Review of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.3, Definitions, Subchapter B, Enforcement Actions and Guidelines, §249.12, Administrative Denial; Appeal, §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition, §249.15, Disciplinary Action by State Board for Educator Certification, §249.17, Decision-Making Guidelines, and Subchapter D, Hearing Procedures, §249.35, Disposition Prior to Hearing; Default 

February 2, 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 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, §249.3, Definitions, Subchapter B, Enforcement Actions and Guidelines, §249.12, Administrative Denial; Appeal, §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition, §249.15, Disciplinary Action by State Board for Educator Certification, §249.17, Decision-Making Guidelines, and Subchapter D, Hearing Procedures, §249.35, Disposition Prior to Hearing; Default. The proposed amendments would implement the statutory requirements of Senate Bill (SB) 7, 85th Texas Legislature, Regular Session, 2017; set minimum sanctions for administrators who fail to report educator misconduct; clarify the reasons for which the SBEC can deny a certificate to an applicant; require reporting administrators to provide additional factual details in educator misconduct reports; and clarify the law that applies when educators default after failing to answer a petition.

STATUTORY AUTHORITY: The statutory authority for 19 TAC §§249.3, 249.12, 249.14, 249.15, 249.17, and 249.35 is the Texas Education Code (TEC), §§21.006, as amended by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017; §§21.007; 21.009, as added by SB 7; 21.031(a); 21.035; 21.041; 21.044; 21.058, as amended by SB 7; §21.0581, as added by SB 7; 21.060; 21.105(c); 21.160(c); 21.210(c); 22.085; 22.087; and 57.491(g); Texas Government Code, §§2001.058; Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052; and Texas Penal Code, §21.12(a), as amended by SB 7.

TEC, §21.006, as amended by SB 7, 85th Texas Legislature, Regular Session, 2017, requires superintendents or directors of school districts, districts of innovation, open-enrollment charter schools, regional education service centers, or shared services arrangements to report to the SBEC within seven business days of when the superintendent or director knows that an educator has a criminal record or has been terminated or resigned when there is evidence that the educator has committed certain misconduct; requires principals to report to superintendents or directors within seven business days of an educator's termination or resignation when there is evidence that the educator has committed certain misconduct or knew about an educator's criminal record; gives the SBEC authority to sanction certified educators who fail to fulfill the reporting requirements timely, including administrative penalties of $500-$10,000; gives the SBEC authority to revoke the certificate of an administrator who employs an applicant in a certified position at a school despite knowing the educator has been adjudicated for or convicted of having an inappropriate relationship with a minor; and requires the SBEC to adopt rules to require the reporting of educator misconduct and to sanction educators who fail to 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, and allows the SBEC to determine what types of misconduct would present such a risk.

TEC, §21.009, as added by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, 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, §21.044, requires the SBEC to propose rules establishing training requirements a person must accomplish to obtain a certificate.

TEC, §21.058, as amended by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, requires SBEC to revoke an educator's certificate if the educator is required to register as a sex offender or is convicted of certain felony offenses and the victim of the offense was under 18 years old.

TEC, §21.0581, as added by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, allows the SBEC to suspend, revoke, or refuse to issue an educator's certificate if the person has assisted another person in obtaining employment at a school district or charter school when the person knew that the other person had previously engaged in sexual misconduct with a minor or student in violation of the law.

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 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 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 revisions to 19 TAC Chapter 245 would be March 8, 2018.

PREVIOUS BOARD ACTION: None.

BACKGROUND INFORMATION AND JUSTIFICATION: SB 7, 85th Texas Legislature, Regular Session, 2017, effective September 1, 2017, makes significant changes to administrator reporting requirements and reporting enforcement regarding educator misconduct, requiring amendments to 19 TAC §§249.3, 249.12, 249.14, 249.15, and 249.17.

SB 7 creates a new requirement that principals report to their superintendents or directors within seven business days of an educator's resignation following an incident of certain misconduct or of when the principal knew of the educator's criminal record. SB 7 clarifies that superintendents must report to the SBEC within seven business days after receiving a report from a principal or within seven business days of when the superintendent or director knew about an educator's criminal record or resignation or termination following an alleged incident of misconduct. SB 7 creates new authority for the SBEC to issue administrative penalties between $500-$10,000 for superintendents, directors, and principals that fail to report educator misconduct. The proposed amendments to §§249.14(d)-(f), 249.15(a)(6), and 249.17(j) would implement these legislative requirements.

As part of implementing SB 7, the proposed amendments include minimum penalties for administrators who fail to report educator misconduct but sign agreed orders without proceeding to a contested case hearing. The proposed amendments create lower minimum penalties for principals who fail to report to superintendents than for superintendents who fail to report to the SBEC. The variation in penalties reflects the difference in reporting obligations under TEC, §21.006, as amended by SB 7, which requires superintendents to report only when they know of misconduct but requires principals to report within seven business days regardless of when they discover the misconduct. It also reflects the greater responsibility superintendents have, as a result of their positions of authority over principals and teachers, to ensure a safe educational environment for students where there is no tolerance for educator misconduct.

SB 7 also gives the SBEC explicit authority to suspend, revoke, or refuse to issue a certificate of a person who has assisted another person in obtaining employment at a school when the person knew that the other person had previously engaged in sexual misconduct with a minor or student in violation of the law and to revoke the certificate of an administrator who employed an applicant when the administrator knew that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a minor. The proposed amendments to §249.3 and §249.15(b) would implement these legislative requirements.

Additionally, the proposed amendment to 19 TAC §249.12(b) is necessary to clarify the reasons for which the SBEC can deny certification to an applicant, including when the applicant has committed an act that would make them subject to required revocation under TEC, §21.058, and when the applicant has committed an act that would make them subject to mandatory permanent revocation or denial under 19 TAC §249.17(i). In response to public comment, TEA staff recommends modifying §249.12(b)(2), at adoption, to strike the word "permanent" to remove any differentiation between temporary and permanent employment.

The proposed amendment to 19 TAC §249.14(f) would increase the factual details that administrators are required to provide when reporting educators to the SBEC for misconduct to include the current employment status of the subject and any involvement by a law enforcement or other agency. This information would give the Educator Investigations Division additional information to allow for more efficient investigations.

The proposed amendment to 19 TAC §249.35(f) clarifies that the SBEC will enter final orders on defaults that occur either under Texas Government Code, §2001.056, or 1 TAC, Part 7, §155.501. The use of "and" had led to confusion regarding which code provisions applied to defaults that resulted from an educator failing to answer a petition prior to the contested case being set for hearing before the State Office of Administrative Hearings.

The proposed amendments would also remove redundancies and include technical edits to conform with Texas Register 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: Texas Education Agency (TEA) staff has determined that the proposed amendments would not create foreseeable additional cost to state or local government or a foreseeable reduction in cost to local government, but may create a slight reduction in costs to state government from efficiencies that could come as a result of the clearer and more enforceable rules. There will be an extremely small increase in revenue to the state estimated at $7,000 each year for Fiscal Year (FY) 2018 through FY 2022 as a result of implementing the administrative penalties as sanctions on principals and superintendents who fail to report educator misconduct. This estimate is based on the small number of superintendents whom the SBEC currently sanctions for failure to report, which averages to less than one per year. There will be no increase in revenue to local government.

There will be a cost of $500-$10,000 each to principals, superintendents, and directors who fail to report educator misconduct timely and become subject to administrative penalties under the proposed amendments to 19 TAC §249.15(a)(6) and §249.17(j). The potential cost to persons who fail to properly comply with the law is estimated at $7,000 each year for FY 2018 through FY 2022. This estimate is based on the small number of superintendents whom the SBEC currently sanctions for failure to report, which averages to one per year.

There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; 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. TEA staff has determined that the proposed amendments could impose an indirect cost on regulated persons, if a person subject to the law fails to comply. However, the proposed amendments are exempt from Texas Government Code, §2001.0045, as provided under this statute, because the amendments are necessary to implement SB 7.

PUBLIC AND STUDENT BENEFIT: The public benefit anticipated as a result of the proposed amendments would be fewer educators who go from one school district to another without being reported for having inappropriate relationships with students or minors. An additional benefit is that there are fewer opportunities for individuals to become certified educators if they have been required to register as sex offenders or have committed misconduct that would result in permanent revocation if they were certified educators.

PROCEDURAL AND REPORTING IMPLICATIONS: SB 7 creates additional reporting responsibilities for principals, who must report educator misconduct to superintendents. SB 7 does not change the requirements with respect to who reports to the SBEC or when reporting to the SBEC is required. The proposed amendments change the information that a superintendent is required to report to the SBEC when making a report, but this change should not impose a significant additional burden on reporting superintendents.

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, Subchapter B, Enforcement Actions and Guidelines, §249.12, Administrative Denial; Appeal, §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition, §249.15, Disciplinary Action by State Board for Educator Certification, §249.17, Decision-Making Guidelines, and Subchapter D, Hearing Procedures, §249.35, Disposition Prior to Hearing; Default, 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

Attachments:
I. Statutory Citations (PDF, 74KB)
II. Text of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, Subchapter A, General Provisions, §249.3, Definitions, Subchapter B, Enforcement Actions and Guidelines, §249.12, Administrative Denial; Appeal, §249.14, Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition, §249.15, Disciplinary Action by State Board for Educator Certification, §249.17, Decision-Making Guidelines, and Subchapter D, Hearing Procedures, §249.35, Disposition Prior to Hearing; Default (PDF, 135KB)