listing.
Id. Educator further argued that the manner in which Department had listed and maintained discipline history unconstitutionally infringed on Educator’s substantive due process right to protect his reputation and violates the Criminal History Record Information Act (CHRIA). Commonwealth Court summarized the parties’ arguments as follows:
Educator argues that Respondents’ perpetual publication of his immediate suspension that references the underlying criminal charges, which were dismissed and expunged, violates his substantive due process rights by infringing on his right to reputation protected by article I, section 1 of the Pennsylvania Constitution. Educator argues that being publicly associated with charges of which he was acquitted and were expunged frustrates the purpose of the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §§ 9101-9183, and specifically violates Section 9122 of CHRIA, 18 Pa. C.S. § 9122 (governing expungement of criminal history record information), and Section 9124 of CHRIA, 18 Pa. C.S. § 9124 (governing the use of criminal history record information by licensing agencies). Educator acknowledges that immediate suspension under Section 9.2(a)(1) of the Act comports with the purpose of protecting students and school staff from a teacher charged with serious crimes, while the criminal process is pending. Educator objects to Respondents’ permanent maintenance of Educator’s discipline record because it no longer serves a compelling state interest when the “danger” has passed, once Educator was acquitted and the charges expunged. Educator further argues that when his suspension was lifted pursuant to Section 9.2(a)(1)(iii) of the Act, Respondents should have erased or expunged his discipline record entirely, because the underlying criminal charges were expunged.
Respondents argue that the Act requires suspension under these circumstances to protect students and school staff from Educator and to ensure that past educator discipline remains available to protect the ongoing safety of school students and staff. Respondents argue that in furtherance of the state’s compelling interests in both safety and transparency, suspension based on sexual misconduct charges is both immediate and public and is not subject to a stay even if appealed pursuant to Section 15(b)(1) of the Act, 24 P.S. § 2070.15(b)(1). Respondents further argue that Section 17.2 of the Act, added by the Act of December 18, 2013, P.L. 1205, 24 P.S. § 2070.17b, which contains strict confidentiality provisions for educator discipline proceedings, specifically exempts from these strict confidentiality requirements immediate suspensions, information previously made public, or information that was available independently. Respondents submit that although Educator’s criminal charges were expunged after acquittal, CHRIA does not apply to Respondents because neither the Department nor the Commission are criminal justice agencies subject to CHRIA. Respondents note that criminal history record information collected by noncriminal justice agencies is specifically excluded from CHRIA’s scope, pursuant to Section 9102 of CHRIA, 18 Pa. C.S. § 9102 (Definitions), and Section 9104(e) of CHRIA, 18 Pa. C.S. § 9104(e) (“[i]nformation collected by noncriminal justice agencies and individuals identified in this section shall not be considered criminal history record information”). Respondents contend that Educator’s reputation was not harmed by the accurate listing of Educator’s arrest contained on their websites, and information on Educator’s arrest is already available to the public or any employer when they conduct a simple Google search. See Exhibit 2 to Respondents’ Brief.
302 A.3d at 841-842.
Commonwealth Court held that the maintenance of discipline history on the Department and Commission’s websites did not deprive Educator of property right to teach, reasoning that:
First, we note that Educator is not prohibited from working as a teacher in Pennsylvania based on his criminal charges or because of his lifted suspension. Although Section 111(e)(1) through (3) of the School Code prohibits school employees with certain criminal convictions from being employed in a school setting, there is no such prohibition for school employees who are charged with those crimes. Second, as stipulated to by the parties, Educator continues to teach in Ohio where he continues to pursue his lawful profession. See Pre-Hearing Stipulations attached to Petitioner’s Brief in Support of Summary Relief. Third, Educator did not aver or testify before this Court that he was denied a teaching job in Pennsylvania because of his criminal charges or his lifted suspension. See T.G.A. I, slip op. at 2. Therefore, Educator failed to show that he has been deprived of his protected property right to continue his lawful employment as a teacher by Respondents’ maintenance of his discipline history on their websites.
302 A.3d at 840. In so holding, the court rejected Educator’s argument that Section 15(d) of the Act is unconstitutional as applied to his employment rights, “because Respondents’ maintenance of Educator’s discipline history is rationally related to the ongoing safety of school students and staff.” Id.
Next, Commonwealth Court addressed Educator’s arguments that Section15(d) of the Act violates and/or frustrates the purpose of CHRIA. As a matter of first impression, Commonwealth Court found that to “lift” a teacher’s suspension under CHRIA means to remove the suspension upon the teacher’s acquittal of the criminal charges that gave rise to his immediate suspension and does not require that Educator’s disciplinary record of suspension must be destroyed or erased completely, opining that:
Section 1.2 of the Act, added by the Act of December 20, 2000, P.L. 918, 24 P.S. § 2070.1b (Definitions), includes “suspension” in the definition of “discipline.” “Suspension” is defined as “the temporary termination of a certificate … for a specific period of time, for an indefinite period of time or until specific conditions are met.” Id. The Act does not directly define “lift” or “expunge,” but it describes specific circumstances in which the Department must “lift a suspension” or “expunge” an educator’s discipline records. In the context of discipline for criminal offenses, Section 9.2(a)(1)(iii) of the Act requires Respondents to “immediately lift a suspension upon receipt of certified court documents establishing that the charges have been dismissed or otherwise removed.” In the context of reinstatement of a certificate, Section 16(a) of the Act, 24 P.S. § 2070.16(a), permits an educator whose certificate has been suspended to “apply to the [C]ommission for an order lifting the suspension.” The Commission “shall order the lifting of the suspension … if the [C]ommission determines it would be just and proper.” Id. When an educator’s suspension has been lifted, the educator is eligible to teach in Pennsylvania.
In contrast, Section 15(c) of the Act requires:
Where the [C]ommission’s adjudication finds no educator misconduct under this [A]ct, the charges pertaining to the disciplinary proceeding shall be expunged from any personal or professional file of the educator maintained by the [D]epartment and the school entity unless the school entity has taken or is pursuing local disciplinary action against the educator.
24 P.S. § 2070.15(c). Thus, although the Act does not directly define “lift” or “expunge,” the Act directs that suspensions be lifted in certain circumstances, and discipline records be expunged in other circumstances. The Act does not state that an educator’s suspension must be expunged when the educator is acquitted of the criminal charges that gave rise to his immediate suspension.
Because they are not specifically defined in the Act, we turn to other sources to construe “lift” and “expunge” according to their common and approved usage. “Lift” is defined as follows:
To raise, to take up. To “lift” a promissory note is to discharge its obligation by paying its amount or substituting another evidence of debt. To “lift the bar” of the statute of limitations, or of an estoppel, is to remove the obstruction which it interposes, by some sufficient act or acknowledgement.
Black’s Law Dictionary 924-25 (6th ed. 1990). “Expunge” is defined as “[t]o destroy; blot out; obliterate; erase; effect designedly; strike out wholly. The act of physically destroying information—including criminal records—in files, computers, or other depositories.” Black’s Law Dictionary 582 (6th ed. 1990).
With the descriptions of these terms in the Act and the definitions of these terms in mind, we conclude that to “lift” Educator’s suspension under the Act means to remove the suspension upon Educator’s acquittal of the criminal charges that gave rise to his immediate suspension. We reject Educator’s argument that the disciplinary record of his suspension must be destroyed or erased completely, because the legislature did not require Respondents to “expunge” a suspension upon acquittal of criminal charges, but rather to “lift” the suspension. We may not rewrite the Act to substitute “expunge” for “lift.” City of Johnstown, 255 A.3d at 221. We further note that here, Respondents lifted Educator’s suspension after he was acquitted of his criminal charges pursuant to Section 9.2(a)(1)(iii) of the Act, and Respondents expunged all of Educator’s records relating to a separate educator misconduct charge after the Commission dismissed the charge pursuant to Section 15(c) of the Act. The difference between lifting a suspension and expunging a discipline record were clearly demonstrated in Educator’s interactions with Respondents.
302 A.3d at 842-844. Commonwealth Court further held that CHRIA’s guidelines do not apply to the website postings required by the Act because the Department is not a “criminal justice agency” under the plain language of CHRIA, and Educator’s discipline information was not “criminal history record” as defined by CHRIA.
Commonwealth Court concluded that the manner in which the Commission listed and maintained discipline history pursuant to Section 15(d) of the Act violated Educator’s right to reputation because it was not narrowly tailored to Commonwealth’s interest in safeguarding students and school staff, reasoning that:
Here, the Commission has published and maintained Educator’s “Certificate Action Details” on its website as required by Section 15(d) of the Act. Educator’s listing includes categories of information for his name, date of birth, last school in which employed, last position held, certificate type and area, the action taken (regarding his certificate), the date of the notification, and the date the action was taken. Under the category “Action Taken,” the Commission entered Educator’s “Immediate Suspension,” and on a separate page stated that his “Suspension [was] Lifted,” accompanied by respective dates those actions were taken. The listing also includes a category entitled “Grounds for Discipline,” in which the following description appears: “Educator was criminally charged with Aggravated Indecent Assault, Unlawful Restraint, and Indecent Assault.” On the page detailing the lifting of Educator’s suspension, the “Grounds for Discipline” category is blank. On its TIMS website, the Department also maintains Educator’s listing, which includes similar information about Educator and the status of his teaching certificate, and a notation that his certificate was suspended and that the suspension was lifted, but it contains no details about the reason for the suspension or about his arrest.
Under the applicable strict scrutiny standard, we conclude that the manner in which the Commission has listed and maintained Educator’s discipline history under Section 15(d) of the Act is not “narrowly tailored” to the Commonwealth’s interest in safeguarding students and school staff and is, therefore, unconstitutional as applied to Educator. Khan, 842 A.2d at 947; Nixon, 839 A.2d at 287. For the reasons discussed earlier, this conclusion does not require Respondents to expunge or erase completely Educator’s discipline history from their websites upon his acquittal of those criminal charges. However, under the facts presented here, we conclude that the manner in which Respondents have listed and maintained Educator’s discipline history unconstitutionally infringes on his right to protect his reputation by continuing to associate him with criminal charges of which he was acquitted and which were expunged. Therefore, we direct Respondents to remove all specific references to the crimes with which Educator was charged, in particular, the recitation of the criminal charges under the “Grounds for Discipline” on the Commission’s website.
It is important to note that Section 15(d) of the Act does not require Respondents to include specific criminal information on their websites for educators who receive discipline because of criminal charges or convictions. Section 15(d) of the Act requires the Commission to “make all adjudications imposing discipline, other than a private reprimand, available on a publicly accessible Internet website,” and in cooperation with the Department, to “maintain[ ] a central online registry on a publicly accessible Internet website” for educators “whose eligibility for employment has been suspended, revoked, surrendered or otherwise disciplined” pursuant to the Act.
302 A.3d at 846-847.
Granting in part and denying in part the Cross-Applications for Summary Relief, the court found that while issuance of permanent injunction requiring the Department to redact specific information was warranted, granting mandamus relief was not, concluding that:
We deny Educator’s request to completely expunge his disciplinary record from Respondents’ websites, and grant Respondents’ request to maintain on their websites the record of Educator’s immediate suspension and the lifting of that suspension. We grant Educator’s request and deny Respondents’ request regarding the manner in which Respondents have listed and maintained Educator’s disciplinary record on their websites, and direct Respondents to remove all references to Educator’s criminal charges from their websites. We grant Educator’s request for declaratory relief, and declare that Section 15(d) of the Act is unconstitutional as applied to Educator, to the extent that Respondents may no longer list and maintain information on their websites regarding Educator’s criminal charges. We grant Educator’s application for a permanent injunction because we conclude that Educator has established a clear right to excision as a remedy for the unconstitutional damage to his reputation, which cannot be compensated for by damages, and that greater injury will result from refusing rather than granting the requested relief. See Big Bass Lake Community Association, 950 A.2d at 1144 n.8. Finally, we deny Educator’s request for mandamus relief because our direction to Respondents does not involve a ministerial act or mandatory duty, but a narrowly tailored remedy to address the infringement of Educator’s constitutional right to protect his reputation. See Valley Forge Racing Association, Inc., 297 A.2d at 824-25.
302 A.3d at 848.
R.W. v. Dep’t of Educ. (Pro. Standards & Pracs. Comm’n), 304 A.3d 79 (Pa. Cmwlth. 2023)
R.W. (Educator) petitioned the Commonwealth Court for review of an order entered by the Department of Education, which denied R.W.’s administrative petition for complete reinstatement of his teaching certificate or expungement of his discipline listing on the Commission’s and Department of Education’s websites. Commonwealth Court summarized the relevant factual history 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), 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.
[…]
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. Respondents’ Brief at 5.
304 A.3d at 84-85. Educator did not appeal from the Commission’s suspension order or from the order lifting the suspension; instead, 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. The Commission denied Educator’s petition to expunge the discipline history regarding his suspension on the basis of administrative finality, however addressed Educator’s substantive arguments, as summarized by Commonwealth Court:
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 is made, is not invalidated by the subsequent dismissal (or even expungement) of the criminal charges. Moreover, had the General Assembly intended such a result, it could easily have included language to that effect. Thus, we interpret the term “lift” in this context to mean the restoration of the educator’s ability to serve as an educator effective upon the dismissal or removal of the criminal charges, rather than the nullification of the Commission’s order imposing a suspension.
R.R. at 75a-76a. (emphasis in original).
The Commission also rejected Educator’s petition to expunge his suspension, concluding that there is no legal basis for this request. R.R. at 76a. The Commission noted that the trial court’s expungement order does not apply to or bind the Commission. Id. The Commission noted that records must be expunged in only one circumstance under the Act, when the Commission or appellate court “finds no educator misconduct” under Section 15(c) of the Act, 24 P.S. § 2070.15(c), and the Commission made no such finding here. Id. The Commission concluded that although the trial court’s expungement erases the record of Educator’s criminal charges, “it does not erase the Commission’s determination that an educator poses a threat to the health, safety or welfare of students or others in a school and cannot be used as a substitute for a finding by the Commission or an appellate court that there was no educator misconduct.” R.R. at 76a-77a. The Commission also concluded that because Section 15(d) of the Act requires all adjudications imposing educator discipline other than a private reprimand to be made publicly available on Respondents’ websites, removal of Educator’s suspension would be contrary to law. Id. at 77a.
304 A.3d at 85-86. Educator appealed to Commonwealth Court, arguing, inter alia, that removal of website references was required by Section 15(d) of the Act, that the required denial of expungement violated Educator’s constitutionally protected property interest in continuing to lawfully teach in state, and that the manner in which Educator’s discipline history was listed and maintained on the website was not narrowly tailored to state’s interest in safeguarding students and school staff.
Commonwealth Court disagreed with the Commission that Educator’s petition was barred by administrative finality. As to Educator’s arguments, the court reached the same conclusions based on identical reasoning supplied in T.G.A. – that while the Educator no longer had constitutionally protected property interest in continuing to lawfully teach in state, the manner in which his discipline history was listed and maintained on Department and Commission websites was not narrowly tailored to state’s interest in safeguarding students and school staff.
Judge Dumas dissented on the basis that R.W. was not acquitted of criminal charges, “[r]ather, the charges against him were nolle prossed and therefore subject to different legal standards and outcomes.” 304 A.3d at 95-96. The dissent reasoned:
An acquittal is a resolution in the defendant’s favor. “A judgment of acquittal, whether based on a verdict of not guilty or on a ruling by the court that the evidence was insufficient to convict, may not be appealed.” Commonwealth v. Gibbons, 567 Pa. 24, 784 A.2d 776, 778 (2001). In contrast, a nolle prosse is “a voluntary withdrawal by a prosecuting attorney of charges in a particular criminal bill or information and acts neither as an acquittal nor a conviction.” Kearney v. Bureau of Pro. & Occupational Affs., State Bd. of Med., 172 A.3d 127, 129 n.3 (Pa. Cmwlth. 2017). Following a nolle prosse, the Commonwealth may reinstate charges against the defendant. Commonwealth v. Whiting, 509 Pa. 20, 500 A.2d 806, 807 (1985).
Additionally, when the Commonwealth brings criminal charges to trial, a factfinder has an opportunity to consider the circumstances and facts underlying the case and make a determination; in a nolle prosse, which may occur at any time during a criminal proceeding, the facts may never be heard in an open court. This difference is reflected in the concerns and procedures regarding expungement. Following acquittal, a defendant is entitled to expungement as of right. Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770 (1997). After a nolle prose, the Commonwealth may challenge expungement in a Wexler hearing. See Commonwealth v. Moto, 611 Pa. 95, 23 A.3d 989, 993 (2011); Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877, 879 (1981).
In a Wexler hearing, the court considers several relevant factors including, but not limited to (1) the strength of the Commonwealth’s case against the petitioner; (2) the reasons the Commonwealth wishes to retain the records; (3) the petitioner’s age, criminal record, and employment history; (4) the length of time elapsed between the arrest and the petition to expunge; and (5) any specific, adverse consequences the petitioner may endure should expunction be denied. See Moto, 23 A.3d at 993. Thus, the court balances the Commonwealth’s interest in maintaining records for safety reasons against an individual’s interest in freeing his record of criminal charges. See, e.g., id. at 994-95 (suggesting that expungement may be improper where the Commonwealth has withdrawn charges because a wife-complainant has refused to testify against a husband-defendant or where a minor victim is unable to testify against an alleged sexual offender).
Moreover, in other circumstances where the Commonwealth’s safety interest is less compelling, the reporting of information regarding a defendant’s arrest and charges is considered merely a collateral consequence of those charges. See, e.g., Ferguson v. Dep’t of Transp., 267 A.3d 628, 632 (Pa. Cmwlth. 2021), appeal granted, 280 A.3d 859 (Pa. 2022) (distinguishing Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), overruled by Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (holding that a prior acceptance of ARD in a DUI case is a prior offense, and not unconstitutional in license suspension civil proceedings).
304 A.3d at 96. Thus, the dissent concluded: “If the purpose of the Act is to protect students and school staff from a teacher charged with serious crimes, then it would be antithetical to that purpose to direct the Commission to remove all references to R.W.’s criminal charges from its websites.” Id.
Educator R.W. sought review by the Pennsylvania Supreme Court, which granted allocatur as to the following issues:
(1) Whether the Commonwealth Court erred in concluding, contrary to the Educator Discipline Act, that the Department of Education and the Professional Standards and Practices Commission are not required to remove all references to the immediate certificate suspension imposed on educators who are charged with serious crimes from their public web sites, when the charges that required the immediate suspension have been nolle prossed, and all criminal records related too those charges have been expunged?
(2) If the Educator Discipline Act does not require complete removal of all reference to the immediate suspension imposed when an educator is charged with a crime after the charges have been resolved in the educator’s favor, is the Act an unconstitutional violation of the educator’s property, due process, and reputational rights?
In granting allocatur, the Supreme Court ordered that R.W. be argued simultaneously with T.G.A.
For more information, contact Kevin McKeon or Dennis Whitaker.