Obligation to Report

JUNE 1, 2009

SPECIAL INVESTIGATION

When the district announced in February 2009 that a New Eagle Elementary School custodian had been arrested in connection with two bank robberies, The Spoke began examining court documents, police records and district employment logs, piecing together a picture of a system that state and local officials say needs changing.

The story of what went wrong, why the district has such limited power to check if its employees are criminals and why the debate over changing the rules is so controversial.

UPDATE

The hooded man and his accomplice entered the bank waving handguns.

One of the men, wearing a ski mask, jumped over the counter and demanded cash, while the other grabbed an employee and threw him to the floor. The man held his gun to the employee’s head.

“The money was not worth dying over,” the robbers threatened, according to a police report. “Do you want me to make an example out of you?”

Shortly after 6 p.m. on the Friday night of Feb. 1, 2008, the men left the Devon branch of Wachovia Bank and got into the getaway vehicle, a red Ford Mustang.

According to police, the driver was Marcellus Oliphant, Jr., then a second-shift custodian at New Eagle Elementary School. Police charged Oliphant with this 2008 bank robbery, along with another “vicious” bank robbery of the Malvern Federal Savings Bank’s Berwyn branch in 2005, according to Easttown Police Lt. John Haggerty, the lead investigator of the robberies. In total, the robberies netted more than $125,000.

Oliphant was arrested in February 2009 and is currently facing two dozen felony counts, including armed robbery and criminal conspiracy.

Superintendent Dan Waters released a statement after Oliphant’s arrest announcing the robbery charges, though he declined to comment further for this article. After the announcement, The Spoke began looking into Oliphant’s time before and after he was hired by the T/E School District.

A four-month Spoke investigation found that Oliphant had accumulated a violent criminal record during the eight years he was a middle and elementary school custodian in T/E.

In one case, Oliphant was arrested on felony aggravated assault charges in 2004 and took vacation days while he was in jail until he could post bail, court and district records show. He never reported the arrest, as is required by district policy, records indicate. Efforts to contact Oliphant in Delaware County prison for this story were unsuccessful.

In situations like this, The Spoke found that school districts in Pennsylvania have limited powers to keep tabs on the actions of their employees and are almost entirely reliant on employees themselves to report their arrests.

For example, districts in Pennsylvania currently cannot force school employees to submit a background check beyond the one required for applicants. State lawmakers are working to change that rule and others in an effort to give school districts more tools to find out if their employees are criminals.

But the local teachers’ union and a civil rights expert are worried that tougher rules, while possibly making schools safer, go too far in infringing on the privacy rights of employees.

Both sides acknowledge that a change in the system would make students and schools safer. The question is how far the law needs to go to keep criminal employees such as Marcellus Oliphant on a close watch.

Marcellus Oliphant was born Jan. 26, 1969. In the late 1990s, he spent about a year working for the district. Oliphant then returned to the district in May 2001 and re-sought employment, according to his employment application obtained under the Right to Know Act.

Oliphant began work at the district late in 2001 as a custodian at T/E Middle School. In November 2004, Oliphant had run-in with police in Willow Grove, about 20 miles northeast of Berwyn. On the Saturday night of Nov. 13, Oliphant and another man got into an argument. Oliphant then tried to shock the man with an “electrical stun device,” according to a police report. The other man then allegedly fired at least one shot at Oliphant with a handgun.

Abington police, who responded to the scene, said in their report the stun device apparently didn’t work and the handgun shot missed. The two men then proceeded to get into a fist fight before police arrived.

Oliphant was arrested and charged with two felony aggravated assault charges, along with other charges. According to court records filed in Abington District Court, bail was set at $10,000—and Oliphant did not come up with the money. He was then committed to Montgomery County prison.

When Monday and the work week rolled around, however, Oliphant had a problem. Reporting the aggravated assault arrest is required under district policy, but Oliphant did not report the arrest, district records indicate. Instead, he took two vacation days until he could post bail, district and court records show. (Oliphant later pled guilty to lesser charges and was sentenced to two years of probation).

When it comes to reporting arrests in Pennsylvania, the burden almost solely rests on the employee to self-report, the investigation revealed.

In Pennsylvania, police are not required to notify school districts if they arrest an employee, The Spoke found. Local police departments contacted said they do not report to the employer if an employee was arrested, “unless the place of employment is part of [the] crime,” said Haggerty, of Easttown police.

In Oliphant’s case, neither the courts nor the police notified the school district, district records indicate.

Before he was employed, Oliphant submitted a criminal background check. But districts in Pennsylvania currently cannot force employees to submit subsequent checks.

The district was forced to rely on Oliphant to report his own arrest—but he did not, district records indicate.

Safeguard–or presumption of guilt?

A state lawmaker is working to toughen up those standards. Education Committee Chair Sen. Jeffrey Piccola, a Republican who represents York and Dauphin counties, has introduced a bill that sets forward new regulations on an employee’s obligation to report.

Among other provisions, Senate Bill 55 would make it state law that a school employee arrested or convicted for a misdemeanor or felony must report the arrest or conviction to their district.

T/E district policy currently outlines certain crimes—from felony illegal gambling to criminal homicide—when reporting is required, but also distinguishes crimes such as DUI where the employee must first be found guilty. Bill 55 would institute a blanket policy.

“I totally disagree with that,” teachers’ union president and social studies teacher Debra Ciamacca said.

Ciamacca said that reporting any arrest—without a conviction—can destroy an employee’s career.

“The presumption…is that they’re guilty,” Ciamacca said. “And how does the teacher ever get their reputation back?”

David Rudovsky, a civil rights expert at the University of Pennsylvania, agreed that the bill raises concerns.

“The problem is [that] there are a lot of people who are arrested and it turns out the charges are false,” Rudovsky said. “A lot of people jump to the conclusion if you’re arrested, then you’re probably guilty.”

Districts would need to craft “very rigid safeguards” so that district officials can get a “heads up on what may be a growing problem” while keeping the information confidential, he said.

Ciamacca said that district employees should have to submit to annual or biannual background checks because while the checks do reflect arrests, employees may have the time and opportunity to go through the court system and clear their record if they were found not guilty.

Currently, districts are not allowed to force employees to submit background checks, Piccola said in an interview in his Harrisburg office. Employees consent to the initial check as part of the employment process, but right now districts that are suspicious have almost no way of following up.

Bill 55 would change that. If the bill is voted into law, districts could compel employees to submit background checks if the district is suspicious. Employees who refuse to submit the checks can be fired, the bill states.

Piccola said he is not against requiring police to report to districts immediately if they arrest an employee. But requiring these reports was not included in the bill because he said they would be too “burdensome” on police.

However, the Pennsylvania State Police lieutenant in charge of background checks said with funding and a change in the law, state police could immediately notify school districts if an employee is arrested.

Along with undergoing a state background check, prospective school employees in Pennsylvania must also be fingerprinted, and those fingerprints are matched with criminal histories by the FBI, said Lt. Mike Gillelan, Director of the Pennsylvania State Police’s Criminal Records and Identification Division. School districts are then notified of the criminal backgrounds of their applicants.

If the state police had access to those prints, they would know immediately if that applicant is arrested in the state because local police departments are required to fingerprint people they arrest, he said. Local police then send the prints to the state police, who would get an immediate hit and could inform a district.

“I don’t think it would put an undue burden on us,” Gillelan said. “But financially it would.”

Funding would be needed to upgrade fingerprint storage systems, Gillelan said, and increased coordination would be needed between police and school districts.

An almost identical system to what Gillelan said could work in Pennsylvania is already in place in New Jersey, according to New Jersey State Senator Shirley Turner, the chair of the New Jersey Senate Education Committee.

Ciamacca said she is against that idea for the same reason she opposes mandatory reporting for all arrests by employees.

“I believe that teachers’ positions in the community would be irreparably damaged,” she said. “The presumption of innocence would not be assumed.”

In many ways, the burden still lies on the employee and district to take proactive steps, Piccola said.

“Some responsibility has to fall on the school district,” he said. “They can’t just hire somebody and sit back and not watch them or observe them” to see if they’re acting suspiciously.

Bill 55 left the Education Committee in March and was sent to the Appropriations Committee. Piccola said he hopes a vote will take place this month before the Legislature’s June 30 recess.

“Teachers cannot instruct, and students cannot learn, in an unsafe environment. We cannot achieve the goal of a quality education unless we provide a safe haven for learning,” Piccola said in a statement urging the Education Committee to approve the bill.

Piccola said the bill’s implementation is critical. “It plugs up a number of holes that are in the system right now—big holes.”

###

The Spoke would like to thank the Student Press Law Center for its extensive advice on student press, public record and criminal law.

Friends of The Spoke

COPYRIGHT 2010

DISTRICT CUSTODIAN CONVICTED IN 2008 BANK ROBBERY  MAY 2010

Marcellus Oliphant, a former New Eagle Elementary School second-shift custodian, was found guilty on robbery and conspiracy charges for his role in the armed robbery of the Wachovia Bank in Devon in 2008. The verdict, handed down after a week-long trial, was announced on May 14. Oliphant will also stand trial for his alleged role in the 2005 armed robbery of the Malvern Federal Savings Bank in Berwyn.

UPDATE

STATE CLOSER TO TOUGHENING SCHOOL EMPLOYMENT STANDARDS JUNE 2009

Senate Bill 55, which toughens criminal standards for school employment and broadens district powers to find if their employees are criminals, passed the Pennsylvania Senate unanimously. Click for more