School employee with conviction can keep job, court rules
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Commonwealth Court has ruled the state cannot force the Allegheny Intermediate Unit to fire a longtime employee even though a new state law places a lifetime ban on school employment for those convicted of certain crimes.
Thursday's decision applies to Arthur Johnson of the North Side who was hired by the AIU after he disclosed he had been convicted of voluntary manslaughter 18 years earlier, had served five years in jail and had completed his five-year probation.
"We are pleased that he can continue," said AIU executive director Linda Hippert, who called Mr. Johnson "exemplary."
Mary Jo Miller, a Pennsylvania State Education Association attorney who represents Mr. Johnson, said the decision would have implications for other current school employees in similar situations but does not address potential future employees.
Mr. Johnson was hired initially as a van driver, later becoming a facilitator for the AIU's fatherhood program, counseling hundreds of young dads.
Under the old law, school job applicants had to undergo criminal background checks and were prohibited from becoming employed for five years after conviction for certain serious offenses.
The new law, known as Act 24 of 2011, sets a lifetime ban. The state Department of Education has maintained that applies to current and future employees.
The PSEA earlier this year filed lawsuits fighting for the jobs of Mr. Johnson and five others in Delaware, Dauphin and York counties.
His is the first to have an appellate decision.
Mr. Johnson initially won a preliminary injunction in Common Pleas Court, returning him to his job. However, the Department of Education appealed it to Commonwealth Court.
The lower court decision was upheld by Commonwealth Court in an opinion signed by President Judge Dan Pellegrini.
The opinion stated that because the new law creates a lifetime ban for a "homicide offense that has no temporal proximity to Johnson's present ability to perform the duties of his position, and it does not bear a real and substantial relationship to the commonwealth's interest in protecting children, it is unreasonable, unduly oppressive and patently beyond the necessities of the offense."
It said the law "imposes unusual and unnecessary restrictions" on Mr. Johnson's job and is "unconstitutional" because it violates his due process rights.
Commonwealth Court also issued orders regarding preliminary objections in two of the other PSEA cases using similar reasoning.
Tim Eller, spokesman for the Department of Education, said Thursday the decision is under review and declined further comment.
When the suits first were filed, Mr. Eller said the intent of the law was to protect students.
Ms. Miller said, "There is something not right about a guy -- who had a terrible, tragic mistake 30 some years ago, who did everything he was supposed to do, was rehabilitated and hasn't gotten so much as a traffic ticket in 30 years and is a productive and valued employee doing important work -- suddenly being told, 'The Legislature changed its mind. We have to fire you.'"
Ms. Hippert said she supports the ban for future employees, given incidents that have been in the news -- such as the child sex abuse case against former Penn State University assistant football coach Jerry Sandusky.
"In some cases, it would prohibit us from hiring someone who has paid their dues, made a bad mistake, but on the other hand, we must rule on the side of caution with our children," she said.
Noting rules change as society changes, Ms. Hippert said, "That doesn't mean we penalize people who were hired and have proven themselves over a period of time, which in this case certainly was done."
Under the new law, all current school employees -- those at public and private schools, intermediate units and area vocational-technical schools, including independent contractors who have direct contact with children -- were required to fill out a state form asking whether they ever had any arrests or convictions for certain offenses covered by the ban.
The list includes, among others, crimes related to criminal homicide, aggravated assault, stalking, kidnapping, unlawful restraint, rape, sex assault, indecent assault, incest, endangering the welfare of children, obscene materials, corruption of minors, prostitution, soliciting minors to traffic drugs and sexual intercourse with an animal.
For new offenses, employees must notify the employer within 72 hours of an arrest or conviction.
In addition, there is a ban on employment for 10 years after completion of the sentence for first-, second- and third-degree felonies not listed in the act; a five-year ban for first-degree misdemeanors not listed in the act; and a three-year ban for a DUI (driving under the influence) graded as a first-degree misdemeanor.
First Published December 14, 2012 12:00 am