Legislature(1995 - 1996)
04/13/1995 02:07 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 provision. 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 nonretention. 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 addition. 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 work. 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 involved. 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 draft. 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 anyway. 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 four. 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 failed. 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 issue. 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.