PSC Code of Ethics Enforcement: Professionalization or Criminalization?

 Max Weber defined bureaucracy as the formal system of organization and administration designed to ensure efficiency and effectiveness, free from personal involvements, emotions, and sentiment. At the same time, he feared excessive reliance rules, where people are treated like a number and not like human beings. The Professional Standards Commission has designed a system that favors bureaucratic efficiency at the expense of listening to educators. In too many instances, the process criminalizes educators.

Tracing the history of an ethics case through a Black educator’s lived experience will show the impersonal efficiency of ethics enforcement and how adherence to procedural guidelines are reframed as haunting questions of criminality. Before turning to the case, a quick review of the PSC complaint process is in order.

An ethics investigation begins with a written complaint being filed with the Commission. Any citizen of the State of Georgia has the right to file a complaint. Once the complaint is received, PSC staff review the complaint. Incredibly, the staff decides whether probable cause exists to open an investigation.  If the complaint receives “no probable cause (NPC),” the PCS dismisses the complaint before the full Commission can even read it.  For these situations, the Commission is kept in the dark about due process. Too often, educator cases filed against administrators are considered no probable cause. For those commissioners that question the NPC determination, they are without the benefit of reviewing any contextual or historical information.  They are beholden to PSC staff interpretations and bias and without independent information to challenge the NPC decision.

For cases that proceed past the initial screening, the Commission will then decide whether the complaint shows probable cause and should be investigated.  For many cases at the PSC, the investigation process involves retraumatizing a victim of domestic violence, reliving humiliating interactions with law enforcement, and turning a blind eye to blatant racial profiling. At the conclusion of the investigation, the investigator prepares and submits a written report to the Commission to determine whether probable cause exists. PSC investigations have been the focus of a Georgia Department of Audits report that admonished these investigator case summaries for containing “extraneous” information that was unrelated to the allegations, such as the educator called to thank the investigator  for all of his assistance; the educator ended her statement by saying, “I am the sole provider my household, which consists of one disabled son with a life threatening disease. I pray you will be compassionate and understanding, when reviewing my case.” Based upon these investigations, the PSC decides whether probable cause exists that a violation of the Code of Ethics has occurred and makes a recommendation for a sanction. The educator has a right to appeal the recommendation by rejecting the Consent Order sent by the PSC and requesting an administrative hearing before an Administrative Law Judge (ALJ). The PSC hearing is less formal than a criminal trial but does include the presentation of live testimony and cross-examination of witnesses.   Based upon the evidence admitted, the ALJ will issue a decision that becomes a Final Order now appealable to a superior court in Georgia.

The PSC has systematically taken steps to limit educator rights to appeal a Final Order. Prior to 2009, educators could ask for an agency review and directly address the Commission. The educator had a right to appear before the Commission to plead their case in person even when represented by legal counsel. You might lose your appeal, but educator voices were heard.

However, the PSC has since changed its rules to make it more difficult and costly to appeal an ALJ decision.  First, the PSC took away the right of educators represented by attorneys to utter a single word to the Commission at a review hearing.  Then, the PSC changed their rules and no longer even bothers with the agency review process. Your voices have been marginalized. Except for an in-person interview with an investigator (most cases are handled by email and phone), the PSC does not allow the educator to speak to the Commission. Weber’s fears realized.

“It was dehumanizing.” The GAE member, let’s call her Ethical Educator, was going through a difficult divorce. To keep her family safe, Ethical Educator moved across state lines to Florida through a national domestic violence program. One day, Ethical Educator went shopping at a local big box store. After purchasing several food items, she accidentally bagged two eight-ounce soft drinks in the self-checkout line (which she offered to pay for). On her way out of the store, loss prevention apprehended Ethical Educator and called local law enforcement. The officers explained that normally they would issue a simple citation and set her free. However, because the Ethical Educator did not have a Florida ID, and happened to be a minority, the officers were required to place her under arrest. You do not have to question the legislative motivation behind a Florida ID law to understand the arresting officers have legal discretion to administer the laws in a fair and just manner. The grand total of the goods was $2.37.

One indignity piled on top of another. Ethical Educator was transported to jail, photographed, finger-printed, searched, and given a jumpsuit. The stress and anxiety of being incarcerated are immense and they can have long-term health consequences especially for people of color. The following Monday, a Florida Judge immediately disposed of the case by entering “Adjudication Withheld” noting the shameful absurdity of a veteran math teacher being jailed for $2.37. Ethical Educator also paid $1,237.00 in fees, fines, costs. Not to mention $2,700.00 in attorney’s fees. Three days in jail cost the taxpayers about $100.00 per night, but you cannot quantify the emotional cost of racial profiling.

Ethical Educator’s ex-husband had been in law enforcement.  He was an expert in the ways of tracking and surveillance. When he found his ex-wife in Florida, the Ethical Educator was forced to escape to another safe house located in Georgia. Once in Georgia, Ethical Educator applied for and was offered employment with an Atlanta Metro-Area County as a math teacher. Due to a lengthy commute the following year, Ethical Educator got a job in a school district closer to the safehouse. Importantly, Ethical Educator disclosed the Florida incident on her employment applications both Georgia school districts neither of which had a problem with her past.  Ethical Educator was welcomed into the classroom posing no threat to the “health, welfare, discipline, or morals of students” (Standard 9 code of ethics).

Her life was back on track until one day Ethical Educator received a letter from the PSC announcing that she was under investigation for having a criminal past. The school district that had just hired Ethical Educator felt compelled to report her to the PSC. The PSC, of course, followed it procedures as designed.

It is easy to understand why Ethical Educator did not disclose the Florida incident on her initial PSC license application: her criminal defense attorney advised the “petit theft” charge was not “adjudicated” and that she was not “found” guilty by a court or jury. In fact, the Florida court entered a strangely worded disposition that only lawyers could conjure: adjudication withheld. In brief, circumstances surrounding the $2.37 crime spree did not create an impression that Ethical Educator had been “convicted” of a crime. She had not been advised that her record contained a “conviction.” Therefore, she was not aware that she should check “yes” on the PSC application.

The inequity is even more unpalatable when you consider that the first Georgia school district she worked for did not report Ethical Educator to the PSC for a faiure to disclose a criminal history on her PSC application. A closer examination of the wording of the PSC’s application shows why the Ethical Educator did not understand that she had a duty to disclose the misdemeanor offense.

The PSC certification application form and, in particular, the topics within personal affirmation question #7 generally provides that an educator must disclose all felonies and misdemeanor offenses involving moral turpitude. “Turpitude in its ordinary sense involves the idea of inherent baseness or vileness, shameful wickedness, depravity with respect to a person’s duty to another or to society in general. In its legal sense it includes everything contrary to justice, honesty, modesty or good morals.”

Personal affirmation question #7 is followed by eight dizzying subcategories or scenarios that would trigger disclosure requirements. The phrase “misdemeanor offense involving moral turpitude” must, of course, be interpreted in light of the eight specific subcategories. The subcategories are formatted for the convenience of applicants in attempts to assist educators towards a better understanding of the scope of their duty to disclose. In that regard, the Commission’s effort to clarify the application form is to be commended.

State law authorizes the PSC to investigate “convictions.” OCGA 20-2-984.3. Unfortunately, the legal term “conviction” is not included in personal affirmation question #7 or as one of the eight subcategories. This omission has led to confusion in many similar cases. As Ethical Educator noted in her full disclosure statement to the PSC investigator, it was only during her second successful on-boarding that Ethical Educator noticed the eighth subcategory, “Have you ever been placed under a court order whereby an adjudication or sentence been withheld?” After reading that Ethical Educator connected the dots. “The term was there, but I can admit that I paid more attention to the fact that the charge was dismissed, and the case was subsequently disposed.”

It is time to recognize the PSC ethics enforcement operations, practices and structures are an extension of the carceral state investing heavily in punitive sanctions for minor offenses. Even “real” criminals can expunge their criminal records. In this sense, Georgia’s educators are treated worse than criminals because PSC sanctions are on the educators record for life. It does not matter if the educator has an exemplary record for the rest of her career. The sanction follows the educator to her grave. The PSC has for decades resisted efforts to devise sensible, humane sunset regulations so that educators are not haunted (hunted) by lifetime sanctions.

There is no other, reasonable way to describe a $2.37 misdemeanor for theft that ends up with a proposed twenty-day license (contract day) suspension. Sanctions for minor misdemeanors involving moral turpitude has become not only a way to treat educators as outcasts but to mark them in the public imagination as a threat to students. Unusual you say? Not really. It is the product of a system working exactly as designed. Everyone played their role as intended.

The good news is through GAE’s intervention, the member’s certification is valid so that she remains gainfully employed as a teacher and is providing for her family. We look forward to our day in court and we anticipate a positive outcome.

Can This Be Ethical?

$2.37 initial arrest
$300 three nights in jail
$1,237 fees, fines, court costs
$2,700 attorney fees
$6,828.60 proposed 20-day license suspension
Total: $11,067.97

Impact on the students?

Another story for another day: the previous record for failing to report a misdemeanor involving moral turpitude was a twenty-day license suspension for a bounced check written to Piggly Wiggly. In the amount of $8.10.

Listen up GAE members and potential members: unlike other organizations, your NEA/GAE legal services program does not have pre-existing caps on the amount we expend in defense of educator rights. Knowing the PSC has made it more difficult and more costly for you to exercise your appeal rights, you also know that GAE has your back!