Legislature(1995 - 1996)
04/07/1995 09:15 AM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE April 7, 1995 9:15 a.m. MEMBERS PRESENT Senator Lyda Green, Chairman Senator Loren Leman, Vice-Chairman Senator Mike Miller Senator Johnny Ellis Senator Judy Salo MEMBERS ABSENT All members present. COMMITTEE CALENDAR SENATE BILL NO. 134 "An Act establishing an endowment for the Robert B. Atwood journalism chair at the University of Alaska Anchorage; and providing for an effective date." HOUSE BILL NO. 215 am "An Act relating to suspension of a student from a public school." HOUSE BILL NO. 108 "An Act relating to claims on permanent fund dividends for defaulted public assistance overpayments." CS FOR HOUSE BILL NO. 124(FIN) "An Act transferring the regulation of nursing home administrators to the Department of Commerce and Economic Development; abolishing the Board of Nursing Home Administrators; clarifying the conditions under which a nursing home administrator license may be denied; and providing for an effective date." SENATE BILL NO. 132 "An Act relating to judicial review of decisions of school boards relating to nonretention or dismissal of teachers." PREVIOUS SENATE COMMITTEE ACTION SB 134 - See Health, Education & Social Services minutes dated 3/27/95. HB 215 - No previous action to record. HB 108 - See Health, Education & Social Services minutes dated 3/27/95. HB 124 - No previous action to record. SB 132 - No previous action to record. WITNESS REGISTER Josh Fink, Staff Senator Kelly State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Reviewed SB 134. Sylvia Broady, Chairman & Professor Journalism and Public Communications Department University of Alaska Anchorage University Drive Anchorage, Alaska 99508 POSITION STATEMENT: Stated that with Mr. Atwood's and the state's money this academic chair could be achieved. Suzan Nightingale, Chair Professional Advisory Council Journalism and Public Communications Department 117 E. Cook Avenue Anchorage, Alaska 99501 POSITION STATEMENT: Discussed the benefits of passage of SB 134. Representative Con Bunde State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Prime Sponsor of HB 215. Wendy Redman, Vice President University Relations Statewide University of Alaska System Juneau, Alaska POSITION STATEMENT: Suggested adding the university to HB 215. Marveen Coggins, Staff Representative Toohey State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Reviewed HB 108. Jim Dalman, Program Officer Food Stamp Claims Unit Division of Public Assistance Department of Health & Social Services 400 W. Willoughby, Suite 302 Juneau, Alaska 99801-1731 POSITION STATEMENT: Stated the support of HB 108 by DHSS. Benjamin Brown, Staff Representative Toohey State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Reviewed HB 124. Barbara Gabier, Program Coordinator Division of Occupational Licensing Department of Commerce and Economic Development PO Box 110806 Juneau, Alaska 99811-0806 POSITION STATEMENT: Stated that the Department of Commerce is prepared to take over this licensing program. Portia Babcock, Staff Senator Green State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Reviewed sectional analysis of SB 132. Jerry McBeth, President University of Alaska Fairbanks Board of Education Member, Fairbanks North Star Borough Fairbanks, Alaska POSITION STATEMENT: Spoke in favor of the original SB 132 and discussed the trial de Novo process. Cynthia Henry Fairbanks, Alaska POSITION STATEMENT: Urged passage of the original bill. Kimberly Homme Anchorage Teacher Gruening Elementary Lee Street Eagle River, Alaska POSITION STATEMENT: Discussed problems with SB 132 and indicated the need to address those issues in the HESS committee. Mary Beth Shady Anchorage Teacher Dimond High School 2909 W 88th Avenue Anchorage, Alaska POSITION STATEMENT: Discussed concerns with Sections 1, 5, and 7. James Simeroff Eighth Math Grade Teacher Kenai Middle School 811 Auke Street Kenai, Alaska POSITION STATEMENT: Discussed concerns with SB 132. Rick Cross, Superintendent Fairbanks and the North Star Borough 520 5th Avenue Fairbanks, Alaska 99701 POSITION STATEMENT: Urged the committee to consider the trial de Novo in separate legislation. Marilyn Pillifant Chinook Elementary 3101 W 88th Avenue Anchorage, Alaska POSITION STATEMENT: Urged the committee to reconsider the passage of SB 132 to the Judiciary Committee. Miriam Kiegandean Anchorage School District Counselor, Mears Junior High 2700 W 100th Avenue Anchorage, Alaska POSITION STATEMENT: Supported the current tenure process. Vernon Marshall, Executive Director National Education Association of Alaska (NEA-AK) 114 2nd Street Juneau, Alaska 99801 POSITION STATEMENT: Discussed problems with SB 132. Shelia Peterson Special Assistant to the Commissioner Department of Education 801 W 10th Street, Suite 200 Juneau, Alaska 99801-1894 POSITION STATEMENT: Emphasized the need for the full funding of education. Willie Anderson National Education Association of Alaska 114 2nd Street Juneau, Alaska 99801 POSITION STATEMENT: Discussed the tenure and lay off provisions. ACTION NARRATIVE TAPE 95-27, SIDE A SB 134 ATWOOD CHAIR OF JOURNALISM AT U OF AA Number 003 CHAIRMAN GREEN called the Senate Health, Education and Social Services (HESS) Committee work session to order at 9:15 a.m. She introduced SB 134 as the first order of business. She noted that an official meeting would be declared when a quorum arrived. JOSH FINK, staff to Senator Kelly, stated that Bob Atwood's contribution to Alaska is immense. SB 134 honors Mr. Atwood by establishing an endowment for the Robert B. Atwood Journalism Chair at the University of Alaska Anchorage. This Chair which has been nationally recognized has been in existence the past 15 years through generous personal contributions from Mr. Atwood. To date, Mr. Atwood's contributions have totalled more than $1 million. He explained that by establishing this endowment, a mechanism would be in place for both private and public entities to match Mr. Atwood's contributions in order to permanently fund the Chair. SYLVIA BROADY, Chairman and Professor in the Journalism and Public Communications Department, informed the committee that she had been there for 15 years and has seen what the Chair has done for Alaska and Anchorage students as well as other students around the state. In a time of fiscal cuts, innovative ideas should be used in order to protect pockets of excellence. Legislators have challenged private money to match their money. If this could be done at the university level, more academic chairs could be established throughout the university. She emphasized that it would be a one time commitment from the state for something that would be permanent and continuous. She pointed out that since Mr. Atwood has supported the Chair, many students have graduated and are working in Alaska in the media. In conclusion, Ms. Broady commented that without Mr. Atwood's contributions the program could not have the quality it has and perhaps, the program would not have even been accredited. Number 088 SUZAN NIGHTINGALE, Chair of the Professional Advisory Council for the Journalism and Public Communications Department at UAA, felt that the best way to instill budget discipline would be to reward programs that have done the best to maximize public and private partnerships. The Atwood Chair has a successful 15 year record of private funding. She emphasized that an endowed Atwood Chair would pay for itself in 10 years and save the state money after that time. She informed the committee that the Atwood Chair brings the most experienced and seasoned journalists to UAA who works directly with students around the state. If the Atwood Chair is not funded, the Journalism Department would eventually need a faculty position which brings along all its health and retirement costs. Mr. Atwood has quietly funded this position for 15 years, but he believes the state should join in the partnership. Passage of SB 134 would save the state education money in the future as well as setting a standard for the public and private partnership that Alaska needs; that is budget discipline at its best. CHAIRMAN GREEN announced that a quorum was present. She stated that she intended to move this bill today. SENATOR LEMAN moved that SB 134 be moved out of committee with individual recommendations. Hearing no objection, it was so ordered. HB 215 GROUNDS FOR SUSPENSION OF STUDENTS Number 149 CHAIRMAN GREEN introduced HB 215 as the next order of business before the committee. REPRESENTATIVE CON BUNDE, prime sponsor of HB 215, stated that HB 215 is an extension of existing legislation. He explained that existing legislation states that a student can be suspended if that student behaves in a manner inappropriate and dangerous for school if the behavior was exhibited in the presence of other students. The loophole, is when students are not present and a student exhibits dangerous behavior in the presence of teachers, aides, volunteers, and principals. In that case, the suspension would not apply. HB 215 tightens the language so that a student exhibiting serious hostile behavior that would endanger another person could be suspended or expelled even if other students were not present. CHAIRMAN GREEN inquired as to the support HB 215 has received in the school district. REPRESENTATIVE CON BUNDE stated that he had not heard any opposition. Schools across the state feel that this is necessary due to the kinds of students that are in school as well as the increasing level of violence in schools. REPRESENTATIVE CON BUNDE noted that Wendy Redman would like to include the university in this bill. He was not opposed to that, however, he questioned whether that addition would fall under the title of the bill. SENATOR LEMAN asked if there was a definition of public school. REPRESENTATIVE CON BUNDE said that by statute a public school is defined as K-12. SENATOR SALO stated that the title would probably have to specify public school or university. Number 210 WENDY REDMAN, Vice President of University Relations, informed the committee that a public school is defined as a school operated by publicly elected or appointed school officials in which the program and activities are under the control of those officials and is supported by public funds. She said that the definition did not seem to exclude the university. CHAIRMAN GREEN indicated that HB 215 could be passed out of committee where it could be handled. SENATOR MILLER pointed out that the next committee of referral was Rules. He said that the university could be included and a legal opinion regarding that title question could be requested in the meantime. SENATOR SALO moved HB 215 am out of committee with individual recommendations. Hearing no objections, it was so ordered. HB 108 USE PFD'S TO RECOVER WELFARE OVERPAYMENTS Number 240 CHAIRMAN GREEN introduced HB 108 as the next order of business before the committee. MARVEEN COGGINS, staff to Representative Toohey, explained that HB 108 would give the Department of Health & Social Services (DHSS) the authority to collect delinquent public assistance overpayments by administrative garnishment of any individual's permanent fund dividend. Currently, there is in excess of half a million dollars in outstanding delinquent debts. She explained that often persons receiving the overpayment agree to repay the debt, but frequently requests to repay the debt are ignored. HB 108 would allow DHSS to recover overpayments with a less expensive and more expedient administrative procedure. She noted that recovery of debt would be handled in the same manner in which delinquent student loans are pursued. DHSS supports HB 108. She informed the committee that there are two revenue generating fiscal notes from DHSS and a zero fiscal note from the Department of Revenue. She urged the committee's support of HB 108. JIM DALMAN, Claims Collection Section of the Division of Public Assistance, said that the department supports HB 108 because it would give the department more leverage in the collection of those overpayment debts. He pointed out that the state retains a portion of those collections; HB 108 is a good tool in order to have some accountability in the collection of those debts. SENATOR LEMAN moved that HB 108 be moved out of the committee with individual recommendations and the accompanying fiscal notes. Hearing no objection, it was so ordered. HB 124 ABOLISH BD OF NURSING HOME ADMINISTRATORS Number 289 CHAIRMAN GREEN announced HB 124 as the next order of business before the committee. BENJAMIN BROWN, staff to Representative Toohey, explained that HB 124 would transfer the regulation of nursing home administrators to the Department of Commerce and Economic Development and abolish the Board of Nursing Home Administrators. He noted that the Board of Nursing Home Administrators would sunset at the end of this fiscal year. HB 124 would also clarify the conditions under which a nursing home administrator's license may be denied and provide for an effective date. He pointed out that HB 124 was requested by the Alaska Hospital and Nursing Home Administration who did not want the board conducting licensing and regulation of those administrators. There was also a legislative audit which recommended the elimination of the board as well. He informed the committee that approximately $7,000 would be saved with the elimination of the board due to the elimination of travel costs. He stated that the Division of Occupational Licensing is ready to undertake this responsibility; they have staffed the board for a number of years. He pointed out that Medicaid funds of $167 million would be put in risk if HB 124 does not pass. SENATOR LEMAN inquired as to the number of nursing home administrators in Alaska. BENJAMIN BROWN said that there are currently 86 nursing home administrators in Alaska. SENATOR LEMAN noted that legislative policy had been established in which occupational licenses would pay for themselves through fees. He assumed that there would be some cost to administer for which fees would be set up to recover that cost. BENJAMIN BROWN explained that the fiscal note illustrates that the amount collected varies from $19,000 in one year to $2,000 the next year; that is because they are biannual licenses. Mr. Brown informed the committee that the law to which Senator Leman referred was already in effect. The division already collects licensing fees to pay for the board. Perhaps, the licensing fees could be lowered once the board's travel expenses are eliminated. BARBARA GABIER, Program Coordinator of the Division of Occupational Licensing, explained that the fees are reviewed annually and adjustments are made accordingly. In this case, the cost would be decreasing due to the elimination of the travel costs. She reiterated that the Department of Commerce is prepared to take over this licensing program. SENATOR LEMAN moved that CS HB 124 (FIN) be reported out of committee with individual recommendations and the accompanying fiscal notes. Hearing no objection, it was so ordered. SB 132 JUDICIAL REVIEW:TEACHER TENURE DECISIONS Number 343 CHAIRMAN GREEN introduced SB 132 as the next order of business before the committee. SENATOR MILLER moved, for discussion purpose, the CS Cramer 4/6/95 version labelled 9-LSO838\G. SENATOR ELLIS and SENATOR SALO objected. SENATOR SALO said that she would be happy to speak to her objection and review the bill. Usually when there is a CS, someone explains the CS. She inquired as to whose bill this is. SENATOR LEMAN indicated that normally a CS would be adopted for discussion purposes and then there is an explanation of the CS. The motion that Senator Miller made was to put the CS before the committee. He commented that the Aide was already present at the table, whom he assumed would explain the CS. SENATOR ELLIS said that the CS process could be done either way, however sometimes problems are avoided if the vote on the CS is not forced. If there is an objection, then there is an explanation, discussion and then a vote. He asked if that could be done. PORTIA BABCOCK, staff to Senator Green, reviewed the sectional analysis of the draft CS which was in the committee packets. Number 432 SENATOR SALO maintained her objection to the adoption of the CS. She explained that the original bill was a simple bill which dealt with the de Novo trial, however, the current bill, the CS, is very complex which deserves time and attention. She hoped that the HESS committee would devote the necessary time and attention to this omnibus bill. This CS would negatively affect the educational employees of Alaska. She stated that the CS is a serious reduction in due process rights. Senator Salo addressed why she considered it a negative bill for the education employees in Alaska. She informed the committee that Alaska 2000 surveys and hearings found that tenure was not a major concern; of a survey of 100 issues, tenure was listed as 98. The overwhelming problems were class size and the basic funding level going to education. This lengthening of the probationary period would create an increased time of uncertainty for employees while increasing the power and authority of administrators. She said that in her 25 years of educational experience, the administrators authority should not be increased. She explained that tenure had stemmed from a Supreme Court case in Seward in which two teachers wrote letters to the local paper stating that the Superintendent was misspending the school district's money. Those two teachers were fired the next day. The Supreme Court found that a public employee should not have a reduced freedom of speech right which ultimately lead to the passage of tenure rights in Alaska. She did not believe the complaints from districts that said removing tenured teachers was difficult. When someone's career is being ended, the procedure should not be easy. She opposed Section 1. Senator Salo commented that the most outrageous part of this is Section 5 regarding the lay off status. The lay off provisions eliminate tenure in another way. She questioned why an administrator would conduct good evaluations, document performance problems or help the person become a better instructor if the administrator can lay off a teacher "to better meet the academic program needs of the district." Another seemingly easy way to lay off a tenured teacher under this bill would be in the case of decreased revenues of the school. The early retirement program seems to be a "carrot" which does not equal the "stick" in this bill. Senator Salo emphasized that a good and thorough discussion of the original bill should have happened. The de Novo trial is an area worth exploring. Currently when a teacher is fired, there is a hearing. If there is a dispute over the facts involved at the hearing level, the teacher can go to court. The judge would review the documents from the hearing as well as allowing evidence to be presented directly to him. She noted that the de Novo trial is relatively expensive and seldom used. Perhaps, there is a better manner in which to ensure due process without the cost. She stated that the original bill could have been scrutinized and served the educational interests in Alaska. In conclusion, Senator Salo expressed disappointment in the current omnibus bill and she strongly objected to the adoption of the CS. Number 505 Upon a roll call vote, Senators Leman, Miller, and Green voted "Yeah" and Senators Ellis and Salo voted "Nay." The CS was adopted. JERRY MCBETH, President of the University of Alaska Fairbanks and Board of Education member of the Fairbanks North Star Borough, spoke in favor of SB 132, the trial de Novo bill, not the adopted CS. SENATOR SALO asked if the meeting was on teleconference and if the teleconference had been noticed on SB 132. CHAIRMAN GREEN said that she did not know. PORTIA BABCOCK said yes. The teleconference moderator clarified that the bill was on teleconference, but the Fairbanks Legislative Information Office (LIO) was only added at the last minute. It was not actually advertised. JERRY MCBETH expressed appreciation for the introduction of the trial de Novo legislative provisions. He explained that up until a Supreme Court decision from the Anchorage school district in 1989, the trial de Novo meant that after a hearing in front of a school board a tenured teacher could contest the issue. Then there would be an administrative review before the Superior Court. There was no re-trial of the substantive issue. After that late 1980s Supreme Court decision, de Novo was interpreted as from the beginning and was applied to the substance as well as the procedure. In response to Senator Salo's comments that this provision is rarely used, Mr. McBeth pointed out that Fairbanks has had two cases in the 1990s which have applied the new judicial interpretation. The Fairbanks district objects to that application because a double trial is very costly to school districts. Close to $200,000 in Superior Court costs has been spent in the two Fairbanks' cases. He noted that the amount spent on those two cases could employ two or three teachers. Another objection to the judicial interpretation of the de Novo provisions is the delay brought about by the second trial process. Often those witnesses before the school board and administration in the initial hearing have graduated and no longer reside in the school district boundaries which increases the board's effort to present evidence; this is due to the delay between the trials. Mr. McBeth pointed out that having a double trial throws off the balance in our adversarial system of justice between the school district and the school board and the teacher. A double trial affords the teacher and their representative the opportunity to use the first hearing as a discovery process which seems to be an advantage. The district or the board are not allowed to give new evidence at the second trial. He informed the committee that the second trial is an open proceeding, as declared by judges, which exposes student witnesses. A trial in front of the school board would allow the protection of student witnesses. He suggested changing the legislation to allow a teacher to proceed to court at the Superior Court level. That would remove the necessity of the school board's involvement as hearing officers in the process. Number 572 SENATOR SALO thought that Mr. McBeth's suggestion was excellent, however, that would create a different approach than the bill. She inquired as to what Mr. McBeth meant when he referred to the two trials. JERRY MCBETH explained that currently when the administration proposes to remove a tenured teacher, that teacher has a right to a full hearing in front of the school board. If after that process the school board agrees with the administration that the teacher should be dismissed, the teacher has a right to appeal to the Superior Court. Until the Supreme Court decision in the late 1980s, that meant the judge would examine the fairness of the proceedings; the case was not retried. Mr. McBeth objected to the substantive retrial of the case. Mr. McBeth discussed the Dave Tony case in Fairbanks in which Mr. Tony was represented by his union at the Superior and Supreme Court levels after his certificate was taken. That was allowed although there were no substantive issues in his case. SENATOR LEMAN asked if Mr. Tony's union represented him although there were no substantive issues in that case. TAPE 95-27, SIDE B Number 587 JERRY MCBETH believed that a teacher is entitled, if a member of the National Education Association, to full representation up to the Supreme Court level. SENATOR SALO said that whether or not substantive issues were present could differ from your point of view. In regards to the two cases in Fairbanks in the 1990s, that seems relatively small considering that Fairbanks is the second largest school district in Alaska. She asked if those two cases were won. JERRY MCBETH said that the district did win in the first case which is resolved. The second case has been heard in the Superior Court and there has not yet been a decision. SENATOR SALO acknowledged that there is a delay in the process, however, rights probably should not be aggregated merely to save time. SENATOR MILLER stated that the Fairbanks school district did win the case with Mr. Tony. He inquired as to who paid the legal bills for the district. JERRY MCBETH said that the district paid its own legal bills. The total costs of Mr. Tony's case was $100,000. Some of those costs include the hearing in front of the school board, probably $30,000. SENATOR MILLER concluded from that, over 50 percent of the costs were those associated with the Superior Court. Number 558 CYNTHIA HENRY, representing the Fairbanks School Board, emphasized that the role of the school board is to provide students with the best teachers. The current law restricts the board's ability to do that when in the situation of a dismissal. She stated that the current law places undue hardships on the district as Mr. McBeth outlined. She indicated that the cost and the length of time for two cases are the reasons that there are not more competency case dismissals. The school board has to present its case twice if the case is contested which favors the defendant. She explained that even if new evidence or witnesses surface following the review of the school board, that cannot be introduced in the court trial. She urged the committee to pass the original bill. SENATOR MILLER inquired as to the prior position of the Fairbanks School Board regarding tenure. JERRY MCBETH said that the consistent position, over the nine years in which he has served, of the Fairbanks School Board has been to seek an increase in the probationary period of teachers. The increase has varied, but there has been no question that the board feels that two years is too short to fairly assess the contributions that a teacher would be likely to make to the district. He implied that other school districts in Alaska would hold the same position while NEA probably would not agree. He commented that at the university level the probationary period is six years. He expressed amazement that virtually everyone is tenured. The additional years of scrutiny would occasionally reveal those who are not satisfactory for the interests of the students. He emphasized that two years probation really means one and a half years. SENATOR SALO stated that if that argument was true, then there are a large number of marginal teachers which should be watched longer. Perhaps, it would be more beneficial to eliminate those marginal teachers sooner. JERRY MCBETH said that his districts teachers are good. The issue is those teachers which cannot be fairly assessed and evaluated in two years. SENATOR SALO indicated that two years is enough time to evaluate a teacher and their skills, if that cannot be done then someone is not doing their job. JERRY MCBETH explained that teachers are not certified at a particular grade level or a series of courses. For example, teachers are certified as elementary. He questioned how a teacher could be properly evaluated when they may teach different grades within that two year probationary period. Mr. McBeth posed the example of a high school teacher certified in Secondary with a specialization in Social Studies. If that teacher teaches American History, World History, and American Government; how can that teacher be fairly evaluated in two years? He said that evaluating a teacher in two years based upon the teachers ability to proficiently cover those subjects cannot be accomplished. SENATOR SALO said that was an entirely different subject. Number 493 KIMBERLY HOMME, an Anchorage teacher at Greening Middle School, commented that she supported Representative Con Bunde's legislation that the committee had heard today. She explained that she was present because children rely on her to provide a quality education which has become increasingly difficult due to the increased class size. She indicated that the committee should support the children of their constituents by fully funding education. SB 132 is a slap in the face to the education community. She pointed out that SB 132 began as a bill to weaken teacher appeal rights, but it transformed into a "Christmas Tree" bill. The current bill weakens tenure and made bargaining available in public. Bargaining in public would create much political posturing. She questioned how the committee would like minority and majority caucuses being held in public. The process of this bill is unacceptable, she did not understand how the bill could already be scheduled for the Judiciary Committee when the public has not had a chance to comment. She emphasized that the education community is being defocused from the important issues of funding education with reduced funding and increased enrollments. Ms. Homme said that with regard to tenure, instruction in schools should be improved. She suggested that one way to achieve instructional improvement would be through evaluation by principals. She informed the committee of a course she had taken relating to the improvement of instruction which is the same course a principal takes. There is good system of evaluation of teachers which provides feedback to the teacher. Ms. Homme stated that in Anchorage non tenured teachers are always given pink slips. She questioned why a bad teacher would be kept for more than two years. She noted that the Anchorage school district does have a mentor program, however it is not available to everyone due to the lack of funding. The mentor program is a good manner in which to provide a teacher with feedback, especially new teachers. Ms. Homme stated that this new bill looked at the financial savings with regard to the de Novo trial. She did not believe there would be any savings because the administrative procedure, as the final process for the dismissal, would increase the costs for the teacher. Currently, the teacher has the opportunity to use a hearing officer in order to determine if their dismissal was appropriate or illegal. The teacher can then appeal to Superior Court. She asked if under this legislation, would the school board members be the hearing officers. Would the school board members decide whether the administrators who work for the board had sufficient grounds to dismiss the employee? In conclusion, Ms. Homme commented that there are some problems with SB 132 which should be worked out in the HESS committee. Number 440 MARY BETH SHADY, an Anchorage teacher at Dimond High School, informed the committee that she had taught at Dimond for 18 years and in addition to that she had taught outside of Alaska for three years. She expressed concern with Section 1 of SB 132. In the Anchorage school district the process for evaluation already exists. The administration is responsible for the evaluation. She informed the committee that she had not been evaluated since 1987, although she has an open door policy which is signified outside her door. Although she is well respected in her building and sponsors several organizations in her building as well as sitting on several committees in the Anchorage school district, she was amazed that she never has an administrator in her room to perform the mandatory two year evaluation. She noted that there are five administrators in her building. She believed that if the evaluation process was utilized, it would be effective. New teachers need administrative evaluation as well as mentoring from other teachers. She explained that the school district does not provide a mentoring program, although her department does. Ms. Shady pointed out a problem with Section 5 regarding the meaning of "academic program" on line 6, page 3 of the CS. How is that term to be interpreted? She noted that as an English teacher she would circle this language and ask the student for clarification. Also the reference to decreased enrollment in Section 5 would not apply to Anchorage; there would not be a decrease in enrollment in Anchorage. She said that the bill gives a carte blanche for the removal of teachers on ambiguous grounds. Ms. Shady emphasized that she was a professional who expected more continuity and professional treatment for a career in which a great deal of time, energy and money had been invested. Ms. Shady continued with her concerns regarding Section 7. In Anchorage where there was a recent strike and a very difficult and antagonistic period of negotiations, everyone is trying to build bridges with the community and the school board and throughout the district. Open negotiations would be a mess. She informed the committee that currently avenues exist to convey information from negotiations to the public through the media. That should be continued. In conclusion, Ms. Shady explained that she had come to Juneau, taking leave from her classroom, in order to lobby for the full funding of education. She reiterated the concern with the defocusing of the need for full funding of education. The Alaska Constitution states that the state must provide a public education, of which she hoped would be a quality education. She indicated that the suggested funding cuts to education would merely fund a mediocre education. If CS SB 132 is adopted, what would happen to the current negotiated contracts with teachers and districts? She asked if that was clearly stated in the bill. Ms. Shady expressed the need to clarify the language before the bill is moved from this committee otherwise, teachers would not be afforded their entitled due process. SENATOR LEMAN assumed that people do get to see some of the results of Ms. Shady's teaching through her productions with her students. He asked if Ms. Shady was also referring to parents when she stated that no one comes in even with her open door policy. MARY BETH SHADY stated that at the high school level she sees the lack of parental involvement; parents are not involved for a variety of reasons. Ms. Shady felt that adults seem to be intimidated to come into a high school with 1,800 teenagers. Ms. Shady had one parent come in this year when she invited every member of the Language Arts Curriculum Committee during the meeting time in the classroom. SENATOR LEMAN felt that the lack of parental involvement in their children's education is a travesty. MARY BETH SHADY interjected that parents do pick up their child's report card, although that is not a classroom setting. SENATOR LEMAN said that he had been in a number of Dimond High School classrooms in the past. He discussed his recollection of his visits. CHAIRMAN GREEN reiterated that the committee faced strict time constraints; the testimony would need to be briefer in order to here as many people as possible. Number 336 JAMES SIMEROFF, and eighth grade Math teacher at Kenai Middle School, agreed with Ms. Shady with respect to the changing environment of public schools. If everyone was an eighth grade teacher, there would not be a question as to the need for tenure. He informed the committee that he had taken a day of personal leave for another reason, however, he discovered there was a hearing. He noted that tenure has been a traditional aspect of public school education for many years across the entire nation. The length of the probationary period is an important part of that tradition. He noted that for many years the probationary period was two years, now some have been extended to three years. Mr. Simeroff knew of very few places with five year probationary periods. In his opinion, the issue is not tenure, but rather proper evaluation. The length of the probationary period will not matter if an effective evaluation method is not utilized. He informed the committee that in his experience, most evaluations occur just before teachers obtain tenure. With a five year probationary period, there is the likelihood that there would be incompetent or ineffective teachers in the system through five years and then they would be asked to move on. He expressed concern that it would make the environment in public schools worse. With regards to the de Novo trial, Mr. Simeroff pointed out that it was seldom used. The de Novo trial is needed for certain cases. He indicated that school boards are opposed to the de Novo trial because they often lose the trial. The lay off section of the bill is vague and does not specify who decides the program needs that may impact teacher lay offs. He stated that the lay off section would conflict with the negotiated contract agreements in his school district. Teachers may be forced to give up something that has been mutually agreed upon. Mr. Simeroff did not believe that open negotiations would create an environment that would achieve settlements easily. Open negotiations would create much posturing which is not conducive to an agreement. He believed that if this section were law, Anchorage and Fairbanks would still be striking because an acceptable agreement would not result in these open negotiations; there would be no room to maneuver in a public forum. Mr. Simeroff did support the retirement incentive program, but did not understand its presence in this bill. Mr. Simeroff did not support the retirement incentive program as a part of this bill. CHAIRMAN GREEN informed everyone that testimony would be limited to two minutes. Number 255 RICK CROSS, Superintendent of the Fairbanks North Star Borough School District, informed the committee that he had been superintendent for the past eight years. He urged the committee to keep the trial de Novo separate from other issues which have been combined into this bill. The trial de Novo is worthy of consideration on its own merit. He stated that the district was concerned about the issues Dr. McBeth had outlined. He explained that the current law requires that the school board conduct a full hearing and there is no abbreviated hearing at the school board level because any information not introduced at the school district level may not be introduced by the district at the court level. Two duplicate trials are required. He stated that the Tony case seems to be a good example of the minimum costs of a teacher dismissal. The Tony case was merely an interpretation of the law. He informed the committee that the Tony case cost approximately $100,000 of which half of those costs could be attributed to the subsequent retrial and ultimately at the Supreme Court level. He felt that a more realistic cost would be twice that amount. Mr. Cross also expressed concern with student witnesses in open court as well as having them testify twice. Time delays are a part of the court system. He discussed the problems in keeping track of student witnesses during those court delays. He agreed that the trial de Novo is a procedure that has not been used often. He suggested that the reason for that is the incurred costs of the school district which could fund teaching positions. He urged the committee to consider the trial de Novo on its own merit in separate legislation. The Anchorage Supreme Court decision has placed school districts in an unfair situation with regard to the dismissal of tenured teachers. SENATOR SALO stated that regarding the protection of teachers, the concern is that the school board is not an unbiased group in terms of making the final decision. Is there anything, between the school board hearing and the de Novo trial, that could be workable and would ensure a neutral third party decision? RICK CROSS informed the committee that in his experience the boards have proven to be fairly balanced in their decisions. Mr. Cross emphasized that the major concern is to have only one trial. Having one trial seems fair especially when, as is often the case, children are involved. Mr. Cross stated that he would rather go directly to court because the school board hearing is merely advanced discovery; the board must put on a full trial. The current process is untenable. Number 163 MARILYN PILLIFANT, teacher at Chinook Elementary in Anchorage, informed the committee that she was in her sixth year of teaching for the Anchorage School District. She noted that she is currently a second grade teacher. She explained that her role as a teacher encompasses many other roles: social worker, counselor, mediator, disciplinarian, nutritionist, and health care provider not to mention that she volunteers much of her time to the school. Ms. Pillifant expressed concern with the CS because it seems to circumvent her rights as a citizen to a fair and impartial review process. She reiterated Ms. Homme's point that the tenure issue should be refocused on the administration. Ms. Pillifant noted that she is currently in an evaluation process in her building. This year it seems to be working. She emphasized that this is the first year that she has received constructive and mutually helpful feedback on her teaching skills. Teachers are professionals. She questioned the motivation for SB 132. Ms. Pillifant urged the committee to reconsider the passage of SB 132 to the Judiciary Committee. Teachers deserve respect and they should be provided the opportunity to testify on SB 132. MIRIAM KIEGANDEAN, representing the Anchorage School District, informed the committee that she was speaking on behalf of parents. Currently, she is a counselor at Mears Junior High. She discussed her background in the elementary system and her eight years as a Vocational Work Counselor with the Save Alternative Program. Ms. Kiegandean urged the committee to pass the governor's full funding of education as well as the increased enrollment funding. As a parent, teacher and counselor, Ms. Kiegandean expressed concern with the issue of tenure. She supported the current tenure process. NEA supports tenure. Tenure does not give life-time appointment. If the administration does their job correctly, there should not be a problem with unsatisfactory teachers especially when they are in the probationary period. Ms. Kiegandean explained her evaluation process. There should not be a problem with the two year probationary period, if administrators evaluate teachers every quarter which equals four evaluations each year. She expressed concern with the notion that a mediocre teacher would be kept on for five more years with this new probationary period. The two year probationary period is long enough. Number 050 VERNON MARSHALL, NEA-AK, said that if he is held to a two minute limit, then he would prefer to discuss the need for school funding. If the CS of SB 132 passes, the current problem of class size would continue to increase while teachers would be placed in situations where they cannot succeed. Public frustration would increase and the public school system would suffer. Mr. Marshall explained that he was prepared to speak to SB 132 in its original form as it applied to the administrative hearing. He said that he could attempt to dissect the CS, but the two minute limit on testimony would not be enough. Mr. Marshall deferred to the Chair. CHAIRMAN GREEN said that the choice was Mr. Marshall's. Chairman Green said that Mr. Marshall could testify for his one minute however he chose. SENATOR ELLIS asked if Mr. Marshall was down to one minute. CHAIRMAN GREEN said yes that Mr. Marshall had spent about one minute in his introduction and there are others to testify. SENATOR ELLIS asked if this would be the only HESS committee hearing on the CS for SB 132. CHAIRMAN GREEN responded that she thought it would be the only hearing in HESS for this bill. VERNON MARSHALL noted that the committee had been provided information regarding the history of tenure as well as the de Novo hearing. July 1, 1966 teachers were given the right to a de Novo hearing. TAPE 95-28, SIDE A Number 010 Mr. Marshall explained that the standard of review under the Administrative Procedures Act is the substantial evidence test which is not applied consistently. He pointed out that using the Administrative Procedures Act as the vehicle for hearing nonretentions would place a teacher in a quandary. The first aspect of that quandary would involve the teacher having to go to a school board. The school board is acting on the advice of staff and does not know the teachers side of the story; the board votes to dismiss the teacher. The teacher would then face a hearing officer that had been unilaterally selected by the school board which is the second aspect of the quandary. The third aspect of the quandary would be the recommendation of dismissal of the teacher by the hearing officer due to the knowledge of the staff and the board' s objections. Fourthly, the teacher would be there because the board would have reconfirmed its initial decision to dismiss the teacher. Mr. Marshall asserted that the problem was the lack of an objective and impartial authority to decide if their was cause to dismiss the teacher. He noted that this was in reference to the original version of SB 132. He encouraged the committee to review the Lum decision. Mr. Marshall stated that school boards do not have expertise with regard to teacher quality. Mr. Marshall pointed out that currently the trial de Novo is an opportunity for a teacher who would very likely face the loss of their certificate. The trial de Novo provides a safety valve or a fairness to tenured teachers in this process. He clarified that NEA-AK does not guarantee their members an automatic right to appeal to the Supreme Court. NEA-AK attempts to provide a teacher the chance to appear before the administrative level which would generate a decision. Then the decision is made by NEA-AK to determine whether or not to fund the appeal to the Superior Court and further to the Supreme Court. Mr. Marshall clarified that in the two cases in Fairbanks, the cases were not funded by them at the Superior Court level. NEA-AK did provide the administrative step. He emphasized that NEA-AK would not restrict an individual's rights to appeal a decision at the Superior Court or the Supreme Court as well as the administrative level. Mr. Marshall felt that Mr. McBeth had a good idea regarding going directly to court without an administrative hearing. He said that NEA-AK was willingly to review that suggestion. Without the option to go directly to court, tenured teachers should be guaranteed an unbiased hearing body which is not likely from a biased school board. The school board employees the superintendent and principals and also determines the direction of the school. He indicated that binding arbitration could be an option for review. In conclusion, Mr. Marshall said that NEA-AK supported retirement incentive programs and SB 137. NEA-AK does not support retirement incentive programs if that means trading tenure rights to gain a retirement incentive program process. Number 117 SHELIA PETERSON, Special Assistant to the Commissioner of Education, explained that at the last State Board of Education meeting, the board discussed many of the concepts that are in the CS. The board could not come up within a consensus. However, the board wanted to relay to the committee their strong support for the full funding of education. Even with full funding of education, the school districts will have a difficult time addressing all the educational needs in each school district. The provision in the CS for the early retirement incentive would help those school districts; the provision would allow the school district to decide whether or not to participate as well as the designation of categories of employees to participate. The school board felt that it does ensure that the quality of education will continue while giving the school districts some management tools. As the CS is currently written, the Department of Education would be responsible to write the regulations to promulgate the lay-off of tenured teachers; the process would be done in a very cautious manner and involve the public in every step of the way. In conclusion, Ms. Peterson reiterated the board's strong commitment to full funding of education. WILLIE ANDERSON, NEA-AK, informed the committee that with regards to tenure, a recent survey found that less than 10 states have a five year probationary period. Tenure is not the problem, the problem is the evaluation process. He emphasized that proper evaluation could eliminate non professional and mediocre teachers. Mr. Anderson pointed out that many of the nonretention cases do not come before the school board because NEA-AK often advises teachers in this position to resign. Such situations occur on a routine basis. The lay-off of teachers has been negotiated in retirement incentive programs which are in practically every contract. There is no provision for tenured teachers to be laid off unless enrollment decreases which is not likely. He said that adding teachers is necessary not laying them off. He asserted that the lay off contingent is the result of the inappropriate funding of the state legislature in the last seven years. He emphasized the need to appropriately fund education in order that the issues of funding and the lay off tenured teachers would not be before this body. Number 203 CHAIRMAN GREEN informed everyone that Senator Taylor had agreed to hear more testimony on SB 132 as it moves through the committee process. She assumed that testimony would be heard on Monday or Wednesday. SENATOR ELLIS asked if there were other teleconference sites. CHAIRMAN GREEN said that she did not know of more sites. SENATOR ELLIS stated, in an attempt to understand, that Fairbanks was the only site and the teleconference was not advertised. CHAIRMAN GREEN reiterated that there would be an opportunity for interested persons to testify on Monday. She said that she did not know how Mr. Cross knew to call in. SENATOR SALO felt that the testimony had been interesting and could inspire ideas to solve some of the problems SB 132 hopes to address. There was also testimony that indicated that areas of SB 132 are unnecessary. She emphasized that the problems with SB 132 are not judiciary problems; the problems are inherent to education and should be worked on in the HESS committee. SB 132 should not leave the HESS committee. Senator Salo stated that she would like to amend the bill which could be in writing if enough notice had been given. She asked if SB 132 could be heard Monday; is that an unreasonable request? CHAIRMAN GREEN stated that SB 132 was slated to be passed out of committee today. She noted that the Judiciary Committee would be happy to hear the amendment on Monday. SENATOR SALO found that unacceptable because she is not a member of the Judiciary Committee. Furthermore, SB 132 is a HESS committee bill. She discussed the response she had received in regards to SB 132 which she did not even know about at the time. Senator Salo offered an amendment to eliminate Sections 1 and 2 from the CS, Amendment 1. SENATOR MILLER objected. SENATOR LEMAN indicated the need to come up with a fair bill. In response to those who see SB 132 as a teacher bashing bill, the bill is fair to the school districts and the public. He did not know of many professions with tenure opportunities. A good teacher would welcome this in order to elevate the profession to higher levels. Number 272 SENATOR ELLIS reiterated Senator Salo's point regarding the good testimony heard although, the witnesses indicated surprise by the CS. Everyone seemed to come to testify on the original bill which Senator Ellis felt could have made some progress. He supported the amendment. Senator Ellis expressed concern with having the CS before the committee with little notice and opportunity of the public to testify. He emphasized that the HESS committee's responsibility with education. This treatment is unnecessary; goals can be achieved while demonstrating respect to the public and the institution. This is an insult. CHAIRMAN GREEN pointed out that many of the provisions in this legislation are included in legislation in the House and Senate. These are not new issues. Upon a roll call vote on Amendment 1, Senators Miller, Leman and Green voted "Nay" and Senators Ellis and Salo voted "Yeah." Amendment 1 failed to be adopted. Number 310 SENATOR SALO moved Amendment 2 which would delete Sections 1 through 7. SENATOR MILLER objected. SENATOR ELLIS asked if the repealers in Sections 19 and 20 were the same as repealers or sunset dates in other bills or different. PORTIA BABCOCK clarified that they were the same. SENATOR SALO indicated that the sections of the bill which do not address the de Novo trial prevent positive change to education. She did not feel that she had adequate time to change the de Novo issue. The testimony regarding the retirement incentive programs does seem to indicate that in general districts do favor that approach. That program allows flexibility and options. She wanted to deal with the retirement incentive programs, but not in an omnibus bill. Amendment 2 would delete Sections 1 through 7. Upon a roll call vote, Senators Leman, Miller and Green voted "Nay" while Senators Ellis and Salo voted "Yeah." Amendment 2 failed to be adopted. Number 351 SENATOR LEMAN moved that CS SB 132(HES) be moved out of committee with individual recommendations. Senators Ellis and Salo objected. Upon a roll call vote, Senatos Leman, Miller and Green voted "Yeah" and Senators Ellis and Salo voted "Nay." CS SB 132(HES) was passed out of committee. There being no further business before the committee, the meeting adjourned at 11:10 a.m.