Legislature(1995 - 1996)
04/13/1995 10:00 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 132
An Act relating to judicial review of decisions of
school boards relating to nonretention or dismissal of
teachers.
CS FOR HOUSE BILL NO. 217(L&C) am(efd fld)
An Act relating to teacher tenure, teacher layoff and
rehire rights, public access to information on public
school collective bargaining, and to the right of
tenured teachers to judicial review of decisions of
nonretention or dismissal; and relating to retirement
for certain employees of school districts, regional
resource centers, the state boarding school, and
regional educational attendance areas.
Co-chairman Halford directed that SB 132 be brought on for
consideration and noted a teleconference link to Anchorage.
ROB PFISTERER, President, Anchorage Education Association,
spoke via teleconference. He advised that the association
represents 2,900 teachers in Anchorage. Speaking to the
bill, he said that he failed to see any redeeming features
in the legislation. He questioned need to lengthen the time
to achieve tenure to five years, suggesting that if the
committee is concerned about inadequate teachers achieving
tenure, lengthening the time they can remain in the
classroom is not the remedy. Evaluation is the proper cure.
In the Anchorage district, eight to ten teachers are
counseled out of the profession each year. That has no
relation to two or five years of service. It is strictly
related to how they perform in the classroom. Five years
would provide a longer time for inadequate teaching to
occur.
Layoff of tenured teachers due to decreased revenue or to
better meet program needs would allow districts to fire
experienced teacher with skills and expertise and hire
inexperienced, cheaper teachers. Mr. Pfisterer questioned
the security available to teachers when community politics
is allowed to determine what will be taught. The impact
would be loss of academic freedom should a teacher say
something community leaders do not want to hear and loss of
job security because "some number cruncher in the ad
building determines I am worth one and a half times the cost
of an inexperienced teacher."
Mr. Pfisterer termed "mandatory public bargaining" the
"teacher bashing segment of this bill." It will do nothing
to help districts and employee bargaining units come to a
fair settlement. He noted that no other entities
(municipalities, ARCO, BP) bargain in public. None feel
that public negotiations are beneficial.
Speaking to repeal of duty-free lunch time, Mr. Pfisterer
suggested members visit schools for a few days. In many
instances, lunch is the only time a teacher is able to visit
the restroom.
Referencing loss of de novo trial rights, Mr. Pfisterer
noted that school boards have no investigatory standing. An
employee who may lose his or her job and economic future
should have an impartial review of his or her termination.
If a school board wishes to fire someone, How can it be
viewed as impartial?
Addition of the retirement incentive to the bill is
insulting to 2,900 teacher in Anchorage and all educational
employees across the state. There are no positive
educational items in the proposed bill. Alaska's children
and the dedicated educational employees who serve them
deserve better from our democratic system.
Senator Randy Phillips noted that the teaching profession is
the only segment of society that has de novo trial
provisions in law. He then asked why teachers are covered
when other professions are not. Mr. Pfisterer voiced his
understanding that, in the past, politics has entered into
how teachers are removed from their jobs. It is a
particular problem in rural areas. Sometimes school boards
seek termination without the teacher having adequate
representation or proper review of the facts.
Senator Rieger noted arguments that federal protection of
employment in teaching and other forms of employment has
expanded to cover freedom of speech and political
termination. Since these areas are protected elsewhere,
there is no further need to protect them under tenure. He
asked that Mr. Pfisterer respond to those arguments. Mr.
Pfisterer questioned whether the foregoing is true and
advised that he would have to review specific citations to
determine the accuracy of the above-mentioned argument. He
advised that Alaska has a number of instances in smaller
communities where "the powers that be" have a problem with
what is being said in the classroom. Academic freedom is
thus questionable. Redress through the federal courts is
not the way to address this problem.
Mr. Pfisterer cited the example of a teacher who has a
disagreement with someone in the community, and the school
board subsequently advises that due to program changes the
teacher is no longer needed. That is a highly questionable
method of dealing with academic freedom.
Mr. Pfisterer queried members regarding how changes in the
proposed bill would improve the quality of instruction in
Alaska. Co-chairman Halford said that improvement is the
underlying intent of the bill.
Senator Phillips noted that he had a problem with the change
of tenure from two to five years and would prefer that that
provision not be part of the bill. He voiced support for
lay-off provisions and said he continued to have questions
regarding de novo trial. The Senator advised he was against
public bargaining provisions and that he needed additional
information regarding the "brain drain" and cost savings to
be achieved by early retirement incentives. He further
noted that he would be offering an amendment at page 7,
lines 28 through 8 to delete contracts relating to the
University of Alaska.
Referencing mandatory public bargaining, Co-chairman Halford
stressed need to encourage school districts to include
constituencies. He spoke against a mandatory system that
encourages positioning and discourages the compromise
necessary to achieve a solution. Senator Phillips voiced
his belief that the school board is the authority that
should be communicating with constituents. Problems in
doing so should be handled at the local level rather than by
the legislature. Co-chairman Halford concurred and noted
that proposed language relating to public bargaining does
not encourage solution.
Speaking to the question of tenure, Co-chairman Halford
acknowledged proposals ranging from two to five years.
Testimony indicates that whatever the time frame, continuous
review should be part of the process. He voiced need for
analysis of tenure laws, nationwide, and suggested a four-
year term with review the first, second, and third years.
Co-chairman Halford next pointed to concern regarding the
duty-free lunch provision and voiced his understanding that
the sponsor's intent was to remove the limitation on hours
rather than to deny teachers a lunch period. Repeal would
eliminate the requirement that the period fall between 11:00
a.m. and 1:00 p.m., particularly in instances of double
shifting.
Trial de novo provisions, incorporated within a draft for
comparable House legislation, deal with mandatory advisory
arbitration. Provisions guarantee review by an impartial
third party, and both sides have to agree to arbitration.
Co-chairman Halford remarked on need to ensure that early
retirement provisions are both economically feasible and
feasible to the retirement system.
Senator Phillips stressed need to review the evaulation
process relating to tenure. He voiced his belief that
evaluation, rather than the timing of tenure, is the
problem. Senator Rieger noted need to address the question
of career progression for teachers, suggesting that the
mechanism is not sufficiently merit based. He voiced his
belief that there are both over and under paid teachers at
the top of the pay scale. Progression is presently based on
longevity and continuing education rather than performance
in the classroom and ability to teach.
Co-chairman Halford referenced an amendment which he said
would eliminate the 11:00 a.m. to 1:00 p.m. time period for
duty-free time. He stressed that the amendment would merely
eliminate the fixed time period rather than the provision
for duty-free time for teachers.
Senator Zharoff, who had only recently arrived at the
meeting, voiced his intent to completely eliminate Sec. 19
of the bill. He also stressed that the intent of the
legislation is not to harm teachers but to allow school
boards to curtail or contain costs incurred as a result of
limited flexibility due to tenure. He suggested that
provisions also be included that give school boards control
over contracts with administrative personnel. The Senator
noted that teacher contracts generally run from year to
year. In instances where the school board faces reduced
funding, the board should have the ability to review and
shorten administrative contracts that cover a number of
years.
Senator Rieger MOVED for adoption of draft Amendment No. 1
(9-LS0838\K.4, Cramer, 4/12/95). Co-chairman Halford
reiterated that the amendment would leave language relating
to duty-free time in statute but would remove the
requirement that it be provided between 11:00 a.m. and 1:00
p.m. No objection having been raised, Amendment No. 1 was
ADOPTED.
Senator Randy Phillips referenced Page 3, lines 23-27, and
MOVED for deletion of Sec. 7, relating to mandatory public
bargaining. Senator Rieger voiced support for the
amendment, saying that he feared public bargaining would
lead to posturing. He then inquired regarding the status
quo. Co-chairman Halford voiced his understanding that the
statutes are silent on whether bargaining should be public
or private. Executive session provisions of the public
meetings' act allow for negotiations in private. Senator
Phillips voiced his belief that school boards represent the
public interest. It is the board's duty to communicate
information on negotiations and positions taken by the
board. Co-chairman Halford agreed that the currently
proposed provision for public bargaining should be removed
from the bill. He also referenced prior testimony in
support of the provision, and he stressed need to encourage
districts to make more negotiating information public. The
Co-chairman then called for objections to deletion of Sec.
7. No objection having been raised, the motion CARRIED and
Sec. 7 was DELETED.
Referencing Sec. 2 of the bill, relating to acquisition of
tenure, Senator Phillips MOVED to delete the proposed five
years and revert back to current statutes which provide for
a two-year period. Senator Sharp OBJECTED for discussion
purposes. Co-chairman Halford said he could not support
the motion at this point. He noted that prior testimony
indicated that the five-year provision would include Alaska
with only four other states. He reiterated need to examine
tenure provisions, nationwide, to determine an average and
stressed need for a review process regardless of the tenure
term. Senator Phillips concurred in suggested review and
voiced his belief that two years is adequate for tenure.
Senator Sharp noted his lack of support for the motion and
concurred in need for review of nationwide provisions
regarding tenure.
Senator Salo noted that Senate HESS spent two years
discussing the tenure issue. A proposal was put forward
that contained compromise language "worked on by lots of
people." Senator Sharp asked that Senator Salo provide that
information to committee, along with associated backup
materials. She agreed to do so. She then voiced support
for Senator Phillips' amendment. She further noted that
interest in a teacher's capability is as strong throughout
the instructor's career as it is during the years that
tenure is attained. She stressed need to find "that thing
that keeps a person rejuvenated throughout their entire
career." Senator Sharp acknowledged that prior work in
Senate HESS indicated there were more problems with teachers
who had been tenured for a long time and had reached a
burnout stage. There is no way to reach the problem other
than self-discipline by the administration to counsel staff.
There are probably more problems there than with new
teachers attempting to attain tenure.
Co-chairman Halford called for a show of hands on the
amendment to return tenure provisions to the statutory
status quo. The motion FAILED on a vote of 2 to 3.
Senator Sharp directed attention to proposed Amendment 1-A
(9-LS0838\K.1, Cramer, 4-11-95). He explained that he had
agreed to offer the amendment on behalf of another Senator.
The amendment would delete "by regulation adopted" at page
2, line 19, and thereafter insert language relating to
conditions on rehire and ability to stay on rehire status.
While provisions do not guarantee rehire, they maintain
teachers on standby status to be offered reemployment with
the caveat that the district may select according to skills
needed for the particular job opening. Rehire would not be
dictated by seniority. The Senator acknowledged that while
language makes the process more rigid, it also lessens
opportunity for regulations to "set up something more
onerous." It reflects middle ground and meets concerns of
both sides in a layoff situation. Senator Sharp admitted
that the language would dictate terms already contained
within most collective bargaining agreements. Senator Randy
Phillips attested to prior concern that "by regulation
adopted" was too open ended. New language would provide
guidelines for regulations.
Senator Rieger advised that he could not support the
amendment. He stressed that school districts should have
the ability to bargain "these kinds of provisions" and
questioned foreclosure of ability to bargain layoff and
rehire decisions.
In an attempt to develop compromise language, Senator Sharp
directed attention to page 3, lines 9 through 14, and
suggested that language at line 9 be replaced with
"Notwithstanding AS 14.21.060 the following terms are set in
statute." In that way, if there are other areas set by
regulations, they would have to be patterned after "these
items."
Co-chairman Halford advised that he would be voting for the
amendment, but he expressed need to bring the bill before
committee at a later time for discussion with
representatives of NEA-Alaska, school boards, and the Dept.
of Education. Senator Sharp concurred. He stressed need
for input from the Dept. of Education in terms of the intent
of current regulations and what might be needed for future
regulatory ability. He said he did not wish to totally shut
down that function. Senator Salo concurred, advising that
this portion of the bill has the greatest potential for
misuse. It is legitimate to want to give school districts
authority to lay off during certain circumstances, but "What
you don't want to do is create a way to avoid the dismissal
policy." Senator Salo suggested that, under proposed
language, there would never be another legitimate dismissal
of a teacher "because it would be far too easy to just do
this--just lay them off." While on layoff status, teachers
generally leave the area and/or profession. Co-chairman
Halford voiced his understanding that in order to effect
layoffs, it must be necessary for the district to reduce the
number of teachers. The necessity of reduction is an entry
level screen. He acknowledged the complexity of the issue
and need to deal with legal questions.
End: SFC-95, #33, Side 1
Begin: SFC-95, #33, Side 2
Senator Zharoff echoed concerns expressed by Senators Rieger
and Salo. He then voiced support for bringing all parties
associated with the issue before committee. Senator Sharp
stressed that the proposed amendment would not change layoff
provisions at page 3, lines 2 through 8. Those provisions
stand on their own. Once a teacher is in layoff, the
proposed language provides tenure protection and accrued
benefits. It assures teachers they will be approached for
rehire on a priority basis (based on tenure) if they teach
primary or secondary school, and there is an opening at
their level. The intent is to offer some protection.
Co-chairman Halford called for a show of hands on adoption
of Amendment 1-A. The amendment was ADOPTED.
Co-chairman Halford distributed a proposed amendment
relating to judicial review and explained that it contains
an alternative to trial de novo in that it provides for a
non-aligned third party as an arbitrator and subsequent
appeal to the court system on a combination of the initial
record and the arbitration record. It represents an effort
to find middle ground between trial de novo and trial on the
record.
Senator Salo said that the educational community has
problems with the legislation because it is built on a
faulty premise that the educational community is
substandard. There is no evidence to suggest that. Alaska
has above average standardized test scores. Students often
win national competitions, and the state has the lowest
drop-out rate in the nation. Alaska has the highest rate of
25-year olds with high school diplomas. And an Alaskan
teacher has been selected national teacher of the year. The
state educational system does not really have a problem, yet
the legislature is embarking upon "a pretty broadly based
fix, here." A fix that is considered to be a slap in the
face to every good and hardworking teacher in Alaska. While
the legislature takes exception to the term "teacher
bashing," the effect of the legislation is to significantly
reduce the rights of teachers and increase the power of
school administrators. That is the main impact of the bill
as currently written. Those school administrators are not
following current evaluation law, partly because they are
overworked and partly because they simply have not done so.
Co-chairman Halford assured Senator Salo that
representatives of educational interests would jointly
appear before committee for detailed discussion before the
bill moves from committee.
The Co-chairman directed attention to the amendment and
explained that it would amend language within Sec. 6 at page
3, lines 15 through 22. It provides for mandatory advisory
arbitration conducted by a neutral third party. If the
decision of the school board remains unfavorable, judicial
review follows. It answers part of the objection to removal
of trail de novo provisions and responds to objections
regarding costs and time consumed in the process.
Discussion followed regarding the process of selecting an
arbitrator.
In response to a question from Senator Rieger, Co-chairman
Halford explained that both the initial administrative
record as well as the arbitration record would go forward to
judicial review. Senator Salo voiced need to ensure access
to judicial review to both parties (school district and
teachers). Co-chairman Halford concurred. Senator Rieger
suggested deletion of "if the decision of the school board
remains unfavorable to the teacher" and subsequently
recommended addition of "either party is entitled to
subsequent" at line 4 of the amendment. Senator Sharp
suggested that the amendment might speed up the process in
that a teacher could waive administrative review and proceed
directly to an arbitrator. Senator Rieger formally MOVED
for adoption of the foregoing rewording as an amendment to
the amendment. Co-chairman Halford called for objections.
No objection having been raised, the amendment to the
amendment was ADOPTED. Senator Phillips then MOVED for
adoption of the amendment. No objection having been raised,
the amendment relating to judicial review was ADOPTED AS
AMENDED.
Senator Rieger next referenced amendments relating to
retirement incentive portions of the bill and explained that
they are more technical than substantive in nature.
Addressing Amendment No. 4, effecting changes at page 7,
line 17, Senator Rieger said that it would clarify that the
10% penalty on the 110% indebtedness is a penalty on top of
foregone earnings of the pension fund during the period of
time between when the employee took retirement and returned
to the system. Administratively, that it how it is
currently done. Existing language, however, is unclear.
The new language clarifies actual practice by the
department. BOB STALNAKER, Director, Division of Retirement
and Benefits, Dept. of Administration, came before
committee. He concurred in comments by Senator Rieger and
acknowledged that the department charges interest on the
indebtedness and penalty that is assessed.
Senator Rieger MOVED for adoption of Amendment No. 4. No
objection having been raised, Amendment No. 4 was ADOPTED.
Senator Rieger next referenced Amendment No. 3. He
explained that, at the present time, the administrative rate
of interest on indebtedness is lower than the actuarial
earnings of the fund. A person with an outstanding
indebtedness enjoys arbitrage earnings in his or her favor
where the cost of indebtedness is less than the accrued
value of gain in retirement benefit. The language change
would equalize the two so that there is no cost to the
system. The system is then indifferent as to when a person
who reenters the system pays back an indebtedness. Mr.
Stalnaker voiced concurrence with the proposed amendment.
The current interest rate on indebtedness is 7%. The
actuarial assumed earnings rate is 8%. There is thus a 1%
difference. The indebtedness rate is reviewed by the board
periodically.
Co-chairman Halford called for objections to adoption of
Amendment No. 3. In response to a question from Senator
Zharoff, Senator Rieger explained that the proposed
amendment would result in a benefit to other participants in
the teachers' retirement system in that they would no longer
be subsidizing the retirement entitlement of a person who
took early retirement and then decided to reenter the
system. No objection to Amendment No. 3 having been raised,
it was ADOPTED.
Senator Randy Phillips directed attention to Amendment No.
7. He explained that under the proposed bill, an individual
could retire from the University system and then return
through a personal services contract for teaching or
research. He voiced his belief that the practice amounts to
"double dipping" and negates the purpose of a retirement
incentive program.
Co-chairman Halford asked the sponsor of the amendment if he
would object to an individual retiring from an unrelated
entity such as a school district and then accepting a
research contract through the University. Senator Phillips
stressed that a retirement incentive program represents an
attempt to reduce the work force. Allowing an exemption
merely replaces one person with another. Once an individual
RIPs from the system, he or she should not return.
Senator Rieger said that his concern regarding retirement
incentive programs has always been financial. If return of
a former employee through contract with no fringe benefits
represents a sound financial decision, there should be no
problem. Senator Phillips advised that his objection would
not be so strong if the position from which the individual
retires is not filled. In many cases the person who retires
is replaced by another worker, and the retiree thereafter
secures a contract for teaching or research. That is
subject to much abuse. He cited the Dept. of Public Safety
and University as examples. Senator Rieger voiced his
understanding that positions would be filled as individuals
retire. Proposed retirement incentive programs in both TRS
and PERS represent reductions in salaries rather than
reductions in force. Co-chairman Halford noted that a
retired individual could be the best person to provide the
service, several years after retirement. He voiced dislike
for situations in which individuals take early retirement
and "immediately move over to a personal services contract."
That is a different level of abuse. The Co-chairman
questioned the benefit of excluding teachers who have taken
early retirement from "ever coming back to provide any
benefit of their experience under any kind of a contract."
He suggested a one or two-year prohibition from return.
Further discussion of potential for abuse and benefits to be
received from returning expertise followed.
Mr. Stalnaker spoke to situations where a school district
seeks to bring back a retired principal to fill the void
until a new principal is on the job. Problems in present
statutes arise when the individual comes back to a position
requiring TRS coverage. The individual must be taken off
retirement and reinstated in TRS. That costs the school
district additional moneys. A retired principal is
generally willing to come back on a short-term contract
basis, take a lower salary, and help fill the void.
Unfortunately, restrictions exist in statute. School
district are facing these kinds of issues. Flexibility can
be advantageous to both parties.
Senator Sharp stressed need to close the loophole. He
referenced situations where individuals take early
retirement, return on a personal services contract, and
collect both retirement and contractual pay. He suggested
that prohibiting the individual from returning via contract
to work for the agency from which he or she retired would
avoid "a lot of sweetheart deals being made at the time of
retirement." That is where much of the problem exists.
Co-chairman Halford advised that while he could support some
form of the amendment, he would not support Amendment No. 7.
He then called for a show of hands on adoption. The motion
failed on a vote of 2 to 3.
Senator Zharoff referenced Amendment No. 2, relating to
administrative contracts. He explained that it would amend
language at AS 14.20.130 to state that "The contract for a
superintendent or other school administrator may not be for
more than one school year." At the present time the
amendment lacks a triggering mechanism allowing the
provision to become available should the district have to
cut back to a certain level of funding. The Senator said he
would continue to work on language to bring before committee
at a later time. He reiterated his earlier comments that if
districts must look to teachers for cost savings, they
should also look to administrators.
Co-chairman Halford reiterated need for discussion with
representatives of teachers, school boards, and the Dept. of
Education. He then directed that amendments adopted at the
present meeting be incorporated within a working draft
committee substitute.
RECESS
Subject to a call of the Chair, the meeting was recessed at
11:20 a.m. for attendance at the Senate Floor Session.
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