September 2018 Committee on School Initiatives Item 3
Review of Proposed Amendments to 19 TAC Chapter 247, Educators' Code of Ethics
September 14, 2018
COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item provides the State Board of Education (SBOE) an opportunity to review a State Board for Educator Certification (SBEC) rule action that would propose amendments to 19 TAC Chapter 247, Educators' Code of Ethics. The proposed amendment to 19 TAC §247.1 would add the definitions of "sexual harassment" and "under the influence of alcohol." The proposed amendment to 19 TAC §247.2 would make educators who act recklessly in diverting money for personal gain or misrepresenting the educator's employment history subject to discipline by the SBEC, would clarify language regarding an educator's illegal use of drugs, and would add a standard regarding educator-on-educator workplace sexual harassment. The proposed amendment to 19 TAC §247.2 would also strike Standard 1.14 (a prohibition on assisting an educator with getting a new job when the educator had an inappropriate relationship with a student or minor) with the intent to move that provision to 19 TAC §249.15.
STATUTORY AUTHORITY: The statutory authority for 19 TAC Chapter 247 is the Texas Education Code (TEC), §21.031(a) and §21.041(a) and (b)(1), (7), and (8); and Every Student Succeeds Acts (ESSA), 20 United States Code (USC), §7926.
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, §21.041, authorizes the SBEC to adopt rules as necessary to regulate educators, administer statutory requirements, and provide for educator disciplinary proceedings.
ESSA, 20 USC, §7926, requires state educational agencies to make rules forbidding an educator 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.
EFFECTIVE DATE: The proposed effective date of the proposed amendments would be October 21, 2018.
PREVIOUS BOARD ACTION: None.
BACKGROUND INFORMATION AND JUSTIFICATION: The proposed amendment to §247.1(e)(17) would add a new definition for "sexual harassment," defining the term that is used later in the proposed new §247.2(2)(H) that makes it a violation of the Educators' Code of Ethics for an educator to intentionally or knowingly subject a colleague to sexual harassment. This provision is intended to address educator-on-educator sexual misconduct and is tailored to exclude concepts such as hostile work environment that can be better addressed by employment law actions than by educator disciplinary proceedings.
The proposed amendment to §247.1(e)(22) would define "under the influence of alcohol" for purposes of §247.2(1)(M), which makes educators subject to discipline when they are "under the influence of alcohol" at school or at school-related activities. The proposed definition would include any educator with a blood-alcohol content of .04% or higher because this is the blood alcohol level at which standard school district policy prohibits individuals from driving school buses and at which a commercial driver is considered to be driving while intoxicated under both state and federal law. The definition also would include any physical or mental symptoms to allow evidence of such symptoms to suffice to prove a violation of the Educators' Code of Ethics if evidence of the educator's blood-alcohol content is not available or admissible.
The proposed amendment to §247.2(1)(B) would change the level of intent required to prove that an educator violated the Educators' Code of Ethics by diverting money or property for personal gain from "knowingly" to "intentionally, knowingly, or recklessly." This would allow SBEC to discipline educators for misappropriation when the educator was reckless in book-keeping or in how the educator kept the money or property, as well as when the educator acted intentionally or knowingly to divert the money or property.
The proposed amendment to §247.2(1)(K) would change the level of intent required to prove that an educator violated the Educators' Code of Ethics by misrepresenting personal history when applying for employment to include educators who act recklessly. The change is intended to inspire educators to take extra care in the information they provide school districts and to allow SBEC to discipline educators who make such misrepresentations even when there is insufficient evidence that the educator acted knowingly or intentionally.
The proposed change to §247.2(1)(L) would revise the wording of the prohibition on educators illegally using, distributing, or abusing drugs to make it clearer and more enforceable. The changes are not intended to significantly alter the meaning of the provision.
The proposed amendment would strike §247.2(1)(N), which currently prohibits an educator from assisting another educator in getting a new job as an educator or any position in a school if the educator knows that the job-seeker engaged in sexual misconduct with a student or minor. This provision was initially adopted to implement the ESSA, 20 USC, §7926. TEA received feedback from stakeholders who felt that 19 TAC Chapter 249 was a more appropriate location for educator disciplinary rules that reiterate or implement separate statutory authority and that the Educators' Code of Ethics should be reserved for ethical requirements that were not otherwise reflected in the law. To that end, the language of this provision is simultaneously being proposed for inclusion in 19 TAC §249.15, Disciplinary Action by State Board for Educator Certification, in a separate item in this agenda.
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 that there is no additional fiscal impact on state and local governments and there are no additional costs to entities required to comply with the proposed amendments. 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 (TGC), §2006.002, is required. There is no effect on local economy; therefore, no local employment impact statement is required under TGC, §2001.022. The proposed amendments do not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, are not subject to TGC, §2001.0045.
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, it would create a new regulation making educators subject to discipline by the SBEC for intentionally or knowingly engaging in sexual harassment of another educator. In addition, the proposed rulemaking would not expand, limit, or repeal an existing regulation, except by striking the provision that prohibits an educator from assisting another educator in getting a job if the job-seeker is known to have engaged in sexual misconduct with a minor, but that provision is proposed to be added to 19 TAC Chapter 249.
The proposed rulemaking would not create or eliminate a government program, would not require the creation of new employee positions or the 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 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 public and student benefit anticipated as a result of the proposed amendments would be to allow SBEC more effective and efficient enforcement of its Educators' Code of Ethics, to clarify the meaning of terms in the Educators' Code of Ethics, to clarify the purpose of the Educators' Code of Ethics, to protect educators from sexual harassment by other educators, and to further deter educators from misappropriating assets or misrepresenting themselves on job applications. The proposed amendments do not impose a cost on persons required to comply with the rules.
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 is shared with the SBOE under separate cover prior to this SBOE meeting.
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 247, Educators' Code of Ethics, with an effective date of 20 days after filing the adoption notice with the Texas Register.
Staff Members Responsible:
Ryan Franklin, Associate Commissioner
Educator Leadership and Quality
Laura Moriaty, Director
Legal Services for Educator Leadership and Quality
Attachment I: Statutory Citations
Attachment II: Text of Proposed Amendments to 19 TAC Chapter 247, Educators' Code of Ethics
September 14, 2018
COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item provides the State Board of Education (SBOE) an opportunity to review a State Board for Educator Certification (SBEC) rule action that would propose amendments to 19 TAC Chapter 247, Educators' Code of Ethics. The proposed amendment to 19 TAC §247.1 would add the definitions of "sexual harassment" and "under the influence of alcohol." The proposed amendment to 19 TAC §247.2 would make educators who act recklessly in diverting money for personal gain or misrepresenting the educator's employment history subject to discipline by the SBEC, would clarify language regarding an educator's illegal use of drugs, and would add a standard regarding educator-on-educator workplace sexual harassment. The proposed amendment to 19 TAC §247.2 would also strike Standard 1.14 (a prohibition on assisting an educator with getting a new job when the educator had an inappropriate relationship with a student or minor) with the intent to move that provision to 19 TAC §249.15.
STATUTORY AUTHORITY: The statutory authority for 19 TAC Chapter 247 is the Texas Education Code (TEC), §21.031(a) and §21.041(a) and (b)(1), (7), and (8); and Every Student Succeeds Acts (ESSA), 20 United States Code (USC), §7926.
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, §21.041, authorizes the SBEC to adopt rules as necessary to regulate educators, administer statutory requirements, and provide for educator disciplinary proceedings.
ESSA, 20 USC, §7926, requires state educational agencies to make rules forbidding an educator 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.
EFFECTIVE DATE: The proposed effective date of the proposed amendments would be October 21, 2018.
PREVIOUS BOARD ACTION: None.
BACKGROUND INFORMATION AND JUSTIFICATION: The proposed amendment to §247.1(e)(17) would add a new definition for "sexual harassment," defining the term that is used later in the proposed new §247.2(2)(H) that makes it a violation of the Educators' Code of Ethics for an educator to intentionally or knowingly subject a colleague to sexual harassment. This provision is intended to address educator-on-educator sexual misconduct and is tailored to exclude concepts such as hostile work environment that can be better addressed by employment law actions than by educator disciplinary proceedings.
The proposed amendment to §247.1(e)(22) would define "under the influence of alcohol" for purposes of §247.2(1)(M), which makes educators subject to discipline when they are "under the influence of alcohol" at school or at school-related activities. The proposed definition would include any educator with a blood-alcohol content of .04% or higher because this is the blood alcohol level at which standard school district policy prohibits individuals from driving school buses and at which a commercial driver is considered to be driving while intoxicated under both state and federal law. The definition also would include any physical or mental symptoms to allow evidence of such symptoms to suffice to prove a violation of the Educators' Code of Ethics if evidence of the educator's blood-alcohol content is not available or admissible.
The proposed amendment to §247.2(1)(B) would change the level of intent required to prove that an educator violated the Educators' Code of Ethics by diverting money or property for personal gain from "knowingly" to "intentionally, knowingly, or recklessly." This would allow SBEC to discipline educators for misappropriation when the educator was reckless in book-keeping or in how the educator kept the money or property, as well as when the educator acted intentionally or knowingly to divert the money or property.
The proposed amendment to §247.2(1)(K) would change the level of intent required to prove that an educator violated the Educators' Code of Ethics by misrepresenting personal history when applying for employment to include educators who act recklessly. The change is intended to inspire educators to take extra care in the information they provide school districts and to allow SBEC to discipline educators who make such misrepresentations even when there is insufficient evidence that the educator acted knowingly or intentionally.
The proposed change to §247.2(1)(L) would revise the wording of the prohibition on educators illegally using, distributing, or abusing drugs to make it clearer and more enforceable. The changes are not intended to significantly alter the meaning of the provision.
The proposed amendment would strike §247.2(1)(N), which currently prohibits an educator from assisting another educator in getting a new job as an educator or any position in a school if the educator knows that the job-seeker engaged in sexual misconduct with a student or minor. This provision was initially adopted to implement the ESSA, 20 USC, §7926. TEA received feedback from stakeholders who felt that 19 TAC Chapter 249 was a more appropriate location for educator disciplinary rules that reiterate or implement separate statutory authority and that the Educators' Code of Ethics should be reserved for ethical requirements that were not otherwise reflected in the law. To that end, the language of this provision is simultaneously being proposed for inclusion in 19 TAC §249.15, Disciplinary Action by State Board for Educator Certification, in a separate item in this agenda.
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 that there is no additional fiscal impact on state and local governments and there are no additional costs to entities required to comply with the proposed amendments. 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 (TGC), §2006.002, is required. There is no effect on local economy; therefore, no local employment impact statement is required under TGC, §2001.022. The proposed amendments do not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, are not subject to TGC, §2001.0045.
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, it would create a new regulation making educators subject to discipline by the SBEC for intentionally or knowingly engaging in sexual harassment of another educator. In addition, the proposed rulemaking would not expand, limit, or repeal an existing regulation, except by striking the provision that prohibits an educator from assisting another educator in getting a job if the job-seeker is known to have engaged in sexual misconduct with a minor, but that provision is proposed to be added to 19 TAC Chapter 249.
The proposed rulemaking would not create or eliminate a government program, would not require the creation of new employee positions or the 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 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 public and student benefit anticipated as a result of the proposed amendments would be to allow SBEC more effective and efficient enforcement of its Educators' Code of Ethics, to clarify the meaning of terms in the Educators' Code of Ethics, to clarify the purpose of the Educators' Code of Ethics, to protect educators from sexual harassment by other educators, and to further deter educators from misappropriating assets or misrepresenting themselves on job applications. The proposed amendments do not impose a cost on persons required to comply with the rules.
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 is shared with the SBOE under separate cover prior to this SBOE meeting.
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 247, Educators' Code of Ethics, with an effective date of 20 days after filing the adoption notice with the Texas Register.
Staff Members Responsible:
Ryan Franklin, Associate Commissioner
Educator Leadership and Quality
Laura Moriaty, Director
Legal Services for Educator Leadership and Quality
Attachment I: Statutory Citations
Attachment II: Text of Proposed Amendments to 19 TAC Chapter 247, Educators' Code of Ethics