N.T. v. Dept. of Education ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
N.T., :
Petitioner : CASE SEALED
:
v. : No. 271 C.D. 2020
: Argued: May 10, 2021
Department of Education, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: July 7, 2021
N.T. (Petitioner) petitions for review of the February 10, 2020 Order (Order)
of the Professional Standards and Practices Commission (Commission) that
determined that Petitioner committed a crime of moral turpitude and directed the
Department of Education (Department) to revoke Petitioner’s teaching certificate
and eligibility to be employed as an educator pursuant to Section 9.2 of the Educator
Discipline Act (Act).1 On appeal, Petitioner argues that: (1) the Commission’s
finding that he was convicted under the defraud clause of 18 U.S.C. § 3711
Act of December 12, 1973, P.L. 397, as amended, added by Section 5 of the Act of
December 20, 2000, P.L. 918, 24 P.S. § 2070.9b(a)(2). Section 9.2 requires the Commission to
“[d]irect the [D]epartment to revoke the certificate and employment eligibility of an educator who
has been convicted of . . . a crime involving moral turpitude, or the attempt, solicitation or
conspiracy to commit any crime set forth in this section” and instructs that “the term ‘conviction’
shall include a plea of guilty or nolo contendere.” Id.
(“Conspiracy to commit offense or to defraud the United States”) (Section 371)2 was
not supported by substantial evidence of record; (2) the Commission erred by
looking beyond the elements of the crime in making its decision and in deciding that
a violation of Section 371 is a crime of moral turpitude; and (3) the Commission
violated Petitioner’s due process rights by revoking his educator’s license and
eligibility on summary judgment without a hearing.3 After careful review, we
affirm.
I. BACKGROUND
The following facts are undisputed. Petitioner is the chief executive officer
of a cyber charter school. (Notice of Charges ¶ 2, Reproduced Record (R.R.) at 2a.)
Petitioner has the following teaching certifications issued by the Department: (1) an
Instructional I teaching certificate in the area of Social Studies 7-12; (2) an
Administrative I certificate in the area of Secondary Principal 7-12; (3) an
Administrative I certificate in the area of Elementary Principal K-6; and (4) a Letter
of Eligibility in the area of Superintendent PK-12. (Id. ¶ 1.)
On August 21, 2013, the United States brought an indictment against
Petitioner alleging, among other charges, a violation of Section 371. (Indictment at
2
Section 371 provides, in relevant part, that
[i]f two or more persons conspire either to commit any offense against the United
States, or to defraud the United States, or any agency thereof in any manner or
for any purpose, and one or more of such persons do any act to effect the object of
the conspiracy, each shall be fined under this title or imprisoned not more than five
years, or both.
18 U.S.C. § 371 (emphasis added).
3
We have reordered the issues presented by Petitioner for ease of discussion and analysis,
as whether Petitioner’s due process rights were violated turns on whether the Commission properly
determined that he had been convicted of a crime of moral turpitude.
2
19-34, R.R. at 27a-42a.) Under Count 6, charging Petitioner with a violation of
Section 371, the indictment states that Petitioner “did knowingly and willfully
conspire . . . to defraud the United States[.]” (R.R. at 27a.) Petitioner ultimately
pled guilty to only “Count 6” on August 24, 2016, in the United States District Court
for the Western District of Pennsylvania.4 (Id. at 64a.) The Amended Judgment
describes the “Nature of Offense” to which Petitioner pled guilty under Section 371
as a “Tax Conspiracy.” (Id. at 69a.)
On October 10, 2019, the Department filed a Notice of Charges (Notice) with
the Commission alleging that Petitioner had been convicted of conspiring to defraud
the United States under Section 371 and that the offense is a crime involving moral
turpitude. (Notice of Charges ¶ 15, R.R. at 5a.) That same day, the Department filed
a motion for summary judgment requesting that the Commission revoke Petitioner’s
teaching certificate and employment eligibility as an educator pursuant to the Act.
Petitioner filed a response to the summary judgment motion admitting he “pled
guilty to a violation of [Section] 371,” but stating that because there are multiple
ways in which Section 371 can be violated, “[i]t is impossible to determine based
upon the literal language contained in Section 371 if the crime to which [he] pled
guilty relates to a crime of ‘moral turpitude.’” (Response to Motion for Summary
Judgment ¶¶ 2-3, R.R. at 86a-87a.)
After oral argument, the Commission granted summary judgment in the
Department’s favor. (Commission’s Order, R.R. at 98a.) The Commission
explained that “[t]he determination of whether a crime involves moral turpitude is
based solely upon the elements of the crime” and that “[t]he facts underlying the
4
The remaining charges in the indictment appear to have survived until July 2018, at which
time an Amended Judgment was entered reflecting that the remaining counts were dismissed on
motion of the United States. (R.R. at 69a.)
3
charges are not relevant to the issue of moral turpitude.” (Commission’s
Memorandum at 2-3 (citing 22 Pa. Code § 237.9(b),5 and Startzel v. Dep’t of Educ.,
562 A.2d 1005, 1007 (Pa. Cmwlth. 1989)).) The Commission analyzed Section 371
and concluded that “[t]he statute is written in the disjunctive and should be
interpreted as establishing two alternative means of committing a violation.” (Id. at
3 (citing United States v. Harmas, 974 F.2d 1262, 1266 (11th Cir. 1992), and United
States v. Vasquez, 319 F.2d 381, 384 (3d Cir. 1963)).)6 The Commission explained
that Section 371 “condemns two types of conspiracies: one, to commit a substantive
offense against the United States specified under other statutes, and the other to
defraud the United States[.]” (Id. (citing Vasquez, 319 F.2d at 384).) The
Commission found that Petitioner “concede[d] that the charge to which he pled
guilty was made solely under the defraud clause of [Section] 371.” (Id.) Because
“[t]o ‘defraud’ the United States means to cheat the [g]overnment out of property or
money, or to interfere with or obstruct one of its lawful governmental functions by
deceit, craft[,] or trickery, or at least by means that are dishonest[,]” (id. (citing
Hammerschmidt v. United States, 265 U.S. 182, 188-89 (1924), and Vasquez, 319
F.2d at 384)), the Commission found it “axiomatic that one who performs an act
with the intent to defraud the government is guilty of an act contrary to justice,
honesty, or good morals,” (id. at 4).
The Commission thus “ha[d] no difficulty determining that the concept of
moral turpitude embraces the crime to which [P]etitioner ple[d] guilty” and ordered
5
The regulation instructs that “[a] determination of whether a crime involves moral
turpitude will be determined based solely upon the elements of the crime. The underlying facts or
details of an individual criminal charge, indictment[,] or conviction are not relevant to the issue of
moral turpitude.” 22 Pa. Code § 237.9(b).
6
While not binding, decisions from the federal circuit courts may be cited for their
persuasive value. Edinger v. Borough of Portland, 119 A.3d 1111, 1115 (Pa. Cmwlth. 2015).
4
that Petitioner’s “educator certification and eligibility to be employed as a charter or
cyber school staff member or a contracted educational provider staff member” be
immediately revoked pursuant to the Act. (R.R. at 97a-98a.) Petitioner now seeks
review of this Order.7
II. DISCUSSION
A. Whether substantial evidence exists for the Commission to find that
Petitioner pled guilty under the defraud clause of Section 371 based
either on the indictment or Petitioner’s alleged concession.
1. Parties’ Arguments
Petitioner argues that the Commission’s finding that he was convicted under
the defraud clause of Section 371 was not supported by substantial evidence.
Specifically, Petitioner asserts that he did not concede to pleading guilty under the
defraud clause of Section 371. “Without this purported concession, the Commission
cannot decipher based upon the elements of [S]ection 371 whether Petitioner
committed a crime involving moral turpitude.” (Petitioner’s Brief (Br.) at 18.)
Therefore, Petitioner avers that, in order to determine the crime involved moral
turpitude, the Commission must have impermissibly considered the facts of the
indictment rather than solely considering the plain language of Section 371, as it
should have. (Id. at 11.) Petitioner relies on Dunagan v. Bureau of Professional and
Occupational Affairs, State Board of Nursing (Pa. Cmwlth., No. 546 C.D. 2018,
7
This Court’s scope of review “is limited to a determination of whether constitutional
rights were violated, [whether] an error of law was committed[,] or whether necessary findings of
fact are supported by substantial evidence.” Dohanic v. Dep’t of Educ., 533 A.2d 812, 814 (Pa.
Cmwlth. 1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Obimak Enter. v. Dep’t of Health, 200 A.3d 119, 126 (Pa.
Cmwlth. 2018) (quotations and citation omitted).
5
filed April 10, 2019),8 in which the Board of Nursing (Board) “concede[d] that it
erred by referencing the context of the [p]etitioner’s tumultuous behavior as being
during the execution of a search warrant[]” by “pulling that language from the
handwritten note on the amended [c]riminal [i]information.” (Petitioner’s Br. at 19
(quoting Dunagan, slip op. at 12) (internal quotation marks omitted).) Petitioner
compares the handwritten note in Dunagan to the information in the underlying
indictment of Petitioner, as both are extraneous sources, beyond the purview of the
Commission in considering whether Petitioner committed a crime of moral
turpitude. (Id.) In sum, Petitioner argues that it is impossible for the Commission
to have determined, based solely on the language of Section 371, whether his
conviction was under the defraud clause.
In response, the Department argues that substantial evidence of record
supports that Petitioner was convicted of conspiracy to defraud the United States.
The Department argues that Petitioner pled guilty only to the count of the indictment
charging him with “Tax Conspiracy” under Section 371 and points to the indictment,
asserting the elements of the crime that the government was required to prove in
order to show that Petitioner sought to defraud the United States were described
therein. (Department’s Br. at 11-12.) In this respect, the Department argues that
while it “must rely solely on the elements of a crime when determining whether it is
a crime involving moral turpitude, it is appropriate . . . to look to the certified court
records, here the indictment, to determine which elements are subject to moral
turpitude analysis.” (Id. at 12-13 (citing 22 Pa. Code § 237.9(b).) The Department
8
Dunagan is unreported, and while unreported opinions do not constitute binding
precedent, they may be cited for their persuasive value. See Pennsylvania Rule of Appellate
Procedure 126(b), Pa.R.A.P. 126(b); Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a).
6
posits that because the record is “devoid of any reference” to any other substantive
charge or separate underlying crime of conspiracy, the record shows that Petitioner
was convicted of conspiracy to defraud the United States. (Id. at 12.) Finally, the
Department alleges that Petitioner’s counsel conceded that Petitioner pled guilty to
committing conspiracy to defraud the United States before the Commission during
oral presentation of Petitioner’s case and that the Commission’s statement that
Petitioner conceded to pleading guilty to the defraud clause of Section 371 allegedly
“corroborated” this earlier concession. (Id. at 13-14 (citing the Commission’s
Memorandum at 3).)
2. Analysis
Section 9.2 requires the Commission to “[d]irect the [D]epartment to revoke
the certificate and employment eligibility of an educator who has been convicted of
. . . a crime involving moral turpitude, or the attempt, solicitation or conspiracy to
commit any crime set forth in this section” and instructs that “the term ‘conviction’
shall include a plea of guilty or nolo contendere.” 24 P.S. § 2070.9b(a)(2). In
determining whether a conviction qualifies as a crime of moral turpitude, the
regulations provide that the Commission’s determination is to be “based solely upon
the elements of the crime. The underlying facts or details of an individual criminal
charge, indictment or conviction are not relevant to the issue of moral turpitude.”
22 Pa. Code § 237.9(b) (emphasis added). Thus, the “[d]etermination of whether a
crime involves moral turpitude turns on the elements of the crime, not on an
independent examination of the details of the behavior underlying the crime.”
Startzel, 562 A.2d at 1007 (emphasis added).
The Commission interprets the phrase “underlying facts or details” in the
regulation to mean the facts alleged in the indictment, such as, here, the other
7
individual allegedly involved in the conspiracy, the overt acts taken in furtherance
of the conspiracy, the details as to how the conspiracy was to be accomplished, and
the amounts of money involved, etc. Under this interpretation, the regulation would
not apply to limit review of the indictment to determine the section or clause of a
criminal statute under which an individual was convicted.
Conversely, Petitioner interprets this phrase of the regulation as disallowing
consideration of all details found in the indictment, including, in this case, whether
Petitioner was indicted under and pled guilty to a violation of the defraud clause or
of conspiring to commit another offense. This latter, strict interpretation would limit
the Commission’s review to only the text of Section 371, which states merely that it
is an offense “either to commit any offense against the United States, or to defraud
the United States,” 18 U.S.C. § 371, without distinguishing between the two
offenses.
To what extent the Commission may look at a charging document to
determine the offense for which an individual was convicted appears to be one of
first impression. While there appears to be no case on point, we find some guidance
in our precedent. First, in Bowalick v. Department of Education, a teacher was
convicted of simple assault, and the Commission revoked the teacher’s certification
as a result of its finding that simple assault qualifies as a crime of moral turpitude.
840 A.2d 519, 525 (Pa. Cmwlth 2004) (citing Section 2701(b) of the Crimes Code,
18 Pa.C.S. § 2701(b).) Similar to the offense of conspiracy in Section 371, there are
different ways in which an individual can commit simple assault. In addition, the
criminal statute defining simple assault differentiates between those situations in
which the fight involved mutual consent, which are graded as misdemeanors of the
third degree, and those that do not, which are graded as misdemeanors of the second
8
degree. The only charge stated was simple assault, generally, without reference to
grading or the subsection the teacher allegedly violated. Because simple assault
embraces altercations involving mutual consent, which may or may not implicate
moral turpitude, we reversed the Commission’s order revoking the teacher’s
certification. In reaching this determination, this Court did not consider the degree
of the crime or the subsection with which the teacher was charged, as this issue was
not raised.
In Collaso v. Bureau of Professional and Occupational Affairs, State Board
of Social Workers, Marriage & Family Therapists & Professional Counselors (Pa.
Cmwlth., No. 1118 C.D. 2015, filed July 1, 2016), a social worker had her license
to practice clinical social work revoked after being convicted of simple assault. We
examined Bowalick and explained that the decision was consistent with other
decisions limiting the determination of whether a particular crime was involved to a
review of the elements of the offense, not the details of the underlying behavior that
formed the basis for the crime. However, in making that determination in Collaso,
we explicitly considered the grade of the offense to which the social worker pled
guilty, which had been specified as a misdemeanor of the second degree, in contrast
to Bowalick where we did not consider the grade of the offense.
We next cited Bowalick in Dunagan, slip op. at 16-17. There, a nurse admitted
to pleading nolo contendere to one count of disorderly conduct, a misdemeanor of
the third degree. The Board held that this conviction qualified as a crime of moral
turpitude and suspended the petitioner’s nursing license. Similar to simple assault,
the criminal statute for disorderly conduct also differentiated the grading of the
offense based on the individual’s conduct, providing for a third degree offense “if
the intent of the actor [was] to cause substantial harm or serious inconvenience, or
9
if he persist[ed] in disorderly conduct after reasonable warning or request to desist.
Otherwise[,] disorderly conduct is a summary offense.” Section 5503(b) of the
Crimes Code, 18 Pa.C.S. § 5503(b). Once more, as in Collaso, this Court explicitly
considered the specific degree of the offense in deciding whether that offense was a
crime of moral turpitude, as the Court’s decision to reverse turned on the types of
conduct embraced by third-degree disorderly conduct. Furthermore, in reaching its
contrary decision that the disorderly conduct at issue qualified as a crime of moral
turpitude, the Board in Dunagan had mistakenly relied on a handwritten note
attached to the criminal information, which provided the underlying details of the
crime. The Board conceded “it erred by referencing the context of [the p]etitioner’s
tumultuous behavior as being during the execution of a search warrant,” in which
the Board “pull[ed] that language from the handwritten note on the amended
[c]riminal [i]nformation.” Dunagan, slip op. at 12 (quotations and citations
omitted). Thus, in reversing the Board’s decision, the Court recognized that
consideration of underlying facts or details in the charging document such as those
indicating the circumstances surrounding an individual’s specific behavior is
impermissible, but consideration of the specific section of the criminal statute
charged is not.
Analyzing these cases together, although the Court in Bowalick did not
consider the specific degree of the crime, as the issue was not raised, the precedent
supports consideration of the specific section or clause of a criminal statute under
which an individual is charged and pleads guilty, as this Court did in both Collaso
and Dunagan. On the other hand, any further consideration of the facts or details
regarding the individual’s specific behavior in committing the crime is not proper.
10
Here, Petitioner pled guilty to “Count 6.” (R.R. at 64a, 69a.) Count 6 of the
indictment states that Petitioner “knowingly and willfully conspired . . . to defraud
the United States[.]” (Id. at 27a.) While the indictment goes on to discuss
Petitioner’s conduct that formed the basis for this charge, the Commission limited
its review of the indictment to determining which clause of Section 371 was the basis
for Petitioner’s charge and ultimate guilty plea. Moreover, consideration of only
this preliminary statement in the indictment does not implicate a review of the
“underlying facts or details” of the indictment in violation of the regulation. 22 Pa.
Code § 237.9(b). Because Section 371 can be violated in one of two ways –
conspiring to commit another offense against or conspiring to defraud the United
States – this limited review simply aids the reviewing agency or court in determining
to which specific violation Petitioner pled guilty. This interpretation is also
consistent with the purpose of 22 Pa. Code § 237.9(b), which is written to limit
review of the details describing an individual’s behavior in committing a crime so
that a reviewing agency or court is not relitigating the individual’s wrongdoing or
being improperly influenced by the details of that conduct. Reviewing a charging
document, such as the indictment here, to determine to which charge Petitioner pled
guilty is unlike the Board’s consideration of the handwritten note in Dunagan, as the
Board there used the fact that the petitioner engaged in tumultuous behavior during
the execution of a search warrant to influence its determination of the ultimate issue
of whether the conviction qualified as a crime of moral turpitude. Furthermore,
absent the ability to determine the specific crime of which an individual was
convicted, it would become virtually impossible to determine whether the crime is
one of moral turpitude, particularly in cases such as this where an individual is
convicted of a crime that has different means of violation. Accordingly, we hold
11
that the Commission did not err by considering the specific charge in the indictment
to which Petitioner pled guilty and, therefore, that substantial evidence exists for the
Commission to find that Petitioner pled guilty to the defraud clause of Section 371.9
B. Whether a violation of the defraud clause of Section 371 qualifies as a
crime of moral turpitude.
1. Parties’ Arguments
Petitioner argues that the “disjunctive nature” of Section 371 makes the
determination as to whether Petitioner was convicted of a crime of moral turpitude
based solely on the statute impossible, “[w]ithout a hearing and consideration of the
underlying facts of the conviction[.]” (Petitioner’s Br. at 15.) Therefore, given that
conspiracy is an “umbrella crime that may entail numerous underlying crimes[,]”
Petitioner argues that “[c]onspiracy under [S]ection 371 alone is not a crime of moral
turpitude[.]” (Id. at 17.) Petitioner again relies on Dunagan, in which the Court
analyzed the elements of disorderly conduct and concluded that “‘because there are
numerous iterations of disorderly conduct’” it was impossible to determine whether
violation of that statute constitutes a crime of moral turpitude. (Id. (quoting
Dunagan, slip op. at 17).) Accordingly, Petitioner argues that, similarly, conspiracy
9
The Department also argues that Petitioner conceded to pleading guilty under the defraud
clause and that this would constitute substantial evidence to support the Commission’s finding.
However, there was no evidence of record such as a transcript, or other evidence supporting that
Petitioner or Petitioner’s counsel conceded that his guilty plea was made under the defraud clause
of Section 371. Petitioner has explicitly and consistently rejected that he conceded as much. For
example, in his Response to the Department’s Motion for Summary Judgment, Petitioner stated
only that he pled guilty to Section 371, “which relates to conspiracy to commit [any] offense
[against] or to defraud [the] United States.” (R.R. at 86a (internal quotations omitted).) Absent
record evidence of this concession, it cannot be said the Commission’s finding that Petitioner
conceded to pleading guilty under the defraud clause of Section 371 was supported by substantial
evidence. Nevertheless, as discussed above, we discern no error with the Commission’s ultimate
finding that Petitioner pled guilty under the defraud clause of Section 371.
12
is not itself a crime of moral turpitude, and, therefore, a general conviction under
Section 371 is not sufficient for such a finding.
The Department responds that the Commission properly found that conspiracy
to defraud the United States was a crime of moral turpitude. “As a general rule, all
crimes of which fraud is an element are looked on as involving moral turpitude,” and
“the phrase ‘crime involving moral turpitude’ has without exception been construed
to embrace fraudulent conduct,” according to the Department. (Department’s Br. at
15 (quoting Moretti v. State Bd. of Pharmacy, 277 A.2d 516, 519 (Pa. Cmwlth.
1971)).) The Department posits that “[a] person who acts with the intent to defraud
the government by means that involve trickery, deceit, or dishonesty is acting
‘contrary to justice, honesty[,] or good morals.’” (Id. at 16-17 (quoting 22 Pa. Code
§ 237.9(a)(2)).) Because the elements of conspiracy to defraud the United States
“embrace fraudulent conduct and include fraud as an essential ingredient[,]” the
Department maintains that “the Commission properly determined [c]onspiracy to
[d]efraud the United States to be a crime involving moral turpitude.” (Id. at 17.)
The Department argues that Petitioner’s position that Section 371 cannot be
determined to involve moral turpitude on its face fails because Section 371 contains
only one substantive offense, conspiracy to defraud the United States and, therefore,
a conviction under Section 371, without any reference to or conviction under another
substantive statute, necessarily means the offense involved “fraudulent or dishonest
conduct with the intent to defraud, impede, or obstruct the lawful functions of the
federal government.” (Id. at 17-18.)
2. Analysis
Title 22 of the Pennsylvania Code states that “moral turpitude” includes:
13
(1) That element of personal misconduct in the private and social duties
which a person owes to his fellow human beings or to society in
general, which characterizes the act done as an act of baseness,
vileness[,] or depravity, and contrary to the accepted and customary
rule of right and duty between two human beings[,]
(2) [c]onduct done knowingly contrary to justice, honesty[,] or good
morals[, and]
(3) [i]ntentional, knowing[,] or reckless conduct causing bodily injury
to another or intentional, knowing[,] or reckless conduct which, by
physical menace, puts another in fear of imminent serious bodily injury.
22 Pa. Code § 237.9(a).10 The United States Supreme Court has provided guidance
as to whether the crime of conspiracy to defraud the United States is a crime of moral
10
The Code also enumerates specific crimes “involving moral turpitude per se” as
including:
(1) An offense under 18 Pa.C.S. (relating to crimes and offenses) listed in section
111(e)(1) of the Public School Code of 1949[, Act of March 10, 1949, P.L. 30, as
amended,] []24 P.S. § 1-111(e)(1)[].
(2) An offense designated as a felony under The Controlled Substance, Drug,
Device and Cosmetic Act[, Act of April 14, 1972, P.L. 233, as amended,] []35 P.S.
§§ 780-101–780-144[]. At any time subsequent to the adoption of this chapter if
[S]ection 111(e)(1) is amended to add or delete crimes, the Commission will
consider each additional or deleted crime to determine if the crime involves moral
turpitude per se and will vote at a public meeting whether the crime will be
designated as involving moral turpitude per se for purposes of cases coming before
the Commission under [S]ection 9.2 of the [Act].
(3) An offense of a criminal law of the Commonwealth, the Federal government or
another state or territory of the United States, or another nation, an element of which
offense is delivery of a controlled substance or possession of a controlled substance
with intent to deliver.
(4) A State offense, out-of-State offense or Federal offense or another nation,
similar in nature to crimes listed in paragraphs (1)--(3).
22 Pa. Code § 237.9(c).
14
turpitude in Jordan v. De George, 341 U.S. 223, 229 (1951). In Jordan, the Supreme
Court analyzed both federal and state law decisions concerning the definition of a
crime of moral turpitude in relation to fraud, explaining that,
[i]n view of these decisions, it can be concluded that fraud has
consistently been regarded as such a contaminating component in any
crime that American courts have, without exception, included such
crimes within the scope of moral turpitude. It is therefore clear, under
an unbroken course of judicial decisions, that the crime of
conspiring to defraud the United States is a “crime involving moral
turpitude.”
Id. (emphasis added). Following Jordan, this Court analyzed the definition of a
crime of moral turpitude under the Pharmacy Act11 in relation to a pharmacist who
had committed tax fraud in Moretti, 277 A.2d at 518. In Moretti, relying on Jordan,
this Court held that “[a]s a general rule, all crimes of which fraud is an element are
looked on as involving moral turpitude.” Id. We analyzed the pharmacist’s
conviction for income tax evasion, finding that because fraud was an integral part of
income tax evasion, such crime “squarely falls within the definition of moral
turpitude laid down by the Supreme Court” in Jordan. Id. at 519. In so holding, we
also relied on our Supreme Court’s determination in In re Alker, in which our highest
Court recognized that where an individual is convicted of tax evasion, “fraud is
thereby made a part of the crime” such “as to integrate it within the scope of moral
turpitude.” 157 A.2d 749, 752 (Pa. 1960) (quotations and citation omitted).
Moreover, we have found it axiomatic that “mail fraud is a crime in which fraud is
an ingredient and[,] therefore, [] is a crime involving moral turpitude.” Startzel, 562
A.2d at 1007 (citing State Dental Council & Examining Bd. v. Friedman, 367 A.2d
363 (Pa. Cmwlth. 1976)); see also Yurick v. Dep’t of State, 402 A.2d 290 (Pa.
11
Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §§ 390-1–390-13.
15
Cmwlth. 1979) (determining that a federal conviction for mail fraud constitutes a
crime involving moral turpitude warranting the revocation or suspension of licenses
to practice osteopathic medicine). Accordingly, a crime that has an element of fraud
on the face of the statute defining it qualifies as a crime of moral turpitude.
With regard to the Department’s argument that a guilty plea solely under
Section 371 must involve the defraud clause because the statute contains only one
substantive offense, Bowalick and Dunagan are again instructive. In Bowalick, this
Court reversed the Commission’s decision that simple assault qualified as a crime
of moral turpitude. We concluded that because there are “[m]any manifestations of
simple assault,” such that “someone may be convicted of simple assault in the
context of a ‘scuffle entered into by mutual consent,’ the elements of the crime do
not necessarily satisfy the definition of moral turpitude[.]” Bowalick, 840 A.2d at
525. We applied this reasoning in Dunagan, holding that “one may be convicted of
disorderly conduct as a misdemeanor in the third degree for a variety of behaviors”
and that many of those do not involve a crime of moral turpitude. Dunagan, slip op.
at 16. To the extent that we are reviewing a general guilty plea under Section 371,
because Section 371 entails both a general conspiracy clause and the defraud clause,
it is comparable to both simple assault and disorderly conduct in that it criminalizes
conduct that could clearly be of moral turpitude while also embracing conduct that
could not. Accordingly, a general conviction under Section 371 is not sufficient for
a finding that a crime of moral turpitude was committed.
However, as discussed above, Petitioner pled guilty to the defraud clause of
Section 371, specifically. Looking to the defraud clause, it is clear that conspiracy
to defraud the United States is a “crime[] of which fraud is an element.” Moretti,
277 A.2d at 518. Moreover, one who commits conspiracy to defraud the United
16
States has necessarily engaged in “[c]onduct done knowingly contrary to justice,
honesty[,] or good morals.” 22 Pa. Code § 237.9(a)(2). Consistent with our
decisions as to tax evasion, Moretti, 277 A.2d at 581, and mail fraud, Startzel, 562
A.2d at 1007, we hold that conspiracy to defraud the United States under Section
371 is a crime of moral turpitude and that the Commission did not err in its
determination.
C. Whether the Commission violated Petitioner’s due process rights by
revoking his certification and eligibility as an educator on summary
judgment.
1. Parties’ Arguments
Petitioner argues that the revocation of his certification and eligibility to be
employed as an educator without a hearing violated his right to due process because
his “educator’s license and eligibility for employment are constitutionally protected
property rights that are entitled to due process protection.” (Petitioner’s Br. at 13-
14 (citing Petron v. Dep’t of Educ., 726 A.2d 1091, 1093 (Pa. Cmwlth. 1999)).)
Petitioner contends that “this Court has yet to affirm the revocation of licensures
based upon a conviction under [S]ection 371 alone, but only in conjunction with
convictions of additional crimes which were determinative of a finding of moral
turpitude.” (Id. at 16 (citing Kinniry v. Pro. Standards & Pracs. Comm’n, 678 A.2d
1230 (Pa. Cmwlth. 1996), and Yurick, 402 A.2d at 290).) Therefore, given that
conspiracy is an “‘umbrella’ crime that may entail numerous underlying crimes[,]”
Petitioner argues that “[c]onspiracy under [S]ection 371 alone is not a crime of moral
turpitude” and that the Commission violated Petitioner’s right to due process in
revoking his certification and eligibility of employment as an educator on summary
judgment. (Id. at 17.)
17
The Department responds that “the right to practice a chosen profession is
subject to the lawful exercise of the power of the State to protect the public health,
safety, welfare, and morals by promulgating laws and regulations that reasonably
regulate occupations.” (Department’s Br. at 20 (citing Khan v. State Bd. of
Auctioneer Exam’rs, 842 A.2d 936, 946 (Pa. 2004)).) Moreover, the Department
contends, the right to engage in a particular licensed occupation is subject to certain
conditions and, therefore, requires only that the rational basis test be satisfied.
Further, the Department submits that “[t]his Court has consistently held that an
educator’s due process rights are not violated by the revocation of his or her teaching
certificate on summary judg[]ment upon proof of conviction of a crime of moral
turpitude.” (Id. at 21 (citing Bowalick, 840 A.2d at 522, and Kinniry, 678 A.2d at
1234).) Finally, the Department submits that the Act provides for a “two-step
decertification/recertification process,” which allows Petitioner the opportunity to
be readmitted to the profession after demonstrating that reinstatement is just and
proper. (Id. at 21-22 (citing Startzel, 562 A.2d at 1008).) Accordingly, the
Department argues that the revocation did not violate Petitioner’s due process rights.
2. Analysis
It is well settled that a “teaching certificate is a constitutionally protected
property right entitled to due process protection.” Petron, 726 A.2d at 1093 (citing
Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3rd Cir. 1990)). The fundamental
and essential requirements of due process are notice and the opportunity to be heard.
Long v. Bureau of Pro. & Occupational Affs., 112 A.3d 671, 677 (Pa. Cmwlth.
2015); Gombach v. Bureau of Comm’ns, Elections & Legis., 692 A.2d 1127, 1129-
30 (Pa. Cmwlth. 1997). To comply with procedural due process, the individual must
be provided adequate information with which to prepare his or her defense. Straw
18
v. Pa. Hum. Rels. Comm’n, 308 A.2d 619, 621 (Pa. Cmwlth. 1973). In order for
such notice to be constitutionally adequate, “it must at the very least contain a
sufficient listing and explanation of any charges against the individual.” Gombach,
692 A.2d at 1130 (citing McClelland v. State Civ. Serv. Comm’n, 322 A.2d 133 (Pa.
Cmwlth. 1974)).
Of importance, and as Petitioner recognizes in his brief, (Petitioner’s Br. at
14), we have stated that “[o]nce the Commission receives a certified copy of a
conviction of a crime of moral turpitude, it is bound . . . to revoke an educator[’]s
certification. Upon proof of a conviction of a crime of moral turpitude, revocation
on summary judgment does not violate due process.” Bowalick, 840 A.2d at 522
(citing Kinniry, 678 A.2d at 1230).
In the present case, Petitioner was provided with the Notice that appraised
Petitioner of the charges lodged against him in light of the guilty plea and the
underlying facts upon which the Department was relying, which was filed along with
a Motion for Summary Judgment. While Petitioner did not file an Answer to the
Notice, he did file a Response to the Motion for Summary Judgment. The Notice
informed Petitioner that if he “contest[ed] any factual assertion made in this Notice,
[he] ha[d] a right to request, in writing, a hearing.” (R.R. at 6a.) Thus, the Notice
provided Petitioner with adequate information with which to prepare his defense,
Straw, 308 A.2d at 621, as it “contain[ed] a sufficient listing and explanation of any
charges against” him, Gombach, 692 A.2d at 1130. Petitioner then had the
opportunity to be heard both through his Response to the Motion for Summary
Judgment and during oral presentation of his case before the Commission.
Accordingly, Petitioner was afforded adequate due process. Moreover, as we have
held that Petitioner’s guilty plea under the defraud clause of Section 371 qualifies as
19
a crime of moral turpitude, our precedent indicates that “revocation [of Petitioner’s
educator’s certificate and eligibility] on summary judgment d[id] not violate due
process.” Bowalick, 840 A.2d at 522. Therefore, the Commission did not violate
Petitioner’s due process rights by revoking his educator’s certificate and eligibility
on summary judgment.12
12
We also note that there remains process available for Petitioner to reobtain his
certification and eligibility. This mechanism provides:
An educator whose certificate or employment eligibility has been suspended,
revoked or surrendered may apply to the [C]ommission for an order lifting the
suspension or reinstating the certificate. The [C]ommission shall order the lifting
of the suspension or reinstatement if the [C]ommission determines it would be just
and proper. The [C]ommission shall seek and consider recommendations from the
[D]epartment prior to ordering the lifting of the suspension or reinstatement of the
certificate and employment eligibility and shall conduct hearings on the application
at the request of the educator in accordance with procedures established by the
[C]ommission in accordance with this act. The [C]ommission shall also seek and
may consider recommendations from the school entity or entities in which the
educator was employed at the time of the misconduct. For purposes of determining
whether it is just and proper to lift a suspension or reinstate a certificate, the
[C]ommission may consider:
(1) The conduct which resulted in discipline.
(2) Other past conduct of the applicant.
(3) The applicant’s current attitude toward past conduct.
(4) Rehabilitation efforts and activities.
(4.1) Evidence of compliance with any conditions imposed as part of the
discipline.
(5) References and letters of support of or in opposition to reinstatement.
Section 16 of the Act, 24 P.S. § 2070.16. Section 16 was added by Section 3 of the Act of
December 14, 1989, P.L. 612.
20
III. CONCLUSION
Based on the foregoing, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
N.T., :
Petitioner : CASE SEALED
:
v. : No. 271 C.D. 2020
:
Department of Education, :
Respondent :
ORDER
NOW, July 7, 2021, the Order of the Professional Standards and Practices
Commission in the above captioned matter is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge