Legislature(1999 - 2000)
03/27/1999 10:10 AM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 85 - TEACHERS' LICENSES, DISCIPLINE & ETHICS CO-CHAIRMAN COGHILL announced the first order of business as House Bill No. 85, "An Act relating to licensure and professional discipline of members of the teaching profession and providing for related penalties; relating to grounds for dismissal of a teacher; relating to the Professional Teaching Practices Commission; relating to limited immunity for procedures under the Educator Ethics Act; making conforming amendments; and providing for an effective date." Number 0215 SANNA GREEN, Executive Director, Professional Teaching Practices Commission (PTPC), testified via teleconference from Anchorage. She said the PTPC asks that this bill be passed because it strengthens and facilitates the commission's actions and more accurately reflects what they actually do. They have had increased duties dealing with denial and background checks. Teresa Williams has helped them codify their policies and regulations. Number 0290 TERESA WILLIAMS, Assistant Attorney General, Fair Business Practices Section, Civil Division (Anchorage), Department of Law, testified via teleconference from Anchorage. She referred the committee to the sectional analysis attached to the bill. First of all, the State Board of Education asked that the name of the teacher's certificate be changed to license, so that necessitated a number of changes. MS. WILLIAMS referred to Section 2 of HB 85. Currently the power of the PTPC and the Department of Education (DOE) to obtain a criminal history background check is obscure in the statute. This would make it clear that the DOE has this power and would expand the power to include a person who was found not guilty by reason of insanity. Clearly, this is a necessary check to obtain on a person who wants to teach in the school. Number 0430 REPRESENTATIVE GREEN referred to page 2, Section 2 (c) and asked if someone could be removed if they were to have been found to be a problem during their tenure. MS. WILLIAMS said actually Section 2 only discusses the information that the DOE will have to review to determine whether or there are problems; whether action is taken, based on that information, would be under Section 3 and later in the bill under discipline. Section 2 just gives the DOE the power to obtain information in order to make an inquiry whether this person is fit to be a teacher. MS. WILLIAMS said the governor's office forwarded over the amendments and is requesting that they be offered as a committee substitute. In answer to Representative Green's question, she pointed out on the amendment, page 2, line 17, there will be a substitution to subsection (c) to specify exactly when a criminal background check will be requested at time of renewal. Number 0609 MS. WILLIAMS said Section 3 is new because there is no provision in statute that states when a teacher license will be denied. They have compiled different provisions that would warrant denial and put together a list of bases for denial. There will be permissive basis for denial which include if a person lies about their criminal history; if a person has surrendered a teacher certificate in another state and is under investigation there; or if their certificate was revoked or suspended in other jurisdictions. MS. WILLIAMS noted that Section 3 subsection (c) allows the DOE to suspend processing of an application for a license if a person has an unresolved criminal proceeding or a disciplinary proceeding in another state. Section 3, subsection (d) is new and allows for conditional licensing. If a person had problems in another state or has limitations this would allow a person to be licensed but only conditionally. Number 0754 REPRESENTATIVE WHITAKER said he assumes that Ms. Williams has checked to be sure they are in compliance with the Americans with Disabilities Act (ADA) in Section 3 subsection (d) (1) which states "The applicant is physically or mentally incapably of performing some, but not all, of the functions of the teaching profession;" MS. WILLIAMS said it would conform with the ADA because a person who might not be appropriate for a full license could get a certificate recognizing those physical limitations, so that they could accommodate that person. Number 0811 REPRESENTATIVE WHITAKER wondered if she had verified this; that it was not solely her opinion. MS. WILLIAMS said she has discussed this other people in her office and clearly any enforcement of this provision would need to promote the ADA rather than in any way infringe the ADA. Number 0839 MS. WILLIAMS said Section 3, subsection (e) provides for restrictions on re-applications. This includes a problem which some of the other occupational licenses have had where a person is denied a license, and then the next day they reapply. This would put a restriction on reapplication and set standards for what would need to be done at the time of reapplication. Number 0876 MS. WILLIAMS said that Section 3 subsection (f) provides a statutory provision for what happens and what the process would be if the DOE denied a license; subsection (g) creates a statutory provision that clarifies that full reporting of final decisions on denying a license is required. Number 0910 MS. WILLIAMS said Section 4 makes the Administrative Procedure Act (APA) applicable to review of denial. Section 5 deals with teacher discipline by a school district; instead of duplicating the language, there will be a cross reference. Number 0962 CO-CHAIRMAN DYSON asked if Section 5 limits the ability of the board to deal with a teacher on the basis of incompetency. MS. WILLIAMS said that is still in there; grounds for discipline, listed under 14.20.372, does include competency. Number 0986 CO-CHAIRMAN DYSON asked how the board ascertains or evaluates incompetency. MS. WILLIAMS said that is a difficult proposition to prove at the state level. They would rely upon the expertise of the district to determine whether a person is incompetent and put together the record showing incompetency. It would probably have been a discipline proceeding or termination proceeding at a district level, and then the PTPC would need to align that record to put together its own case. These are tricky and expensive cases to put together. CO-CHAIRMAN DYSON asked if there have been cases in recent history of teachers being decertified for incompetency. MS. WILLIAMS said incompetency has been listed as a ground, but they have not had a license revocation on the sole ground of incompetency. Number 1067 CO-CHAIRMAN DYSON asked if the term "moral turpitude" is defined in law or in state code. MS. WILLIAMS said "moral turpitude" is used in a number of places in state statutes. It is a term that is fairly ambiguous. The PTPC recently adopted regulations that specified crimes of moral turpitude, as have the Department of Corrections and the Division of Elections. The term "moral turpitude" means it would be a crime even if there weren't a statute that said it was a crime. It is something that society historically has said was wrong in itself. Number 1124 CO-CHAIRMAN COGHILL referred to the said proposed regulations in 20 AAC 10.050 defining moral turpitude which lists about 28 things. MS. WILLIAMS said those were just adopted by the PTPC and go into effect April 5, 1999. Number 1144 CO-CHAIRMAN DYSON asked if HB 85 strengthens the board's ability to deal with a teacher on the basis of moral turpitude. MS. WILLIAMS said it doesn't change it; it keeps the same level of authority. CO-CHAIRMAN DYSON asked if the amendments change that at all. MS. WILLIAMS said no. Number 1173 CO-CHAIRMAN DYSON asked why the amendments were late in getting processed. Number 1188 MS. WILLIAMS apologized for the lateness; there was confusion between her office and the governor's office about who was going to get them down to the committee. CO-CHAIRMAN DYSON asked if somebody will speak to and defend the board's draft as drafted, and why they didn't have the modifications that the amendments speak to. Number 1225 MS. WILLIAMS said the bill as drafted was circulated to the Alaska Association of School Administrators, the National Education Association and other teaching groups. Those groups made comments and then the PTPC went through the comments and made some changes. She commented on a question about the language on page 5 of HB 85, lines 17-18, which deletes the term as "as defined by the commission in regulation." Because the commission already has the overall power to define terms by regulation, it wasn't necessary to reiterate that here. CO-CHAIRMAN DYSON asked if the PTPC has had a chance to look at these proposed amendments. MS. WILLIAMS said the PTPC met Monday and agreed with the amendments. CO-CHAIRMAN DYSON asked if there was something formal from them saying that they endorse these amendments. MS. WILLIAMS answered that the minutes of the meeting were available. MS. WILLIAMS explained that Section 6, Grounds for discipline was formerly AS 14.20.030. Incompetency is still a grounds for discipline under Section 6, subsection (1). The definition for immorality in subsection (2) is the same definition currently in law. Section 6, subsection (3) and subsection (4) are the same. In subsection (5), they moved a regulatory provision to statute. In subsection (6), breach of contract is further explained by cross referencing the regulatory provisions. Number 1428 MS. WILLIAMS said Section 6 subsection (7) provides for discipline if a person has been disciplined in another state; subsection (8) surrender of a license in another state; subsection (9) failure to comply with a condition or limitation placed on a license. Section 6, subsection (b) is a provision that was put in by the legislature about five years ago and strengthened in the last session. They are changing it here because under the current language there was a suggestion that there would have to be an accusation at a hearing, even though this revocation should be automatic. They redrafted the language to clarify that this revocation would be automatic upon receipt of a judgement of conviction. The other part added here is if a person has had a license revoked as result of such a conviction, that person may not be employed as a member of the teaching profession, regardless of whether that employment requires a license. For example, counselors are not required to have a license, but they are members of the teaching profession. MS. WILLIAMS said Section 6 (c) makes it clear that judgment of conviction is conclusive evidence and includes a plea of nolo contendre; subsection (d) says in order to prove reciprocal discipline, all they need is the document from the other agency. Section 14.20.375, Disciplinary actions are clarified here. The commissioner has always had authority to revoke a license, subsection (a) makes it clear. MS. WILLIAMS mentioned they changed the named of the PTPC to the Educator Ethics Commission because it makes it clear about what they are and is easier to say. Number 1559 CO-CHAIRMAN DYSON commented that he appreciates the desire to eliminate the tongue twister. He wondered if ethics seems to preclude them dealing with competency. MS. WILLIAMS said she didn't think so. Clearly the statute gives authority to the issue of incompetency. CO-CHAIRMAN DYSON respectfully disagreed. As a layman, he doesn't think ethics denotes competency, but it sure is easier to say. MS. WILLIAMS said the title of the commission may not state all the functions of the commission, but the commission, under the bill and current law, clearly has the authority to deal with the issue of incompetency. Number 1603 CO-CHAIRMAN DYSON said he thought competency might include ethics, but he is not sure ethics includes competency. CO-CHAIRMAN COGHILL said in the amendments the changing of the word chapter to section, it seems to him to limit within only the scope of that particular section rather than the overall chapter, and he asked what was the intent. MS. WILLIAMS said it was really a matter of fine tuning the language to be clearer. Number 1647 CO-CHAIRMAN COGHILL said there was some disagreement with that, but for the record, it looks like it narrows the scope, but it also seems to confuse how any particular section might be applied throughout the whole chapter. MS. WILLIAMS said they tried to consolidate this particular section all under grounds for disciplinary action. For that reason they thought it should be here. If it is not here, then they have a problem. She added that the committee could come up with another appropriate name for the commission if they wished. MS. WILLIAMS referred to page 7 of HB 85 and said they used the occupational licensing board for a model in this section. CO-CHAIRMAN COGHILL asked for clarification on the amendment, page 8, following line 17, which states: Insert a new subsection to read: "(E) At the teacher's request, the commission or the commissioner shall stay the proceedings on an accusation under this section if the teacher has requested a hearing before the school board or invoked grievance procedures under AS 14.20.180 from a dismissal or nonretention decision based on the same allegations as those made in the accusation. A stay under this subsection does not preclude the commission from summarily suspending a license under (d) of this section. The proceedings on an accusation are stayed until a final decision on the nonretention or dismissal is reached under AS 14.20.180. The commission or commissioner shall give deference to, but is not bound by, a final decision under AS 14.20.180. The commission or commissioner shall state good cause for rejecting a finding of fact made in a final decision under AS 14.20.180. the commission or commissioner may supplement the record with additional evidence on whether there are grounds for discipline under AS 14.20.372 and what discipline may be appropriate under his section." MS. WILLIAMS said this is an important section. This provision would parallel current practice to a large extent. The action would be stayed pending the conclusion of the school district matter. If the commission or commissioner were to reject the finding of fact made by the other body it would state good cause for rejecting finding of fact. The commission or the commissioner would have the power to supplement the record with additional evidence. Number 1851 MS. WILLIAMS continued that in subsection (c) under disciplinary actions, they made it clear that a teacher may not surrender a license without approval of the commission. People are anxious to surrender a license to somehow avoid a record when there are serious allegations. In subsection (d), she said the DOE has never had the power to summarily suspend a license, and certainly that is an important deficiency that needs to be remedied. The language parallels the language of the occupational licensing statutes. Subsection (e) is existing law. CO-CHAIRMAN COGHILL asked for clarification on the amendment, page 7, line 7. MS. WILLIAMS said this was a change made by the Department of Law which makes it clearer. Number 1949 MS. WILLIAMS continued with subsection (f) which is existing law, but they added the power to impose a civil fine; subsection (g) is something that is already done, but this will clearly place it in statute. Section 14.20.378 is new and provides for reinstatement after suspension or revocation. CO-CHAIRMAN COGHILL asked if it would be one year from revocation. MS. WILLIAMS said in the current law under APA, if a license is suspended or revoked, a person can apply for reinstatement after a year. This would change it so they couldn't apply until five years. MS. WILLIAMS said the rest of this section deals with the whole procedures on reinstatement. Sections 7, 8, 9, 10 and 11 had technical changes or were simplified and clarified. Section 12 subsection (b) is new so the commission can adopt the hearing officer's proposed findings of fact in their entirety and increase or change the proposed disciplinary action. REPRESENTATIVE GREEN asked if that can go in the other direction as well. MS. WILLIAMS answered yes, they can decrease as well. That is already provided in the APA. Number 2171 MS. WILLIAMS said Section 13 is new providing for confidentiality of the investigative file. Subsection (b) deals with confidentiality with reference to minors and how to handle that during a meeting. CO-CHAIRMAN COGHILL said it was his understanding that this is broader than has been used. MS. WILLIAMS said this is the way the commission has been operating, so it would be nice to have the provision. Number 2194 MS. WILLIAMS said Section 14.20.478, Limitation of liability is new; Section 15 is new; this issue of forged certificates has come up twice in the last year. There is no current power to do anything other than looking through the criminal code and finding something that can be utilized. This section provides similar criminal penalties for persons who work as a teacher without a license. CO-CHAIRMAN COGHILL noticed they are inserting one of the amendments here. Number 2246 MS. WILLIAMS said that is to clarify because there was a concern that this was making licensed teachers subject to criminal penalties. CO-CHAIRMAN COGHILL said this section is dealing with teachers who may have lied about that. He asked if this should reflect that in saying who should be licensed. MS. WILLIAMS said yes it does say that here. MS. WILLIAMS said the other changes in the rest of the sections are all technical changes. Number 2306 CO-CHAIRMAN COGHILL commented that it is his understanding that these amendments were something that was brought forward from the governor's office. MS. WILLIAMS said yes, the governor's office had requested that these amendments be adopted by the committee, and the commission has looked at these and ratified that these are appropriate amendments. TAPE 99-26, SIDE B Number 2327 MS. GREEN said that the commission has gone through this bill and the amendments, and they have approved them. They find them important, and they codified a lot of the things. Some of the things they need to have in statute, and this clarified a lot of those things scattered throughout policies and regulations. CO-CHAIRMAN DYSON asked what further referrals this bill has and found out it goes on to the Judiciary Committee. Number 2217 CO-CHAIRMAN DYSON made a motion to move HB 85 from the committee with individual recommendations. There being no objection, HB 85 moved from the House Health, Education and Social Services Committee without the amendments.
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