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