A recurring issue some of my clients face is whether, as a teacher, counselor, employee at any Pennsylvania sanctioned education facility who suffers a conviction of a second offense ungraded misdemeanor, are they subject to mandatory employment termination pursuant to 24 P.S. § 1-111(f.1). The basic law states a reportable offense enumerated under 24 P.S. §1-111(f.1) consists of the following: 

• An offense graded as a felony offense of the first, second or third degree, other than one of the offenses enumerated under 24 P.S. §1-111(e), if less than (10) ten years has elapsed from the date of expiration of the sentence for the
• An offense graded as a misdemeanor of the first degree, other than one of the offenses enumerated under 24 P.S. §1-111(e), if less than (5) five years has elapsed from the date of expiration of the sentence for the
• An offense under 75 Pa.C.S. § 3802(a), (b), (c) or (d)(relating to driving under influence of alcohol or controlled substance) graded as a misdemeanor of the first degree under 75 Pa.C.S. § 3803 (relating to grading), if the person has been previously convicted of such an offense and less than (3) three years has elapsed from the date of expiration of the sentence for the most recent offense.
• (f.2) Nothing in this section shall be construed to interfere with the ability of a public or private school, intermediate unit or area vocational-technical school to make employment, discipline or termination decisions, provided that this subsection shall not be construed to conflict with subsection (e), (f.1) or (j)(6).

(3) If the report of criminal history record information or a form submitted by an employe under subsection (j) indicates the person has been convicted more than once for an offense under 75 Pa.C.S. § 3802(a), (b), (c) or (d) (relating to driving under influence of alcohol or controlled substance) and the offense is graded as a misdemeanor of the first degree under 75 Pa.C.S. § 3803 (relating to grading), the person shall be eligible for current or prospective employment only if a period of three years has elapsed from the date of expiration of the sentence for the most recent offense.

(f.2) Nothing in this section shall be construed to interfere with the ability of a public or private school, intermediate unit or area vocational-technical school to make employment, discipline or termination decisions, provided that this subsection shall not be construed to conflict with subsection (e), (f.1) or (j)(6).  24 Pa. Stat. Ann. § 1-111 (West)

24 P.S. §1-111(f.1)(3) has been interpreted to only apply to an employee convicted more than once for an offense under 75 Pa.C.S. § 3802(a), (b), (c) or (d) (relating to driving under influence of alcohol or controlled substance) and the offense is graded as a misdemeanor of the first degree under 75 Pa.C.S. § 3803 (relating to grading).  That person shall be eligible for current or prospective employment only if a period of three years has elapsed from the date of expiration of the sentence for the most recent offense.

Simple interpretation of this statute as applied to teachers indicates an employer need not terminate employment due to your recent 1st offense Pennsylvania DUI conviction.  Some teachers have a prior New Jersey offense, which may require a Pennsylvania DUI to be treated as a second offense by the local courts (under the DUI sentencing provisions).  However, an three-year or older New Jersey DUI offense is not criminal in nature and is not an offense for which one suffers a “conviction”.  As well, a New Jersey administrative matter concluding over three years ago renders 24 P.S. 1-111(f.1)(3) inapplicable as a prior New Jersey matter is neither a conviction nor having occurred within three years.  More importantly, 24 P.S. 1-111(f.2) states that an employer can make this employment determination on its own and is not controlled by 24 P.S. 1-111.

A New Jersey DWI is a traffic offense not an indictable crime (felony) or disorderly persons offense (misdemeanor).  The DWI statute is promulgated under Title 39. Motor Vehicles and Traffic Regulation > Subtitle 1. Motor Vehicle and Traffic Laws > Chapter 4. Traffic Regulation at provision 39:4-50.  It is a traffic offense.

The 39:4-50 charge is a motor vehicle violation and not a crime under New Jersey’s criminal code.  Proceedings involving motor vehicle violations in municipal court are quasi-criminal in nature and the offenses must be proved beyond a reasonable doubt.  State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983).  In New Jersey, there is no constitutional right to trial by jury for driving while intoxicated (DWI) or other motor vehicle operation offenses because they are not deemed to be serious enough.  State v. Stanton, 176 N.J. 75, 820 A.2d 637 (2003),

A NJ motorist’s violation of 39:4-50 is recorded on his or her driving record – not criminal record.  In New Jersey one is not finger printed when charged with a NJ DWI.  Although DWI is a serious traffic violation it is not a criminal act.  DWI charges do not result in a blemish or “mark” on one’s criminal record.

Simple interpretation of 24 P.S. 1-111 as applied to teachers with a prior NJ traffic offense indicates the Intermediate Unit need not terminate  employment due a 1st offense Pennsylvania DUI conviction.  It is irrelevant that the Pennsylvania court may treat the offense as a second offense for sentencing purposes under Pennsylvania’s DUI sentencing provision.   An older than three-year old New Jersey DUI offense is not criminal in nature and is not an offense for which one sufferes a “conviction”.

24 P.S. 1-111(f.1)(3) does not apply to certain cases because the prior New Jersey matter is neither a conviction nor did it occur within three years.  More importantly, 24 P.S. 1-111(f.2) states that school districts can make this employment determination on their own and the district is not controlled by 24 P.S. 1-111.

The court cases interpreting 24 P.S. 1-111 reveal in 2011 a behavior counselor previously convicted of voluntary manslaughter who objected to mandatory termination won his case.  He was seeking to enjoin his employer, a county intermediate unit, from terminating his employment based upon the 2012 amended version of 24 P.S. §1-111. The statute was amended after the counselor filed his complaint.  The statute now requires the termination of employees who had felony homicide convictions. 24 P.S. § 1–111(e).  Johnson v. Allegheny Intermediate Unit, 59 A.3d 10 (Pa. Commw. Ct. 2012).

Johnson argued two separate reasons the statue was unconstitutional as it applied to him.  I will focus on the reason he won his case.  He claimed the law violated his state due process constitutional rights – Article 1, Section 1 of the Pennsylvania Constitution – because the employment ban is not rationally related to any interest sought to be protected and his conviction was so remote in time and unrelated to his ability to perform the duties of his position. Johnson v. Allegheny Intermediate Unit, 59 A.3d 10, 20 (Pa. Commw. Ct. 2012).

The substantive protections of due process are meant to protect citizens from arbitrary and irrational actions of the government.  One of the rights Article 1, Section 1 guarantees is an individual’s right to engage in any of the common occupations of life.  The Johnson case holds that  long term employment trumps statutory employment termination based upon an unrelated prior conviction that do not bear on one’s ability to or performance of their job.  Johnson concludes state substantive due process precludes statutory prohibition of employment based solely on unrelated remote conduct.

Such is especially improper when the record reveals that the individual has held this position of responsibility for [many] years without any allegation of impropriety and the prior acts provide no basis to evaluate his present character.  This court also states that:

“We are also mindful that such a result runs afoul of the deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders. This State in recent years has been unalterably committed to rehabilitation of those persons who have been convicted of criminal offenses. To forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation….

Johnson’s facts – where the prior convictions do not in any way reflect upon the appellant’s present ability to properly discharge the responsibilities required by the position – warrant the holding that convictions cannot provide a basis for the revocation of a license.  Nixon I, 789 A.2d at 381 (quoting John’s Vending Corporation, 453 Pa. at 494–95, 309 A.2d at 362) (emphasis in original).  Johnson v. Allegheny Intermediate Unit, 59 A.3d 10, 22–23 (Pa. Commw. Ct. 2012).