Hiring And Criminal Background Reports

For Pennsylvania schools, hiring season for the fall is well underway. As school administrators evaluate candidates, it is worthwhile to consider what they must, should and should not do related to the criminal background checks mandated by 24 P.S. §1 111.

Under that law, schools are not permitted to employ individuals, either directly or through contractors, if the person is ineligible because of the applicant's criminal history conviction record. An applicant is either ineligible for life - using a specific list of criminal offenses - or, where the offense fits into particular grading categories, for defined periods after the sentence ends. Further, the defined periods are different depending on how the offense was graded.

Interpreting the criminal record (which can be incomplete) can be challenging and, where the person is only ineligible for a defined period, so can determining when the person's sentence ended. Yet, administrators have a vested interest in getting it right - the statute contains severe penalties for administrators who employ an ineligible person.

There are tools to assist administrators when trying to figure out if someone is ineligible. Foremost is online court information that Pennsylvania and some others jurisdictions make freely available. Using such tools, one can usually confirm the specific charge, the grading and also determine when the sentence ended. That being said, reading and interpreting the FBI reports and the court records from various jurisdictions takes practice and can be time consuming.

To make matters even more complicated, the Commonwealth Court recently ruled that blind application of the lifetime ban is unconstitutional, at least in some cases. In the case discussed, the court held that laws impacting a person's ability to perform certain work must be rationally related to fulfilling a legitimate governmental purpose. PDE had argued that the "purpose" was to maintain a safe learning environment in schools. However, the court found that the thirty year old manslaughter conviction - where the man exhibited good behavior and work record since then - did not impact the safety of students. Because of that, and although the law was not generally unconstitutional, it was unconstitutional as applied to that person because it violated that employee's "substantive due process."

Since that time, PDE has interpreted the court's rationale as also applying to the defined periods of ineligibility.1

Thus, when...