18_08 Proposed New 19 TAC §53.1010
Commissioner's Rules
Proposed New 19 TAC Chapter 53, Regional Education Service Centers, Subchapter AA, Commissioner's Rules, §53.1010, Application of Disclosure of Interested Parties
Attachments:
I. Statutory Citations (PDF)
II. Text of Proposed New 19 TAC Chapter 53, Regional Education Service Centers, Subchapter AA, Commissioner's Rules, §53.1010, Application of Disclosure of Interested Parties (PDF)
SUMMARY: The rule action presented in this item was filed as proposed with the Texas Register under the commissioner's rulemaking authority. This item proposes new 19 TAC Chapter 53, Regional Education Service Centers, Subchapter AA, Commissioner's Rules, §53.1010, Application of Disclosure of Interested Parties. The proposed new rule would clarify the application of Texas Government Code, §2252.908, to regional education service centers (RESCs).
STATUTORY AUTHORITY: Texas Education Code (TEC), §§8.001-8.011 and Chapter 8, Subchapters B-D, and Texas Government Code, §2252.908.
TEC, §8.001, authorizes the commissioner to decide any matter concerning the operation and administration of RESCs.
TEC, §8.002, provides the RESC purpose in assisting school districts, the legislature, and the commissioner.
TEC, §8.003, determines the RESC governance structure and the role of the RESC board of directors.
TEC, §8.004, describes the role and selection of the RESC executive director.
TEC, §8.005, applies to RESCs the same taxation provisions that apply to school districts and school district employees.
TEC, §8.006, applies to RESC employees and volunteers the same immunity from liability that applies to school district employees and volunteers.
TEC, §8.007, requires RESCs to accept personal leave as sick leave under state law for employees formerly employed by the state and requires school districts and the state to accept former RESC employee sick leave within certain parameters.
TEC, §8.008, considers RESCs and their employees as state employees for purposes of Texas Government Code, Chapter 556, Political Activities By Certain Public Entities and Individuals.
TEC, §8.009, applies to RESCs the conflicts of interest requirements of the Local Government Code to certain persons of RESCs and applies conflicts of interest that apply to school districts to RESCs.
TEC, §8.010, applies state sunset provisions to RESCs.
TEC, §8.011, makes RESC employees and board directors public officials subject to Texas Government Code, Chapter 573.
TEC, Chapter 8, Subchapter B, generally provides requirements from the Texas Legislature for RESCs to provide certain functions in the public school system.
TEC, Chapter 8, Subchapter C, establishes performance and accountability standards for RESCs.
TEC, Chapter 8, Subchapter D, establishes certain state funding provisions provided by the Texas Legislature for the operation of RESCs.
Texas Government Code, §2252.908, prohibits a governmental entity or state agency from entering into certain contracts with a business entity unless a conflict of interest form prescribed by the statute is filed.
EARLIEST POSSIBLE DATE OF ADOPTION: October 15, 2018.
PROPOSED EFFECTIVE DATE: December 9, 2018.
BACKGROUND INFORMATION AND JUSTIFICATION: Texas Government Code, §2252.908, prohibits governmental entities and state agencies from entering into certain contracts with business entities unless the appropriate conflicts of interest form is filed by the business entity. The statute defines a governmental entity as a municipality, county, public school district, or special-purpose district or authority. It defines a state agency as a board, commission, office, department, or other agency in the executive, judicial, or legislative branch of state government. It defines a business entity as any entity recognized by law through which business is conducted, including a sole proprietorship, partnership, or corporation. One of the exemptions from the requirements of Texas Government Code, §2252.908, is an interagency contract.
A lack of clarity exists with how RESCs should operate with respect to Texas Government Code, §2252.908. Under TEC, Chapter 8, Regional Education Service Centers, RESCs receive treatment as both school districts and state agencies. The legislature has established an accountability system and provided the commissioner regulatory powers with respect to the RESCs. The RESCs receive state direction regarding some of their operations along with state funding. As a consequence, it is unclear whether RESCs should operate as a state agency, governmental entity, or business entity (when contracting with state agencies or governmental entities) for purposes of Texas Government Code, §2252.908. This lack of clarity applies both to when the RESCs contract with state agencies and governmental entities and when they contract with business entities.
TEC, §8.001, authorizes the commissioner to decide any matter concerning the operation and administration of RESCs. Texas Government Code, §2252.908, prevents state funds from being transferred to a private business by a state agency where the private business has relationships that would constitute a conflict of interest with decisionmakers at the governmental agency. When contracting with the Texas Education Agency (TEA), transferring state funds to RESCs shares the same native protections of state funds as when TEA contracts with other state agencies or governmental entities, as both groups are exempted from Texas Government Code, §2252.908.
Proposed new §53.1010, Application of Disclosure of Interested Parties, would specify that for purposes of contracts with TEA, RESCs will operate as any other state agency or governmental agency. The proposed new rule would also specify that, as recipients of state funds, RESCs need to comply with the provisions of Texas Government Code, §2252.908, when contracting with business entities.
FISCAL IMPACT: The TEA has determined that there are no additional costs to persons or entities required to comply with the proposed new rule. In addition, there is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required. There is no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed new rule does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.
GOVERNMENT GROWTH IMPACT: TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not expand, limit, or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.
PUBLIC AND STUDENT BENEFIT: The proposed new rule would ensure the public is informed of how RESCs will operate with respect to conflicts of interest disclosures required when a governmental agency contracts with a business entity.
PROCEDURAL AND REPORTING IMPLICATIONS: The proposed new rule would have no procedural and reporting implications.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed new rule would have no locally maintained paperwork requirements. However, RESCs would likely maintain copies of conflicts of interest disclosure forms in their contract files.
PUBLIC COMMENTS: The public comment period on the proposal begins September 14, 2018, and ends October 15, 2018.
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 on September 14, 2018.
Staff Member Responsible:
Matt Simcock, Executive Director, ESC Strategy