Legislature(1999 - 2000)
05/06/1999 02:35 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
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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