ATTACHMENT III
Summary of Public Comments and Agency Responses Related to Proposed Amendment to 19 TAC Chapter 102, Educational Programs, Subchapter FF, Commissioner's Rules Concerning Educator Award Programs, §102.1073, District Awards for Teacher Excellence
Comment: A teacher from Northeast Independent School District (ISD) commented that the way the system is now should stay in place and that the classroom/homeroom teacher is most responsible and accountable for student success.
Agency Response: The agency provides the following clarification. It is unclear if the "system" the commenter refers to is the single salary schedule, the commissioner's rule, or the awards program at Northeast ISD. The District Awards for Teacher Excellence (DATE) program is a supplement to the single salary schedule, so the system is maintained in that sense. The commissioner's rule as written does not distinguish between specialists and homeroom teachers, which is a detail within the scope of the district pay-for-performance plan but not within the scope of the commissioner's rule.
Comment: A teacher from Northeast ISD commented that TEA should retain pay-for-performance plans.
Agency Response: The agency agrees.
Comment: An administrator from Cypress-Fairbanks ISD asked when the changes would take effect, if it were already possible for principals to receive awards under Part I, and about future funding for DATE.
Agency Response: The agency provides the following clarification. The changes to the DATE program will take effect June 2010, the effective date of the adopted amendment to 19 TAC §102.1073. In Year 1, only Part II funds could be used for principal awards. In Year 2, Part I and/or Part II funds may be used for principals, limited to $10,000. The grant amount appropriated to the TEA for the DATE program for fiscal years 2010 and 2011 is $196.5 million each year. Funding for future years is contingent on legislative appropriations for this purpose.
Comment: An administrator from Austin ISD asked when the new rule changes would take effect and how the new rule changes would affect Cycle 1 districts.
Agency Response: The agency provides the following clarification. The changes to the DATE program will take effect June 2010, the effective date of the adopted amendment to 19 TAC §102.1073. Cycle 1 districts have the ability to amend their applications to take advantage of the new opportunities provided by the new rule changes.
Comment: An administrator from Pasadena ISD asked if the changes to the commissioner's rule will apply to districts currently participating in the DATE program.
Agency Response: The agency provides the following clarification. The amended rule will apply to all districts participating in the DATE program.
Comment: A teacher from Northeast ISD commented that the current method for calculating DATE award allocation is unfair and detrimental to the relationships of the staff because some types of teachers are eligible for larger awards than others, although all work hard.
Agency Response: The agency disagrees. The commissioner's rule gives districts significant latitude in designing their plans, and decisions to include or exclude staff and the levels of awards offered to staff are fundamentally district decisions. External evaluators of Texas' pay-for-performance initiatives have detected little negative impact on school culture from differential pay.
Comment: A librarian from Northeast ISD commented that she felt demoralized because she was eligible for a smaller award than Texas Assessment of Knowledge and Skills (TAKS) grade level classroom teachers, and this inequity was detrimental to the school.
Agency Response: The agency provides the following clarification. The commissioner's rule gives districts significant latitude in designing their plans, and decisions to include or exclude staff and the levels of awards offered to staff are fundamentally district decisions. In using the term "equity" rather than equality, the commenter implies a proportional reward based on some criteria rather than giving all educators the same award. This is a difficult decision, and the commissioner's rule gives districts significant latitude to try to address equity.
Comment: A special education teacher from Northeast ISD commented that she felt slighted for not being eligible for a performance award like a core subject teacher. She also commented that she worked harder than physical education or art teachers yet got paid the same.
Agency Response: The agency provides the following clarification. The commissioner's rule gives districts significant latitude in designing their plans, and decisions to include or exclude staff and the levels of awards offered to staff are fundamentally district decisions.
Comment: A teacher from Northeast ISD commented that it was impossible to compare student performance between teachers because the students were so different, and that since it is impossible to fairly compare performance, there should be no incentive payments.
Agency Response: The agency disagrees. The commissioner's rule allows districts significant latitude to design incentive pay programs that suit local conditions. Part of the purpose of the DATE grant program is to encourage experimentation so that different districts developing different plans may find better ways of being fair that may be emulated by other districts. If a district's local awards plan is not fair, the commissioner's rule provides teachers of that district the opportunity to amend the plan.
Comment: An administrator from Birdville ISD commented that it may be advisable to have a group meeting to discuss all the changes.
Agency Response: The agency agrees. Districts should specifically point out changes from previous years' plan(s) as part of the overall orientation provided to participants for the current year's plan.
Comment: The Texas Classroom Teachers Association (TCTA) asked, in general, why changes were being made to the commissioner's rule.
Agency Response: The agency provides the following clarification. Incentive award systems are new and developing, so the commissioner's rule was revised to address perceived needs and goals as well as legislative mandates. Part II funds allow districts to provide supportive infrastructure for teachers. Standards are locally established with significant teacher input. These locally-selected standards must be objective, quantifiable, and meaningful, and they must drive progress in student achievement.
Comment: The TCTA commented that the proposed rule expands the term "award" beyond just monetary to include other possible tangible awards such as equipment, professional development, and travel. The TCTA noted that non-monetary tangible awards are not easily quantifiably valued, whereas money is. The TCTA commented regarding the ability to provide non-monetary awards, referencing the current Frequently Asked Questions on the TEA website. The TCTA also noted that whether a non-monetary tangible award is valuable is much more likely to be in the eyes of the beholder, whereas money is universally viewed as valuable. The TCTA asked why awards would not be restricted to money since monetary awards can always be used to purchase these other tangible awards. The TCTA commented that HB 3646 did add principals as potential DATE Part I award recipients, noting that districts might give monetary awards to principals and professional development to teachers. The TCTA questioned the impetus behind this change.
Agency Response: The agency provides the following clarification. The request for expanding the notion of award from money to other tangible awards came from districts that wanted the flexibility to support systems of awards. Incentive award systems are new and developing, so the commissioner's rule was revised to address perceived needs and goals as well as legislative mandates.
The agency disagrees that non-monetary tangible awards are not as valuable as monetary awards. In an open market the monetary value of most goods and services are commonly known, and goods and services are exchanged for money regularly, indicating they are interchangeable and their value is quantifiable. While it is impossible to resolve the relative value of money and other goods in the eye of the beholder, the purpose of the DATE program is to provide incentives for teachers. The agency agrees that money often can be used to procure valuable goods and services, but has determined that districts should be given the flexibility to provide non-monetary awards.
The agency agrees with providing clarification for district allocation of awards and has modified the definition for awards in subsection (b)(1). The scenario in which districts give money to principals and non-monetary awards to teachers is possible, but it would likely require the consent of the teachers on the district planning committee. Because of potential conflict with how Part I and Part II funds should be allocated, professional development was deleted from the list of alternative awards described in subsection (b)(1).
Comment: The TCTA commented that limiting the definition of "meaningful, objective measures" to solely "quantifiable measures" was contrary to statute and legislative intent. The TCTA noted that the term "quantifiable" means "expressible as a quantity or relating to or susceptible of measurement," and that proposed §102.1073(b)(7) should be changed to define meaningful, objective performance measures as "qualitative measures such as evaluations of student projects, exhibits or portfolios and/or quantifiable measures such as assessments, student attendance, enrollment in advanced classes, and graduation rates." Further, the TCTA asked that the phrase "are measured and reported in the same way for every campus/school district and in the same way from year to year" in proposed subsection (b)(7) be deleted.
Agency Response: The agency disagrees. The term "quantifiable" is not a new amendment to §102.1073(b)(7) and even qualitative measures are quantifiable with instruments such as a Likert Scale, which measures qualitative characteristics in quantifiable terms. Additionally, consistent standards of measurement from year to year enable districts to measure and communicate improvement.
Comment: An administrator from Houston ISD commented that the definition of principal, which requires a principal's certificate, may exclude charter school principals.
Agency Response: The agency agrees and has modified the definition for principal in subsection (b)(10) to include the lead campus administration officer at a charter school.
Comment: The TCTA commented regarding proposed §102.1073(e)(2)(A) that the "official" district-level planning and decision-making committees are the recognized entities for employee input into school/district matters, and that the proposed rule should require that it is only the statutorily-created district-level planning and decision-making committee that is charged with developing the incentive plans. The TCTA alternatively proposed that two-thirds of the elected professional staff representatives on the committee must be classroom teachers.
Agency Response: The agency disagrees. The TCTA appears to refer to the TEC, §11.251(e), relating to the planning and decision-making process. However, the relevant statutory reference is the TEC, §21.704(a), relating to local awards plans, which states, in part, "A district-level committee for a school district that intends to participate in the program, such as the district-level planning and decision-making committee established under Subchapter F, Chapter 11, shall develop a local awards plan for the district." While the TEC, §21.704(a), offers the district-level planning and decision-making committee as an example of a group that might develop the local awards plan, it does not require that this group do that work, or that the group that does the work mimic the committee. Without the language proposed in §102.1073(e)(2)(A), the committee could consist of any group of individuals. As the TCTA noted, the change ensures a majority of campus-level professionals are on the committee. This complies with the intent of the statute expressed in the TEC, §21.705, providing award payments for campus employees. The TCTA's proposed change is narrower than the statute, and it may force a very difficult task onto the committee.
Comment: The TCTA and the Texas American Federation of Teachers (AFT) commented that the proposed rule strikes current language that a local awards plan must be submitted with evidence of the campus majority vote for selected campuses and an assurance of the vote from the school district superintendent as required by the TEC, §21.704(a). The TCTA and Texas AFT requested that the rule language be reinstated.
Agency Response: The agency agrees and has modified subsection (e)(2)(B) and (D)(i) and (ii) to restore language requiring a campus majority vote for participation of selected campuses in incentive award programs.
Comment: The TCTA commented that proposed §102.1073(e)(2)(C) did not adequately ensure that teachers and principals eligible to receive awards under the plan received prior notification of the specific criteria and any formulas on which the awards will be based. The TCTA further advocated for language stating that any formulas for awards computation must be understandable.
Agency Response: The agency partially agrees and has modified §102.1073(e)(2)(F) to specify that award amount methodology must be made available to staff before the beginning of the period on which the awards will be based. The agency has determined that additional language relating to computation formulas is not needed because resources that enable educators to understand the formulas for awards computation are available.
Comment: An administrator from Austin ISD asked why §102.1073(e)(2)(D) was removed and if the language was being replaced by different wording elsewhere in the rule.
Agency Response: The agency provides the following clarification. This phrase duplicated very similar language found in §102.1073(e)(2)(C). The language in subsection (e)(2)(C) ties awards for educators closely to the standards to which the educators are being held.
Comment: The TCTA commented that changes proposed in §102.1073(e)(2)(D) would deprive teachers of a voice in awards plans.
Agency Response: The agency disagrees. It is unclear if the TCTA is referring to subsection (e)(2)(D) proposed for deletion or proposed subsection (e)(2)(D), formerly subsection (e)(2)(E). Subsection (e)(2)(D) proposed for deletion, which referred to meaningful, objective measures of student performance, reflects very similar language found in §102.1073(e)(2)(C). Proposed subsection (e)(2)(D), formerly subsection (e)(2)(E), ensures districts focus their resources on high-needs schools. Language in neither subsection deprives teachers of a voice. In addition, language was restored in subsection (e)(2)(B) and (D)(i) and (ii) requiring a campus majority vote for participation of selected campuses in incentive award programs in response to public comment.
Comment: The TCTA expressed support for the new language that the local awards plan must establish that educators shall not be excluded from awards based on retirement status, but questioned the alignment of language between §102.1073(e)(2)(E) and §102.1073(h)(2).
Agency Response: The agency agrees and has modified §102.1073(e)(2)(E) and §102.1073(h)(2) in order to enhance clarity and avoid duplication.
Comment: An administrator from Northside ISD commented that teachers should not be excluded from awards consideration if they retired, but only if they retired at the end of the school year, not in the middle of the year.
Agency Response: The agency agrees and has modified subsections §102.1073(e)(2)(E) and §102.1073(h)(2) in order to enhance clarity and avoid duplication. Districts have a legitimate interest in retaining teachers in the classroom until the end of the year to provide continuity for the students.
Comment: The TCTA commented that removing the requirement for local school board approval of awards plans in §102.1073(e)(3) removes a necessary level of accountability and objected to the elimination of this requirement.
Agency Response: The agency disagrees. The deletion of the 15% matching requirement in §102.1073(g)(4) removed a significant financial burden from the districts along with the concomitant need for fiscal knowledge and approval by the school board. The overall requirements for creating an incentive plan under the commissioner's rule requires such a level of involvement and transparency (district committee, teacher vote, stakeholder meetings, superintendent approval, public posting, etc.) that it is unlikely that a district could implement a plan without school board knowledge. Removing the requirement in §102.1073(e)(3) for formal board approval streamlines the application process without diluting employee protections; however, the agency has reinstated language in §102.1073(e)(3) to clarify that district personnel must still follow local policies regarding submission of local awards plan and grant application to the agency.
Comment: The TCTA commented in support of the proposed elimination of §102.1073(e)(4) that had prohibited appeals to the commissioner regarding local school board decisions to approve and submit its local awards plan and grant application.
Agency Response: The agency disagrees and has reinstated language in §102.1073(e)(3) and (4) to clarify that the local awards plan and grant application must be submitted to the agency in compliance with local policies governing awards plans and grants.
Comment: The TCTA expressed concern with the proposed changes in subsection (f)(5) relating to forms of evidence of significant teacher involvement. The TCTA commented that striking the words "campus teacher" and "teacher" and only requiring evidence of campus involvement would be a problem, since teacher involvement and campus involvement do not necessarily mean the same thing.
Agency Response: The agency disagrees. The attendance sheets, meeting minutes, and other evidence provide the same evidence of compliance with statutory requirements. The intent and substance of subsection (f)(5) remain constant.
Comment: The TCTA objected to the phrase "Local decisions regarding award amounts are final and may not be appealed to the commissioner" in §102.1073(h)(3) and asserted that the commissioner could not limit his authority in this manner.
Agency Response: The agency disagrees. The TEA respects the ability, authority, and autonomy of local school districts. Removing the school board's role in this subsection has not changed the fundamental theme of respecting local autonomy. The TEC, §7.057(a)(2)(B), which appears to be the commenter's statutory reference, is not relevant because the grant program is not an employment contract and there is no question of monetary harm since the single salary schedule compensation is unaffected.
For additional information, email rules@tea.state.tx.us.