September 2019 Committee on School Initiatives Item 3

Proposed Amendment 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners
(Second Reading and Final Adoption)

September 13, 2019

COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION

SUMMARY: This item presents for second reading and final adoption proposed amendment to 19 Texas Administrative Code (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 take action against the certificate of an independent hearing examiner if it is determined that the law firm with which the independent hearing examiner is associated, during the time the independent hearing examiner has been certified, meets specified criteria. No changes are recommended since approved for first reading. 

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.

The full text of the statutory citation can be found in the statutory authority section of this agenda.

EFFECTIVE DATE: The proposed effective date of the proposed amendment is 20 days after filing as adopted with the Texas Register. Under 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 2020-2021 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 proposed amendment was presented to the Committee on School Initiatives for discussion at the April 2019 SBOE meeting, and the SBOE approved the proposed amendment for first reading and filing authorization at the June 2019 meeting.

BACKGROUND INFORMATION AND JUSTIFICATION: TEC, §21.252(a), requires the SBOE to establish certification criteria for independent hearing examiners. Section 157.41 specifies certification criteria such as license required, 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 may take action against the certificate of an independent hearing examiner if it is determined that the independent hearing examiner, during the time the independent hearing examiner has been certified, has: (1) served as an agent or representative of a school district; (2) served as an agent or representative of a teacher in any dispute with a school district; (3) served as an agent or representative of an organization of school employees, school administrators, or school boards; or (4) failed to timely issue a recommendation. The proposed amendment would specify in subsection (l) that the commissioner may also take action against the certificate of an independent hearing examiner if it is determined that the law firm with which the independent hearing examiner is associated, meets any of the same criteria. This change would align the rule with TEC, §21.252.  

TEC, §21.252(a), requires the SBOE, in consultation with the State Office of Administrative Hearings (SOAH), to establish certification criteria for hearing examiners. The TEA provided the proposed rule text to the SOAH and requested suggestions and comments. The SOAH responded that it had no questions or comments.

The attachment to this item reflects the text of proposed amendment to 19 TAC §157.41 for consideration by the SBOE for second reading and final adoption. No changes are recommended since approved for first reading.

FISCAL IMPACT: No changes have been made to this section since published as proposed.

The Texas Education Agency (TEA) has determined that there are no additional costs to state or local government required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT: No changes have been made to this section since published as proposed.

The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: No changes have been made to this section since published as proposed.

The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis specified in Texas Government Code, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: No changes have been made to this section since published as proposed.

The proposal 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.

TAKINGS IMPACT ASSESSMENT: No changes have been made to this section since published as proposed.

The proposal does not impose a burden on private property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT: No changes have been made to this section since published as proposed.

TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking would expand an existing regulation and increase the number of individuals subject to its applicability. Currently, §157.41 specifies that the commissioner may take action against the certificate of an independent hearing examiner if it is determined that the independent hearing examiner, during the time the independent hearing examiner has been certified, meets certain criteria. The proposed amendment would specify that the commissioner may also take action against the certificate of an independent hearing examiner if it is determined that the law firm with which the independent hearing examiner is associated meets any of the same criteria. This change would align the rule with TEC, §21.252.

The proposed rulemaking 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 limit or repeal an existing regulation; would not decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: No changes have been made to this section since published as proposed.

The proposal would align the rule with statutory provisions in TEC, §21.252. There is no anticipated economic cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: No changes have been made to this section since published as proposed.

The proposal would have no new data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: No changes have been made to this section since published as proposed.

TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: Following the June 2019 SBOE meeting, notice of the proposed amendment to 19 TAC §157.41 was filed with the Texas Register, initiating the public comment period. The public comment period on the proposal began August 2, 2019, and ended September 6, 2019. At the time this item was prepared, two public comments had been received and are summarized below. A summary of any additional public comments received regarding the proposal will be provided to the SBOE during the September 2019 meeting. The SBOE will take registered oral and written comments on the proposal at the appropriate committee meeting in September 2019 in accordance with the SBOE board operating policies and procedures.

Comment. An administrator commented that it is wasteful to pay an attorney to serve as an independent hearing examiner. The administrator stated that a retired or former school superintendent would be more than qualified to hear and rule on such cases.

Response. The agency disagrees and recommends that the SBOE maintain language as proposed. TEC, §21.252(a), requires certified hearing examiners to "be licensed to practice law in this state."

Comment. A parent commented that the proposal provides good clarification so as not to allow a person or law office to shield wrong behavior.

Response. The agency agrees. TEC, §21.252(b), requires disqualification based on a conflict a lawyer's law firm may have.

MOTION TO BE CONSIDERED: The State Board of Education:

Approve for second reading and final adoption proposed amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners; and

Make an affirmative finding that immediate adoption of proposed amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners, is necessary and shall have an effective date of 20 days after filing as adopted with the Texas Register. (Per TEC, §7.102(f), a vote of two-thirds of the members of the board is necessary for an earlier effective date.)

Staff Members Responsible:
Von Byer, General Counsel, Legal Services 
Christopher Maska, Director, Hearing and Appeals, Legal Services

Attachment:                 Text of Proposed Amendment 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification  Criteria for Independent Hearing Examiners