September 2018 Committee on School Initiatives Item 4
Review of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.3, Definitions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; and Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification
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 Texas Administrative Code (TAC) Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, and Subchapter B, Enforcement Actions and Guidelines. The proposed amendments to 19 TAC §§249.3, Definitions, 249.5, Purpose; Policy Governing Disciplinary Proceedings, and 249.15, Disciplinary Action by State Board for Educator Certification, would add language creating a legal presumption based on an educator's violation of written directives from school administrators regarding the educator's behavior toward a student. This presumption would be included in the definition of "solicitation of a romantic relationship," and in the rules that define and address the term "unworthy to instruct or to supervise the youth of this state." The proposed amendments also would add the existing prohibition on assisting an educator with getting a new job when the educator had an inappropriate relationship with a student or minor to the list of reasons the SBEC can take disciplinary action. This provision is intended to comply with both the Every Student Succeeds Act (ESSA), 20 United States Code (USC), §7926, and Texas Education Code (TEC), §21.009(e), and proposed to be stricken from 19 TAC Chapter 247, Educators' Code of Ethics.
STATUTORY AUTHORITY: The statutory authority for the proposed amendments to 19 TAC §§249.3, 249.5, and 249.15, is the TEC, §§21.009, 21.031(a), 21.035, 21.041, and 21.060; and ESSA, 20 USC, §7926.
TEC, §21.009, states that the SBEC may revoke the certificate of an administrator if the board determines it is reasonable to believe that the administrator employed an applicant despite being aware that 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 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, authorizes the SBEC to adopt rules as necessary to regulate educators, administer statutory requirements, and provide for educator disciplinary proceedings.
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.
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.
EFFECTIVE DATE: The proposed effective date of the proposed amendments to 19 TAC §§249.3, 249.5, and 249.15 would be October 21, 2018.
PREVIOUS BOARD ACTION: None.
BACKGROUND INFORMATION AND JUSTIFICATION: In many cases involving an educator's solicitation of a romantic relationship with a student, an educator's violation of educator-student relationship boundaries, or an educator's violence toward or inappropriate discipline of students, the evidence in the cases shows that the educator has violated a written directive from a supervising administrator regarding the educator's inappropriate behavior toward a student. This evidence is important because it shows that the educator was warned, that the behavior toward students was inappropriate, and that the educator was either unable or unwilling to stop the inappropriate behavior. The existence of such evidence shows that the educator did not make a one-time mistake, misestimation, or miscommunication, and thereby proves that the educator's conduct was serious and intentional. To ensure that the State Office of Administrative Hearings understands the importance of this sort of evidence and to make the disciplinary consequences of violating a written directive regarding behavior toward students more predictable for educators, the proposed amendments contain several provisions regarding such directives.
Section 249.3, Definitions, lists acts in paragraph (51)(A)-(K) that may constitute prima facie evidence of solicitation by an educator of a romantic relationship with a student. The proposed amendment to §249.3 would add to the list of acts, as a new subparagraph (J), the act of violating written directives from school administrators regarding the educator's behavior toward a student. The proposed amendment would reletter existing subparagraphs, respectively.
The proposed amendment to §249.3 would also add language in paragraph (60) to the definition of the term "unworthy to instruct or to supervise the youth of this state" that would create a rebuttable presumption that an educator who violates written directives from school administrators regarding the educator's behavior toward a student is unworthy to instruct or to supervise the youth of this state.
The proposed amendment to §249.5, Purpose; Policy Governing Disciplinary Proceedings, would add in subsection (b)(2)(E) the same rebuttable presumption to the general principle listed in subsection (b) to further explain the concept of "unworthy to instruct or supervise the youth of this state."
The proposed amendment to §249.15, Disciplinary Action by State Board for Educator Certification, would add a new paragraph (13) to include a provision that makes educators subject to discipline for helping another educator, school employee, or contractor obtain a new job when the educator knows that the job-seeker engaged in an inappropriate relationship with a student or minor. This provision currently exists in 19 TAC §247.2, Educators' Code of Ethics, where it was adopted to fulfill the requirements of the ESSA. Stakeholders subsequently suggested that the Educators' Code of Ethics should only include ethical standards that are not required by any other statute, while 19 TAC Chapter 249 should house the disciplinary rules that implement other sources of statutory authority. To that end, the provision, §247.2(1)(N), is proposed to be stricken from Chapter 247 and added to Chapter 249. The proposed language in §249.15(b)(13) would be amended to reflect the requirements of TEC, §21.009(e), which is similar to the ESSA but uses the term "inappropriate relationship" rather than "sexual misconduct." Subsequent paragraphs would be renumbered, respectively.
Technical edits were also made to comply with style and formatting requirements.
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, §2001.002. 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 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. While the proposed rulemaking appears to add a regulation prohibiting educators from assisting other educators in getting jobs if the job-seeker is known to have engaged in sexual misconduct with a minor, that provision already exists in 19 TAC Chapter 247 and is merely being moved to 19 TAC Chapter 249.
PUBLIC AND STUDENT BENEFIT: The public and student benefit anticipated as a result of the proposed amendments would be to ensure that educators who violate written directives from school administrators regarding the educator's behavior toward students are disciplined more consistently and predictably by the SBEC, and that the Educators' Code of Ethics regains its role as an independent ethical code separate and apart from the disciplinary rules that implement separate statutory authority. 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 reporting or procedural 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 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.3, Definitions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; and Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification, 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 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.3, Definitions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; and Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification
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 Texas Administrative Code (TAC) Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, and Subchapter B, Enforcement Actions and Guidelines. The proposed amendments to 19 TAC §§249.3, Definitions, 249.5, Purpose; Policy Governing Disciplinary Proceedings, and 249.15, Disciplinary Action by State Board for Educator Certification, would add language creating a legal presumption based on an educator's violation of written directives from school administrators regarding the educator's behavior toward a student. This presumption would be included in the definition of "solicitation of a romantic relationship," and in the rules that define and address the term "unworthy to instruct or to supervise the youth of this state." The proposed amendments also would add the existing prohibition on assisting an educator with getting a new job when the educator had an inappropriate relationship with a student or minor to the list of reasons the SBEC can take disciplinary action. This provision is intended to comply with both the Every Student Succeeds Act (ESSA), 20 United States Code (USC), §7926, and Texas Education Code (TEC), §21.009(e), and proposed to be stricken from 19 TAC Chapter 247, Educators' Code of Ethics.
STATUTORY AUTHORITY: The statutory authority for the proposed amendments to 19 TAC §§249.3, 249.5, and 249.15, is the TEC, §§21.009, 21.031(a), 21.035, 21.041, and 21.060; and ESSA, 20 USC, §7926.
TEC, §21.009, states that the SBEC may revoke the certificate of an administrator if the board determines it is reasonable to believe that the administrator employed an applicant despite being aware that 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 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, authorizes the SBEC to adopt rules as necessary to regulate educators, administer statutory requirements, and provide for educator disciplinary proceedings.
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.
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.
EFFECTIVE DATE: The proposed effective date of the proposed amendments to 19 TAC §§249.3, 249.5, and 249.15 would be October 21, 2018.
PREVIOUS BOARD ACTION: None.
BACKGROUND INFORMATION AND JUSTIFICATION: In many cases involving an educator's solicitation of a romantic relationship with a student, an educator's violation of educator-student relationship boundaries, or an educator's violence toward or inappropriate discipline of students, the evidence in the cases shows that the educator has violated a written directive from a supervising administrator regarding the educator's inappropriate behavior toward a student. This evidence is important because it shows that the educator was warned, that the behavior toward students was inappropriate, and that the educator was either unable or unwilling to stop the inappropriate behavior. The existence of such evidence shows that the educator did not make a one-time mistake, misestimation, or miscommunication, and thereby proves that the educator's conduct was serious and intentional. To ensure that the State Office of Administrative Hearings understands the importance of this sort of evidence and to make the disciplinary consequences of violating a written directive regarding behavior toward students more predictable for educators, the proposed amendments contain several provisions regarding such directives.
Section 249.3, Definitions, lists acts in paragraph (51)(A)-(K) that may constitute prima facie evidence of solicitation by an educator of a romantic relationship with a student. The proposed amendment to §249.3 would add to the list of acts, as a new subparagraph (J), the act of violating written directives from school administrators regarding the educator's behavior toward a student. The proposed amendment would reletter existing subparagraphs, respectively.
The proposed amendment to §249.3 would also add language in paragraph (60) to the definition of the term "unworthy to instruct or to supervise the youth of this state" that would create a rebuttable presumption that an educator who violates written directives from school administrators regarding the educator's behavior toward a student is unworthy to instruct or to supervise the youth of this state.
The proposed amendment to §249.5, Purpose; Policy Governing Disciplinary Proceedings, would add in subsection (b)(2)(E) the same rebuttable presumption to the general principle listed in subsection (b) to further explain the concept of "unworthy to instruct or supervise the youth of this state."
The proposed amendment to §249.15, Disciplinary Action by State Board for Educator Certification, would add a new paragraph (13) to include a provision that makes educators subject to discipline for helping another educator, school employee, or contractor obtain a new job when the educator knows that the job-seeker engaged in an inappropriate relationship with a student or minor. This provision currently exists in 19 TAC §247.2, Educators' Code of Ethics, where it was adopted to fulfill the requirements of the ESSA. Stakeholders subsequently suggested that the Educators' Code of Ethics should only include ethical standards that are not required by any other statute, while 19 TAC Chapter 249 should house the disciplinary rules that implement other sources of statutory authority. To that end, the provision, §247.2(1)(N), is proposed to be stricken from Chapter 247 and added to Chapter 249. The proposed language in §249.15(b)(13) would be amended to reflect the requirements of TEC, §21.009(e), which is similar to the ESSA but uses the term "inappropriate relationship" rather than "sexual misconduct." Subsequent paragraphs would be renumbered, respectively.
Technical edits were also made to comply with style and formatting requirements.
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, §2001.002. 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 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. While the proposed rulemaking appears to add a regulation prohibiting educators from assisting other educators in getting jobs if the job-seeker is known to have engaged in sexual misconduct with a minor, that provision already exists in 19 TAC Chapter 247 and is merely being moved to 19 TAC Chapter 249.
PUBLIC AND STUDENT BENEFIT: The public and student benefit anticipated as a result of the proposed amendments would be to ensure that educators who violate written directives from school administrators regarding the educator's behavior toward students are disciplined more consistently and predictably by the SBEC, and that the Educators' Code of Ethics regains its role as an independent ethical code separate and apart from the disciplinary rules that implement separate statutory authority. 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 reporting or procedural 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 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.3, Definitions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; and Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification, 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 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.3, Definitions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; and Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification