Review of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, and 19 TAC Chapter 247, Educators' Code of Ethics, §247.1, Purpose and Scope; Definitions
November 18, 2011
COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item provides the State Board of Education (SBOE) an opportunity to review the State Board for Educator Certification (SBEC) rule actions that would amend 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases, and 19 TAC Chapter 247, Educators' Code of Ethics, §247.1, Purpose and Scope; Definitions. The proposed amendments to 19 TAC Chapter 249 would update statutory and administrative rule references, as well as clarify and streamline the SBEC disciplinary procedures and standards. This item also proposes an amendment to 19 TAC §247.1 to ensure that the definitions are consistent with 19 TAC §249.3, Definitions.
STATUTORY AUTHORITY: The statutory authority for the proposed amendments to 19 TAC Chapter 249, Subchapter A, is the Texas Education Code (TEC), §§21.006(b-1) and (g); 21.007; 21.031(a); 21.035; 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; 22.087; and 57.491(g); Texas Government Code, §§411.087, 411.090, and 2001.058(f); Texas Family Code, §261.308(d) and (e) and §261.406(a) and (b); and Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052; for Subchapter B is the TEC, §§21.006(b-1) and (g); 21.007; 21.031(a); 21.035; 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; 22.087; and 57.491(g); Texas Government Code, §§411.087, 411.090, and 2001.058(f); Texas Family Code, §261.308(d) and (e) and §261.406(a) and (b); and Texas Occupations Code, §§53.021(a), 53.022-53.025, and 53.051; for Subchapter C is the TEC, §§21.031(a); 21.035; 21.040(6) and (7); and 21.041(a) and (b)(1) and (7); Texas Government Code, §2001.058(f); and Texas Occupations Code, §53.024 and §53.051; for Subchapter D is the TEC, §§21.031(a); 21.035; 21.040(6) and (7); and 21.041(a) and (b)(1) and (7); Texas Government Code, §2001.058(f); and Texas Occupations Code, §53.024 and §53.051; and for Subchapter E is the TEC, §§21.031(a); 21.035; 21.040(6) and (7); and 21.041(a) and (b)(1), (4), and (7); Texas Government Code, §2001.058(f); and Texas Occupations Code, §§53.021(a), 53.022-53.025, and 53.051. The statutory authority for the proposed amendment to 19 TAC §247.1 is the TEC, §21.041(b)(1), (7), and (8).
EFFECTIVE DATE: The proposed effective date of the amendments to 19 TAC Chapter 249 and §247.1 would be December 22, 2011.
PREVIOUS BOARD ACTION: None.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: The SBEC rules in 19 TAC Chapter 249 are organized as follows: Subchapter A, General Provisions; Subchapter B, Enforcement Actions and Guidelines; Subchapter C, Prehearing Matters; Subchapter D, Hearing Procedures; and Subchapter E, Posthearing Matters. These subchapters provide for rules that establish guidelines and procedures for conducting investigations and disciplinary actions relating to educator misconduct. Section 247.1, Purpose and Scope; Definitions, contains definitions for words, terms, and phrases used in 19 TAC Chapter 247, Educators' Code of Ethics.
The proposed amendments to 19 TAC Chapter 249, shown in Attachment II, would streamline SBEC disciplinary procedures and standards and reflect input from stakeholders at a meeting held on May 13, 2011, the SBEC and public testimony at the June 2011 and August 2011 meetings, and public comments received after publication of the proposal in the Texas Register. Throughout the proposed amendments there are also numerous changes made to clarify the language of the rules, to update statutory and rule references, and to better comply with Texas Register rule format. Therefore, amendments shown in Attachments II and III that are not discussed in the following are intended as non-substantive amendments made for one of these purposes. Following is a description of the proposed amendments to 19 TAC Chapter 249 and 19 TAC §247.1.
Since published as proposed, changes would be made to further clarify and enhance the provisions in Chapter 249 in response to public comments received.
Proposed Amendments to Subchapter A, General Provisions
Section 249.3
Section 249.3 would be restructured for consistency and readability. In §249.3(2), the definition of "administrative denial" would be reorganized for better clarity and amended to eliminate admission to an educator preparation program as a matter subject to the definition, since current SBEC rules do not provide for SBEC review of such admissions. The definition of "applicant" in §249.3(5) and the definition of "certificate" in §249.3(7) would be simplified for purposes of clarity. Since published as proposed, §249.3(12) would be amended to further clarify the definition of "complaint" with regard to the requirement of providing the complainant's name and contact information. The definition of "contested case" in §249.3(13) would be amended to clarify that it applies to all cases in which a petition pursuant to this chapter is served, whether or not, as in the case of a default proceeding, the case is referred to the State Office of Administrative Hearings (SOAH).
Since published as proposed, §249.3(14), would be further amended to restore the current definition of "conviction" that specifies that "deferred adjudication" is not a conviction. In addition, since published as proposed, proposed §249.3(15) would be amended to provide that a defendant's acceptance of deferred adjudication may be considered as provided by the Texas Occupations Code, §53.021. In §249.3(16), the definition of "disciplinary proceedings" would be amended to apply only to proceedings that result in a final order or finding. A definition of the term "expired" would be added as §249.3(21), and a definition of the term "inactive" would be added as §249.3(24) to clarify the distinction between those terms when used to describe certificate status.
In §249.3(23), the definition of "good moral character" would be amended to add a positive definition of the term to the existing description of crimes and acts that indicate an absence of good moral character, while reflecting the necessary discretion that must be exercised by the SBEC in determining whether or not an educator possesses good moral character. A definition for "permanent revocation" would be added as §249.3(33) to specify that this term applies to a revocation that excludes the opportunity to reapply at a later time for a new certificate.
In §249.3(36), the definition of "petitioner" would be amended by eliminating the list of parties to whom that term may apply. In §249.3(40), the definition of "quorum" would be amended to specify that a quorum may include non-voting as well as voting members. In §249.3(42), the definition of "reinstatement" would be amended to clarify the term, as used in this chapter, and that it applies only to a suspended certificate. Since published as proposed, proposed §249.3(43) would be amended to refine the definition for the term "reported criminal history" to further clarify one of the circumstances that requires superintendent reporting under §249.14(d). A definition for "restricted" would be added in §249.3(47) to describe the imposition of restrictions or conditions on a certificate. The definition for "sanction" would be amended in §249.3(49) to clarify that the term applies to disciplinary action taken by the SBEC. In §249.3(50), "serious state assessment testing violation" would be defined as involving educator dishonesty or the attempt to alter required state assessment scores.
The definition for "solicitation of a romantic relationship" that is currently in 19 TAC §249.14(m) would be amended and moved as §249.3(51) for purposes of clarity, completeness, and the elimination of redundancies. The amended definition would attempt to expressly exclude appropriate educator-student relationships while retaining the list of acts and behaviors that, when considered in context, may indicate inappropriate solicitation of a romantic relationship. Since published as proposed, §249.3(55) would be amended to clarify that a surrender must be accepted and incorporated in an SBEC order. In §249.3(59), the definition of "unworthy to instruct or supervise the youth of this state" would be amended to reflect that a determination of unworthy to instruct can serve as a basis, not only for sanctions, but also for administrative denial under
19 TAC §249.12. Since published as proposed, the definition of the term "warning letter" in proposed §249.3(61) would be deleted. The definition of "worthy to instruct or to supervise the youth of this state" in current §249.3(53) would be deleted since that term is defined in 19 TAC §247.1(e)(21) and is not used in 19 TAC Chapter 249.
Sections 249.4-249.10
Section 249.4 would be amended to clarify that a proceeding seeking sanctions against a certificate for testing violations pursuant to 19 TAC Chapter 101, Assessment, is subject to the provisions of 19 TAC Chapter 249. Section 249.7 and its title would be amended to reflect the fact that the SBEC does not maintain a seal. Section 249.10 would be amended to clarify the applicability of the rules of decorum and the imposition of sanctions for violations of those rules.
Proposed Amendments to Subchapter B, Enforcement Actions and Guidelines
Sections 249.11-249.13
Sections 249.11-249.13 would be restructured for consistency and readability. Section 249.11 would be amended to clarify the provisions regarding the notice to an examinee whose test scores have been canceled or who has been barred from registering for a test, the right of an examinee to appeal such action, time limits, and the requirements of an appeal petition.
Section 249.12(a) would be amended to reference the definition of "administrative denial" in §249.3 and to clarify that it does not apply to the failure to issue a certificate because specific certification requirements have not been met. In §249.12, the list of factual bases for an administrative denial in subsection (b) would be reorganized for greater clarity, while subsections (c) and (d) would be amended to clarify notice, response, and appeal procedures, as well as time limits and other requirements for an appeal.
Section 249.13 would be amended to specify the effective date of a certificate cancellation, as well as provisions regarding the notice of intent to cancel, the right to show cause why a certificate should not be canceled, and the right to appeal cancellation. The proposed amendment would also clarify that the appeal provisions in §249.12 with regard to notice, time limits, requirements of an appeal petition, and burden of proof apply to a cancellation appeal as if it were an administrative denial.
Section 249.14
Section 249.14 would be restructured for consistency and readability. Section 249.14(d) would be amended to specify that a superintendent may be subject to certificate sanctions for failure to comply with the reporting provisions of this section by adding (d)(3)(C) to comply with House Bill 1610, 82nd Texas Legislature, 2011. Since published as proposed, §249.14(d)(3)(C) would be amended to further clarify that a superintendent must complete an educator misconduct investigation even after the educator resigns, but only as to allegations that relate to student abuse or illegal conduct with a student. Section 249.14(e) would be amended to specify that the report a superintendent is required to make pursuant to the TEC, §21.006, regarding allegations of abuse or unlawful conduct by an educator, must include the name or names of any student or minor victim of such alleged conduct and to make reference to the federal regulations interpreting the Family Educational Rights and Privacy Act (FERPA) that exclude employee records from the definition of student education records subject to FERPA privacy provisions. Proposed §249.14(f) would be added to incorporate a new statutory reporting requirement for school boards that learn of a failure by a principal to provide the notice of student criminal history to staff that is required by the Texas Code of Criminal Procedure, §15.27(e). Current §249.14(f) would be re-ordered as proposed §249.14(g) and amended to add provisions regarding the effective date of separation from employment for purposes of a contract abandonment complaint to make the determination of the effective date more definite, to specify the documents that must be submitted as attachments to such a complaint, and to clarify that if a school board does not meet within the 30-day time limit for submitting a complaint, the required board minutes may be provided within 10 calendar days of the next board meeting. Proposed §249.14(g) would also be amended to incorporate the limitation of the TEC, §21.4021(g), on sanctions for contract abandonment after a furlough policy has been adopted by a school district. Current §249.14(g) would be re-ordered as proposed §249.14(h) and amended to clarify that Priority 2 conduct is conduct that is not included in Priority 1 that is sanctionable under SBEC rules. Since published as proposed, §249.14(h)(2) would be further amended to change the placement of the word "sanctionable." The current 249.14(g)(3) definition of "serious testing violation" would be deleted since it would be covered under the definition in §249.3(50). Current §249.14(m) would also be deleted since "solicitation of a romantic relationship" would be defined in §249.3(51).
Sections 249.15-249.17
Since published as proposed, proposed §249.15(b) would be deleted. As a result of deleting proposed §249.15(b), the remaining subsections would be re-lettered and cross references to §249.15 in §§249.3(59), 249.14(d), and 249.18(b)(2) would be amended. Current §249.15(b) would be amended to specify that failing to file a report required by §249.14(d) or (e), or willfully or recklessly failing to provide information required by other SBEC rule, including §229.3, Required Submissions of Information, Surveys, and Other Data, is a basis for educator certificate sanctions. Current §249.15(b) would also be amended to include specific reference to violation of assessment security and integrity as a ground for sanctions. Current §249.15(b)(7) would be re-ordered as proposed §249.15(b)(9) and amended to spell out the conduct described in §249.14(h)(1) that is a basis for educator certificate sanctions. The references to §249.12(b) and §249.16(b) would be deleted as unnecessary. Proposed new §249.15(b)(10) would be added to spell out conduct described in §249.16(b). Proposed new §249.15(b)(11) would be added to incorporate the Texas Code of Criminal Procedure, §15.27(a), which grants authority to the SBEC to sanction educators who intentionally fail to comply with the requirements of that subsection. Section 249.17(b) would be amended to add written SBEC disciplinary policies to the list of aids to construction and application of Chapter 249. Section 249.17(d)(5) would be amended to more clearly specify the drug offenses to which it applies.
Proposed Amendments to Subchapter C, Prehearing Matters
Section 249.18 and §249.24 would be amended to clarify that petitions and other documents are to be served on the TEA staff rather than filed, since there is no formal TEA filing or docketing system for such documents. Section 249.25 would be restructured for consistency and readability and to specify that pleadings may be amended at any time that does not unduly prejudice the opposing party. Section 249.26(b)(6) would be amended to emphasize the requirement to file an answer to a petition within 30 calendar days. Section 249.26(c) would be amended to clarify the address to which a petition authorized by 19 TAC Chapter 249 may be served. Section 249.27 would be amended to add an email address to the contact information to be included in an answer and would clarify that a legally insufficient answer may serve as a basis for a default judgment under any procedure authorized by Chapter 249.
Proposed Amendments to Subchapter D, Hearing Procedures
Section 249.30 would be restructured for consistency and readability. Section 249.30 would be amended to clarify the address to which a notice of hearing may be served, to provide that service to that address is legally sufficient, and to provide that service to any other possible address may be given by any means, including regular mail, facsimile, or email. Section 249.35 would be amended to clarify the procedures for prehearing and default dispositions of a contested case.
Proposed Amendments to Subchapter E, Posthearing Matters
Sections 249.36, 249.37, and 249.41-249.43 would be restructured for consistency and readability. Section 249.36 would be amended to clarify that a proposal for decision issued by an administrative law judge (ALJ) shall contain findings of fact and conclusions of law. Section 249.37 would be amended to provide that exceptions to a proposal for decision would be filed with the ALJ and served on the other party and are not required to be served on the SBEC. Filing deadlines for exceptions and replies would be amended to be consistent with the SOAH rules of procedure. Since published as proposed, proposed §249.37(a)(1) would be further amended to provide that service of exceptions and replies may be also made in any manner allowed by SOAH rules or by any means of electronic transmission that is agreed to by the parties. Section 249.39 would be amended to provide that a copy of the SBEC order or decision may be delivered to the SOAH by facsimile or email. In addition, language would be added to reflect current SBEC practice of authorizing the chair or other board officer to sign on behalf of the board, unless members of the majority adopting the decision or order exercise their discretion to sign the decision or order. Section 249.40 would be amended to provide that the TEA should be reimbursed for the costs of preparing a record for appeal on the same basis as the charges for providing public information pursuant to 1 TAC Chapter 70, Cost of Copies of Public Information.
Section 249.41 would be amended to eliminate a reference to retaining copies of a certificate subject to a non-inscribed reprimand that is no longer necessary since the educator's virtual certificate on the TEA website is the official record of certification. Since published as proposed, §249.41 would be further amended to restore the word "shall" in subsections (b)(1) and (d)(2) and to add the limitation "if known" in subsection (b)(3) in order to be consistent with §249.41(d)(2). Section 249.42 would be amended to eliminate the requirement of mailing a notice that an order of suspension, surrender, or revocation has become final, since the requirement to mail a copy of the order issued by the SBEC is sufficient, and to eliminate the general requirement of notice of such an order by mail to schools other than the school where the educator is known to be employed. Since published as proposed, §249.42(b) would be amended to clarify that §249.42 applies to surrenders as well as suspensions and revocations. Section 249.43 would be amended to eliminate the requirement of applying for a duplicate certificate and to specify new procedures for reinstating a suspended certificate. Section 249.44(b) would be amended to specify that a person reapplying for certification after denial, revocation, or surrender must be recommended for certification by an approved educator preparation program and must satisfy the same requirements for certification that are applicable to any other new applicant. Section 249.44(c) would also be amended to provide that permanent revocation, without opportunity to reapply for certification, may be ordered by the SBEC pursuant to §249.17(d) or otherwise as deemed appropriate.
Proposed Amendment to 19 TAC §247.1, Purpose and Scope; Definitions
This item also presents the proposed amendment to 19 TAC Chapter 247, Educators' Code of Ethics, §247.1, Purpose and Scope; Definitions, shown in Attachment III. The proposed amendment to 19 TAC §247.1(e) would make consistent the definitions of terms that are used in both 19 TAC Chapter 247 and 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases. In §247.1(e)(2), the definition of "applicant" would be simplified for purposes of clarity. Since published as proposed, §247.1(e)(4) would be amended to further clarify the definition of "complaint" with regard to the requirement of providing the complainant's name and contact information to be consistent with §249.3(12). The definition of "contested case" in §247.1(e)(5) would be amended to clarify that it applies to all cases in which a petition pursuant to this chapter is served, whether or not, as in the case of a default proceeding, the case is referred to the SOAH. In §247.1(e)(6), the definition of "disciplinary proceedings" would be amended to apply only to proceedings that result in a final order or finding. In §247.1(e)(9), the definition of "good moral character" would be amended to add a positive definition of the term to the existing description of crimes and acts that indicate an absence of good moral character, while reflecting the necessary discretion that must be exercised by the SBEC in determining whether or not an educator possesses good moral character. The definition for "sanction" would be amended in §247.1(e)(16) to clarify that the term applies to disciplinary action taken by the SBEC. The reference to "unworthy to instruct" in §247.1(e)(21) would be deleted as unnecessary.
SBOE Review of Proposed SBEC Rules
Under 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.
FISCAL IMPACT: The TEA staff have determined that 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 benefit anticipated as a result of the proposed amendments would be updated definitions and streamlined procedures for prosecuting disciplinary cases, allowing for a more efficient resolution of contested disciplinary cases that is consistent with constitutional due process requirements.
PROCEDURAL AND REPORTING IMPLICATIONS: The proposed amendments would have no procedural and reporting implications.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed amendments would have no locally maintained paperwork requirements.
PUBLIC COMMENTS: In accordance with the SBEC rulemaking process, a summary of the public comments received by the SBEC on its proposed rules was shared with the SBOE in a separate mailing prior to this SBOE meeting.
ALTERNATIVES: None.
OTHER COMMENTS AND RELATED ISSUES: A stakeholder meeting was held on May 13, 2011, for the purpose of reviewing and seeking input related to the proposed amendments to 19 TAC Chapter 249. The stakeholders included representatives from school districts, educator preparation programs, professional associations, and TEA staff.
COMMISSIONER'S RECOMMENDATION: I recommend that the State Board of Education:
Take no action on the proposed amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases; and
Take no action on the proposed amendment to 19 TAC Chapter 247, Educators' Code of Ethics, §247.1, Purpose and Scope; Definitions.
Respectfully submitted,
Robert Scott
Commissioner of Education
Staff Members Responsible:
Ann Smisko, Associate Commissioner
Educator Leadership and Quality
Merle Dover, Associate Deputy Counsel
Legal Services
Andrew Allen, Assistant Counsel
Legal Services
Attachments:
I. Statutory Citations
II. Text of Proposed Amendments to 19 TAC Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases
III. Text of Proposed Amendment to 19 TAC Chapter 247, Educators' Code of Ethics, §247.1, Purpose and Scope; Definitions