September 2017 Committee on School Initiatives Item 3
Proposed Amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners
(First Reading and Filing Authorization)
September 15, 2017
COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item presents for first reading and filing authorization a proposed amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners. The proposed amendment would allow the commissioner of education to decline to recertify an independent hearing examiner even if a written complaint from an attorney has not been received, add a factor that the commissioner may consider in the decision whether to recertify, and specify that the commissioner can take action against an independent hearing examiner's certification for violating statutory requirements.
STATUTORY AUTHORITY: Texas Education Code (TEC), §21.252.
TEC, §21.252, requires the State Board of Education (SBOE), in consultation with the State Office of Administrative Hearings, by rule to establish criteria for certifying independent hearing examiners who conduct hearings under the TEC, Chapter 21, Subchapter F.
EFFECTIVE DATE: The proposed effective date of the proposed amendment would be 20 days after filing as adopted with the Texas Register. Under the TEC, §7.102(f), the SBOE must approve the rule action at second reading and final adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2018-2019 school year. The earlier effective date would allow improvements in the quality of independent hearing examiners to begin sooner and prevent an additional round of yearly nonrenewals from occurring before the amendment takes effect.
PREVIOUS BOARD ACTION: The SBOE adopted 19 TAC §157.41 effective December 15, 1995, and last amended it effective March 17, 2012. The proposed amendment was presented to the Committee on School Initiatives for discussion at the June 2017 SBOE meeting.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: TEC, §21.252(a), requires the SBOE to establish certification criteria for independent hearing examiners. Section 157.41 specifies certification criteria such as required licensing, experience, continuing education, and annual recertification for independent hearing examiners. The examiners preside over due process hearings involving terminations, suspensions without pay, and nonrenewal of term employment contracts. The examiners also develop findings of fact and conclusions of law, which are referred to the school district board of trustees.
Currently, §157.41 specifies that the commissioner can decline to recertify an independent hearing examiner based on issues of the independent hearing examiner's quality of work only if a written complaint is received from an attorney. The proposed amendment would remove the requirement in subsection (k) that a written complaint from an attorney must be received and would specify that the commissioner, in deciding whether to recertify, may consider whether the examiner applies appropriate legal standards. Under the current rule, the commissioner is severely limited in the ability to remove independent hearing examiners due to poor-quality work. The proposed amendment would give the commissioner greater flexibility in removing low-performing independent hearing examiners, which should result in better hearings and recommendations and less need for appeals to the commissioner and the courts.
The proposed amendment would also add a new subsection (l) stating that the commissioner can take action against an independent hearing examiner's certification for violating statutory requirements. This clarification of the commissioner's authority would better inform independent hearing examiners, teachers, and school districts of the statutory standards and the potential consequences for violating those standards.
FISCAL IMPACT: The Texas Education Agency (TEA) has determined that there will be positive economic impact for state and local government and individuals as a result of the proposed amendment. By allowing the commissioner not to certify poorly performing independent hearing examiners, there will be fewer appeals of independent hearing examiner recommendations to the commissioner and the state courts of Texas. State government, including the TEA and the Office of the Attorney General, will see a cost savings of approximately $20,000 per year for each of the first five fiscal years the proposed rule is in effect by having fewer cases to defend in the courts of Texas. Similarly, school districts will see a cost savings of approximately $20,000 per year for each of the first five fiscal years the proposed rule is in effect by having fewer appeals of their teacher contract decisions to defend before the commissioner and the state courts of Texas.
Finally, it is likely that fewer teachers will appeal school district decisions to end their contracts if independent hearing examiners provide better recommendations. Therefore, it is estimated that teachers will see a cost savings of approximately $20,000 per year for each of the first five fiscal years the proposed rule is in effect. There will be no net economic effect on independent hearing examiners as a whole because for every independent hearing examiner who is not assigned a case because he or she is not certified, a certified independent hearing examiner will be assigned a case.
There is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required. There is no effect on local economy for the first five years the proposed amendment is in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.
PUBLIC AND STUDENT BENEFIT: The proposed amendment would lead to a higher quality of work by independent hearing examiners.
PROCEDURAL AND REPORTING IMPLICATIONS: The proposed amendment will have no procedural and reporting implications.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed amendment will have no locally maintained paperwork requirements.
PUBLIC COMMENTS: The official public comment period will begin when the proposal, approved for first reading and filing authorization, is published in the Texas Register.
ALTERNATIVES: None.
OTHER COMMENTS AND RELATED ISSUES: A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register.
MOTION TO BE CONSIDERED: The State Board of Education:
Approve for first reading and filing authorization the proposed amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners.
Staff Members Responsible:
Von Byer, General Counsel
Legal Services
Christopher Maska, TEA Ethics Advisor
Legal Services
Attachments:
I. Statutory Citation (PDF, 15KB)
II. Text of Proposed Amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners (PDF, 27KB)