Legislature(1999 - 2000)

05/06/1999 02:35 PM Senate HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         SB  61-TEACHERS'LICENSES, DISCIPLINE & ETHICS                                                                          
                                                                                                                                
CHAIRMAN MILLER announced that several people were waiting to                                                                   
testify on SB 61 via teleconference.                                                                                            
                                                                                                                                
SANNA GREEN, Executive Director of the Professional Teaching                                                                    
Practices Commission, made the following comments from Anchorage.                                                               
SB 61 is a housekeeping measure needed to update the statute that                                                               
established the commission in 1968.  The bill also codifies some of                                                             
the commission's procedures, places some of the commission's                                                                    
regulations in statute (recommended by the Department of Law), and                                                              
establishes new provisions common to the other licensing boards.                                                                
She asked Teresa Williams of the Department of Law to discuss the                                                               
specifics of SB 61.                                                                                                             
                                                                                                                                
TERESA WILLIAMS, Department of Law, informed participants she                                                                   
provided an annotated version of the bill to the committee.  She                                                                
noted she would be referring to Version B, as that is the bill [HB
85] that was adopted on the House side.  She gave the following                                                                 
sectional analysis.                                                                                                             
                                                                                                                                
Section 1 changes the word "certificate" to "license."                                                                          
                                                                                                                                
Section 2 addresses criminal history background checks. It will                                                                 
allow the normal types of criminal history background checks and it                                                             
will specifically allow DOE to review records to determine if a                                                                 
person was found not guilty of a charge for reason of insanity.                                                                 
She pointed out that a conviction on a person's criminal record                                                                 
would not necessarily be cause for licensure denial, however it is                                                              
reason to investigate further.  Part C will allow background checks                                                             
if a teacher resides out of state or has been unemployed during                                                                 
his/her previous licensure period.                                                                                              
                                                                                                                                
Section 3 lists the grounds for the denial of a license and                                                                     
contains a list of conditions that can be placed on a license.                                                                  
                                                                                                                                
Section 4 codifies the appeals procedure for appeals denial and                                                                 
makes the Administrative Procedures Act (APA) applicable.  The                                                                  
portion of this section that dealt with disciplinary action has                                                                 
been moved to another section specifically dealing with discipline.                                                             
                                                                                                                                
Section 5 is a cleanup provision.  The bases for terminating a                                                                  
teacher are modeled on the bases for professional discipline and                                                                
that language is cross referenced.                                                                                              
                                                                                                                                
Section 6 incorporates all provisions related to discipline and                                                                 
reinstatement procedures.  It also changes the name of the                                                                      
Professional Teaching Practices Commission to the Educator Ethics                                                               
Commission.                                                                                                                     
                                                                                                                                
Sections 7, 8, 9 and 10 make technical changes.  Section 11                                                                     
provides the exceptions to reinstatement and summary suspension.                                                                
                                                                                                                                
Section 12 makes a change to the APA.  Under that Act, an agency                                                                
must accept, in its entirety, the decision made by the hearing                                                                  
officer, or the agency can reduce the penalty.  However, if the                                                                 
agency wants to increase the penalty, it has to call for the                                                                    
record, have it transcribed, and then review the record itself.                                                                 
Section 12 gives the agency the authority to adopt the proposed                                                                 
findings of fact in their entirety and increase or change the                                                                   
proposed disciplinary action.                                                                                                   
                                                                                                                                
Number 495                                                                                                                      
                                                                                                                                
SENATOR ELTON thought a refresher course on the findings of fact                                                                
may be appropriate if the agency and hearing officer disagree on                                                                
the outcome.  MS. WILLIAMS replied the agency would have to review                                                              
the findings of fact to decide whether the officer's recommendation                                                             
was appropriate.  Section 12 would change existing law only in that                                                             
the agency would not have to have the entire proceeding transcribed                                                             
and read.                                                                                                                       
                                                                                                                                
SENATOR ELTON asked Ms. Williams if the change is essentially a                                                                 
cost-saving measure.  He questioned how much the commission has                                                                 
spent in the past to have transcripts prepared.  MS. WILLIAMS said                                                              
she did not know the cost, however the hearings can take several                                                                
weeks and in fact, some of the boards and commissions will ask for                                                              
a record because it saves time and money.                                                                                       
                                                                                                                                
Number 516                                                                                                                      
                                                                                                                                
SENATOR ELTON asked Ms. Williams whether a transcript is public                                                                 
record.  MS. WILLIAMS said it is public record, and the hearing                                                                 
itself is open to the public.                                                                                                   
                                                                                                                                
SENATOR ELTON noted one could argue that a transcript may not be of                                                             
benefit to the group, but it might be of benefit to the public.                                                                 
MS. WILLIAMS replied the public can obtain copies of the tapes.                                                                 
MS. WILLIAMS said in actuality, the Board realizes the cost of                                                                  
transcription is passed on to the profession so it usually does not                                                             
request a transcript and instead leaves in place an inappropriate                                                               
outcome that does not protect the public.                                                                                       
                                                                                                                                
MS. WILLIAMS continued with the sectional analysis.                                                                             
                                                                                                                                
Section 13 addresses confidentiality and the investigative files of                                                             
the commission, especially in regard to minors, and it establishes                                                              
when those files would be available to the public and other                                                                     
parties.                                                                                                                        
                                                                                                                                
Number 543                                                                                                                      
                                                                                                                                
SENATOR ELTON asked if initials are used to refer to a minor during                                                             
a hearing rather than a name.  MS. WILLIAMS said initials are used.                                                             
                                                                                                                                
MS. WILLIAMS explained Section 14 is technical.  Section 15 is new                                                              
and addresses the use of fraudulent certificates by teachers.  The                                                              
commission currently has no authority over that activity.  The                                                                  
penalty section sets out civil and criminal penalties for a person                                                              
who obtains a teacher position for which the person did not have                                                                
the required certification.  Section 16 contains definitions.                                                                   
                                                                                                                                
There being no questions of Ms. Williams, Chairman Miller called                                                                
John Cyr to testify.                                                                                                            
                                                                                                                                
CHAIRMAN MILLER informed committee members that Ms. Williams'                                                                   
sectional analysis pertained to HB 85 which is now in the House                                                                 
Rules Committee.  He noted HB 85 will probably be used as the                                                                   
vehicle for passage after the HESS committee finishes its review of                                                             
the measure.                                                                                                                    
                                                                                                                                
JOHN CYR, President of NEA Alaska, expressed the following concerns                                                             
about HB 85.   Section 14.20.375 reads:                                                                                         
     (a) If the department files an accusation while a person is                                                                
     licensed under this chapter, the commissioner may revoke or                                                                
     suspend the person's license if the commissioner finds grounds                                                             
     for discipline under AS 14.20.372.                                                                                         
NEA believes that language should be changed so that the                                                                        
commission, rather than the commissioner, must find grounds for                                                                 
license suspension or revocation.  NEA would like to see a higher                                                               
standard used for license revocation.                                                                                           
                                                                                                                                
Second, subsection (f) reads:                                                                                                   
     notwithstanding other provisions of this section, the                                                                      
     commission may not impose discipline on a member of the                                                                    
     teaching profession's license to act as administrator unless                                                               
     the commissioner concurs in the commission's decision.                                                                     
                                                                                                                                
MR. CYR said that provision smacks of a double standard.  Again,                                                                
the commission acts as a body, is made up of people from the                                                                    
education profession and should be making the decisions on                                                                      
licensure.                                                                                                                      
                                                                                                                                
TAPE 99-26, SIDE B                                                                                                              
                                                                                                                                
NEA's final area of concern is Section 12 on page 13.  To take                                                                  
someone's license to teach is a far different standard than to lose                                                             
one's job.  A teacher can lose a job because of philosophical                                                                   
differences with a school district yet be successful in a different                                                             
school district.  Section 12 should be changed so that the                                                                      
commission is required to consider all of the facts.  NEA would                                                                 
argue that a de novo hearing would be appropriate before a person                                                               
loses his/her license.                                                                                                          
                                                                                                                                
MR. CYR informed committee members he would like to comment on a                                                                
proposed amendment.  CHAIRMAN MILLER invited Mr. Cyr to speak to                                                                
the amendment, however said that the committee would not be dealing                                                             
with amendments until HB 85 reaches the committee.                                                                              
                                                                                                                                
Number 564                                                                                                                      
                                                                                                                                
MR. CYR said he was referring to a proposed amendment by Senator                                                                
Donley that would insert, in the bill title, "relating to teachers                                                              
who have subject matter expertise."  NEA has spent the last three                                                               
years working in concert with teachers across the state on the                                                                  
subject of licensure.  One suggested proposal establishes a tiered                                                              
system of licensure which would make fundamental changes to the                                                                 
education system. All research indicates that the most important                                                                
factor in quality education is a well qualified teacher.  Senator                                                               
Donley's amendment moves away from that and says that a person with                                                             
a degree in math can teach mathematics, etc.  NEA does not believe                                                              
that is necessarily true, nor is it in the best interest of the                                                                 
children of the state.                                                                                                          
                                                                                                                                
CHAIRMAN MILLER indicated that Senator Donley may offer that                                                                    
amendment in the Senate Judiciary Committee, of which he is a                                                                   
member.                                                                                                                         
                                                                                                                                
SENATOR WILKEN asked Mr. Cyr to elaborate on NEA's concerns about                                                               
Section 12.                                                                                                                     
                                                                                                                                
MR. CYR read Section 12:                                                                                                        
     (b)  In addition to the options available under AS 44.62.500,                                                              
     the Commission may adopt a hearing officer's proposed findings                                                             
     of fact in their entirety and increase or change the proposed                                                              
     disciplinary action authorized under AS 14.20.375 against the                                                              
     person.                                                                                                                    
                                                                                                                                
MR. CYR said, in most cases, the hearing officer is the school                                                                  
board or an arbitrator.  During a hearing, the officer listens to                                                               
the facts and makes a disposition.  HB 85 allows the commission to                                                              
review the disposition and then decide whether the hearing officer                                                              
went far enough regarding the punishment. He maintained the                                                                     
standard for losing a job and the standard for losing a license                                                                 
should be markedly different.  If the commission decides the                                                                    
hearing officer did not go far enough, the case deserves a total                                                                
review.                                                                                                                         
                                                                                                                                
SENATOR WILKEN asked if Mr. Cyr is saying the commission takes or                                                               
leaves the hearing officer's proposal, and when it does not accept                                                              
the proposal, it should remand the case to another hearing officer.                                                             
MR. CYR said "exactly."  A hearing officer does not have the                                                                    
ability to pull a license; the license is owned by the state and                                                                
only the commission can revoke it. If the commission is considering                                                             
license revocation, the teacher deserves to have a hearing in front                                                             
of the commission.                                                                                                              
                                                                                                                                
CHAIRMAN MILLER asked if NEA believes the first phase should be a                                                               
take it or leave it procedure, but in cases in which the decision                                                               
is not accepted, the commission should remand it back to another                                                                
hearing officer or hear the case itself.                                                                                        
                                                                                                                                
MR. CYR said he thinks the commission should hear the case.                                                                     
SENATOR WILKEN asked Mr. Cyr to prepare an amendment addressing                                                                 
NEA's concerns.                                                                                                                 
                                                                                                                                
SENATOR WILKEN questioned whether the term "mentally incapable" on                                                              
page 3, line 29, of HB 85, and pointed out the Fairbanks school                                                                 
district has had trouble proving a person as such.  He asked Ms.                                                                
Williams whether that term is defined anywhere.                                                                                 
                                                                                                                                
Number 487                                                                                                                      
                                                                                                                                
MS. WILLIAMS replied the definition would come from the Americans                                                               
with Disabilities Act.  Such a person would not be able to perform                                                              
an essential function necessary to the job of teaching.  The                                                                    
conditional license would ease that process by designing conditions                                                             
that will enhance a person's ability to be in the profession if                                                                 
they can safely carry out the essential duties of their profession.                                                             
                                                                                                                                
SENATOR WILKEN felt the "mentally incapable" issue is a double-                                                                 
edged sword.  He stated he does not want an educator to hide behind                                                             
it, nor does he want a school board to be prevented from removing                                                               
an educator because of it.  MS. WILLIAMS clarified the decision to                                                              
grant the initial license would rest with the Department of                                                                     
Education rather than the school boards.                                                                                        
                                                                                                                                
MS. WILLIAMS addressed NEA's concern about the proceedings that                                                                 
take place before a hearing officer.  The hearing officer acts on                                                               
behalf of the commission; he/she is appointed by the Governor to                                                                
conduct the hearing before the commission and make the proposed                                                                 
decision to the commission.  This procedure is independent of any                                                               
action by a school board. The section on procedures of school                                                                   
boards or districts begins on page 8, line 18.  That section sets                                                               
out the deference given a school district decision and how the                                                                  
commission needs to state a good cause for rejecting a finding of                                                               
fact on a final decision before the school district.  In that                                                                   
situation, the commission would have the record before the school                                                               
district.                                                                                                                       
                                                                                                                                
Number 438                                                                                                                      
                                                                                                                                
SANNA GREEN clarified that a hearing officer for a school board is                                                              
completely separate from the hearing officer used by the commission                                                             
who is appointed by the Governor under the APA.                                                                                 
                                                                                                                                
SENATOR WILKEN repeated that he is not comfortable with the way the                                                             
term "mentally incapable" is addressed in the bill.  He asked Ms.                                                               
Williams if the committee should try to further define the term.                                                                
MS. WILLIAMS replied she does not think the committee needs to go                                                               
further because if a person is mentally incapable then licensure is                                                             
denied.  If they can perform some functions, the license could be                                                               
limited.                                                                                                                        
                                                                                                                                
SENATOR WILKEN asked how the term can be defined in legislation so                                                              
that it is not interpreted for different purposes at different                                                                  
times.                                                                                                                          
                                                                                                                                
MS. WILLIAMS explained the bottom line for teacher licensure is                                                                 
whether one is able to carry out the duties of being a teacher.                                                                 
The only purpose of this section is to allow conditional licenses                                                               
if a person can perform some, but not all, of the functions.                                                                    
                                                                                                                                
SENATOR WILKEN questioned who will define the mental capacity of                                                                
that teacher.  MS. WILLIAMS replied the Department of Education.                                                                
SENATOR WILKEN asked under what guidelines.  MS. WILLIAMS said from                                                             
information from previous employers, for example.  Senator Wilken                                                               
and Ms. Williams discussed the problems associated with determining                                                             
that a person is mentally incompetent, and concluded there is no                                                                
easy statutory way to solve the problem because there is no test                                                                
that can be administered; each situation is fact-specific.                                                                      
                                                                                                                                
SENATOR WILKEN commended Ms. Williams for the format of the                                                                     
comparison of bill versions she provided to members.                                                                            
                                                                                                                                
Number 365                                                                                                                      
                                                                                                                                
SENATOR ELTON agreed with Mr. Cyr that the bill sets up a double                                                                
standard by making it easier to take action to revoke a teacher's                                                               
license than an administrator's license.                                                                                        
                                                                                                                                
MS. WILLIAMS explained there has always been parallel authority to                                                              
act between DOE and the commission; SB 61 does not change that.  In                                                             
reality DOE has never used its parallel authority.  It has always                                                               
charged the commission to initiate and conduct proceedings.                                                                     
                                                                                                                                
SENATOR ELTON maintained that the parallel exists for                                                                           
administrators but not for teachers.                                                                                            
                                                                                                                                
MS. WILLIAMS explained the commission is comprised of 9 members, 5                                                              
of which must be teachers, one an administrator, one a principal,                                                               
one from DOE, and one from the University of Alaska.                                                                            
Administrators noted they were vastly outnumbered on the commission                                                             
and requested that the make-up of the commission be changed.  The                                                               
compromise reached in 1968 was to add a requirement that the                                                                    
commissioner of DOE had to concur with any discipline against an                                                                
administrator.  A second concern was that a commission made up                                                                  
primarily of teachers would be less likely to initiate action                                                                   
against other teachers.  For that reason, administrators wanted to                                                              
create a stop gap by giving DOE the power to initiate actions.  DOE                                                             
has never actually initiated any actions and the commission has                                                                 
been zealous in its responsibility to enforce teaching ethics.                                                                  
Alaska has the highest rate of revocation in the country.                                                                       
                                                                                                                                
SENATOR ELTON asked if the commissioner of DOE is required to have                                                              
an administrator's certificate.  MS. WILLIAMS was unsure but did                                                                
not believe so.  She added that the Alaska Association of School                                                                
Administrators has made it clear that it will revisit the issue of                                                              
the make-up of the commission if this provision is removed.  The                                                                
Administration would prefer that this bill pass because it is a                                                                 
necessary clean up and it gives the commission the authority to do                                                              
what it needs to do.  It prefers that any discussion regarding the                                                              
make-up of the commission be addressed separately so as not to slow                                                             
down the bill.                                                                                                                  
                                                                                                                                
Number 300                                                                                                                      
                                                                                                                                
MR. CYR expressed concern that Ms. Williams insinuated that Alaska                                                              
has a high rate of teachers whose licenses are pulled for sexual                                                                
abuse activities and he finds that offensive.  Of the 10,000                                                                    
certificated teachers in Alaska, three hearings were held last                                                                  
year; two of those cases were of a sexual nature.  The other reason                                                             
teacher's licenses are revoked is for breaching a contract.  He                                                                 
noted teachers in rural Alaska do leave at times because they are                                                               
harassed by the local people.  He still believes of the 10,000                                                                  
teachers in Alaska, the vast majority are doing a very good job and                                                             
to characterize the situation any other way is unacceptable.                                                                    
                                                                                                                                
SENATOR KELLY agreed with Mr. Cyr but noted it is interesting that                                                              
the lobbyist for the NEA finds it distasteful when sweeping                                                                     
characterizations are made about people.  He asked Mr. Cyr to be                                                                
aware of that when NEA puts out its next pamphlet.                                                                              
                                                                                                                                
Number 272                                                                                                                      
                                                                                                                                
CRAIG BAKER, a teacher from Kodiak and president of the local                                                                   
union, stated he fully supports the fingerprint and criminal                                                                    
background check requirement, however he pointed out that                                                                       
requirement has created problems in Kodiak.  Last year a teacher                                                                
from Idaho was hired in Kodiak and had her fingerprints taken at a                                                              
police station.  The FBI rejected the fingerprints because they                                                                 
were unclear, but by that time school was about to begin and she                                                                
did not yet have her certificate.  He noted the time issue could                                                                
prevent people from not being hired at the last minute.  He                                                                     
indicated that a provision on page 2 of SB 61 allows temporary                                                                  
certificates to be issued however he does not believe that is the                                                               
solution.                                                                                                                       
                                                                                                                                
SENATOR WILKEN asked Mr. Baker if he is against issuing a temporary                                                             
teaching certificate.  MR. BAKER said that is correct, however he                                                               
repeated the background checks need to be done in a more timely                                                                 
manner.                                                                                                                         
                                                                                                                                
BETH LAPE, Special Assistant at the Department of Education,                                                                    
informed committee members she would like to testify on Senator                                                                 
Donley's amendment when and if it comes before the committee.                                                                   
                                                                                                                                
CHAIRMAN MILLER stated that with no further testimony, the                                                                      
committee will hold SB 61 and wait until HB 85 arrives in the                                                                   
committee.                                                                                                                      
                                                                                                                                
TAPE 99-26, SIDE B                                                                                                              
Number 218                                                                                                                      
                                                                                                                                

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