April 2016 Committee on School Initiatives Item 5

 Review of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification, and §249.17, Decision-Making Guidelines; and Subchapter D, Hearing Procedures, §249.35, Disposition Prior to Hearing; Default

April 8, 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 A, General Provisions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification, and §249.17, Decision-Making Guidelines; and Subchapter D, Hearing Procedures, §249.35, Disposition Prior to Hearing; Default. The proposed amendments to 19 TAC §§249.5, 249.15, 249.17, and 249.35 would create more specific penalty guidelines for Texas Education Agency (TEA) staff to follow in settling or prosecuting educator discipline cases. In addition, the proposed amendments would set out the process that the SBEC will use when the State Office of Administrative Hearings (SOAH) dismisses and remands a case in accordance with Texas Government Code, §2001.058(d-1), as amended by House Bill (HB) 2154, 84th Texas Legislature, Regular Session, 2015, after a respondent fails to appear for a contested case hearing.

STATUTORY AUTHORITY: The statutory authority for 19 TAC §§249.5, 249.15, 249.17, and 249.35 is Texas Education Code (TEC), §§21.006(b-1) and (g), as amended by HB 1783, 84th Texas Legislature, Regular Session, 2015; 21.007; 21.031(a); 21.035, as amended by HB 2205, 84th Texas Legislature, Regular Session, 2015; 21.040(6) and (7); 21.041(a) and (b)(1), (4), (7), and (8); 21.044(a); 21.058; 21.060; 21.105(c); 21.160(c); 21.210(c); 22.082; 22.0831; 22.085; 22.087, as amended by HB 1783, 84th Texas Legislature, Regular Session, 2015; and 57.491(g); Texas Government Code, §§411.087, as amended by Senate Bill (SB) 1902, 84th Texas Legislature, Regular Session, 2015; 411.090; and 2001.058(d-1) and (e), as amended by HB 2154, 84th Texas Legislature, Regular Session, 2015; Texas Family Code, §§261.308(d) and (e) and §261.406(a) and (b), as amended by SB 206, 84th Texas Legislature, Regular Session, 2015; and Texas Occupations Code, §§53.021(a), as amended by HB 2299, 84th Texas Legislature, Regular Session, 2015, effective January 1, 2017; 53.022-53.025; 53.051; and 53.052.

EFFECTIVE DATE:
The proposed effective date of the proposed amendments to 19 TAC §§249.5, 249.15, 249.17, and 249.35 would be May 15, 2016.

PREVIOUS BOARD ACTION:
None.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:
On March 27, 2015, the SBEC established a Committee on Educator Discipline (Committee), and on August 7, 2015, the SBEC charged the Committee with creating more specific penalty guidelines for TEA staff to follow in settling or prosecuting educator discipline cases. The Committee met on October 15, 2015, and developed recommendations for penalty guidance. The proposed amendments to 19 TAC §249.5 and §249.17 reflect the recommendations of the Committee on how to improve and clarify the SBEC's rules regarding penalties for certified educators subject to discipline.

The Committee met again on December 10, 2015, and recommended that the SBEC propose for publication in the Texas Register the proposed amendments to 19 TAC §§249.5, 249.15, 249.17, and 249.35.

The proposed amendment to 19 TAC §249.5 would allow the SBEC to impose higher sanctions for certified administrators subject to discipline than for teachers and paraprofessionals because administrators have, as a result of their positions of authority over both students and other educators, an even greater obligation to maintain good moral character than teachers and paraprofessionals.

The proposed amendment to 19 TAC §249.15 would allow the SBEC a clearer and more efficient means to discipline educators who violate SBEC disciplinary orders.

The proposed amendment to 19 TAC §249.17 would clarify the factors that the SBEC considers as mitigating or enhancing factors in making sanctioning decisions for educators subject to discipline; set minimum sanctions for contract abandonment, felony-level conduct, misdemeanor-level conduct, and test security violations to achieve more consistency in sanctions; and clarify the factors that SBEC considers as good cause for contract abandonment.

With regard to contract abandonment, if an educator has worked at a school district after abandoning a contract at another school district, the educator's suspension would begin at the start of the next school year so as to neither harm the students the educator is instructing nor to allow the educator to use summer months to count as suspension time.

For educators who have not worked as educators while on felony community supervision or deferred adjudication, the suspension sanction in an agreed settlement order would run concurrently with the period the individual is on felony community supervision or deferred adjudication, because an educator on felony community supervision or deferred adjudication is not an appropriate role model worthy to instruct the students of Texas. For individuals who continue to work while on felony community supervision or deferred adjudication, the period of the suspension sanction in an agreed settlement order would be equal to the court-ordered term of felony community supervision or deferred adjudication, but would begin from the effective date of the agreed order so that the educator serves the same length of suspension as for an individual who had not worked as an educator while on felony community supervision or deferred adjudication.

If the educator has completed felony community supervision or deferred adjudication before the SBEC disciplines the educator, the educator's suspension sanction in an agreed final order would be at least half as long as the initial court-ordered term of felony community supervision or deferred adjudication to prevent inequities that could be caused by the length of time required for the SBEC disciplinary process to run its course, while still requiring the educator to serve a suspension as a deterrent punishment for the educator's misconduct.

In accordance with Texas Government Code, §2001.058(d-1), as amended by HB 2154, 84th Texas Legislature, Regular Session, 2015, the proposed amendment to 19 TAC §249.35 would allow an administrative law judge to dismiss and remand a contested case to the SBEC without issuing a proposal for decision when a licensee defaults by failing to appear at a contested case hearing before the SOAH. The proposed amendment would create procedures for the SBEC to issue a default order in such situations.

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 rules by a vote of at least two-thirds of the members of the SBOE present and voting, but may not modify a rule. The rules take effect as rules of the SBEC if the SBOE fails to review the rules contained in this item by April 14, 2016, which is the 90th day after the date the SBOE first received the proposed rules.

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.

PUBLIC AND STUDENT BENEFIT:
The public and student benefit anticipated as a result of the proposed amendments to 19 TAC §§249.5, 249.15, 249.17, and 249.35 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 will be 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 A, General Provisions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification, and §249.17, Decision-Making Guidelines; and Subchapter D, Hearing Procedures, §249.35, Disposition Prior to Hearing; Default.

Staff Members Responsible:
Ryan Franklin, Associate Commissioner
Educator Leadership and Quality

Laura Moriaty, Director
Legal Services for Educator Leadership and Quality

Attachments:

I. Statutory Citations (PDF, 64KB)
II. Text of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.5, Purpose; Policy Governing Disciplinary Proceedings; Subchapter B, Enforcement Actions and Guidelines, §249.15, Disciplinary Action by State Board for Educator Certification, and §249.17, Decision-Making Guidelines; and Subchapter D, Hearing Procedures, §249.35, Disposition Prior to Hearing; Default (PDF, 65KB)