Legislature(1995 - 1996)
04/21/1995 01:05 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 217 - EMPLOYMENT RIGHTS OF TEACHERS REPRESENTATIVE IVAN IVAN, sponsor of the bill, introduced HB 217. He thanked the members of the Health, Education and Social Services (HESS) Committee for the work they did on the bill. He stated that he was introducing House Bill 217 to allow our school districts some flexibility when dealing with rising enrollments and increased costs associated with our educational system. Should, we, the Legislature, decide not to increase educational funding, he believed the policy questions such as the ones proposed in House Bill 217 need to be addressed. REPRESENTATIVE IVAN continued, saying that House Bill 217 would allow school districts to lay off teachers who have acquired tenure rights, but only if the school district finds it necessary to reduce the number of teachers due to declining enrollment or declining revenues. The bill also increases tenure from two to four years and removes the costly trial de novo portion of our statutes which allows a school district employee who, if not satisfied with a district's investigation, may demand that the case be retried. The deletion of the trial de novo provides our educators the same protections as provided to other state employees. The bill does allow for mandatory, advisory arbitration if the school board reaches a decision unfavorable to a teacher prior to appealing to Superior Court. Number 110 CARL ROSE, Executive Director, Association of Alaska School Boards (AASB), spoke in support of the committee substitute (CS) for HB 217. They were in support of the compromise language that the HESS Committee came up with. They also support the companion bill on the Senate side. He said they have asked for five years, but will accept four, in terms of changing from two to four years. We have accepted the compromise offered by the subcommittee to allow us to review secondary as well as primary, as a starting point. We also have a portion in the bill that addresses a concern for peer review and to address the issue of in-service professional development and mentoring. We have agreed to that proposal as well. The felt it important to provide another process that would provide a measure of security for employees, and that was viewed as mandatory advisory arbitration. The record can still be subject to judicial review. They agreed with the idea of having teachers involved in peer review and mentorships. They look favorably upon the bill. Number 190 WILLIE ANDERSON, National Education Association (NEA). He focused some of his reservations on the judicial review section, which is Section 7. Their attorneys have brought three concerns to their attention. One, the question of whether or not the board is bound to the arbiter's award if the arbiter says that the board has failed in terms of proving its case against a tenured teacher, if the arbiter says the teacher should be reinstated. Is the board bound to that award? His understanding of an advisory decision is that it is simply that, advisory, and not binding, and the board still has the final decision. MR. ANDERSON'S second question was, "Whose record will be reviewed? Will it be the arbiter's record, or the board's record?" If the arbiter's record, if different from the board's decision, will be clearly different than the board's record. We would like an answer to whose record will be reviewed. MR. ANDERSON asked a third question. They understood the drafter of the CS to be saying that this will be a fresh trial by an impartial party. The theory we have is that if it is indeed a fresh trial in that regard, how then does that prevailing party enforce that decision? If it is indeed a fresh trial, it should be an enforceable decision. Our reservations about those three areas in the judiciary review are causing us concern and we are still unable to support that section of this bill because of those concerns. They submitted recommendations in the previous committee. They will accept the fact that the cost of going to court and having a new trial is an expensive process, but they do not accept the idea that it is too expensive to end a person's career. We are not going to object to arbitration, but let us make it binding. In a binding arbitration award, the decision is enforceable which will reduce the cost. The cost is the outcry we hear from the School Board Association. This is a $200,000 event every time we try to fight a tenured teacher. Arbitration would not be $200,000, it would probably be less than $10,000, unless they hire a battery of attorneys to carry the case for them. If cost is an issue, let us address the cost. Let us have binding arbitration on the matter, and let us have that be a decision that binds both parties. MR. ANDERSON felt the real issue was not cost, it is actually a free hand to deal with their employees as they see fit. If the real issue is cost, let us fix the cost, and move on with this process. We are pleased with the process of peer review. They would suggest rather than doing this from two to four years, you can make that decision in two years. This way we would have a quicker decision about a person that is not competent to be in the field of teaching, and that person is excluded from the field earlier, versus later. Also, this evaluation process would provide reasons for why the person is not qualified. Most importantly, our children will get a better quality of education if we preclude these people from the education profession earlier on. This will give us a better product in terms of our education system. MR. ANDERSON also thought that layoffs needed to have provable reasons, such as reduced enrollment. Number 350 SHEILA PETERSON, Special Assistant, Office of the Commissioner, Department of Education, related the State Board of Education's concern on this bill, and their interest. The state board's strongest concern is the threat to the quality of education as a result of decreased funding. We anticipate that in our future meetings, we will take up this issue, as well as the issue of the foundation formula, and involvement of parents and families in the children's education. At this time, the state board does not have an official position on these issues, but is very concerned about them. Dialogue has been initiated between the three associations involved in these issues, and attempted to come up with some common ground, which is very difficult to do. The state board would like you to keep in mind full funding of education as you make your further deliberations. CHAIRMAN PORTER concluded the public hearing and offered Amendment Number 1, which would indicate that the idea that it is not retroactive, but only effects Sections 1 - 3. Amendment Number 1: Page 4, line 19, after "made by": Insert "secs. 1 - 3 of" REPRESENTATIVE CON BUNDE made a motion to move the amendment. Hearing no objection, Amendment Number 1 passed. REPRESENTATIVE FINKELSTEIN made a motion to move Amendment Number 2: Page 1, lines 1 - 2: Delete "to review of decisions of school boards concerning teachers" Insert "teacher arbitration rights" Page 4, lines 11 - 18: Delete all material. Insert new bill sections to read: "Sec. 7. AS 14.20.180(b) is amended to read: (b) The tenured teacher may, within 15 days immediately following receipt of the notification, notify the employer in writing that arbitration under AS 09.43.010 - 09.43.180 [A HEARING BEFORE THE SCHOOL BOARD] is requested. The tenured teacher may require in the notification that the arbitration hearing be either public or private [AND THAT THE HEARING BE UNDER OATH OR AFFIRMATION. THE NOTIFICATION MAY ALSO REQUIRE THAT THE RIGHT OF CROSS-EXAMINATION BE PROVIDED AND THAT THE TENURED TEACHER BE REPRESENTED BY COUNSEL AND HAVE THE RIGHT TO SUBPOENA A PERSON WHO HAS MADE ALLEGATIONS THAT ARE USED AS A BASIS FOR THE DECISION OF THE EMPLOYER]. Sec. 8. AS 14.20.180(c) is amended to read: (c) Upon receipt of the notification requesting an arbitration [A] hearing, the employer and the employee shall immediately arrange for a hearing [, AND SHALL NOTIFY THE TENURED TEACHER OR ADMINISTRATOR IN WRITING OF THE DATE, TIME, AND PLACE OF THE HEARING. A WRITTEN TRANSCRIPT, TAPE, OR SIMILAR RECORDING OF THE PROCEEDINGS SHALL BE KEPT; TRANSCRIBED COPIES SHALL BE FURNISHED TO THE TENURED TEACHER FOR COST UPON REQUEST OF THE TENURED TEACHER. A FINAL DECISION OF THE SCHOOL BOARD REQUIRES A MAJORITY VOTE OF THE MEMBERSHIP. THE VOTE SHALL BE BY ROLL CALL. THE FINAL DECISION SHALL BE WRITTEN AND CONTAIN SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW.] A written notification of the arbitration decision shall be furnished to the tenured teacher and the employer within 10 days after [OF] the date of the decision. Either party may apply to the court to confirm, vacate, modify, or correct the arbitration decision in accordance with AS 09.43.110 - 09.43.130. Sec. 9. AS 14.20.205 is repealed and reenacted to read: Sec. 14.20.205. JUDICIAL REVIEW. Judicial review of a decision or award in arbitration under AS 14.20.180 shall be as provided in AS 09.43.010 - 09.43.180." REPRESENTATIVE BUNDE objected. REPRESENTATIVE FINKELSTEIN explained that his problem with the arbitration that is in the bill is that he does not really see it as arbitration, but more as internal review. Arbitration generally involves an independent party coming up with a decision. This amendment refers to the Uniform Arbitration Act, which allows a decision to be made. Adoption of this amendment would give us a more true arbitration procedure rather than just another internal review. A roll call vote was taken. Representative Finkelstein voted yes. Representatives Toohey, Bunde, Vezey, Green and Porter voted no. Amendment Number 2 failed, five to one. REPRESENTATIVE FINKELSTEIN offered Amendment Number 3 which would move the teacher tenure up to three years, from the existing two. Amendment Number 3: Page 1, line 12: Delete "four" Insert "three" Page 2, line 6: Delete "four" Insert "three" Page 2, line 7: Delete "four" Insert "three" Page 2, line 12: Delete "four" Insert "three" Page 2, line 16: Delete "three of the four" Insert "two of the three" REPRESENTATIVE BUNDE objected and a roll call vote was taken. Representative Finkelstein voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter voted no. Amendment Number 3 failed, five to one. Number 550 REPRESENTATIVE FINKELSTEIN offered Amendment Number 4: Page 3, line 12, through page 4, line 3: Delete all material and insert: "Sec. 6. AS 14.20 is amended by adding a new section to read: Sec. 14.20.177. LAYOFFS AND REHIRE. (a) A tenured or nontenured teacher is subject to layoff for the next fiscal year if the school district has (1) an unanticipated financial exigency that interferes with the normal operations of the school district and that cannot be resolved through other reasonable and usual budgetary processes, including normal staff attrition, reduction of unnecessary expenditures, and administrative layoffs; or (2) a decrease in school attendance that makes a reduction in staff necessary. (b) A neutral third party selected by mutual agreement between the school district and the bargaining organization representing teachers must verify the unanticipated financial exigency or the need to reduce staff because of a decrease in school attendance before the school district may lay off teachers. (c) A school district shall notify tenured teachers of a layoff no later than March 15 of the fiscal year preceding the year of layoff. Layoffs shall occur in reverse order of seniority of employment within the district. (d) A school district and the bargaining organization representing teachers shall negotiate a provision concerning the rehire or recall rights of teachers who have been laid off under this section before the district lays off teachers under this section. (e) A teacher who is laid off under this section has recall rights based on seniority for five years after the date of layoff. A school district may not employ a new teacher so long as there are laid off teachers on the recall list." REPRESENTATIVE BUNDE objected. REPRESENTATIVE FINKELSTEIN explained that his amendment is trying to get to the point of what is really a financial necessity. The most critical factor is not just a change in attendance, but the most critical issue is what the money situation is. He felt that budget reductions and attrition approaches should be tried first, so that this is not the first recourse. You should at least have a longer period for the teachers who are laid off. The amendment would change the three years to five years. A roll call vote was taken. Representative Finkelstein voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter voted no. Amendment Number 4 failed, five to one. Number 630 REPRESENTATIVE PORTER offered Amendment Number 5: Page 3, line 16, after ".": Insert: "This section does not apply to a teacher who has not acquired tenure rights." Page 3, lines 25 - 26: Delete: "lay off or fail to rehire a secondary school teacher who has more seniority than a primary school teacher in order to give preference to a teacher skilled at teaching at the primary school level" Insert: "give preference to a primary school teacher who has less seniority than a secondary school teacher in order to preserve the primary school program" Page 4, lines 5 - 6: Delete: "Time spent on layoff status does not count toward the acquisition of tenure rights." Page 4, line 8: Delete all material. REPRESENTATIVE BUNDE objected for discussion, and asked about the first portion of the amendment, which would change Page 3, line 16. CHAIRMAN PORTER answered that in checking with the sponsor, that was the intent of those sections, and it just did not specifically say it. Down in Section (c), it refers to nontenure teachers, so the first part actually does refer to tenure teachers, though it did not specifically say it. This is just clarifying language. REPRESENTATIVE BUNDE replied that with that explanation, he would remove his objection. REPRESENTATIVE FINKELSTEIN did not understand the reason for amending page 4, line 8, regarding a teacher on layoff status not being entitled to accrue leave, and layoff status does not constitute eligibility for tenure. CHAIRMAN PORTER answered that they are not tenured in the first place under this section. He asked if there was any objection to Amendment Number 5. Hearing none, the amendment was adopted. CHAIRMAN PORTER then offered Amendment Number 6: Page 3, lines 15 - 16: Delete: "because of a substantial decrease in school district revenue" Insert "because the basic need of a school district determined under AS 14.17.021(b) and adjusted under AS 14.17.225(b) decreases by three percent or more from the previous year" TOM WRIGHT, Legislative Assistant to Representative Ivan Ivan, described the amendment. We tried to go back and define "substantial," and after discussion with Duane Giley from the Department of Education, this is language they suggested after researching the statutes. As stated in AS 14.17.021(b), the basic need of a school district is determined by multiplying the area cost differential of the district, under AS 14.17.051, by the number of instructional units in the district, AS 14.17.031, and then multiplying that product by the instructional unit value in AS 14.17.056, where it describes basic need for each school district. Where it says, "and adjusted under AS 14.17.325(b)," that is the section that defines "pro rata." If a school district does not receive full funding, they will receive a pro rate share of whatever is distributed to each school district, and decreases by three percent or more from the previous year. That was probably the easiest and most efficient definition of "substantial" that we could come up with, after talking with Legal Services and the Department of Education. Number 700 REPRESENTATIVE BUNDE asked if we were to fund schools, as has been discussed, at a flat dollar amount, would that, in any areas of the state, constitute a 3 percent decrease. MR. WRIGHT understood that it would, but he would have to confirm that with Mr. Rose. REPRESENTATIVE FINKELSTEIN asked why they chose to use the word "need." MR. WRIGHT answered that under AS 14.17.021(b), they use the words "basic need" and then describe how that is determined. MS. PETERSON explained how the formula for "need" is determined. You multiply the state dollars by area cost differential, times the unit value. That is the formula for "basic need." CHAIRMAN PORTER asked if there was objection to Amendment Number 6. Seeing none, the amendment was adopted. REPRESENTATIVE FINKELSTEIN offered Amendment Number 7. If we are not going to go to actual independent or binding arbitration, we should at least make sure that the judicial review occurs based on the merits of the record. By putting the word "independent" before "judicial review", his intent is to include the actual merits of the issue before them, not solely on purely procedural grounds. CHAIRMAN PORTER objected for discussion. REPRESENTATIVE BUNDE believed that was the intention he had in mind when this was crafted. It was a judicial review of the whole case, not just whether or not you received a fair hearing before the school board. He certainly did not object to the amendment. REPRESENTATIVE FINKELSTEIN'S intention of an independent arbitration is that they are going to look at the law and the contract and whatever provisions are out there and make an independent decision, rather than just saying that this decision has already been made, and it was not arbitrary and capricious, so we are not going to look at the case. CHAIRMAN PORTER spoke against the amendment. He could see this as being interpreted to mean that you are back to a de novo trial. That certainly is not the intent of this legislation. REPRESENTATIVE FINKELSTEIN did not see how one could read that into the legislation. CHAIRMAN PORTER argued that he could make a better case that it means that than anything else. ANNE CARPENETI said if you are talking about the basis for review, you might consider making it more clear by saying judicial review "based on the entire record," so that it would include both the school board record and the record from the arbitrator. REPRESENTATIVE BUNDE felt that the existing language "based on the record" connotes that you are not going to part of the record and not the other part of the record. CHAIRMAN PORTER agreed. He stated that the arbitrator's record and the school board's record are both public, and anyone petitioning a court for judicial review would be the teacher. It would certainly be the teacher who would submit the request for that record review. He then requested a roll call vote be taken. Representatives Finkelstein and Bunde voted yes. Representatives Toohey, Vezey, Green and Porter voted no. Amendment Number 7 failed, four to two. REPRESENTATIVE BUNDE made a motion to move CSHB 217(JUD) out of committee with individual recommendations and attached fiscal notes. Hearing an objection, a roll call vote was taken. Representative Finkelstein voted no. Representatives Bunde, Vezey, Toohey, Green and Porter voted yes. CSHB 217(JUD) passed out of committee.