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."