Legislature(1995 - 1996)

04/13/1995 02:07 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HB 217 - EMPLOYMENT RIGHTS OF TEACHERS                                    
 Number 1925                                                                   
 CO-CHAIR BUNDE stated this bill had been previously heard by the              
 HESS Committee.  Now before the committee was CSHB 217, which is              
 the product of the previous discussions.  A handout outlines the              
 changes between the original bill and the CS, and Co-Chair Bunde              
 offered to review those changes.  Sections 1 and 2 of the CS change           
 the time before the acquisition of tenure from two to four years.             
 Section 3 adds nontenured teacher evaluation annually by a                    
 superintendent, and also adds a peer evaluation for three out of              
 those four years that is advisory.  Sections 4 and 5 remain the               
 same as in the original bill.                                                 
 CO-CHAIR BUNDE continued that Section 6 changes Section 5 of the              
 original bill on layoff.  It sets out the conditions under which              
 layoffs may happen, so the State Board of Education is not required           
 to set out those regulations.  It basically says layoffs may take             
 place for either decreased enrollment or decreased financial                  
 support.  Section 7 adds the mandatory advisory arbitration, and              
 removes the de novo trial before going to other judicial review.              
 Section 8 remains the same.                                                   
 Number 2019                                                                   
 CARL ROSE, Executive Director, Association of Alaska School Boards            
 (AASB), said the AASB supports CSHB 217.  The AASB does have                  
 concerns, but the CS accurately represents the subcommittee                   
 discussion.  Mr. Rose asked to address those concerns.                        
 MR. ROSE agreed with the change of tenure from five to four years.            
 That is a good compromise.  The acquisition of tenure rights with             
 the additional evaluation recommended by the tenure committee under           
 Section 3 is also a good provision.  Mr. Rose had some concerns               
 about peer review in terms of the logistics, additional cost and              
 confidentiality.  He notes those concerns because there has been a            
 full discussion on this and he still has concerns.  It could be               
 costly, and he does not see how, logistically, this could be done             
 in an effective way.  However, he is willing to work with that                
 MR. ROSE agreed with the layoff provisions that address economic              
 issues rather than nonretention for lack of revenue.  A layoff                
 period of three years is fair.  The concern is that regulations               
 would not represent the people who are addressing the legislation,            
 therefore, Mr. Rose agrees with that provision.                               
 Number 2111                                                                   
 MR. ROSE was concerned about the secondary standard for                       
 qualifications for rehire.  As he has mentioned in prior testimony,           
 Mr. Rose thinks that standard is too low.  He agrees, however, that           
 secondary and primary are in line with what currently exists in               
 statutes in terms of certification.  Therefore, he would like to              
 work with that.                                                               
 MR. ROSE spoke of judicial review, and said this is where mandatory           
 advisory arbitration is introduced.  He has a concern because he              
 thinks it is another hoop to jump through.  On the other hand, he             
 also heard the discussion that simply a board review was not                  
 enough.  Perhaps a review is needed from a disinterested third                
 party.  The AASB would agree with the advisory nature of that                 
 provision.  But the concern is with the deletion of de novo, the              
 school boards do not have to recreate or present a new case before            
 the courts.  Mr. Rose therefore agrees with that portion of the               
 bill.  If that is what is required, the school boards can establish           
 the record, have it reviewed by an advisory arbitrator, and then              
 have it reviewed by superior court.  As a compromise, the AASB can            
 agree with that.                                                              
 Number 2167                                                                   
 MR. ROSE was deeply concerned with Section 8 of the bill.  The                
 language in Section 8 grandfathers everyone who is already                    
 employed.  The bill only affects teachers who are hired after the             
 effective date, and renders the bill pretty much useless.                     
 Therefore, Mr. Rose asked HESS Committee members to reconsider the            
 language in Section 8, and allow the grandfathering to apply to               
 perhaps Sections 1 and 2 for purposes of the four-year tenure                 
 acquisition.  However, for the portions concerning layoff,                    
 nonretention and judicial review, Mr. Rose asked the grandfathering           
 be reconsidered, with the effective date applying to all employees.           
 Number 2205                                                                   
 VERNON MARSHALL, Executive Director, National Education Association           
 (NEA) - Alaska, believed the CS for HB 217 is a large improvement             
 over the original bill.  He asked to speak to three issues, the               
 first being the four-year tenure.  NEA Alaska supports a three-year           
 tenure.  It believes that national statistics will show that if               
 Alaska adopts a fourth or fifth year for tenure, Alaska will be one           
 of five states nationally that holds that standard.  Generally,               
 most states have a three-year tenure.                                         
 MR. MARSHALL stated NEA also would like a change on the second page           
 of the bill.  During the peer review committee process, NEA feels             
 it is important for the teacher being evaluated to also receive a             
 copy of the evaluation.   Concerning the layoff provision found on            
 line 16 of page 3, NEA recognizes that the provision deals with a             
 decline in school revenue.  The NEA has some anxiety about this,              
 and wishes there could be some way to establish and verify there is           
 a financial emergency in the district.  It should be proven the               
 district has made efforts to seek other cost saving avenues that              
 would be available to it.                                                     
 MR. MARSHALL noted the downside of decreasing revenue and teacher             
 layoffs in combination with the current upward trend in student               
 enrollment is students are going to be affected.  NEA would like to           
 assure any tenured teacher that layoff provisions are the final               
 recourse available to the district in terms of dealing with a                 
 substantial decrease in school district revenue.                              
 TAPE 95-36, SIDE A                                                            
 Number 000                                                                    
 MR. MARSHALL continued that on the last page of CSHB 217, in                  
 Section 7, he understands that during the judicial review, a                  
 decision would be made by the school board, followed by the                   
 arbitration.  That record would then be appealed to the court.  The           
 NEA would like to see the administrator in charge of that                     
 particular tenured teacher make a recommendation.  That                       
 recommendation would be either for retention or nonretention.  That           
 recommendation would then be submitted to the teacher.  Based on              
 that recommendation, the teacher then has a choice as to whether              
 he/she goes to arbitration or not.  The arbitration then would be             
 conducted after the award is rendered, giving the option to the               
 district or the teacher to submit the arbitration for court review.           
 MR. MARSHALL said the NEA has an amendment it feels would                     
 accomplish that.  The amendment also would accomplish the                     
 arbitration under the procedures that are established in the state            
 law.  Therefore, the NEA's amendment is simply an attempt to                  
 clarify the whole process, from recommendation to arbitration, to             
 decision.  Then, if the school district is not happy with the                 
 decision, Mr. Marshall would assume the district should have the              
 latitude to appeal.  The teacher should also have the latitude to             
 appeal also.                                                                  
 Number 149                                                                    
 CO-CHAIR BUNDE understood that NEA would like the arbitration to              
 happen one step sooner.  It would like the unit administrator to              
 recommend, for example, nonretainment.  Arbitration would then                
 follow, then the school board would make its determination, then              
 either party may go to court.                                                 
 MR. MARSHALL said Co-Chair Bunde's assessment was correct.  Mr.               
 Marshall was confused whether a hearing was taking place when the             
 school board reaches a decision that is unfavorable to a teacher.             
 He asked if that was an administrative hearing.                               
 CO-CHAIR BUNDE said the school board really does the hiring and               
 firing, not the principal.  The principal recommends, then the                
 school board does the hiring and firing.  Now, the school board has           
 gone through the internal policy of that particular district to               
 arrive at nonretention.  Arbitration follows, then judicial review.           
 Co-Chair Bunde did not see a need for the principal to make a                 
 recommendation, followed by arbitration.                                      
 Number 232                                                                    
 MR. MARSHALL conceded that may be an area where he and Co-Chair               
 Bunde could agree to disagree.  NEA would prefer a recommendation             
 made by the principal after he/she has gone through all the                   
 procedures that are prescribed by the statute.  The recommendation            
 would then be made.  If that recommendation is adverse to the                 
 teacher, the teacher has the opportunity to request arbitration.              
 After that verdict is rendered, the school board can then look at             
 what the administrator has recommended, plus what the arbitrator              
 has indicated.  A decision would then be made.                                
 CO-CHAIR BUNDE understood what Mr. Marshall was saying.  He said              
 the school board may or may not then back up its principal.  Co-              
 Chair Bunde was disinclined to delve into the internal politics of            
 the district, of how it gets to the point of nonretention.                    
 However, after the district gets to the point of nonretention, Co-            
 Chair Bunde was concerned about protecting the rights of both the             
 district and the teacher.                                                     
 Number 323                                                                    
 MR. MARSHALL's last point was to state NEA does support Section 8.            
 It is important that the rules "not be changed in the middle of the           
 game" for current employees.                                                  
 Number 351                                                                    
 STEVE McPHETRES, Executive Director of the Alaska Council of School           
 Administrators (ACSA), noted that in a public school setting, all             
 the teachers are working in classrooms.  When three teachers are              
 pulled out to visit another classroom and perform the peer review             
 process, substitute teachers will have to be found.  There is a               
 cost involved in that, and districts should be aware so they can              
 budget for that.  Hopefully money would be available in the budget.           
 If a tremendous number of nontenured teachers go through this                 
 process, the cost could be rather high for districts.   That is the           
 concern of Mr. McPhetres and the ACSA.                                        
 CO-CHAIR BUNDE asked Mr. McPhetres to comment on Section 7.                   
 MR. McPHETRES agreed with Co-Chair Bunde's proposal on that issue.            
 From an administrative point of view, during due process the                  
 administration conducts a very extensive investigation of a                   
 particular teacher who may be having a problem.  This is always               
 done for the improvement of instruction.  At some point in time,              
 usually after about two years, a point is reached where there is no           
 possibility this teacher will perform effectively as a teacher.               
 The recommendation would then have to be made suggesting                      
 MR. McPHETRES stated Co-Chair Bunde was correct in the fact that              
 administrators recommend to school boards.  The school board does             
 the official hiring and firing.  It is the position of                        
 administrators to take the evidence to the board for it to examine.           
 The board must feel comfortable making that ultimate decision.                
 After that decision has been made, arbitration is asked for.  That            
 is what is provided for in CSHB 217.                                          
 MR. McPHETRES did not see how it would work to have a third party             
 opinion at the principal-teacher level, and have that third party             
 opinion sent to the school board.  It seems it is the school                  
 board's responsibility to examine the evidence.  Then, if indeed              
 evidence is in favor of the district, the third party arbitration             
 is called in.                                                                 
 Number 550                                                                    
 CO-CHAIR TOOHEY recalled comments on three teachers performing peer           
 review.  She asked if all three teachers had to be together at the            
 time of review or observation.  She asked if one teacher could be             
 picked each day or week, and if the evaluation could be performed             
 over a period of a month.                                                     
 MR. McPHETRES said that was possible, but three teachers would                
 still be pulled from a classroom.  Three substitutes would still be           
 needed to take their place.  He was not saying this was not a good            
 process.  Peer evaluations can be very productive, and they are               
 conducted in certain school districts.  However, to do a thorough             
 analysis, administrative responsibility must still be taken to                
 evaluate the teacher at least twice during the year, according to             
 the regulations.  This is also simply good practice.                          
 MR. McPHETRES continued that the peer evaluation must be included             
 with the administrative evaluation.  Together, those evaluations              
 would comprise a pretty good evaluation package to be given to the            
 superintendent for recommendation.                                            
 Number  630                                                                   
 CO-CHAIR BUNDE said his intent is to give the district as much                
 flexibility as possible.  However, the intent of the evaluations              
 would be best served if the evaluations were spread out                       
 periodically over the school year.  Co-Chair Bunde could easily               
 envision one-half hour of observation per each evaluator three                
 times during the year.                                                        
 MR. McPHETRES disagreed.  He felt thorough evaluations which assess           
 what is really going on in the classroom can only be accomplished             
 through larger time allotments in the classroom.  An evaluator must           
 be observing for much longer than 30 minutes.  The observer needs             
 to watch the children enter the classroom and how the teacher                 
 greets the children.  The observer must note how the classroom                
 becomes organized, the atmosphere of the classroom and how the                
 children react to the teacher.  The observer should pop into the              
 classroom at different times, and evaluate if the classroom setting           
 is a learning environment.  A thorough evaluation takes longer than           
 30 minutes three times per year.                                              
 CO-CHAIR BUNDE understood.  But his contention also was that if an            
 evaluator went to a teacher's lounge, he or she could figure out              
 who is doing a good job.  At the primary level, through working               
 together as colleagues, teachers are in and out of each others'               
 rooms.  Teachers have a pretty good perception of what is going on.           
 Co-Chair Bunde felt this additional observation was an unnecessary            
 Number 745                                                                    
 MR. ROSE asked to clarify and perhaps improve the issue of                    
 evaluation.  He asked if, for interpretation reasons, observation             
 and evaluation could be satisfied if mentorships were included.  He           
 asked if a mentoring program would qualify as evaluation and                  
 observation as well.  That would give the AASB some latitude.                 
 CO-CHAIR BUNDE said a mentoring program would absolutely qualify.             
 MR. ROSE was pleased, because the AASB had some concerns with the             
 costs.  However, if such evaluations can be included in an                    
 inservice/professional development/mentorship-type program rather             
 than through simple observation, the AASB would have more room to             
 CO-CHAIR BUNDE hoped this provision in the bill would grow into a             
 mentorship-type of program.  However, Co-Chair Bunde did not want             
 to specify that in the bill because of the costs that may be                  
 MR. ROSE stressed that if mentorships could be credited as a type             
 of observation, the AASB would have some latitude in which to work.           
 Number 828                                                                    
 CO-CHAIR BUNDE agreed that a mentorship is much more valuable and             
 important than simple observation.  He then closed public                     
 testimony.  The committee needed to accept the work draft of CSHB             
 217, and then address proposed amendments.                                    
 REPRESENTATIVE DAVIS proposed the HESS Committee accept the work              
 draft /K as the CSHB 217 working document.  There were no                     
 objections, and before the committee was CSHB 217 as the work                 
 Number 855                                                                    
 REPRESENTATIVE ROBINSON moved her amendment one, and an objection             
 was made for purposes of discussion.  She said the amendment was              
 simple, it changed the number of probationary years before tenure             
 from four to three.  As was stated in the testimony, the normal               
 period of time used by most states is about three years.  She felt            
 it was a good compromise.  As she understands it, it would not                
 actually be until the fourth year that tenure would be achieved               
 CO-CHAIR BUNDE noted with all due respect that four years was an              
 attempt on his part to compromise in the CS.  Since one side asked            
 for three years of probation, and the AASB asked for five, the                
 compromise was four years.                                                    
 REPRESENTATIVE DAVIS asked Representative Robinson to speak to the            
 rest of amendment one, which addressed a different issue.  The bill           
 currently says, "A peer review committee shall submit its                     
 evaluation in writing to the superintendent only."  The amendment             
 seems to add "and to the nontenured teacher."                                 
 CO-CHAIR BUNDE asked Representative Robinson to divide the                    
 amendment, and make lines 16 and 17 of the amendment into amendment           
 four.  He said he would not have any objection to that provision.             
 Number 1038                                                                   
 REPRESENTATIVE ROBINSON said part of her concern is that generally            
 speaking, when one goes to work for other agencies, most of the               
 time a period of probation is anywhere from six months to one year.           
 She knows of people in Juneau who have put in a year's service as             
 teachers, and they were then nonretained.  Representative Robinson            
 understands that under the tenure system, those teachers are going            
 to have to start all over again.  Considering the economic problems           
 the state is facing currently, she also believes that many teachers           
 are going to teach for a longer period of time than what has been             
 done in the past to get to tenure.                                            
 REPRESENTATIVE ROBINSON stated that was the other reason she felt             
 it made sense to go with a compromise of three years, instead of              
 CO-CHAIR BUNDE understood her goal.  He was trying to compromise              
 her goal with those who want to abolish tenure altogether.  A roll            
 call vote was taken.  Voting "yes" on amendment one was                       
 Representative Robinson.  Voting "no" were Co-Chair Bunde, Co-Chair           
 Toohey, and Representative Davis.  The amendment failed.                      
 Number 1106                                                                   
 REPRESENTATIVE ROBINSON moved amendment two, and an objection was             
 raised for purposes of discussion.  Amendment two does many things.           
 It makes the layoff section of the bill more specific.  It provides           
 for greater clarity relative to financial situations that may                 
 result in the layoff of tenured teachers.  It establishes financial           
 exigency as a reason for layoff, and ensures that districts will              
 attempt to implement other budgetary reductions before layoff.                
 REPRESENTATIVE ROBINSON continued that the amendment requires                 
 verification of the financial exigency by a neutral third party.              
 It requires that teachers are to be notified by March 16, and                 
 mandates the use of seniority to layoff tenured teachers.  It                 
 requires districts to decide rehire provisions through local                  
 bargaining.  It provides for fifth-year recall rights and restricts           
 districts from re-employing teachers until tenured teachers who are           
 laid off are recalled.  Finally, the layoff section is defined.               
 Number 1194                                                                   
 CO-CHAIR BUNDE said the impetus of this bill originally was to give           
 districts more flexibility.  Inserting a bargaining unit into the             
 bill will not provide the flexibility districts desire.                       
 Number 1214                                                                   
 THOMAS WRIGHT, Legislative Assistant, Representative Ivan Ivan's              
 Office,  did not have a comment on amendment two.  However, he                
 noted the sponsor's office did approve of the existing language in            
 the CS.                                                                       
 CO-CHAIR BUNDE called for a roll call vote.  Voting "yes" on the              
 amendment was Representative Robinson; voting "no" were Co-Chair              
 Bunde, Co-Chair Toohey, and Representative Davis.  Amendment two              
 Number 1264                                                                   
 REPRESENTATIVE ROBINSON moved amendment three.  An objection was              
 made for purposes of discussion, and she spoke to the amendment.              
 Section 3 concerns the arbitration section, and it is an attempt to           
 clarify that section.  The tenured teacher receives notice of                 
 dismissal or nonretention.  The tenured teacher then can request              
 within 15 days of receipt of the notice of nonretention an                    
 arbitration hearing which is arranged and conducted.  An                      
 arbitration decision would then be reached, and a decision would be           
 furnished to the employee or employer within 10 days of the                   
 decision.  The employer or employee may appeal to the court, and              
 the court would then conduct a judicial review.                               
 REPRESENTATIVE ROBINSON said this amendment simply clarifies the              
 CO-CHAIR BUNDE asked Representative Robinson if arbitration under             
 AS 09.43.010 was advisory or binding arbitration.                             
 REPRESENTATIVE ROBINSON thought the arbitration was binding.                  
 MR. MARSHALL interjected that AS 09.43.010 was that part of the               
 statute that deals with arbitration.  It is not binding, but the              
 appeal that is provided for on line 7, page 2 of the bill is                  
 basically a low threshold issue.  The participants are not actually           
 going through a new hearing or anything like that.  A process is              
 occurring in which the verdict or award is either confirmed,                  
 modified, vacated or corrected.                                               
 MR. MARSHALL noted that his legal advisors have noted there are               
 certain standards prescribed within the statute that would be                 
 looked at by a judge.  One such standard would be was the                     
 arbitration held in a timely manner; was there any strong                     
 malfeasance conducted by the arbitrator.  He apologized for not               
 bringing a copy of that particular statute.  However, the statute             
 does, in a sense, specify procedural checks.  It is not a re-                 
 hearing of the dispute that occurred before the arbitration.                  
 Number 1459                                                                   
 CO-CHAIR BUNDE told Representative Robinson that he is on the                 
 Judiciary Committee, which was the bill's next committee of                   
 referral.  He told her he would study her amendment more                      
 thoroughly, as it is lengthy.  He would then consider presenting              
 the amendment in the Judiciary Committee.  At this point, however,            
 he is going to oppose the amendment because he has not had the                
 chance to study it carefully enough.  A roll call vote was taken.             
 Voting "yes" on the amendment was Representative Robinson; voting             
 "no" were Co-Chair Bunde, Co-Chair Toohey and Representative Davis.           
 Amendment three failed.                                                       
 Number 1500                                                                   
 REPRESENTATIVE ROBINSON moved amendment four, and expressed                   
 confidence that this amendment was going to pass.  There were no              
 objections to amendment number four, and it was adopted.                      
 CO-CHAIR BUNDE announced that now before the committee was CSHB 217           
 as amended.  He asked for the wishes of the committee.                        
 CO-CHAIR TOOHEY moved CSHB 217(HES) be passed to the next committee           
 of referral with its zero fiscal notes and individual                         
 recommendations.  Representative Robinson objected.  Voting "no" on           
 the passage was Representative Robinson; voting "yes" were Co-Chair           
 Bunde, Co-Chair Toohey and Representative Davis.  The bill passed             
 from committee.                                                               
 MR. WRIGHT thanked HESS Committee members and Co-Chair Bunde in               
 particular on the behalf of Representative Ivan for all the work              
 that was put into this bill.                                                  

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