Legislature(1995 - 1996)

04/21/1995 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 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.                                                                    
                                                                               

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