Legislature(1995 - 1996)
04/10/1995 02:06 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 132 JUDICIAL REVIEW:TEACHER TENURE DECISIONS
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:06 p.m. The first order of business before the
committee was SB 132.
CARL ROSE, Executive Director of the Association of Alaska School
Boards, testified in support of SB 132. He stated the intent of SB
132 was not to repeal tenure, but to provide more latitude to
school managers experiencing funding difficulties. He gave the
following sectional analysis. Section 1 brings former federal
employees in line with the law. Section 2 changes the time
required to attain tenure from the first day of the third year to
the first day of the sixth year.
MR. ROSE discussed Sections 3, 4, and 5. Recent college graduates
spend five years or more getting certified to teach in public
schools. Under current law, management does not have enough time
to evaluate and make decisions that can be career altering. More
observation time is needed, and new employees need more time for
in-service professional development, as well as oversight. Current
law contains four reasons for non-retention: substantial non-
compliance; insubordination; immorality; and enrollment decline.
The intent of including enrollment decline is to speak to financial
emergencies. He suggested striking the enrollment decline
provision from the non-retention section, and creating a new
provision in Section 5 that would provide for layoff provisions.
The layoff provisions should address the financial problems of
revenue shortfall and enrollment, protect seniority and tenure, and
address rehire provisions. He stated he does not believe school
systems should non-retain employees because of a lack of funds by
using the same provisions that are used to dismiss convicted
felons. If a layoff provision needs to be used, it should be fair
and should provide for rehire rights.
MR. ROSE explained the academic program needs provision of Section
5 was included to direct the Department of Education to move into
subject area endorsements, rather than secondary endorsements, to
ensure that people are certified in the subjects they are teaching.
Regarding rehire rights, the school districts should be able to
look at qualifications before seniority. This would improve
classroom instruction, and require appropriate endorsement in the
workforce.
MR. ROSE discussed the de novo provisions in Section 6. Standard
practice for non-retention of a tenured teacher allows the teacher
the right to a hearing at the local level. If that hearing is not
favorable to a tenured teacher, he/she may apply for a trial de
novo. In such a trial, the case must be recreated, as there is no
record to review. Many times this occurs years after the
infraction and the ability of the school district to recreate the
case accurately is impaired. CSSB 132 (HES) would require the
record to be recognized and reviewed by Superior Court to determine
if either party's due process rights were abridged. This same
system is used for state employees. Mr. Rose explained in one
year, up until March of 1994, over $700,000 of expense was incurred
by the Association in seven trials. Those costs could discourage
a school district from dismissing an employee that was non-
satisfactory or incompetent. He discussed the broad range of
abilities that lie between excellence and incompetence, and
believed that incompetence is too low of a standard to use for non-
retention. Second, many insurance companies encourage out-of-court
settlements in these cases, thereby increasing liability rates.
Regarding other sections of the bill, MR. ROSE stated the AASB is
not opposed to Section 7 as that ability is currently available
with mutual consent. The AASB has not taken a formal position on
the Retirement Incentive Program (RIP). He expressed concern with
Section 18 since it would grandfather in Sections 1-6, which will
prevent school districts from applying CSSB 132 (HES) to all but
new employees. The AASB is adamantly opposed to Section 18 because
school districts need the tools to deal with financial constraints.
MR. ROSE discussed the question of whether school board members are
qualified to address these issues. He commented school board
members are elected locally to represent the people they serve, are
held accountable at the polls, and can, and will be sued.
Number 210
Jeff Cluteer, NEA, expressed concern that a bill that was designed
to save money suddenly contains an axe to attack the teaching
profession. He made the following comments on several sections of
CSSB 132 (HES). Increasing the probationary period for tenure to
five years does a disservice since training courses for
administrators in the state assert the number one job of an
administrator is to evaluate teachers to ensure teacher performance
meets expectations. If administrators cannot adequately assess the
worthiness of the employee, the administrators are not doing their
jobs. Regarding the issue of the difficulty of removing tenured
teachers, it happens in the state almost every year. He discussed
comments made about the costs to school districts for their
representation in de novo trials. Costs to the school board are
approximately ten times that of employees. CSSB 132 (HES) would
assign the superintendent and school board as judge, prosecuting
attorney, and jury, all in one. A de novo trial ensures that does
not occur and that there is independent review of whether the
professional standards were upheld by the charging agency.
Regarding open negotiations, he stated as a practitioner of the
bargaining process for 25 years, bargaining publicly creates
posturing to the audience on both sides. He stated tenured
teachers have greater protection than many other state workers.
That is an expectation one has when one is a professional,
certificated employee in the State of Alaska, just as other
certificated professionals have. To remove those protections
demeans the profession.
Number 300
SENATOR TAYLOR expressed his concern about the sunshine aspect
(Section 6). He believes the public is tired of closed door
negotiations, but will eventually want an executive session
privelege after using an open door policy for awhile. MR. CLUTEER
responded part of the bargaining process is teaching one's
membership about the process.
RICK CROSS, Superintendent of the Fairbanks North Star Borough
School District, discussed the trial de novo aspect of CSSB 132
(HES). He stated he believes tenured teachers are entitled to due
process and just cause protections. The Acevedo case in Fairbanks
completely redefined a trial de novo as a completely new
proceeding, which differed from the existing practice of a board
hearing and judicial review of that record. Now a full hearing
before the school board must occur, complete with cross examination
of witnesses, and recorded. If appealed, a new trial is held at
the court level. The Fairbanks School Board opposes the de novo
trial provision for two reasons: the additional cost of conducting
two trials; and the difficulties created by the delay that occurs
between the two trials. They are also concerned about the impact
on student witnesses, especially when they must return for a court
trial long after they have appeared before the school board. The
Fairbanks School District believes there should be one trial that
could be reviewed, if necessary, in the form of an appeal to the
Supreme Court. He discussed the costs associated with the Tony vs.
Fairbanks School Board case.
Number 385
SENATOR TAYLOR asked if the Fairbanks School District received any
Rule 82 attorneys fees for the Tony case. MR. CROSS replied
negatively, but the school district was insured.
Number 401
SENATOR MILLER noted a proposed amendment that resulted from a
meeting between the Interior delegation and the Fairbanks School
Board, which repeals AS 14.97. He asked Mr. Cross' position on the
amendment. MR. CROSS responded current law requires the lunch hour
to be scheduled between 11:00 am and 1:00 pm. The Fairbanks School
Board supports the amendment because there are situations when that
lunch hour is not logical.
SENATOR ELLIS asked for the Fairbanks School District's position on
the Retirement Incentive Program (RIP). MR. CROSS stated they have
taken no position on the RIP.
Number 420
VERN MARSHALL, Executive Director of NEA Alaska, testified. NEA
opposes the idea of extending the probationary window from two to
five years, as less than ten states in the country have such a long
probationary period. A person would not get tenure under this
provision until the sixth year of employment. The NEA also feels
the layoff provision is too broad and general, and leaves the
regulatory discretion to the department to shape the length of the
layoff, the rehire provisions, etc. Lines 1-6 of page 3 create a
situation where a school system could effectively eliminate tenure
altogether. He questioned the provision that allows a school
district to layoff employees to "better meet the academic program
needs of the district." He asked for clarification from the Senate
HESS committee but an explanation was not available. He reiterated
that provision is too broad.
In regard to the judicial review provision in lines 14-20, MR.
MARSHALL discussed the Mat-Su vs. Lumm case. The Supreme Court
found that a school board does not have the expertise to measure
quality relative to a professional teacher. The de novo trial
issue was considered in that case. He hoped the committee would
strive to create a hearing process where an unbiased body could
grant an unbiased decision. The issue of a school board who hires
a superintendent and hearing officer raises questions about bias.
Under CSSB 132 (HES), a record would be created at the school board
level. That record would then go to a Superior Court judge, who
would be restricted to the contents of the particular record. He
asked that the idea of an impartial arbiter, employed by the
district to hear the case, be explored. The arbiter would have no
interest from the management or union perspective. He noted if
this section is enacted, the costs could shift to the
administrative level because the teacher would have only one chance
for defense.
MR. MARSHALL stated the NEA is opposed to using the RIP to get rid
of teachers. NEA feels RIP is not germane to the tenure issue and
believes the RIP should be applied to all city and state employees
if it is going to be applied to school districts.
CLAUDIA DOUGLAS, President of NEA, stated NEA is trying very hard
to figure out ways to help schools and children, and how to make a
difference in classrooms. She questioned whether CSSB 132 (HES)
was motivated by: funding problems; the need to discharge
incompetent teachers; or because due process rights are too
expensive. She stated the bill does not help children and is
demoralizing to teachers. NEA would like to try to work with
school boards and administrators to make the process better. It
does not believe that teacher bashing and changing the law without
establishing an evaluation process that would improve education for
students is fair.
Number 513
SUE GALVESTON testified for Kathy Gillespie of the Anchorage
Council of PTAs. The 12,000 member organization supports CSSB 132
(HES) as it provides a reliable method of quality control over
educators. No other professions give tenure; in the private
sector professionals are maintained only if their performances
indicate they are doing their jobs. While watching the Senate HESS
committee meeting, they were shocked to hear members of the
Anchorage Teachers' Union talk about the lack of effectiveness of
the evaluation system for teachers in the Anchorage School
District. In Anchorage, the PTA was represented on a district
committee to review the evaluation system for teachers. It was
reported to those representatives that the Teachers' Union blocked
every improvement. The committee's work was never completed
because negotiations were starting, and even the evaluation process
was negotiated. The Council is deeply concerned about the issues
of tenure. A resolution on acquisition of teacher tenure was
passed by the Council membership recommending the probationary
period be extended from two to five years. The Council also passed
a resolution recommending public disclosure of public school
employer/employee negotiations. The Council has been concerned
about the lack of parental involvement in the collective bargaining
process of public school employees. Approximately 82 percent of
the Anchorage School District budget is spent on salaries and
benefits negotiated in the collective bargaining process. The
Council is interested in other collective bargaining issues as
well. After contracts are negotiated, they are ratified by the
school board outside of the public hearing process. The ratified
contracts supercede and establish school board policy. The Council
is concerned about the public's inability to have any control over
the district's budget as long as the public is shut out of the
collective bargaining process.
Number 554
SENATOR SALO responded to comments made by the previous speaker.
Current Alaska law allows open negotiations and is used by some
districts. It is an agreement that is made early in the
negotiation process between the ward and representative of the
employee group. As a teacher involved in open negotiations, she
found little public interest because the process can be boring.
Number 568
DEE HUBBARD, a parent from Anchorage, stated her concern about
provisions in prior contracts, specifically the right of teachers
to bar their classrooms to parents. Currently, the teacher and
principal must agree whether or not a parent is allowed in the
classroom. She noted teacher negotiations in Tenessee are
broadcast on the education network.
SENATOR MILLER moved the adoption of amendment #1, repealing the
requirement for duty-free mealtime for teachers in certain school
facilities. SENATOR ELLIS objected to the motion. The motion
carried with Senators Taylor, Green and Miller voting "Yea," and
Senator Ellis voting "Nay."
SENATOR GREEN moved the adoption of amendment #2, changing line 9
of page 18 to read Sections 1-2, instead of 1-6. SENATOR ELLIS
objected. SENATOR GREEN explained the intent was that Section 18
apply to the first two sections, but during the drafting process,
an error was made. SENATOR ELLIS withdrew his objection and the
motion carried.
TAPE 95-19, Side B
SENATOR ELLIS moved the adoption of amendment #3, that would change
the sections dealing with the de novo trial provision and provide
for arbitration under the Alaska Uniform Arbitration Act.
SENATOR MILLER asked if binding arbitration would be used. SENATOR
ELLIS answered the arbitration methods provided for in AS 09.43.010
-09.43.180 would be used. SENATOR MILLER objected to the motion.
SENATOR ELLIS indicated there would still be a limited judicial
review following the arbitration although an arbitrator's decision
is generally not overturnable.
CARL ROSE stated the Association of Alaska School Boards wants the
same process as is provided for all state employees. SENATOR
TAYLOR noted state employees do not have arbitration available to
them, with the exception of the state troopers. MR. ROSE stated
the AASB is opposed to arbitration.
Number 537
SENATOR ELLIS asked Mr. Rose about an earlier comment regarding a
lack of respect for local school boards, and questioned who Mr.
Rose was referring to. MR. ROSE replied he was responding to
comments made by the other body, and comments attributed to Mr.
Marshall during the Senate HESS hearing that school board members
were not necessarily qualified to make these decisions. SENATOR
ELLIS asked if Mr. Marshall said "qualified" or "unbiased." MR.
ROSE stated he was not at the meeting. SENATOR ELLIS stated
several people commented that considering the school board hearing
the only trial for a tenured teacher may not be an unbiased
approach. MR. ROSE apologized for any misinformation he had, but
pointed out that in a number of arenas, an entire level of local
governance is ignored.
Number 521
SENATOR GREEN stated it is apparent this bill has revealed a "we"
and "they" situation, and a great deal of frustration from parents,
school boards, and PTAs has been expressed. CSSB 132 (HES) is
designed to empower parents.
SENATOR TAYLOR noted amendment #3 is before the committee, and
Senator Miller's objection was maintained. The motion failed with
Senator Ellis voting "Yea," and Senators Green, Taylor, and Miller
voting "Nay."
SENATOR TAYLOR asked teleconference participants to send written
comments to the committee for distribution to committee members.
He apologized for the schedule delay.
Number 372
SENATOR ELLIS moved amendment #4 which gives the judge increased
latitude in deciding whether a case should be reviewed at the
Superior Court level. SENATOR MILLER objected to the motion
because the review would be a factual review rather than a
procedural review. The motion failed with Senators Taylor, Miller
and Green voting "Nay," and Senator Ellis voting "Yea."
Number 472
SENATOR ELLIS stated the committee has not adequately reviewed CSSB
132 (HES) and did not allot enough time to grapple and discuss the
issues. The bill was pre-scheduled in Senate Judiciary before it
passed out of the Senate HESS committee, and is already scheduled
in Finance.
SENATOR MILLER moved CSSB 132 (JUD) out of committee with
individual recommendations. SENATOR ELLIS objected. The motion
passed with Senators Green, Taylor and Miller voting "Yea," and
Senator Ellis voting "Nay."
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