November 2016 Committee on School Initiatives Item 10
Review of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines, §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition; and §249.17, Decision-Making Guidelines
November 18, 2016
COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item provides the State Board of Education (SBOE) an opportunity to review State Board for Educator Certification (SBEC) rule actions that would amend 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines, §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition; and §249.17, Decision-Making Guidelines. The proposed amendment to 19 TAC §249.14(d) would conform the rule on superintendent reporting to SBEC with changes to the Texas Education Code (TEC), §21.006, as a result of House Bill (HB) 1783, 84th Texas Legislature, Regular Session, 2015. The proposed amendment to 19 TAC §249.14(h) would include inappropriate communications with a student and inappropriate educator-student relationships and boundaries to the behaviors by an educator toward students that qualify as "Priority 1" conduct for purposes of investigation priority, investigative notices, and sanction authority. The proposed amendment to 19 TAC §249.17 would create a mandatory minimum sanction for an educator who tests positive for, possesses, or is under the influence of drugs or alcohol on campus. The proposed amendment would also require permanent revocation for an educator who injures a student, but is not immune from disciplinary action.
STATUTORY AUTHORITY: The statutory authority for 19 TAC §249.14 and §249.17 is TEC, §§21.006(a)-(c), (f), and (g); 21.007; 21.031(a); 21.035; 21.041(a) and (b)(1), (4), (7), and (8); 21.058; 21.060; 21.105(c); 21.160(c); 21.210(c); 22.085; 22.087; and 57.491(g); Texas Government Code, §2001.058; and Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052.
TEC, §21.006(a)-(c), (f), and (g), set reporting requirements for when superintendents and directors have to inform SBEC regarding an educator's criminal record, termination, or resignation. The statute requires the superintendent or director to inform SBEC not later than the seventh day after the superintendent knows any of the following has occurred: (1) an educator has a criminal history that the superintendent learned about other than through the standard criminal history background check; (2) an educator's employment is terminated based on evidence that the educator committed certain misconduct; or (3) an educator resigned and there is evidence that the educator may have engaged in misconduct. TEC, §21.006, also gives SBEC authority to make rules as necessary and to sanction an educator who fails to make a required report.
TEC, §21.007, requires the SBEC to propose rules that provide for a procedure for placing a public notice of alleged misconduct on an educator's certificate immediately when the educator is alleged to have committed misconduct that presents a risk to the health, safety, or welfare of a student or minor. TEC, §21.007, also allows the SBEC to determine what types of misconduct would present such a risk.
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 that Texas Education Agency (TEA) staff provides administrative functions and services for SBEC and gives 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(a), authorizes the SBEC to adopt rules as necessary to implement its procedures. TEC, §21.041(b)(1), (7), and (8), give the SBEC rulemaking authority to regulate educators, specify requirements for the issuance and renewal of an educator certificate, provide for disciplinary proceedings against educators, and create and enforce an educator's code of ethics.
TEC, §21.058, requires SBEC to revoke an educator's certificate if the educator is convicted of certain felony offenses or offenses that require the defendant to register as a sex offender, and the victim of the offense was under 18 years old.
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, §§21.105(c), 21.160(c), and 21.210(c), give SBEC authority to sanction an educator who has a continuing, term, or probationary contract and who resigns without good cause.
TEC, §22.085, allows the SBEC to sanction educators who fail to fire or fail to refuse to hire an applicant when the educator knew or should have known from the background check that the employee had a criminal record reflecting certain offenses and requires a superintendent to certify to the commissioner of education that the school district is in compliance with this section.
TEC, §22.087, requires a superintendent to report to SBEC if the superintendent knows of information showing that an educator or an applicant for an educator certificate has criminal history that is not reflected in the criminal history information provided by the Texas Department of Public Safety in response to a background check.
TEC, §57.491(g), requires the SBEC to refuse to renew the certificate of any educator who is in default on student loan payments.
Texas Government Code, §2001.058, sets out the powers and duties of the State Office of Administrative Hearings (SOAH) and other state agencies with regard to contested case proceedings.
Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052, give the SBEC the authority to automatically suspend, revoke, or disqualify a person from receiving an educator certificate if the person has been convicted of certain offenses.
EFFECTIVE DATE: The proposed effective date of the proposed amendments to 19 TAC §249.14 and §249.17 would be December 27, 2016.
PREVIOUS BOARD ACTION: None.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: The SBEC rules in 19 TAC Chapter 249 establish guidelines and procedures for conducting investigations and disciplinary actions relating to educator misconduct.
The proposed amendment to 19 TAC §249.14(d) is intended to update the rule to meet the requirements of amendments to TEC, §21.006, enacted by HB 1783, 84th Texas Legislature, Regular Session, 2015. The changes are intended to eliminate any discrepancy between the statute and the rule and to prevent confusion about when a superintendent or director must report to the SBEC.
The proposed amendment to 19 TAC §249.14(h) is intended to clarify the breadth of "soliciting or engaging in sexual conduct or a romantic relationship with a student or minor" by explicitly stating that inappropriate communication, inappropriate professional educator-student relationships, and boundaries are all included as "Priority 1" misconduct. Inappropriate professional educator-student relationships and boundaries and inappropriate communication with a student or minor are violations of the Educators' Code of Ethics, 19 TAC §247.2(3)(H) and (I). To ensure the health, safety, and welfare of students and minors, the SBEC must prioritize investigations and immediately place investigation notices on the certificates of all educators who are alleged to have engaged in any form of an inappropriate relationship between the educator and students or minors, including inappropriate communications and inappropriate educator-student boundaries.
The proposed amendment to 19 TAC §249.14(k) would expand the reasons for which TEA staff may toll the time limit for removal of an investigative notice on the certificate of an educator under investigation to include administrative investigations and administrative enforcement litigation. This would allow TEA staff to avoid redundant parallel investigations and thereby preserve resources by waiting for a related administrative investigation conducted by another division of TEA or another state or federal agency to conclude before determining how to proceed with the SBEC investigation of the educator.
The proposed amendment to 19 TAC §249.17(d)(2)(A) would increase the length of time in advance of the start of school that an educator would have to give written notice of resignation to the school district in order to have the advance notice count as a mitigating factor in a disciplinary action for contract abandonment. The increased notice period for mitigation acknowledges that two weeks is not sufficient time for a school district to find a replacement teacher before the start of the next school year and prevents an educator from getting a lesser penalty when the educator's contract abandonment leaves the school district without reasonable time to find a replacement.
The proposed amendment to 19 TAC §249.17(d)(3)(C), (e)(4), and relettered (i) are intended to clarify that for determining penalty, the SBEC treats default cases the same as cases following a contested case hearing at SOAH. This reflects the majority of SBEC precedent in final orders arising from both default cases and contested cases. The proposed amendment is, therefore, not intended to increase penalties in default cases, but to ensure fairness and predictability in SBEC decisions regarding default cases.
The proposed amendment would add a new subsection (h) to 19 TAC §249.17 that would create a mandatory minimum sanction of a one-year suspension and required completion of a drug or alcohol treatment program for educators who are subject to sanction for testing positive for drugs or alcohol, or are in possession of drugs or alcohol, while on a school campus. This mandatory minimum is intended to give clear guidance to staff at TEA and administrative law judges at SOAH regarding appropriate penalties in such cases and to ensure fairness and predictability in SBEC decisions regarding such cases.
The proposed amendment to relettered 19 TAC §249.17(i) would add intentional, knowing, or reckless injury to a student or minor from which the educator is not immune under TEC, §22.0512, to the list of conduct for which permanent revocation is the mandatory penalty. The proposed amendment parallels the elements of the criminal charge of felony injury to a child because the majority of cases for which the SBEC has ordered permanent revocation in the past have involved criminal charges of injury to a child. The proposed amendment is intended to reflect the extreme danger that such conduct presents to students and to ensure fairness and predictability in SBEC decisions regarding such cases.
SBOE Review of Proposed SBEC Rules
Under 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 rules by a vote of at least two-thirds of the members of the SBOE present and voting.
FISCAL IMPACT: The TEA staff has determined that there is no additional fiscal impact on state and local governments and there are no additional costs to persons or entities required to comply with the proposed amendments. In addition, 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; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.
PUBLIC AND STUDENT BENEFIT: The public and student benefit anticipated as a result of the proposed amendments to 19 TAC §249.14 and §249.17 would be the continued effective regulation and discipline of certified educators to ensure that certified educators are qualified, safe, and worthy to instruct the students of Texas.
PROCEDURAL AND REPORTING IMPLICATIONS: The proposed amendments would have no additional procedural and reporting implications.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed amendments would have no additional locally maintained paperwork requirements.
PUBLIC COMMENTS: In accordance with the SBEC rulemaking process, a summary of comments received by the SBEC on its proposed rules were shared with the SBOE under separate cover prior to this SBOE meeting.
ALTERNATIVES: None.
OTHER COMMENTS AND RELATED ISSUES: None.
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, §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition; and §249.17, Decision-Making Guidelines.
Staff Members Responsible:
Ryan Franklin, Associate Commissioner
Educator Leadership and Quality
Laura Moriaty, Director
Legal Services for Educator Leadership and Quality
Doug Phillips, Director
Educator Investigations
Attachments:
I. Statutory Citations (PDF, 54KB)
II. Text of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter B, Enforcement Actions and Guidelines, §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition; and §249.17, Decision-Making Guidelines (PDF, 54KB)