Criminal Defense | School Employee Disqualification

Criminal Disqualification of Employees with Criminal Records in a New Jersey Public School System under the Supervision of the Department of Education and Board of Education includes School Teachers, Substitute Teachers, Teachers’ Aides, Child Study Team Members, School Physicians, School Nurses, Custodians, School Maintenance Workers, Cafeteria Workers, School Law Enforcement Officers, School Secretaries or Clerical Workers and School Bus Drivers. N.J.S.A.18A:6-7.1.

School employees, including New Jersey school teachers, substitute teachers, teachers’ aides, paraprofessionals, child study team members, school physicians,  school nurses, custodians, school maintenance workers, cafeteria workers, school law enforcement officers, school secretaries or clerical workers, or any person serving in a position which involves regular contact with pupils requires a criminal background check conducted through the Federal Bureau of Investigation, Identification Division, or State Bureau of Identification through the New Jersey State Police.  This also covers individuals employed by the Board of Education or by a school bus contractor (if acting in the capacity as a school bus driver).  Essentially anyone employed in a public school system related to the education of children under the age of 18 is required to have a criminal history and background check under the laws of the State of New Jersey.  A criminal record can become a bar to employment in many situations.

As New Jersey criminal defense attorneys, we have been called upon on many occasions to represent individuals who in some capacity have worked in a school system or who have been attempting to gain employment through a Board of Education.  The law, as it relates to employees within schools, provides that there are many circumstances in which a person would be disqualified from teaching or otherwise working within a school system based upon their criminal record.  The law requires that an individual shall be permanently disqualified from employment or service within the Board of Education System if the individual’s criminal records check reveals a record of conviction of any first- or second-degree crime.  First-degree and Second-degree crimes are the most serious crimes.  However, there is also a list of far less serious crimes, not rising to the level of first or second degree, which would disqualify an applicant from applying for a job within a school system or a teacher or employee from maintaining his or her employment with a school system.

It is extremely important, based upon the strict laws of the State of New Jersey with respect to criminal disqualifications, that if you are an applicant who will be applying to work within the public school system or otherwise a school employee, that if you are charged or have been charged with a criminal offense, that you immediately take steps to obtain representation from an experienced criminal defense attorney familiar with teacher disqualification. 

Carmine R. Villani, Esq., Managing Partner of Villani & DeLuca, P.C., is a New Jersey criminal defense attorney and has a great deal of experience working with individuals who have either been applicants for positions within school systems or are current employees.  It is imperative that a matter involving a school employee be handled properly in that a criminal conviction for certain specific charges, can become a permanent disqualification from teaching or otherwise working in a school system.

Criminal matters involving New Jersey school teachers, even a custodian, guidance counselor, school bus driver or other individual working with children under the age of 18, will be governed by the New Jersey Statutes regarding eligibility for employment.  N.J.S.A. 18A:6-7.1is the New Jersey Statute regarding criminal records relative to an employee in regular contact with pupils and sets forth the grounds for disqualification from employment.  Such an employee or applicant for employment shall be permanently disqualified from employment in a public school system if a criminal records check reveals a record of conviction for any first- or second-degree crime under New Jersey law or for any of the specifically listed crimes under N.J.S.A. 18A:6-7.1. 

You should be aware that the criminal records check will be a full federal search of crimes such that even a crime committed in another state will become a disqualification if it is a crime similar or the same as that listed under the New Jersey Statutes.

In our practice, we have been called upon on many occasions to represent individuals who may be studying to become teachers and are enrolled in college, working towards a teaching certificate.  Frequently, the actions which occur during college resulting in a criminal charge have the potential of wasting years of a valuable education towards the goal of becoming a school teacher or school employee.  Based upon what can be one foolish act resulting in a criminal conviction, an individual can be permanently disqualified from public school system employment within the State of New Jersey.

We have also been involved, as New Jersey criminal defense attorneys, in representing individuals who are teachers or other employees in a school system, and even in the instance of a children’s teaching hospital, wherein individuals have been placed in the position of potentially losing their jobs as a result of being convicted of a specific criminal offense. 

According to N.J.S.A. 18:6-7.1, the following are the specific criminal charges which would result in an automatic bar or disqualification from obtaining a teaching certificate or otherwise working within a public school system:

1.       The first is an offense of Chapter 14 of New Jersey Criminal Code set forth in N.J.S. 2C:24-4, 2C:24-7 and additionally, under N.J.S. 2C:29-2. 

• (a) N.J.S. 2C:24-4.  (Endangering the welfare of children).  This is a very serious charge which on its face would be a logical bar to anyone attempting to become or remain a school teacher or work in a school system.  However, as New Jersey criminal defense attorneys, we often see instances where the charges are without basis and result from allegations often in the context of a divorce or child custody dispute, but nevertheless these charges, if resulting in a conviction, would be a permanent bar from employment in a school system.
  
• (b) N.J.S. 2C:24-7.  (Endangering the welfare of an incompetent person).  This charge is a disorderly persons offense, not an indictable offense.    Nevertheless, since it is set forth on the specific list of crimes governed by the permanent disqualification rule, a criminal conviction under this section would permanently bar someone from becoming or remaining a school teacher or from working as an employee within a public school system. 
• (c) N.J.S. 2C:29-2. (Resisting arrest or eluding a police officer).  N.J.S. 2C:29-2is a charge of resisting arrest or of eluding a police officer.  We, as New Jersey criminal defense attorneys, are often placed in a position to represent individuals charged with resisting arrest or eluding a police officer.  We see many cases wherein an individual begins by being charged with a minor criminal or even motor vehicle infraction and a resisting arrest charge results.  Failure to be compliant with a law enforcement officer, if resulting in a conviction for resisting arrest, would result in a permanent disqualification from becoming or remaining a school teacher or from being employed in a school system. 
• (d) Eluding an officer can be a second- or third-degree crime and is commonly written by law enforcement.  We have been in the position, as New Jersey criminal defense attorneys, to represent individuals in circumstances involving eluding a police officer.  The fact pattern in those cases can be as simple as a person speeding and an officer attempts to stop that individual wherein the individual speeds up or takes evasive measures to avoid being stopped.  Eluding, on its face, may not appear to be a logical bar to disqualify you from teaching or otherwise working a school system.  Nevertheless, eluding is a specific criminal charge set forth within the statutes.  As a specified charge, a conviction for eluding would permanently disqualify an individual from employment in a public school system.

2.       Manufacture, Transportation, Sale, Possession, Distribution or Habitual use of a controlled dangerous substance, governed by N.J.S. 2C:35-1, et seq. or drug paraphernalia, as defined under N.J.S. 2C:36-1, et seq. would be a permanent disqualification from employment or service in a public school system. 

As New Jersey criminal defense attorneys, we are regularly involved in situations where individuals have been charged with violation of drug statutes including N.J.S. 2C:35-1,et seq. as well as N.J.S. 2C:36-1, et seq.  A conviction for these types of charges would result in a permanent disqualification. You would envision the manufacture, distribution, transportation or possession as outlined in these statutes as involving a significant criminal enterprise.  Nevertheless, the act of growing a plant of marijuana, under New Jersey Statute, would be considered the manufacture of a controlled dangerous substance. 

Drug paraphernalia, on the other hand, could encompass many different items which would otherwise be legal if not connected with the drugs generally associated with them.  An item which might otherwise be legal, once coupled with drugs, becomes paraphernalia, and is as serious a charge as being charged with possession of the drug itself.  For example, rolling papers for use with tobacco are legal, yet if evidence of marijuana is present, it can be elevated to paraphernalia.  Nevertheless, in each of these types of charges, it is imperative that a New Jersey criminal defense attorney be retained to address these issues as a conviction under our drug statutes would result in a disqualification of employment within a public school system. 

As New Jersey criminal defense attorneys, one of the most frequently addressed issues by our office is the offense of simple possession of a controlled dangerous substance which may include marijuana, cocaine, heroin or, more frequently of late, prescription drugs.  A drug possession conviction would be a permanent bar to your ability to become or remain employed as a school teacher or employee within a public school system.  We have countless stories of individuals who come into our office as college students working towards a teaching certificate after they have made a foolish choice of being involved in a matter which resulted in a charge of possession of a controlled dangerous substance.  A frequent example is possession of marijuana.  We have seen countless situations where individuals are at a party or at a friend’s house or in a car where another individual may be in possession of or smoking marijuana.  The police often charge all persons present with possession of marijuana because they often, at the beginning of their investigation, do not know who in fact was in possession and/or control of the marijuana.  An individual who did not physically possess the marijuana can be charged under the “constructive possession” theory.  Upon conviction, this would be a conviction under the New Jersey Statute for possession of marijuana and result in a permanent disqualification from the ability to become or remain employed as a school teacher or employee with a public school system.

3.       If convicted of a charge involving the use of force or the threat of force to or upon a person or property which charges include, but not limited to, robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder, a person would be permanently barred or disqualified from employment with a public school system. 

4.       Theft and Related Offenses.  A third-degree crime set forth in Chapter 20 of Title 2C of our New Jersey Criminal Code related to theft and related offenses would be a bar to employment.  Third-degree crimes set forth in Chapter 20 are varied and include crimes involving computer theft.  Each of the statutes has specific provisions as to the degree of the crime, based upon the amounts involved.  Depending upon the amount in question, the crime will be designated a specific degree.  A criminal record revealing a conviction for those crimes involving a set amount exceeding the statutory limit for a third-degree crime (over $500.00), would be a permanent disqualification from employment in a public school system.  Nevertheless, it is the conviction that controls.  Often, in situations involving theft, the amount in question exceeds the statutory limit for a third-degree crime; however, through plea bargaining or a diversionary program, there are often situations where the final charge and conviction is not directly tied to the actual amount taken.  Through the plea bargaining of these charges, it is often the situation where the crime may not be considered a third-degree crime although the amount and value of the property could exceed that sum.  It is not the amount or the value of the item or items in question, it is the final conviction.  If that conviction results in a conviction of a third-degree crime, than that third-degree conviction would result in a disqualification from employment within a public school system.  The following is a list of theft-related charges set forth in Chapter 20 of the New Jersey Criminal Statutes.

• (a) N.J.S. 2C:20-3 (theft by unlawful taking or disposition of moving property or immovable property).  
• (b) N.J.S. 2C:20-4(theft by deception).
• (c) N.J.S. 2C:20-5 (theft by extortion).
• (d) N.J.S. 2C:20-7(receiving stolen property).
• (e) N.J.S. 2C:20-7.1 (fencing).
• (f) N.J.S. 2C:20-8(theft of services).
• (g) N.J.S. 2C:20-9(theft by failure to make required disposition of property received).
• (h) N.J.S. 2C:20-10(unlawful taking of means of conveyance).
• (i) N.J.S. 2C:20-11 (shoplifting).
• (j) N.J.S. 2C:20-11.2(leader of organized retail theft enterprise).
• (k) N.J.S. 2C:20-16(operation of facility for sale of stolen automobile or parts, second-degree crime).
• (l) N.J.S. 2C:20-17 (use of a juvenile in theft of automobiles, second-degree crime).
• (m) N.J.S. 2C:20-18 (leader of automobile theft trafficking network, creation of offense). 

NOTE:  All of these theft-related charges are specifically enumerated charges in N.J.S. 2C:18-6-7.1and would act as a permanent disqualification from employment within a public school system, provided the final conviction results in a conviction of a third-degree charge or higher.  Again, the most important and relevant aspect regarding theft-related charges is the final conviction and not simply the charge which has been filed against an individual.

5.       N.J.S. 2C:12-2(recklessly endangering another person).  A conviction for violation of N.J.S. 2C:12-2 would result in a permanent disqualification from employment in a public school system.

6.       N.J.S. 2C:12-3(terroristic threats).  A terroristic threat is a charge that is frequently written.  As criminal defense attorneys, we have seen situations where someone simply loses their temper and makes a statement in a fit of rage which results in a charge of terroristic threats.  These charges are often seen in instances involving marital disputes and restraining orders wherein one party threatens the other.  This is a third-degree crime.  A conviction requires that a person “threatens to kill another with the purpose to put that person in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.”  This, regretfully, is an often written charge and quite serious.  We have seen situations, as criminal defense attorneys, where a simple lapse in judgment in a short period of time would place someone in a position wherein they are charged with terroristic threats.  A terroristic threats conviction would result in a permanent disqualification from employment with a public school system.  We are often in a position to plea bargain these cases to the less serious charge of harassment which is a petty disorderly persons offense and not a bar from employment.

7.       N.J.S. 2C:13-2(criminal restraint).  Under this statute, a person commits a crime of the third-degree if they knowingly (a) restrain another unlawfully in circumstances exposing the other to risk of serious bodily injury; or (b) holds another in a condition of involuntary servitude.  As New Jersey criminal defense attorneys, we have rarely seen this charge written, but nevertheless it is one of the enumerated bars to employment in a public school system that would result in a permanent disqualification if a conviction is obtained.

8.       N.J.S. 2C:13-6(luring or enticing a child by various means, attempts; crime of the second degree).  This charge is obviously very serious and would result in a permanent disqualification of employment in a public school system if a conviction is obtained.

9.       N.J.S. 2C:17-2 (causing or risking widespread injury or damage to another).  This charge is obviously very serious and would result in a permanent disqualification of employment in a public school system if a conviction is obtained.

10.       N.J.S. 2C:17-3 (criminal mischief).  Criminal mischief is a frequently written charge and is placed on the enumerated list of charges resulting in disqualification from employment if convicted.  Criminal mischief is doing substantial damage to the property of a third party.  As New Jersey criminal defense attorneys, we have seen situations where the criminal mischief has been as simple as breaking a window or keying or scratching an automobile (which would otherwise seem to be a relatively minor offense) but regretfully, it is maintained on the list of enumerated charges and would require a permanent disqualification from employment or service within a public school system.

11.       N.J.S. 2C:18-2 (burglary).  Burglary is a rather interesting charge in that most people believe that burglary requires that you enter the house of another for the purpose of stealing or doing some other criminal act. 

As New Jersey criminal defense attorneys, we have been involved in many situations where burglary has been charged to young individuals who have acted foolishly.  What has been termed in slang, “car shopping,” involves an individual entering into a motor vehicle and stealing an item from the motor vehicle, maybe a radio, G.P.S. or some other item.  As a result of entering the vehicle (which is considered a structure under New Jersey law), that individual can be charged with burglary and in many occasions we have seen that charge prosecuted through the County Prosecutor’s Office, resulting in a criminal conviction.  A burglary conviction would become a permanent disqualification from employment as a teacher or otherwise in the public school system.

12.     N.J.S. 2C:21-19 (wrongful credit practices and related offenses).  This is a statute involving criminal usury involving essentially loan-sharking and other acts of usurious loan practices.  A criminal conviction under this statute would result in a permanent disqualification in teaching in a public school system.

13.     N.J.S. 2C:27-3 (threat and other improper influence in official and political matters).  This is a statute involving instances where an individual commits a crime by threatening or bribing a public official to influence a decision, opinion, recommendation or vote.  A conviction of this statute will result in a permanent disqualification in teaching or working in a public school system.

14.     N.J.S. 2C:28-3 (perjury and false swearing).  This is a statute involving instances where an individual commits a crime by making a false statement in which they do not believe the statement to be true, bearing notice that the individual was aware that the statement was sworn.  A conviction of this statute will result in a permanent disqualification in teaching or working in a public school system.

15.     N.J.S. 2C:29-5 (escape).  This is a statute involving an individual who escapes from prison, absconds from parole or otherwise.  This would result in a permanent disqualification in teaching or working in a public school system.

Conspiracy and Criminal Attempt

The statute further provides that with respect to all of the enumerated charges,  the conspiracy or attempt to commit any of the offenses described in the act would also work as a bar or disqualification to employment in a public school system upon conviction. 

Pending Charges

Regarding pending charges, the statute provides that the conviction is the relevant factor in ascertaining whether a person is disqualified.  However, based upon the status of our criminal justice system and the length of time it takes to move a case from the initial complaint stage through the point of trial or plea, there is a great deal of time that generally may pass between the time of the incident (which may have resulted in a criminal charge) and a final resolution of that charge (whether by criminal conviction, dismissal, downgrade or otherwise). 

Most importantly, it should be noted that immediately upon a charge being issued against an individual employed within a school system, the social security number of that individual is logged in with the State Police and if that individual receives a criminal charge for a disqualifying criminal charge, there is an immediate notification letter which goes certified mail to the school superintendent.  Generally, in our experience, the letter is forwarded to the Superintendent of Schools notifying the Superintendent of the charge if the charge is the type that involves a potential permanent disqualification.  In the past matters we have handled, within seventy-two hours a letter is received by our clients and notification to the superintendent of the disqualifying charge has been issued.  This letter will come from the Department of Education, Criminal History Review Unit.  Now, a charge is not a criminal conviction and you are certainly innocent until proven guilty; however, the fact that an individual is charged with such an offense requires immediate action by the school.  

New Jersey Administrative Code, Section 6A:9-17.1, provides:  “Certificate Holder.  (a)  For purposes of this subchapter, the term certificate holder shall include all individuals who hold certificates, credentials, CEs and CEASs issued by the State Board of Examiners.  (b)  For purposes of this subchapter, the term certificate shall include all standard, emergency and provisional certificates, all credentials and all CEs and CEASs issued by the State Board of Examiners.  (c)  All certificate holders shall report their arrest or indictment for any crime or offense to their superintendent within 14 calendar days.  The report shall include the date of arrest or indictment and charge(s) lodged against the certificate holder.  Such certificate holders shall also report to their superintendents the disposition of any charges within seven calendar days of disposition.  Failure to comply with these reporting requirements may be deemed “just cause” pursuant to N.J.A.C. 6A:9-17.5.  School districts shall make these requirements known to all new employees and to all employees on an annual basis.”

According to the law governing this issue, N.J.S. 18A:16-7.1, while the charges are pending for a crime of any of the offenses enumerated in this section, the employing Board of Education shall be notified that the candidate shall not be eligible for employment until the Commissioner of Education has made a determination regarding the qualification or disqualification upon adjudication of the pending charges.  Needless to say, the arrest alone will have significant impact upon employment or employability immediately upon issuance.  It is imperative that an individual facing these types of matters retain a New Jersey criminal defense attorney familiar with these laws and disqualification issues as the impact of an improperly entered plea could result in a disqualification from employment in a public school system.    

Often, defense attorneys are in a position to plea bargain matters.  Without knowledge or understanding of the disqualifying crime or offense, you could be placed in a circumstance where a matter is plea bargained from one disqualifying event to another.  Although the plea bargain may provide you with some benefit as it relates to the criminal charges, it could in the end result in your final permanent disqualification from employment.  Often these issues occur on the less obvious charges which would not, at least logically, on their face constitute a crime which should require disqualification such as possibly a criminal mischief or a resisting arrest charge.

Often cases are resolved in the New Jersey Superior Court or in the New Jersey municipal court without regard to the far-reaching implications they can have in the future based upon the current employment of an individual or in many instances, the future employability of an individual within a school system.  We, as criminal defense attorneys, look forward at our client’s future goals and attempt, in every respect, to mitigate or lessen whatever possible consequences there could be in the future for those individuals. 

We have had situations in our firm where we have represented individuals who have had minor infractions with the law, but those infractions were listed on the enumerated list and we were successful in working out plea bargains or otherwise resolving the case in a manner which removed the matter from the enumerated list.  Our efforts have provided our clients with an ability for a fresh start after the matter was properly resolved.  The crucial determination in these criminal cases is the “criminal conviction.” 

There are other ways in which matters can be resolved through our court system which may not result in a criminal conviction.  The following represent two diversionary programs available in certain circumstances which may be used to avoid a conviction.

Pre-Trial Intervention and/or Conditional Discharge

Conditional Discharge

One commonly used program is the conditional discharge program.  Countless times in the past we have been involved in matters involving individuals (often of the college age) experimenting and getting charged with possession of marijuana or possession of drug paraphernalia.  This has happened on many occasions involving students.  Often these individuals are  working towards their teaching certificate and a criminal conviction for possession of marijuana or drug paraphernalia would be a life-changing event in that it would result in a permanent disqualification from their goal of becoming a school teacher.

In those instances where the individual has not had a prior criminal conviction for a drug-related offense (and this particular offense would qualify as a first offense), the individual may qualify for the conditional discharge program.  The conditional discharge program is available to those individuals without a prior criminal drug history.  Generally, a simple possession matter involving marijuana or drug paraphernalia could be resolved through entry into the conditional discharge program.  Pursuant to the conditional discharge program, an individual is placed on a period of unsupervised or supervised probation with the potential for mandatory drug testing for a period of one year.  During that period of time, if the individual remains arrest-free, at the conclusion of the one-year period, the matter is dismissed; therefore, no criminal conviction results. 

As a result of the charge not becoming a criminal conviction, that individual will then not be disqualified from future employment (under the current status of the law) and at a time in the future, that dismissal and arrest could be expunged through the New Jersey expungement process and removed from that individual’s record.  This is a very beneficial program which can provide an individual with the opportunity to move forward with their career after making a foolish mistake.

Pre-Trial Intervention

In the more serious matters, involving more serious crimes (which are considered to be indictable offenses), there are also programs at the New Jersey Superior Court level where an individual with a minimal prior criminal history may be in a position to enter into the Pre-Trial Intervention program (“PTI”).  The Pre-Trial Intervention program is a program wherein an individual with a minimal prior criminal history or with no prior criminal history is entered into the PTI Program for a period of one to three years.  During that period of time, through the County Probation office, the individual is subject to supervision.  Upon the successful completion of the Pre-Trial Intervention program, the individual’s charges will be dismissed.  Upon dismissal, they would not have a criminal conviction which would have otherwise been a permanent disqualification for an individual attempting to work within the school system. 

As you can see from the above, there are many intricacies involved in dealing with the disposition of a criminal matter, if you are a school teacher, a teacher’s aide, child study team member, school physician, school nurse, custodian, school maintenance worker, cafeteria worker, school law enforcement officer, school secretary, or clerical worker, or any other person serving within the community and having contact with pupils.  This also includes school bus drivers and the like.  If you fall into that category and wish to participate or continue in that type of employment, it is imperative that you navigate this very specific law properly in order to best protect your career and future.

Call Carmine R. Villani, Esq., an experienced New Jersey criminal defense attorney, for a free consultation today at (732) 892-9050.