Denied Day to Day Substitute Teaching Permit? A new case explains how it works

On March 24, 2023, the Commonwealth Court issued a decision that explains the process that the Pennsylvania Department of Education, through its Bureau of School Leadership and Teacher Quality, Division of Certification Services, uses to evaluate applications for emergency day-to-day substitute teacher permits. The decision also interprets key provisions of the Public School Code related to teaching certificates or permits. The case is also helpful to people who apply for other licensed professions and occupations, like nurse licenses, cosmetologist licenses, pharmacist licenses, funeral director licenses, and paramedic certificates, to understand how state boards and agencies that issue licenses do their work.

This is a lengthy blog article, but the opinion is 29 pages. I have added some headings so if you’re in a hurry you can jump to my commentary. If you want to read the opinion in its entirety, you can find it at this link: 894CD21_3-24-23.pdf (pacourts.us)

CASE HISTORY

The case involves a man, Robert Tuerk, who had been licensed as an attorney in Florida and Pennsylvania. In 1996 his Pennsylvania law license was suspended because when he applied for admission to the bar in Pennsylvania he didn’t disclose a prior expunged arrest from 1985. In 2016, his law license was suspended in Florida, and then he was disbarred, meaning that he permanently lost his law license in Florida. Based upon his disbarment in Florida, Tuerk was disbarred in Pennsylvania.

In January 2019 Tuerk applied for an emergency day-to-day substitute teacher permit. The application included the question, “Have you ever had any certificate or license for any profession denied, revoked, suspended, surrendered or received a public reprimand in this or any other state, territory or country?” Tuerk answered, “Yes.” PDE did not act upon this first application.

At the start of the next school year, August 2019, Tuerk submitted a second application with the same response. The Bureau of School Leadership and Teacher Quality asked Tuerk to provide additional information related to his law licenses. He did. In December 2019, four months and eight days after he submitted the second application, the Bureau issued a letter to Tuerk, signed by the Deputy Secretary and Commissioner for Postsecondary and Higher Education, in which the Bureau notified him that his application had been denied under Section 1209 of the Public School Code. This is a common procedure in state licensing agencies. These are sometimes referred to as a “provisional denial letter” or “provisional denial notice.”

That law prohibits the Department of Education from issuing a teaching certificate to a person who “does not have good moral character.” The Bureau noted Tuerk’s suspensions, that he failed to accept responsibility for his actions, and that the most recent disbarment had occurred in February 2018.

GOOD MORAL CHARACTER ISSUES

In my experience with people who apply for or already have a teaching certificate or other professional licenses, the most common reason for a challenge on good moral character is a criminal history, but disciplinary action for a professional license is another common basis for a licensing agency to act on the basis of good moral character. In theory, an agency could be other facts that trigger such a review, such as a history of civil suits that allege fraudulent conduct or a breach of professional responsibility. However, that is a rare occurrence, and would most frequently arise in medical and health care professions.

HOW DOES AN AGENCY REVIEW APPLICATIONS?

Tuerk appealed the denial of his application. The Department conducted a hearing. A designated hearing officer admitted into evidence several documents, including five character reference letters for Tuerk. Tuerk also testified in his own behalf. Tuerk admitted that he had been disbarred, but described his violations with terms like “regret,” “faux pas,” “misjudgment,” an “inadvertent mistake.” He testified about his volunteer activities as evidence of his personal reform, and that he had been truthful on his applications for a teaching permit.

The Division of Certification Services had a witness, a “Certification Specialist,” who testified about the process she follows to review certification applications. The Certification Specialist testified that an application that is complete may be processed in as little as four weeks, but when “good moral character” is an issue the processing time increases to eight weeks to six months. Each year there are at least 1,000 teaching certification applications reviewed for good moral character. One Certification Specialist reviews all of the applications that require a review for good moral character. Part of the review for good moral character is to request that the applicant provide documentation.

DO I NEED TO PRODUCE ALL OF THESE DOCUMENTS?

In my experience, state licensing employees typically ask for court records in the case of an applicant with a criminal history, or agency records if there is a history of professional licensure discipline. Some of these requests can be overbroad and unduly burdensome. For example, it is typical for a request for “certified copies” of all court records. In my opinion, certified copies are unnecessary and unduly costly. An application is made subject to penalties for perjury or unsworn falsification to authorities, so an applicant has a duty to be truthful and may not falsify or modify records that are submitted in support of an application. Certification adds nothing to the accuracy or admissibility of the documents. Certification also adds cost and for a large court file, the costs of reproduction and certification of an entire court file may be very expensive. If the court file is in the archives, it can takes days or weeks just to pull the file. Finally, a request for an entire court file would include many pages of documents that have no relevance to good moral character. The documents that a licensing board needs are the Criminal Complaint, the Affidavit of Probable Cause, the Indictment or Information, a copy of the docket, the Judgment of Sentence and Sentencing Order, and, if the defendant pleaded guilty, a copy of the Guilty Plea Colloquy. Inclusion of subpoenas to witnesses, or motions for continuance, for example, adds expense for the applicant and no pertinent information for the agency. Unfortunately, there is very little that you can do to challenge the breadth of a request, and it may delay or stop completion of the review of an application. In many cases, especially if you are likely to successfully pass a good moral character review, it’s simply better to bite the bullet and provide all of the requested documents.

WHO DECIDES TO DENY AN APPLICATION FOR GOOD MORAL CHARACTER?

In Tuerk’s hearing, the Certification Specialist testified that it was her job to gather documentation and provide it to the Deputy Secretary to make a determination. In my experience, an individual at the level of a cabinet secretary or deputy secretary will receive the advice of an attorney employed by the state, or possibly another higher level assistant, who will evaluate the documents and draft a letter for the signature of the secretary or deputy secretary. The secretary or deputy secretary will review the draft and either sign it or ask for revisions. In some agencies, this duty is delegated entirely to an attorney for the agency.

Ideally, this decision-making process follows an established, well-defined factors to distinguish applications that are denied versus those that are granted. Using defined factors to make the decision assures consistency, meaning that similarly situated applicants are treated the same. Defined factors also make the decision-making process faster and easier, and less likely to be overturned by a court.

Unfortunately, the Department of Education and other agencies don’t always follow the ideal. The good news is that Act 53 of 2020 now requires agencies like the State Board of Nursing, State Board of Pharmacy, State Board of Vehicle Dealers and Salespersons, the Real Estate Commission and other licensing boards within the Bureau of Professional and Occupational Affairs to use a list of 10 factors to assess an individual’s criminal history.  https://www.dos.pa.gov/ProfessionalLicensing/Pages/ACT-53-2020.aspx#assessments Although not required to do so, the Department of Education and other state agencies should follow a similar set of factors when they assess good moral character in order to respect each individual’s right to due process of law.

WHAT HAPPENED AFTER THE HEARING

After the hearing, the hearing officer issued a “proposed adjudication and order.” Tuerk filed “exceptions,” which is a document that a party explains what errors he or she thinks are in the proposed decision. By this time, the Deputy Secretary had left his position and was replaced temporarily by an Acting Deputy Secretary who affirmed the provisional denial.

ADMISSION OF WRONGDOING

The Acting Deputy Secretary made findings of fact based on the evidence and found Tuerk to be “not credible” or not believable. In cases where an individual’s good moral character is at issue, whether based on prior professional discipline or criminal history, one of the primary things that the licensing board or agency official looks for is an unqualified, candid admission of responsibility. When a licensee or applicant hedges or makes excuses, it may cause the decision-maker to believe that the person hasn’t really learned a lesson and hasn’t reformed.

In my experience, this is a common mistake made by licensees and applicants. Despite any personal reasons or considerations that a person may have, if you want a license, you need to swallow your pride and simply and briefly accept responsibility. This serves two purposes. First, it satisfies the requirement for a “forthright acknowledgement of wrongdoing.” Second, by making a simple, brief and unqualified admission of responsibility, the applicant or licensee can move on to other topics that are more favorable to your case. Understand that the law does not require a prolonged expression of anguish. The operative phrase is a “forthright acknowledgement of wrongdoing.” Simply stating under oath, “I committed the [crime or violation] and I accept full responsibility” satisfies the standard.

There may be circumstances when a fuller statement is appropriate. For example, I have seen applicants or licensees who have done a lot of soul searching, who committed very serious crimes at a time in their lives when they were living a bad life. They may want to unburden themselves at a hearing to have a chance to express their sorrow and regret. There’s nothing wrong with that, and, in fact, can be very helpful and supportive of an application or the defense of a license. However, even a very remorseful, sorrowful person must make that unqualified, simple admission of guilt.

This is also an important consideration in terms of protecting the public from unscrupulous or incompetent professionals. A person who doesn’t accept responsibility and who makes excuses for their past conduct is a person who may be more likely to take advantage of vulnerable clients, patients, students or customers, or who may be more likely to be careless in the work that they perform resulting in injury to others.

Tuerk raised several other issues, all of which were dismissed by Commonwealth Court.

If you would like to discuss your application for a professional or occupational license, such as nurse license, pharmacist license, real estate license, teaching certificate, or other type of professional license, contact me for a free consultation. Thanks for reading!