Discussion of Proposed Amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners

June 22, 2017

COMMITTEE ON SCHOOL INITIATIVES: DISCUSSION
STATE BOARD OF EDUCATION: NO ACTION

SUMMARY: This item provides the opportunity for the committee to discuss a proposed amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners. The proposed amendment would allow the commissioner of education to decline to recertify an independent hearing examiner even if a written complaint from an attorney has not been received, add a factor that the commissioner may consider in the decision whether to recertify, and specify that the commissioner can take action against an independent hearing examiner's certification for violating statutory requirements.

STATUTORY AUTHORITY: Texas Education Code (TEC), §21.252.

TEC, §21.252, requires the State Board of Education (SBOE), in consultation with the State Office of Administrative Hearings, by rule to establish criteria for certifying independent hearing examiners who conduct hearings under the TEC, Chapter 21, Subchapter F.

BOARD RESPONSE: This item is presented for review and comment.

PREVIOUS BOARD ACTION: The SBOE adopted 19 TAC §157.41 effective December 15, 1995, and last amended it effective March 17, 2012.

FUTURE ACTION EXPECTED: The proposed amendment to 19 TAC §157.41 would be presented for first reading and filing authorization at the September 2017 SBOE meeting.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: TEC, §21.252(a), requires the SBOE to establish certification criteria for independent hearing examiners. Section 157.41 specifies certification criteria such as license required, experience, continuing education, and annual recertification for independent hearing examiners. The examiners preside over due process hearings involving terminations, suspensions without pay, and nonrenewal of term employment contracts. The examiners also develop findings of fact and conclusions of law, which are referred to the school district board of trustees.

Currently, §157.41 specifies that the commissioner can decline to recertify an independent hearing examiner based on issues of the independent hearing examiner's quality of work only if a written complaint is received from an attorney. The proposed amendment would remove the requirement in subsection (k) that a written complaint from an attorney must be received and would specify that the commissioner, in the decision whether to recertify, may consider whether the examiner applies appropriate legal standards. The proposed amendment would also add a new subsection (l) stating that the commissioner can take action against an independent hearing examiner's certification for violating statutory requirements.

FISCAL IMPACT: The TEA does not anticipate any additional costs to persons or entities required to comply with the proposed amendment; however, fiscal implications will be assessed prior to first reading and filing authorization.

PUBLIC AND STUDENT BENEFIT: The proposed amendment would lead to a higher quality of work by independent hearing examiners.

PROCEDURAL AND REPORTING IMPLICATIONS: Procedural and reporting implications will be assessed prior to first reading and filing authorization. The proposed amendment would expand the agency's procedures for evaluating the quality of independent hearing examiners.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: Locally maintained paperwork requirements will be assessed prior to first reading and filing authorization.

PUBLIC COMMENTS: The official public comment period will begin when the proposal, approved for first reading and filing authorization by the SBOE, is published in the Texas Register.

ALTERNATIVES: None.

OTHER COMMENTS AND RELATED ISSUES: None.

Staff Members Responsible:
Von Byer, General Counsel
Legal Services

Christopher Maska, TEA Ethics Advisor
Legal Services

Attachments:
I.  Statutory Citation (PDF, 14KB)
II.  Text of Proposed Amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners (PDF, 27KB)