RULES AND REGULATIONS
Title 22—EDUCATION
PROFESSIONAL STANDARDS AND PRACTICES COMMISSION
[ 22 PA. CODE CH. 235 ]
Code of Professional Practice and Conduct for Educators
[51 Pa.B. 5199]
[Saturday, August 21, 2021]The Professional Standards and Practices Commission (Commission) amends Chapter 235 (relating to code of professional practice and conduct for educators) to read as set forth in Annex A.
Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
This final-form rulemaking is authorized by section 5(a)(10) of the Educator Discipline Act (act) (24 P.S. § 2070.5(a)(10)).
Background and Purpose
The General Assembly has charged the Commission with adopting and maintaining a code for professional practice and conduct applicable to all educators under section 5(a)(10) of the act. The Commission adopted the Code of Professional Practice and Conduct for Educators (Code) in 1992 and it has not been updated since. These amendments are designed to update and revise the Code to make it relevant and applicable to current educators. The amendments present new or expanded guidelines addressing educators' responsibilities to students, colleagues and the profession.
Summary of Amendments
§ 235.2(b) (relating to introduction): The changes frame educators' responsibilities under the Code within the context of the educator's commitment to students, colleagues and the profession. This language appeared in § 235.5 (relating to conduct) of the proposed rulemaking and is moved here due to the deletion of § 235.5 in this final-form rulemaking.
§ 235.2(c): The changes clarify that the Department is not precluded from pursuing discipline, including suspension or revocation, on other available grounds for conduct that constitutes an independent basis for a public or private reprimand under the Code. This section is amended in this final-form rulemaking for additional clarity in response to public comments. It is revised to specify that all violations of the Code, not just violations of specified sections, may be an independent basis for a public or private reprimand. Throughout this final-form rulemaking, non-regulatory language is deleted to provide educators with clear and precise standards for compliance. Therefore, it is appropriate that a violation of any of these standards may serve as an independent basis for a public or private reprimand.
§ 235.2(d): The changes create a new subsection and clarify that nothing in the Code shall be interpreted to require educators to violate any of the doctrines, tenets, policies or practices of any religious or religiously-affiliated school in which the educator is employed. This subsection was not included in the proposed rulemaking. It is added to this final-form rulemaking in response to comments received from the public and from the Independent Regulatory Review Commission (IRRC).
§ 235.3 (relating to purpose): The changes delete this section because the language is non-regulatory in nature and more appropriate for a statement of policy. The changes are made in response to comments received from IRRC following the public comment period.
§ 235.3a (relating to definitions): The definition for ''unauthorized drugs'' was not included in the proposed rulemaking and is added in response to comments received from IRRC. The changes delete definitions for the following terms that were included in the proposed rulemaking but are not included in this final-form rulemaking: ''dual or multiple relationships;'' ''fiduciary relationship;'' ''safe environment;'' ''safety;'' and ''transparency.'' These terms appeared in sections that were deleted because they were determined to be non-regulatory.
§ 235.4 (relating to professional practices): The changes delete this section because most of the language is non-regulatory in nature or redundant of other sections. The changes are made in response to comments received from IRRC following the public comment period. Section 235.4(b)(1) of the proposed rulemaking is replaced by § 235.5c(1) (relating to commitment to the profession) without changes. Section 235.4(b)(11) of the proposed rulemaking is replaced by § 235.5a(b)(4) (relating to commitment to students) with minor changes for clarity and consistency. Section 235.4(b)(12) of the proposed rulemaking is replaced by § 235.5a(b)(1) with minor changes for clarity.
§ 235.5: This section is replaced by § 235.2(c) of this final-form rulemaking.
Section 235.5a sets forth standards for professional conduct in fulfillment of the educator's commitment to students. The changes add standards addressing appropriate boundaries; sexual misconduct; maintenance of confidentiality; an educator's use, possession, or distribution of alcoholic beverages or illegal or unauthorized drugs; and inappropriate communication, including inappropriate communication achieved through electronic means. Proposed § 235.5a was reordered in this final-form rulemaking and amended to add paragraphs (1), (4), (6) and (7) and delete proposed subsection (e). These changes were prompted by the deletion of § 235.4 in this final-form rulemaking, as well as comments received during and after the public comment period.
Section 235.5b (relating to commitment to colleagues) sets forth standards for professional conduct in fulfillment of the educator's commitment to colleagues. This section includes prohibitions against sexual harassment; intentional distortion of evaluations; threats, coercion or discrimination against colleagues who report violations; the use of improper means to influence professional decisions; and the unauthorized disclosure of confidential health or personnel information. Proposed § 235.5b was reordered and amended in this final-form rulemaking to add paragraphs (4) and (5). This change is prompted by the deletion of subsections (h) and (i) of § 235.5c in this final-form rulemaking.
Section 235.5c (relating to commitment to the profession) sets forth standards for professional conduct in fulfillment of the educator's commitment to the profession. The amendments add or expand standards addressing misrepresentation and document fraud; reporting and cooperation during official investigations and proceedings; security of standardized testing; and improper personal or financial gain. Proposed § 235.5c is reordered in this final-form rulemaking and amended to add paragraph (1). Proposed subsections (h) and (i) are replaced by §§ 235.5a(b)(6) and (7) and 235.5b(4) and (5) in response to comments received from the public and from IRRC. Proposed subsections (a) (renamed paragraph (2) in this final-form rulemaking) and (g) (renamed paragraph (8) in this final-form rulemaking) are amended for clarity in response to public comments. Proposed subsection (l) was renamed paragraph (11) and amended for clarity.
Comment and Response
Notice of the proposed rulemaking was published at 49 Pa.B. 1905 (April 20, 2019), with a public comment period as required by law. The public comment period ended on May 20, 2019. The Commission received comments from the Independence Law Center, the Pennsylvania Catholic Conference (PCC) and the Pennsylvania School Boards Association (PSBA). The Commission received comments from IRRC following the close of the public comment period. On January 6, 2021, the Commission received comments from the Pennsylvania State Education Association (PSEA). Although PSEA's comments were received after the close of the public comment period, the Commission's responses are included as follows.
Independence Law Center
Comment:
The Independence Law Center commented that the enumeration in proposed §§ 235.4(b)(4) and 235.5c(h) of special categories, such as gender identity and expression, and the deletion of ''sex'' in proposed § 235.4(b)(4) creates harmful hierarchies of dignity and worth of students; removes ''sex'' as a basis for respecting the dignity, worth and uniqueness of each student; causes harassment and discrimination; harms a real culture of non-discrimination and civility; and is incompatible with prohibitions on sex stereotyping. The Independence Law Center commented that the Commission's reliance on Pennsylvania Human Relations Commission Guidance is flawed.
Response:
Proposed §§ 235.4(b)(4) and 235.5c(h) were deleted in the final-form rulemaking and replaced by §§ 235.5a(b)(6) and 235.5b(4). Section 235.5a(b)(6) provides that educators ''[s]hall exhibit consistent and equitable treatment and shall not unlawfully discriminate against students.'' Section 235.5b(4) provides that educators ''[s]hall not unlawfully discriminate against colleagues.''
PCC
Comment:
PCC commented that the proposed amendments improperly expand the bases for claims of discrimination set forth in the Pennsylvania Human Relations Act (43 P.S. §§ 951—963) and that, if applied to Catholic educators, the proposed amendments would violate constitutionally-protected religious liberties and the Pennsylvania Religious Freedom Protection Act (PRFPA) (71 P.S. §§ 2401—2408). The PCC also commented that an express disclaimer that the offending provisions of the Code must not conflict with the lawful policies of religiously-affiliated schools should be incorporated in the final-form rulemaking.
Response:
The Commission worked with representatives of the PCC to develop the disclaimer language found in § 235.2(d), which reads: ''Nothing in this chapter shall be construed or interpreted to require an educator to violate any of the doctrines, tenets, policies, or practices of any religious or religiously-affiliated school in which that educator is employed.'' Additionally, proposed §§ 235.4(b)(4) and 235.5c(h) are deleted in the final-form rulemaking and replaced by §§ 235.5a(b)(6) and 235.5b(4). Section 235.5a(b)(6) provides that educators ''[s]hall exhibit consistent and equitable treatment and shall not unlawfully discriminate against students.'' Section 235.5b(4) provides that educators ''[s]hall not unlawfully discriminate against colleagues.'' The revised language avoids conflict with existing anti-discrimination laws.
PSBA
PSBA expressed general support for the amendments. PSBA offered the following suggestions:
Comment:
PSBA suggested that the following clarifying language be added to proposed § 235.2(c): ''Discipline for conduct that constitutes both an independent basis for suspension or revocation of an educator's certificate or employment eligibility and a violation of this chapter shall not be limited to public or private reprimand. Nothing in this chapter shall be construed to otherwise limit the Department of Education's authority to initiate an action under the act to discipline an educator's certificate or employment eligibility, or both.''
Response:
Proposed § 235.2(c) was revised in this final-form rulemaking to read as follows: ''Violations of any of the duties prescribed by this chapter may be used as supporting evidence in disciplinary proceedings conducted by or on behalf of the PSPC under the act. Violations of this chapter may also be an independent basis for a public or private reprimand. Discipline for conduct that constitutes both a basis for discipline under the Act and an independent basis for discipline under this chapter shall not be limited to a public or private reprimand. Nothing in this chapter shall be construed to otherwise limit the Department of Education's authority to initiate an action under the act to suspend, revoke or otherwise discipline an educator's certificate or employment eligibility, or both.''
Comment:
PSBA suggested that proposed § 235.5a(d) be revised to read as follows: ''Shall not sexually harass others or engage in sexual misconduct.''
Response:
The Commission agrees with PSBA that the language ''including sexual relationships'' is not necessary since § 235.3a incorporates the act's definition of sexual misconduct, which includes sexual relationships with students. The Commission, however, declined to replace the word ''students'' with ''others'' because § 235.5a specifically articulates educators' responsibilities to students. Accordingly, in the final-form rulemaking § 235.5a(d) is renamed subsection (b)(3) and revised to read as follows: ''Shall not sexually harass students or engage in sexual misconduct.''
Comment:
PSBA commented that many of the ''factors'' included in proposed § 235.5a(j) for assessing whether a communication is inappropriate are patently inappropriate in and of themselves, and suggested that the following language be added at the beginning of § 235.5a(j) (renamed subsection (b)(13) in the final-form rulemaking): ''Inappropriate communication includes communications that are sexually explicit, that include images, depictions, jokes, stories or other remarks of a sexualized nature, that can be reasonably interpreted as flirting or soliciting sexual contact or a romantic relationship, or that comment on the physical or sexual attractiveness or the romantic or sexual history, activities, preferences, desires or fantasies of either the educator or the student. Factors that may be considered in assessing whether other communications are inappropriate include. . .'' PSBA suggested the addition of the following language: ''(4) whether the communication involved disclosure of personal or family problems, relationships, or secrets; and (5) whether the communication encouraged or condoned the student's addressing the educator using terms of endearment, pet names or other overly familiar language.''
Response:
The Commission agreed with PSBA that some of the ''factors'' outlined in proposed § 235.5a(j) (renamed subsection (b)(13) in the final-form rulemaking) are better characterized as examples of inappropriate communications and made the suggested change. However, the Commission declined to incorporate proposed subsections (4) and (5). The Commission believes that the language is very broad and could potentially capture communications that are not inherently inappropriate. The Commission also believes that the language is unnecessary because the subject matter of the communication is already a factor for considering whether the communication is inappropriate.
Comment:
PSBA suggested that the words ''a colleague'' be replaced by the word ''others'' in proposed § 235.5b(c) (relating to sexual harassment).
Response:
The Commission declined to make the suggested change in the final-form rulemaking because § 235.5b(c) (renamed paragraph (3) in the final-form rulemaking) specifically articulates an educator's responsibility to colleagues.
Comment:
PSBA suggested that proposed § 235.5c(a) be revised to read as follows: ''Shall apply for, accept, or assign a position or a responsibility only on the basis of professional qualifications and abilities.''
Response:
The Commission agreed with PSBA that the words ''and abilities'' should be added to the end of proposed § 235.5c(a) (renamed paragraph (2) in the final-form rulemaking) and made the change. The Commission believes that the addition of the word ''only'' is unnecessary and declined to make the suggested change.
Comment:
PSBA suggested that the following be included in proposed § 235.5c(g): ''providing unauthorized assistance to students, unauthorized alteration of test responses, results or data. . .''
Response:
The Commission appreciates PSBA's comment and made the suggested change to proposed § 235.5c(g) (renamed paragraph (8) in the final-form rulemaking).
Comment:
PSBA suggested that the words ''for personal gain or advantage'' be deleted from proposed § 235.5c(l) for clarity.
Response:
The Commission agreed that proposed § 235.5c(l) required clarity. However, the Commission was concerned that simply deleting the words ''for personal gain or advantage'' would not provide the needed clarity. Accordingly, proposed § 235.5c(l) (renamed paragraph (11) in the final-form rulemaking) is revised to read as follows: ''Shall use school funds, property, facilities, and resources only in accordance with local policies and local, state, and federal laws.''
IRRC
Comment:
IRRC commented that section 5(a)(10) of the act provides the Commission authority to adopt a code of conduct, but it does not provide the authority to promulgate that code as a regulation under the Regulatory Review Act. IRRC further commented that section 206 of the Commonwealth Documents Law (CDL) (45 P.S. § 1206) provides the Commission authority to promulgate a code of conduct in a form and manner other than a regulation.
Response:
Under the Rules of Statutory Construction, statutes or parts of statutes in pari materia are to be construed together. 1 Pa.C.S. § 1932 (relating to statutes in pari materia). Contrary to the comment that there is a lack of statutory authority, the Commission is authorized to promulgate regulations establishing and enforcing a code of conduct for educator discipline when the relevant sections of the act are read in pari materia. Further, the history and the legislative intent of the act also support this authorization.
To begin, the following is a brief history of the evolution of the relevant statutory provisions relating to the Commission's regulatory authority and the code for professional practice and conduct.
The Commission was first established by the act of December 12, 1973 (P.L. 397, No. 141) (24 P.S. §§ 12-1251—12-1268), referred to as the Teacher Certification Law. Sections 12-1251 to 12-1268 were renumbered as 24 P.S. §§ 2070.1—2070.18 in 1994. As originally constituted, the Commission was an advisory group to the State Board of Education. The authority to discipline educators for misconduct was vested in the Secretary of Education. The Teacher Certification Law provided in pertinent part that the Commission shall have the power and its duty shall be ''[t]o adopt rules and regulations as may be necessary to carry out the purposes of this act.'' Formerly (24 P.S. § 12-1255(a)(5)) (Emphasis added). The Commission was subsequently terminated, effective December 31, 1988, after the sunset provision was not extended.
The act of December 14, 1989 (P.L. 612, No. 71) (24 P.S. §§ 12-1251—12-1268) re-established the Commission and amended the underlying act. The amendments maintained the Commission's advisory functions, while also imbuing it with significant new duties and responsibilities, including the authority to discipline educators for misconduct. The General Assembly also charged the Commission for the first time with adopting a code of conduct. Specifically, section 5(a)(10) of the Teacher Certification Law provided that the Commission shall have the power and its duty shall be ''[t]o adopt by July 1, 1991, a code for professional practice and conduct, pursuant to the act of July 31, 1968 (P.L. 769, No. 240), referred to as the Commonwealth Documents Law.'' Formerly 24 P.S. § 12-1255(a)(10). Section 5(a)(10) further provided that ''the code may specify those sections the violation of which may constitute a basis for a reprimand.'' Id. Section 5(a)(14) empowered the Commission ''[t]o adopt, pursuant to the act of July 31, 1968 (P.L. 769, No. 240), referred to as the CDL, operating and procedural rules and regulations necessary to carry out the purposes of this act.'' Formerly 24 P.S. § 12-1255(a)(14) (Emphasis added). Finally, section 8 provided that ''[e]ach rule and regulation of the Professional Standards and Practices Commission in effect on December 31, 1988, shall remain in effect until repealed or amended by the commission.'' Formerly 24 P.S. § 12-1258 (Emphasis added).
The act of December 20, 2000 (P.L. 918, No. 123) (24 P.S. §§ 2070.1—2070.18a) amended the Teacher Certification Law and renamed it the Professional Educator Discipline Act (PEDA). Sections 5(a)(10) (relating to the code for professional practice and conduct) and (14) (relating to rules and regulations) remained intact.
Finally, the act of December 18, 2013 (P.L. 1205, No. 120) (24 P.S. §§ 2070.1a—2070.18c) amended the PEDA and renamed it the Educator Discipline Act (EDA). Section 5(a)(10) was amended to read as follows: ''To adopt and maintain a code for professional practice and conduct that shall be applicable to any educator as defined in this act, pursuant to the act of July 31, 1968 (P.L. 769, No. 240), referred to as the Commonwealth Documents Law.'' (Emphasis added). Section 9c(a)(8) of the EDA (24 P.S. § 2070.9c(a)(8)) provides that the Commission ''shall direct the department to impose discipline against any educator for conduct found by the commission to constitute. . .[a] violation of the code of professional practice and conduct adopted pursuant to section 5(a)(10).'' (Emphasis added). Further, under section 5(a)(14) (24 P.S. § 2070.5(a)(14)), the Commission maintains its general authority to adopt rules and regulations necessary to carry out the purposes of the Act.
Two things are clear: (1) from its inception in 1973, the Commission has always had the statutory authority to promulgate regulations; and (2) the General Assembly clearly intended the code for professional practice and conduct required by section 5(a)(10) to be enforced and to have the force and effect of law.
This is supported by the fact that the Code of Professional Practice and Conduct for Educators (Code) has been enforced as a regulation for 27 years. Further, the failure to reference the Regulatory Review Act (RRA) (71 P.S. §§ 745.1—745.14) in section 5(a)(10) of the act does not mean that the Code may only be adopted as a statement of policy.
While the RRA provides for oversight and review by IRRC and the General Assembly, the procedures by which all Commonwealth agencies exercise their statutory power to promulgate regulations are set forth in the CDL. See Germantown Cab Co. v. Phila. Parking Auth., 36 A.3d 105 (Pa. 2012). ''It is well settled that agency regulations must be promulgated pursuant to the procedures found in the [CDL] in order to have the force and effect of law. Statements of policy, on the other hand, need not comply with these procedures.'' Hillcrest Home, Inc. v. Commonwealth, Dep't of Public Welfare, 553 A.2d 1037 (Pa. Cmwlth. 1989). When the General Assembly provided that the Code shall be adopted under the CDL, it clearly meant that the Code shall be adopted under the procedures established in the CDL, that is, the procedures for promulgation of a regulation. If the General Assembly intended the Code to be anything other than a regulation, the language ''to adopt pursuant to the Commonwealth Documents Law'' would be superfluous.
Section 5(a)(14) of the EDA provides additional support for the conclusion that the General Assembly intended the Code to be promulgated as a regulation. That section provides that the Commission shall have the power and duty to adopt ''rules and regulations'' under the ''Commonwealth Documents Law.'' (Emphasis added). The CDL requires notice of proposed rulemaking, the review and consideration of comments, the requirement for regulations to be within the scope of the original purpose, a minimum effective date of 30 days, the review by the Office of Attorney General, and the deposit of regulations with the Legislative Reference Bureau. 45 P.S. §§ 1201—1208. Clearly, here, the General Assembly's reference to the CDL was intended to invoke the rulemaking process. Similarly, the reference to the CDL in section 5(a)(10) was also intended as a reference to the rulemaking process.
Further, the EDA provides that the Code ''shall be applicable to any educator'' and that the Commission ''shall direct the department to impose discipline against any educator'' found guilty of violating the Code. 24 P.S. § 2070.5(a)(10); 24 P.S. § 2070.9c(a)(8). This language clearly evidences the General Assembly's intent that the Code create a binding norm, that is, that it have the force and effect of law. It is axiomatic that a statement of policy, unlike a regulation, cannot bind third parties. See Eastwood Nursing & Rehab. Ctr. v. Dep't of Pub. Welfare, 910 A.2d 134 (Pa. Cmwlth. 2006). Therefore, the General Assembly simply could not have intended that the Code be adopted as a statement of policy.
The legislative history of the act of December 14, 1989 (P.L. 612, No. 71), which first charged the Commission with adopting a code for professional practice and conduct, lends further support for this conclusion. The following exchange between the Honorable Representative Cohen and the Honorable Representative Cowell (a prime-sponsor of the law), is instructive.
Representative Cohen: ''Does this commission have the power to issue regulations? Can new regulations be issued for new standards of conduct under this act?''Representative Cowell: ''Let me find the exact language, Mr. Speaker. Page 9, section (10), provides that the commission will promulgate a code for professional practice and conduct by July 1 of 1991. As I recall, that is similar to the language that we had in the version of the bill that we approved earlier this year. It also includes a caveat that we included in our original bill, and that is the language that 'Nothing in the code for professional practice and conduct shall be an independent basis for the suspension or revocation of a certificate. . .'''House Legislative Journal, October 4, 1989, No. 58 at 1566-1567.
In response to the question whether the Commission has the authority to adopt regulations establishing new standards of conduct, the Honorable Representative Cowell specifically invoked section 5(a)(10). This is convincing evidence that the General Assembly intended that the Commission establish enforceable standards of conduct through the rulemaking process.
It is fundamental that the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly, and that every statute shall be construed to give effect to all its provisions. 1 Pa.C.S. § 1921(a) (relating to legislative intent controls); MERSCORP, Inc. v. Del. Cty., 207 A.3d 855 (Pa. 2019). In ascertaining legislative intent, it is presumed that the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable. 1 Pa.C.S. § 1922(1) (relating to presumptions in ascertaining legislative intent). That is, the body charged with regulating the conduct of the Commonwealth's educators has to both be able to adopt and enforce those provisions.
Comment:
IRRC commented that language found in the existing regulation and in proposed amendments is nonregulatory in nature and recommended that the entire final-form regulation be amended to set standards that are clear, binding and enforceable.
Response:
The Commission appreciates IRRC's comment and agrees that much of the language in the existing regulation and the proposed rulemaking is more appropriate for a statement of policy. Throughout this final-form rulemaking, non-regulatory language is deleted to provide educators with clear and precise standards for compliance.
Comment:
IRRC requested that the Commission explain why the proposed amendments do not conflict with the PRFPA.
Response:
IRRC's comment was prompted by comments submitted by the Pennsylvania Catholic Conference (PCC). In response to the PCC's comments, the Commission adds § 235.2(d) to this final-form rulemaking. Additionally, proposed §§ 235.4(b)(4) and 235.5c(h) are deleted in this final-form rulemaking and replaced by §§ 235.5a(b)(6) and 235.5b(4). These changes avoid conflict with existing anti-discrimination laws and the PRFPA.
Comment:
IRRC requested that the Commission explain the rationale for including the word ''justifiably'' in the proposed definition of ''fiduciary relationship'' or to delete the word if it is not needed.
Response:
The definition and all references to the term ''fiduciary relationship'' are deleted in the final-form rulemaking.
Comment:
IRRC suggested that the Commission define the term ''short-term'' in this final-form rulemaking to add clarity to proposed § 235.4(b)(2).
Response:
Section 235.4 is deleted in its entirety in this final-form rulemaking.
Comment:
IRRC recommended that the Commission define the term ''unauthorized drugs'' in this final-form rulemaking to add clarity to proposed § 235.5a(g) and (h) (renamed subsection (b)(11) and (12) in this final-form rulemaking).
Response:
This final-form rulemaking defines ''unauthorized drugs'' as ''Any controlled substance or other drug possessed by a person not authorized by law to possess such controlled substance or other drug.'' With the inclusion of this definition, the Commission believes that § 235.5a(b)(11) and (12) are clear and capable of enforcement.
Comment:
IRRC commented that the definitions of ''dual or multiple relationships,'' ''electronic communications'' and ''fiduciary relationship'' include the terms that are being defined and recommended that the definitions be amended to comply with the Pennsylvania Code & Bulletin Style Manual (Manual).
Response:
The definitions of ''fiduciary relationship'' and ''dual or multiple relationships'' are deleted in this final-form rulemaking. The Commission made the recommended change to the definition of ''electronic communications.''
Comment:
IRRC commented that the definitions of ''school entity'' and ''sexual misconduct'' in § 235.3a include an incorrect statutory citation to § 1.2 of the act.
Response:
The proposed rulemaking as submitted by the Commission contained the correct statutory citation to section 1b of the act (24 P.S. § 2070.1b). The change to the incorrect citation was made prior to publication in the Pennsylvania Bulletin. The Commission corrected the citation in this final-form rulemaking.
(Editor's Note: The inconsistent citation to section 1b or section 1.2 of the act (24 P.S. § 2070.1b) in the definitions of ''educator,'' school entity'' and ''sexual misconduct'' has been corrected to be consistent as section 1.2 of the act (24 P.S. § 2070.1b).)
Comment:
IRRC recommended that the phrase ''including, but not limited to'' be replaced by the term ''includes'' in proposed §§ 235.4(b)(9) and 235.5a(j) as suggested by the Manual.
Response:
Section 235.4 is deleted in its entirety in this final-form rulemaking. The Commission made the recommended change to proposed § 235.5a(j) (renamed subsection (b)(13)in this final-form rulemaking).
Comment:
IRRC commented that the language ''including sexual relationships, with students'' should be deleted from proposed § 235.5a(d) (renamed subsection (b)(3) in the final-form rulemaking) because ''sexual relationship'' is included in the defined term ''sexual misconduct.''
Response:
The Commission appreciates IRRC's comment and made the suggested change in this final-form rulemaking.
PSEA
PSEA submitted comments on January 6, 2021. The comments reference new draft revisions that were circulated to stakeholders on November 17, 2020. Where applicable, the responses as follow reference the relevant section(s) of the proposed rulemaking.
Comment:
PSEA commented that the language ''be cognizant that. . .requires the educator to'' in proposed § 235.4(b)(12) (renamed § 235.5a(b)(1) in the final-form rulemaking) does not set a clear standard for compliance and should be eliminated.
Response:
The Commission appreciates PSEA's comment and made the suggested change in this final-form rulemaking.
Comment:
PSEA commented that proposed § 235.4(b)(14) does not set a clear standard for compliance and should be eliminated.
Response:
The Commission appreciates PSEA's comment and made the suggested change in this final-form rulemaking.
Comment:
PSEA commented that the term ''embarrassment'' is a subjective term that does not set a clear standard for compliance and should be eliminated from proposed § 235.5a(f) (renamed subsection (b)(5) in this final-form rulemaking).
Response:
The Commission appreciates PSEA's comment and made the suggested change in this final-form rulemaking.
Comment:
PSEA suggested that the word ''unlawfully'' be added immediately before ''discriminate'' in §§ 235.5a(b)(6) and 235.5b(4) (these sections replaced section 235.5c(h) of the proposed rulemaking).
Response:
The Commission appreciates PSEA's comment and made the suggested change in this final-form rulemaking.
Comment:
PSEA commented that proposed § 235.4(b)(8) does not set a clear standard for compliance and should be eliminated.
Response:
The Commission appreciates PSEA's comment and made the suggested change in this final-form rulemaking.
Comment:
PSEA suggested that the Commission add the word ''lawful'' immediately before ''written school policies'' in proposed § 235.4(b)(1) (renamed section § 235.5c(1) in the final-form rulemaking) and proposed § 235.5c(e) (renamed § 235.5c(6) in the final-form rulemaking) because school entities sometimes create and attempt to implement policies that are unlawful.
Response:
The Commission appreciates PSEA's comment but declined to make the suggested change in this final-form rulemaking. The Commission was concerned that the suggested language would make the Commission the arbiter of which school policies are and are not lawful, which is the exclusive province of the courts. The suggested language would also potentially place an additional burden on the Department to establish the lawfulness of a school policy before an educator could be disciplined for a violation. Moreover, under this final-form rulemaking a violation of school policy may be an independent basis for a public or private reprimand. Therefore, if serious questions exist regarding the lawfulness of a school policy, the Commission could decline to impose discipline or could defer discipline until the courts have had an opportunity to rule.
Affected Parties
This chapter affects all educators who have been certified by the Department, as well as all noncertified charter or cyber charter school staff members and contracted educational provider staff members who work in positions for which certification would be required in a traditional public school but who are legally exempted from the certification requirements.
Fiscal Impact and Paperwork Requirements
This final-form rulemaking has no fiscal impact and imposes no additional reporting or paperwork requirements on affected parties.
Sunset Date
There is no sunset date. The effectiveness of this final-form rulemaking will be reviewed and evaluated on an ongoing basis.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on April 8, 2019, the Commission submitted a copy of the proposed rulemaking, published at 49 Pa.B. 1905, to IRRC and to the Chairpersons of the House and Senate Education Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period. In preparing the final-form rulemaking, the Commission considered all comments from IRRC and the public.
On May 12, 2021, the Commission submitted a copy of this final-form rulemaking to IRRC and the Chairpersons of the House and Senate Education Committees in accordance with 71 P.S. § 745.5a(b) of the Regulatory Review Act. Under Section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on June 16, 2021, the final-form rulemaking was approved by the House and Senate Committees. Under Section 5.1(e) of the Regulatory Review Act, IRRC met on June 17, 2021, and approved the final-form rulemaking.
Contact Persons
For further information, contact Shane Crosby, Executive Director, 333 Market Street, 14th Floor, Harrisburg, PA 17126, (717) 787-6576, shcrosby@pa.gov.
Findings
The Commission finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202), known as the CDL and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law, and all comments were considered.
(3) The amendments to this final-form rulemaking do not enlarge the scope of the proposed rulemaking published at 49 Pa.B. 1905.
(4) This final-form rulemaking adopted by this order is necessary and appropriate for the administration and enforcement of the act.
Order
The Commission, acting under the authorizing statute, orders that:
(a) The regulations of the Commission at 22 Pa. Code Chapter 235 are amended by deleting §§ 235.3, 235.4, 235.5 and 235.6—235.11, amending 235.1 and 235.2, and adding 235.3a, 235.5a, 235.5b and 235.5c to read as set forth in Annex A.
(b) The Executive Director of the Commission shall submit this order and Annex A to the Office of General Counsel and the Office of the Attorney General for approval as to form and legality as required by law.
(c) The Executive Director of the Commission shall submit this order and Annex A to IRRC and the House and Senate Committees as required by the Regulatory Review Act.
(d) The Executive Director of the Commission shall certify this order and Annex A to the Legislative Reference Bureau as required by law.
(e) This final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
MYRON YODER,
Chairperson Pro Tempore(Editor's Note: See 51 Pa.B. 3680 (July 3, 2021) for IRRC's approval order.)
Fiscal Note: Fiscal Note 6-340 remains valid for the final adoption of the subject regulations.
Requests for Final-Form Rulemaking In accordance with section 5.1(a) of Act 1997-24, requests for information concerning the final-form rulemaking may be submitted to the Commission. Commentators that request information regarding the final-form rulemaking will receive a copy of the rulemaking when the Commission submits the final-form rulemaking to the Independent Regulatory Review Commission and the House and Senate Education Committees.
The Commission will send a copy of the final-form rulemaking to the following commentators:
Emily Kreps, Legal Assistant
Independence Law Center
23 North Front Street
Harrisburg, PA 17101
(717) 657-4990
Fax: (717) 545-8107
ekreps@indlawcenter.orgEric A. Failing
Executive Director
Pennsylvania Catholic Conference
P.O. Box 2835
Harrisburg, PA 17105-2835
EFailing@pacatholic.orgStuart L. Knade
Senior Director of Legal Services
Pennsylvania School Boards Association
400 Bent Creek Boulevard
Mechanicsburg, PA 17050-1873
stuart.knade@psba.org
Annex A
TITLE 22. EDUCATION
PART XIV. PROFESSIONAL STANDARDS AND PRACTICES COMMISSION
CHAPTER 235. CODE OF PROFESSIONAL PRACTICE AND CONDUCT FOR EDUCATORS § 235.1. Mission.
The Professional Standards and Practices Commission (PSPC) is committed to providing leadership for improving the quality of education in this Commonwealth by establishing high standards for preparation, certification, practice and ethical conduct in the teaching profession.
§ 235.2. Introduction.
(a) Professional conduct defines interactions between the individual educator and students, the employing agencies and other professionals. Generally, the responsibility for professional conduct rests with the individual educator. However, in this Commonwealth, the Professional Standards and Practices Commission (PSPC) is charged with the duty to adopt and maintain a code for professional practice and conduct that shall be applicable to any educator. See section 5(a)(10) of the Educator Discipline Act (act) (24 P.S. § 2070.5(a)(10)).
(b) In recognition of the magnitude of the responsibility inherent in the education process and by virtue of the desire to maintain the respect and confidence of their colleagues, students, parents and the community, educators shall be guided in their conduct by their commitment to their students, colleagues and profession.
(c) Violations of any of the duties prescribed by this chapter may be used as supporting evidence in disciplinary proceedings conducted by or on behalf of the PSPC under the act. Violations of this chapter may also be an independent basis for a public or private reprimand. Discipline for conduct that constitutes both a basis for discipline under the act and an independent basis for discipline under this chapter shall not be limited to a public or private reprimand. Nothing in this chapter shall be construed to otherwise limit the Department of Education's authority to initiate an action under the act to suspend, revoke or otherwise discipline an educator's certificate or employment eligibility, or both.
(d) Nothing in this chapter shall be construed or interpreted to require an educator to violate any of the doctrines, tenets, policies, or practices of any religious or religiously-affiliated school in which that educator is employed.
§ 235.3. (Reserved).
§ 235.3a. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act—The Educator Discipline Act (act) (24 P.S. §§ 2070.1a—2070.18c).
Boundaries—The verbal, physical, emotional and social distances between an educator and a student.
Educator—As defined in section 1.2 of the act (24 P.S. § 2070.1b).
Electronic communication—A communication transmitted by means of an electronic device such as a telephone, cellular telephone, computer, computer network, personal data assistant or pager, including e-mails, text messages, instant messages and communications made by means of an Internet web site, such as social media and social networking web sites, or mobile device applications.
Harm—The impairment of learning or any physical, emotional, psychological, sexual or intellectual damage to a student or a member of the school community.
School entity—As defined in section 1.2 of the act (24 P.S. § 2070.1b).
Sexual misconduct—As defined in section 1.2 of the act (24 P.S. § 2070.1b).
Unauthorized drugs—Any controlled substance or other drug possessed by a person not authorized by law to possess such controlled substance or other drug.
§ 235.4. (Reserved).
§ 235.5. (Reserved).
§ 235.5a. Commitment to students.
(a) The primary professional obligation of educators is to the students they serve.
(b) In fulfillment of the commitment to students, educators:
(1) Shall exercise their rights and powers in good faith and for the benefit of the student.
(2) Shall maintain appropriate professional relationships and boundaries with all students at all times, both in and outside the classroom.
(3) Shall not sexually harass students or engage in sexual misconduct.
(4) Shall exert reasonable effort to protect students from harm.
(5) Shall not intentionally expose a student to disparagement.
(6) Shall exhibit consistent and equitable treatment and shall not unlawfully discriminate against students.
(7) Shall not interfere with a student's exercise of political or civil rights and responsibilities.
(8) Shall not knowingly or intentionally distort or misrepresent evaluations of students or facts regarding students.
(9) Shall not knowingly or intentionally misrepresent subject matter or curriculum.
(10) Shall respect a student's right to privacy and comply with all Federal and State laws and regulations, and local policies concerning student records and confidential communications of students.
(11) Shall not be on school premises or at a school-related activity involving students, while under the influence of, possessing or consuming alcoholic beverages or illegal or unauthorized drugs.
(12) Shall not furnish, provide, or encourage students or underage persons to use, possess or unlawfully distribute alcohol, tobacco, vaping products, illegal or unauthorized drugs or knowingly allow any student or underage person to consume alcohol, tobacco, vaping products, or illegal or unauthorized drugs in the presence of the educator.
(13) Shall refrain from inappropriate communication with a student or minor, including, inappropriate communication achieved by electronic communication. Inappropriate communication includes communications that are sexually explicit, that include images, depictions, jokes, stories or other remarks of a sexualized nature, that can be reasonably interpreted as flirting or soliciting sexual contact or a romantic relationship, or that comment on the physical or sexual attractiveness or the romantic or sexual history, activities, preferences, desires or fantasies of either the educator or the student. Factors that may be considered in assessing whether other communication is inappropriate include:
(i) the nature, purpose, timing and amount/extent of the communication;
(ii) the subject matter of the communication; and
(iii) whether the communication was made openly or the educator attempted to conceal the communication.
§ 235.5b. Commitment to colleagues.
In fulfillment of the commitment to colleagues, educators:
(1) Shall not knowingly and intentionally deny or impede a colleague in the exercise or enjoyment of a professional right or privilege in being an educator.
(2) Shall not knowingly and intentionally distort evaluations of colleagues.
(3) Shall not sexually harass a colleague.
(4) Shall not unlawfully discriminate against colleagues.
(5) Shall not interfere with a colleague's exercise of political or civil rights and responsibilities.
(6) Shall not use coercive means or promise special treatment to influence professional decisions of colleagues.
(7) Shall not threaten, coerce or discriminate against a colleague who in good faith reports or discloses to a governing agency actual or suspected violations of law, agency regulations or standards.
(8) Shall respect a colleague's right to privacy and comply with all Federal and State laws and regulations, and local policies concerning confidential health or personnel information.
§ 235.5c. Commitment to the profession.
In fulfillment of the commitment to the profession, educators:
(1) Shall comply with all Federal, State, and local laws and regulations and with written school entity policies.
(2) Shall apply for, accept or assign a position or a responsibility on the basis of professional qualifications and abilities.
(3) Shall not knowingly assist entry into or continuance in the education profession of an unqualified person or recommend for employment a person who is not certificated appropriately for the position.
(4) Shall not intentionally or knowingly falsify a document or intentionally or knowingly make a misrepresentation on a matter related to education, criminal history, certification, employment, employment evaluation or professional duties.
(5) Shall not falsify records or direct or coerce others to do so.
(6) Shall accurately report all information required by the local school board or governing board, State education agency, Federal agency or State or Federal law.
(7) Shall not knowingly or intentionally withhold evidence from the proper authorities and shall cooperate fully during official investigations and proceedings.
(8) Shall comply with all local, State or Federal procedures related to the security of standardized tests, test supplies or resources. Educators shall not intentionally or knowingly commit, and shall use reasonable efforts to prevent, any act that breaches test security or compromises the integrity of the assessment, including copying or teaching identified test items, publishing or distributing test items or answers, discussing test items, providing unauthorized assistance to students, unauthorized alteration of test responses, results or data, and violating local school board or State directions for the use of tests.
(9) Shall not accept or offer gratuities, gifts or favors that impair or appear to influence professional judgment, decisions, or actions or to obtain special advantage. This section shall not restrict the acceptance of de minimis gifts or tokens offered and accepted openly from students, parents of students, or other persons or organizations in recognition or appreciation of service.
(10) Shall not exploit professional relationships with students, parents or colleagues for personal gain or advantage.
(11) Shall use school funds, property, facilities, and resources only in accordance with local policies and local, State and Federal laws.
§§ 235.6—235.11. (Reserved).
[Pa.B. Doc. No. 21-1312. Filed for public inspection August 20, 2021, 9:00 a.m.]
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