January 2020 Committee on School Initiatives Item 6

Review of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines

January 31, 2020

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

SUMMARY:  This item provides the State Board of Education (SBOE) an opportunity to review the State Board for Educator Certification (SBEC) rule actions that would propose amendments to 19 Texas Administrative Code (TAC) Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines. The proposed amendments would implement House Bill (HB) 3, Senate Bills (SBs) 1230, 1476, and 37, 86th Texas Legislature, 2019, by reflecting new reporting requirements for superintendents, principals, and directors of public schools and private school administrative officers; adding individuals listed on the registry of persons ineligible to work in public schools to the people that must be fired or refused employment by a certified educator; and removing the reference to student loan default as a ground for discipline by the SBEC. The proposed amendments would also make technical changes to improve the readability of provisions and to align citations. The SBEC made changes to the proposed text in response to public comment.

STATUTORY AUTHORITY:  The statutory authority for 19 TAC Chapter 249, Subchapter B, is the Texas Education Code (TEC), §§21.006(a), (b), (b-1), (b-2), (c), (c-1), (c-2), as amended by HB 3 and SB 1476, 86th Texas Legislature, 2019, (f), (g), (g-1), as added by HB 3 and SB 1476, 86th Texas Legislature, 2019; and (i), as amended by HB 3, 86th Texas Legislature, 2019; 21.0062, as added by SB 1230, 86th Texas Legislature, 2019; 21.007; 21.009(e); 21.031(a); 21.035; 21.041; 21.058; 21.0581; 21.060; 21.105(c); 21.160(c); 21.210(c); 22.082; 22.0831; 22.085, as amended by HB 3, 86th Texas Legislature, 2019; 22.087; 22.092, as added by HB 3, 86th Texas Legislature, 2019; and 22.093, as added by HB 3, 86th Texas Legislature, 2019; Texas Government Code (TGC), §411.090 and §2001.058(e); Texas Family Code (TFC), §261.308(d) and (e) and §261.406(a) and (b), as amended by SB 1231, 86th Texas Legislature, 2019; Texas Occupations Code (TOC), §§53.021(a), as amended by SB 1342, 86th Texas Legislature, 2019; 53.022 and 53.023, as amended by SB 1342, 86th Texas Legislature, 2019, 53.024, 53.025, 53.051, as amended by SB 1342, 86th Texas Legislature, 2019, 53.052, and 56.003, as amended by SB 37, 86th Texas Legislature, 2019; and the Every Student Succeeds Act (ESSA), 20 United States Code (USC), §7926.

TEC, §21.006(a), (b), (c), (c-1), and (c-2), as amended by HB 3 and SB 1476, 86th Texas Legislature, 2019, requires the superintendent or director of a school district, district of innovation, open-enrollment charter school, other charter entity, regional education service center or shared services arrangement to report to the SBEC within seven business days of when the superintendent knew or received a report from a principal that an educator has resigned or is terminated when there is evidence the educator has engaged in certain misconduct, unless the superintendent or director completes an investigation before the educator resigns or is terminated and determines the educator did not commit the alleged misconduct.

TEC, §21.006(b-2), as amended by HB 3, 86th Texas Legislature, 2019, requires a principal of a school district, district of innovation, or charter school to notify the superintendent within seven days when an educator is terminated or resigns, and there is evidence the educator engaged in misconduct.

TEC, §21.006(f) and (g), give the SBEC rulemaking authority to implement TEC, §21.006.

TEC, §21.006(g-1), as added by HB 3, 86th Texas Legislature, 2019, requires the SBEC to develop and maintain an internet portal through which a superintendent or director can file a report confidentially and securely.

TEC, §21.006(i), as amended by HB 3, 86th Texas Legislature, 2019, gives the SBEC authority to impose administrative penalties on principals and superintendents who fail to fulfill their reporting obligations to the SBEC under TEC, §21.006.

TEC, §21.0062, added by SB 1230, 86th Texas Legislature, 2019, requires the chief administrative officer of a private school to notify the SBEC within seven days when a private school educator resigns before the completion of an investigation or is terminated when there is evidence the educator has engaged in certain misconduct and gives the SBEC rulemaking authority to implement the section.

TEC, §21.007, gives the SBEC authority to place a notice that an educator is under investigation for alleged misconduct on the educator’s public certification records; requires the SBEC give the educator notice and an opportunity to show cause; requires the SBEC limit the amount of time the notice can appear on the educator’s certification; and gives the SBEC rulemaking authority as necessary to implement the provision.

TEC, §21.009(e), states the SBEC may revoke the certificate of an administrator if the board determines it is reasonable to believe the administrator employed an applicant despite being aware the applicant had been adjudicated for or convicted of having an inappropriate relationship with a student or minor.

TEC, §21.031(a), charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators.

TEC, §21.035, states Texas Education Agency (TEA) staff provides administrative functions and services for the SBEC and gives the SBEC the authority to delegate to either the commissioner of education or to TEA staff the authority to settle or otherwise informally dispose of contested cases involving educator certification.

TEC, §21.041, authorizes the SBEC to adopt rules as necessary for its own procedures, to regulate educators, specify the requirements for issuance or renewal of educator certificates, administer statutory requirements, provide for educator disciplinary proceedings, and for enforcement of the educator’s code of ethics.

TEC, §21.058, requires the SBEC to revoke the certification of an educator convicted or placed on deferred adjudication community supervision for certain offenses.

TEC, §21.0581(a), as amended by SB 1230, 86th Texas Legislature, 2019, gives the SBEC authority to sanction the educator certification of a person who assists another person in obtaining employment at a school district, private school, or open-enrollment charter school when the certified educator knew the other person had previously engaged in sexual misconduct with a minor or student in violation of the law.

TEC, §21.060, sets out crimes that relate to the education profession and authorizes the SBEC to sanction or refuse to issue a certificate to any person who has been convicted of one of these offenses.

TEC, §22.082, requires the SBEC to subscribe to the criminal history clearing house and allows the SBEC to obtain any criminal history from any closed case file.

TEC, §22.0831, requires the SBEC to review the criminal history of certified educators and applicants for certification.

TEC, §22.085, as amended by HB 3, 86th Texas Legislature, 2019, requires school districts, charter schools, and shared services arrangements to conduct fingerprint criminal background checks on employees and to refuse to hire those that have certain criminal history.

TEC, §22.087, requires superintendents and directors of school districts, charter schools, private schools, regional education service centers, and shared services arrangements to notify the SBEC if an applicant for a certification has criminal history that is not in the criminal history clearing house.

TEC, §22.092, as added by HB 3, 86th Texas Legislature, 2019, requires school districts, charter schools, districts of innovation, regional education service centers, and shared services arrangements to discharge or refuse to hire any person listed on the registry of persons not eligible for employment in Texas public schools.

TEC, §22.093, as added by HB 3, 86th Texas Legislature, 2019, requires superintendents or directors of school districts, districts of innovation, charter schools, regional education service centers, or shared services arrangements to notify the commissioner of education if an employee resigned or was terminated when there is evidence the employee abused or otherwise committed an unlawful act with a student or minor, or was involved in a romantic relationship with a student or minor.

Texas Government Code (TGC), §411.090, allows the SBEC to get from the Texas Department of Public Safety all criminal history record information about any applicant for licensure as an educator.

TGC, §2001.058(d-1) and (e), sets out the requirements for when the SBEC can make changes to a proposal for decision from an administrative law judge.

TFC, §261.308(d) and (e) requires the Texas Department of Family and Protective Services to release information regarding a person alleged to have committed abuse or neglect to the SBEC.

TFC, §261.406(a) and (b), as amended by SB 1231, 86th Texas Legislature, 2019, requires the Texas Department of Family and Protective Services to send a copy of a completed investigation report involving allegations of abuse or neglect of a child in a public or private school to the TEA.

TOC, §53.021(a), as amended by SB 1342, 86th Texas Legislature, 2019, allows the SBEC to suspend or revoke an educator’s certificate, or refuse to issue a certificate, if a person is convicted of certain offenses.

TOC, §53.022, as amended by SB 1342, 86th Texas Legislature, 2019, sets out factors for the SBEC to determine whether a particular criminal offense relates to the occupation of education.

TOC, §53.023, as amended by SB 1342, 86th Texas Legislature, 2019, sets out additional factors for the SBEC to consider when deciding whether to allow a person convicted of a crime to serve as an educator.

TOC, §53.024, states that proceedings to deny or sanction an educator's certification are covered by the Texas Administrative Procedure Act, Chapter 2001, Texas Government Code.

TOC, §53.025, gives the SBEC rulemaking authority to issue guidelines to define which crimes relate to the profession of education.

TOC, §53.051, as amended by SB 1342, 86th Texas Legislature, 2019, requires that the SBEC notify a license holder or applicant after denying, suspending or revoking the certification.

TOC, §53.052, allows a person who has been denied an educator certification or had their educator certification revoked or suspended to file a petition for review in state district court after exhausting all administrative remedies.

TOC, §56.003, as amended by SB 37, 86th Texas Legislature, 2019, prohibits state agencies from taking disciplinary action against licensees for student loan non-payment or default.

ESSA, 20 USC, §7926, requires state educational agencies to make rules forbidding educators from aiding other school employees, contractors, or agents in getting jobs when the educator knows the job-seeker has committed sexual misconduct with a student or minor in violation of the law.

PREVIOUS BOARD ACTION:  None.

BACKGROUND INFORMATION AND JUSTIFICATION:

Contract Abandonment

In response to public comment, the SBEC took action to remove the proposed amendment to §249.12, Administrative Denial; Appeal, which would have added a new subsection (b)(7) to allow the SBEC to deny the certificate of a person who has abandoned a TEC, Chapter 21, contract within the past 12 months. The SBEC can use its existing authority under §249.15, Disciplinary Action by State Board for Educator Certification, to place restrictions on the issuance of a new certificate for individuals whose certificates expire before the SBEC is able to effectuate a sanction. Conforming technical edits were also made to §249.12.

House Bill 3, 86th Texas Legislature, 2019

Throughout §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition, and §249.15, Disciplinary Action by State Board for Educator Certification, the proposed amendments would modify "open-enrollment charter school" to read "charter school" to comport with the changes to TEC, Chapter 21, in HB 3, which now includes all forms of charter entities, whether open-enrollment or otherwise.

HB 3 also creates a registry of persons not eligible for employment in Texas public schools and requires superintendents or directors of school districts, districts of innovation, charter schools, regional education service centers, or shared services arrangements to notify the commissioner of education if an employee resigned or was terminated when there is evidence the employee abused or otherwise committed an unlawful act with a student or minor or was involved in a romantic relationship with a student or minor. To reflect these new requirements, the proposed amendments would add reporting to the commissioner of education under TEC, §22.093, to the list of required reporting for which an educator can be disciplined if the educator fails to report under §249.15(b)(4). The proposed amendments would also reflect the registry of persons ineligible to work in public schools in §249.15(b)(12), which allows for SBEC to sanction an educator if the educator hires or fails to fire an employee on the register.

HB 3 also modifies the requirements of TEC, §22.085, which sets out the criminal history that requires a school district, charter school, or shared services arrangement to discharge or refuse to hire an employee or applicant, to parallel TEC, §21.058, by including individuals on deferred adjudication community supervision for which a defendant is required to register as a sex offender. To reflect these modifications, the proposed amendments would add language regarding community supervision to the reference to TEC, §22.085, in §249.15(b)(12).

Senate Bills 1230 and 1476, 86th Texas Legislature, 2019

To implement SB 1230, a proposed amendment to §249.14(d) would reflect the statute's language requiring a "chief administrative officer of a private school" to report to SBEC rather than to the "director of a private school." This semantic change does not change the meaning of the rule, which already required private school heads to report misconduct to the SBEC.

Similarly, to reflect the creation of misconduct reporting requirements for private school chief administrative officers in SB 1230, the proposed amendments would add TEC, §21.0062, to the list of reporting obligations for which the SBEC can discipline a certified educator if the educator fails to comply.

To reflect the requirements of SB 1476 and SB 1230, a proposed amendment to §249.14(d) would allow superintendents and directors of public schools not to report evidence of misconduct if the superintendent or director has completed an investigation before the educator resigned and determined the educator did not engage in misconduct.

Senate Bill 37, 86th Texas Legislature, 2019

To implement SB 37, the proposed amendments would remove a reference to student loan default as grounds for discipline by the SBEC in §249.15(f).

The proposed amendments also include technical edits to remove language regarding sanctions for failing to report from §249.14(d) and (e) because this language is redundant with §249.14(h) and makes §249.14(d) and (e) difficult to read. 

The proposed amendments would also make the list of "Priority 1" conduct match in §249.15(b)(9) and §249.14(k)(1). In response to public comment, the SBEC amended §249.15(b)(9)(L) to add a citation to §247.2(3)(H), the provision addressing appropriate educator-student boundaries in the Educators' Code of Ethics.

SBOE Review of Proposed SBEC Rules

Under the TEC, §21.042, the SBEC must submit a written copy of each rule it proposes to adopt to the SBOE for review.  The SBOE may reject the proposed rule by a vote of at least two-thirds of the members of the SBOE present and voting but may not modify a rule.

FISCAL IMPACT: The TEA staff has determined there is no additional fiscal impact on state or local governments and there are no additional costs to entities required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT: The proposal would have no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code (TGC), §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in TGC, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: 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 TGC, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under TGC, §2007.043.

GOVERNMENT GROWTH IMPACT: The 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, the proposed rule would limit the requirement that a superintendent or director report educator misconduct to the SBEC by removing the requirement that a superintendent report when the investigation is complete and would exonerate the educator, in accordance with HB 3. The proposed rule would expand the reporting requirements for which the SBEC can sanction an educator if the educator fails to report in compliance with the statutory requirements. The proposed rule would also expand the reporting requirements for chief administrative officers in private schools, in accordance with SB 1230. The proposed rule would expand the reasons for which SBEC may sanction an educator to include hiring or failing to fire someone listed on the registry of persons who are not eligible to be employed under TEC, §22.092, in accordance with HB 3. The proposed rule would repeal the existing regulation that allowed the SBEC to consider sanctioning an educator for student loan default, in accordance with SB 37.

The proposed rule 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 increase or decrease fees paid to the agency, would not create a new regulation; would not increase or decrease the number of individuals subject to the rule's applicability, or would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: The public benefit anticipated as a result of the proposal would be improving student safety through enhanced enforceability of the new administrator reporting requirements imposed by the 86th Texas Legislature, 2019. The TEA staff has determined there is no anticipated cost to persons required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no new data and reporting impacts that were not directly created by HB 3 or SB 1246.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: The TEA staff has determined the proposal would not require any additional written reports or other paperwork to be completed by a principal or classroom teacher that were not directly required by the 86th Texas Legislature, 2019, through HB 3.

PUBLIC COMMENTS: In accordance with the SBEC rulemaking process, a summary of comments received by the SBEC on its proposed rules is shared with the SBOE under separate cover prior to this SBOE meeting.

MOTION TO BE CONSIDERED: The State Board of Education:

Take no action on the proposed amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines.


Staff Members Responsible:
Ryan Franklin, Associate Commissioner, Educator Leadership and Quality
Laura Moriaty, Director, SBEC Enforcement

Attachment:    Text of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines