February

United Union of Roofers, Waterproofers and Allied Workers, Local Union No. 37 v. North Allegheny School District, et al., 49 C.D. 2018, 2019 WL 5556265 (Pa. Cmwlth. Oct. 29, 2019).  Commonwealth Court confirms that school districts can require criminal background checks and/or bar employees from working in certain jobs based on the results of those background checks.

Factual Background:

In the summer of 2015, Pennsylvania Roofing Company successfully bid on a roofing project for the Fox Chapel Area School District. The project manual required each Pennsylvania Roofing employee to obtain criminal background checks as mandated by Section 111 of the School Code and Section 6344 of the Child Protective Services Law (“CPSL”). Eight Union members were denied clearance to work as a result of the background checks.

At about the same time, North Allegheny School District retained Massaro Construction Management Services to serve as construction manager for a roofing project at three project sites. Similarly, the general conditions agreed to by Massaro and North Allegheny required all workers to obtain criminal background checks in accordance with Section 111 of the School Code and Section 6344 of the CPSL. Six Union members were denied clearance to work on the North Allegheny roofing projects as a result of the background checks.

The Union subsequently filed a complaint against the School Districts seeking a declaration that: (1) the Union’s members were exempt from the requirements of Section 111 of the School Code and Section 6344 of the CPSL; (2) the Criminal History Record Information Act (“CHRIA”) prohibits the School Districts from refusing to employ Union members based on criminal background checks; and (3) the School Districts’ exclusion of Union members was a violation of due process.

The trial court agreed with the Union’s first argument and entered an order that allowed the previously disqualified Union members access to the School Districts’ work sites and prohibited the School Districts from conducting background checks on Union members unless the position applied for involved direct contact with children.

Discussion

Section 111 of the School Code, entitled criminal history of employees and prospective employees; conviction of certain offenses, provides, in relevant part:

(a.1) Beginning April 1, 2007, this section shall apply to all . . . independent contractors and their employees, except those employees and independent contractors and their employees who have no direct contact with children.

. . . .

(b) Administrators of public and private schools, intermediate units and area vocational-technical schools shall require prospective employees to submit with their employment application, pursuant to [CHRIA] (relating to criminal history record information), a report of criminal history record information from the Pennsylvania State Police or a statement from the Pennsylvania State Police that the [Pennsylvania] State Police central repository contains no such information relating to that person. . . .

24 P.S. § 1-111 (emphasis added).  Section 111 of the School Code thereafter delineates certain crimes and the corresponding employment ban for the individuals identified in Section 111(a.1) of the School Code.

The Union asserted that because Section 111(a.1) of the School Code contains an exception from the criminal background check requirement for employees who have no direct contact with children, and the School Districts did not present evidence that the Union employees would have direct contact with children, the School Districts violated Section 111 by requiring criminal background checks and barring Union employees from working as a result thereof. 

The School Districts, on the other hand, argued that while Section 111 of the School Code requires school districts to perform background checks for those individuals who have direct contact with children, it does not prohibit school districts from conducting background checks for individuals working on school property who do not have any contact with children. 

The Commonwealth Court agreed with the School Districts.  After reviewing the text of Section 111(a.1) of the School Code, the Court concluded that, as a matter of statutory construction, the statute does not prohibit school districts from requiring criminal background checks and/or barring employees from working in certain jobs based thereon.

The Court therefore reversed the trial court’s order and remanded the matter to address the Union’s CHRIA and constitutional arguments.

Practical Advice

Though the CHRIA and constitutional claims remain, the United Union confirms that the School Code does not prohibit school districts from insisting that all workers working on school property submit background checks and barring workers that fail such checks.  According, while this case should be monitored by District’s and their solicitors, the conditions contained in Fox Chapel’s project manual and North Allegheny’s general conditions are valid and similar conditions, until further notice, may be utilized by all school districts on their projects.

The city’s top watchdog agency is so behind in conducting background checks for new city employees that it doesn’t expect to catch up for another three to four years, a top official said.

In preparation for a City Council hearing on the subject Monday, Department of Investigation Commissioner Margaret Garnett sent a memo last month to the Council’s financial analyst, Jack Stern, noting the backlog had dropped to 5,328 employees by the end of 2019 in part due to the agency hiring additional investigators.

That’s 15 percent fewer than last March when Garnett testified at a Council investigation’s committee hearing that the backlog had reached 6,300 – including 1,900 cases dating back to 2016 that were yet to be reviewed. The caseload briefly rose to a high of 6,480 last July.

However, Garnett also said in the memo dated Jan. 24, that even with an extra 13 investigators, DOI doesn’t expect to “close the backlog” for another “36-48 months.”

Councilman Ritchie Torres (D-Bronx), who chairs the investigations committee, said he appreciates the DOI’s “greater sense of urgency” in reducing its backlog but the “sheer size remains embarrassing.”

“The longer these background investigations languish, the less value those investigations become,” the councilman told The Post Sunday.

“What’s the value in conducting a background investigation three, four, five years after the hiring of an employee?”

He said failing to reduce the backlog leaves the city more vulnerable to hiring sexual pervs and other bad apples — even throughout the “upper levels of city government.”

For instance, DOI never got around to doing a full background check on David Hay, a former ex-deputy chief of staff at the Department of Education fired late last year after being arrested for allegedly trying to arrange sex with a 14-year-old boy in Wisconsin.

Torres called Hay’s hiring a “debacle,” adding that he plans to ask Garnett and other DOI staff at Monday’s investigations committee hearing how Hay fell through the cracks to work “at the highest level of DOE.”

Torres also said there are unanswered questions about Kevin O’Brien, a former top aide to Mayor Bill de Blasio.

O’Brien was hired in 2016, only months after being canned from a previous post at the Democratic Governors Association in Washington, DC, following allegations of committing sexual harassment.

He wound up being quietly sacked by the city in 2017 for allegedly sexually harassing two city staffers.

O’Brien had submitted DOI notarized background forms that failed to list the previous allegations before the city hired him, Garnett testified at the Council hearing last March.

DOI said that as of Sunday, it had decreased the backlog down to about 4,895 employees, adding that Garnett recognizes “the serious issue she inherited” when replacing former Commissioner Mark Peters in November 2018 and has taken “steps” to address it with the additional staffing.

The agency said its goal is to complete background investigations within six months

“Ultimately, hiring agencies, not DOI, make the decision regarding whether to wait for the outcome of a background investigation before allowing an employee to begin working,” DOI said.

Almost a quarter of new council workers who needed a Disclosure and Barring Service (DBS) check started work without having one in place,  a Welsh Government audit has found.

The Wales Audit Office study of Conwy council ’s safeguarding of vulnerable people arrangements for 2018-2019 was discussed at the authority’s audit and governance scrutiny committee.

In total, 76.6% of new starters who needed the DBS check had one in place when they started work – according to the latest figures covered by the report. The target is 100%.

Auditors found Conwy council had “addressed the majority of the recommendations” from a 2015 study about safeguarding but found it “could improve” training arrangements.

Safeguarding training was completed by 48% of staff, and less than a third of staff in the authority’s education department had completed domestic violence awareness training by March 2019.

It also emerged the council was unaware how many school staff had completed safeguarding training because not all schools use the council’s computer system. Council officers want education staff to adopt its “robust” policies but cannot force them to said the report.

The audit office report said: “It is the responsibility of headteachers or the Designated Safeguarding Person in schools to keep a record of all staff who complete training and on what date, and they should be able to provide a list to the Council on request.”

The report went on to say the authority is considering transferring school staff records to its own system.

The council said it had responded to the proposals by “developing an action plan”.

Officers rejected a claim only 36 out of 62 schools had bothered to reply to a survey about how effective they were at giving safeguarding training to school governors. One officer claimed compliance had been “100%”.

However Wales Office auditor Gwilym Bury told members officers had been given a draft of the audit report and none of the figures were challenged.

The audit office study said it was the council’s “responsibility … to ensure they receive safeguarding training”.

Elsewhere the council was given a clean bill of health by auditors for its financial management and “effective use of resources”.