Montana Administrative Register Notice 10-55-265 No. 6   03/28/2013    
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In the matter of the adoption of NEW RULE I and amendment of ARM 10.55.701, 10.55.704, 10.55.708, 10.55.804, and 10.55.906 relating to accreditation standards








TO:  All Concerned Persons


            1.  On April 22, 2013 at 9:00 a.m. the Board of Public Education will hold a public hearing in the Superintendent's conference room at 1227 11th Avenue, Helena Montana, to consider the proposed adoption of New Rule I and amendment of the above-stated rules.


2.  The Board of Public Education will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact the board no later than 5:00 p.m. on April 15, 2013 to advise us of the nature of the accommodation that you need.  Please contact Peter Donovan, Executive Secretary, 46 North Last Chance Gulch, P.O. Box 200601, Helena, Montana, 59620-0601; telephone (406) 444-0302; fax (406) 444-0847; or e-mail pdonovan@mt.gov.


3.  The rule as proposed to be adopted provides as follows:


NEW RULE I  OFFICIAL HIGH SCHOOL TRANSCRIPT  (1)  The high school transcript is the official academic record of the courses and credits completed by a high school student.  At a minimum, the high school transcript must include:

            (a)  statewide student identifier;

            (b)  student legal name, address, gender, and date of birth;

            (c)  statewide school identifier, school name, school address, school phone;

            (d)  student grade level;

            (e)  student entry date and exit date;

            (f)  course code, course title, course grade, and credits earned for each school term and course taken;

            (g)  grade point average;

            (h)  graduation date;

            (i)  diploma type;

            (j)  class rank;

            (k)  number in class;

            (l)  for each test reported, the test date and the score for each portion of the test;

            (m)  academic honors, if applicable; and

            (n)  required number of credits for graduation.


AUTH:  20-2-114, MCA

IMP:      20-2-121, MCA


4.  The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:


10.55.701  BOARD OF TRUSTEES  (1) through (4)(a)(i) remain the same.

(ii)  be aligned with applicable district goals, standards of the Board of Public Education, and the district's mentorship and induction program required under ARM 10.55.701(8 5)(c);

(iii) through (5)(b) remain the same.


AUTH:  20-2-114, MCA

IMP:      20-2-121, MCA


            10.55.704  ADMINISTRATIVE PERSONNEL:  ASSIGNMENT OF DISTRICT SUPERINTENDENTS  (1) through (1)(b) remain the same.

            (c)  School systems with 18 or more than 18 and fewer than 31 FTE licensed staff shall employ a half-time (.50 FTE) licensed superintendent.  One administrator may serve as both superintendent and principal as defined in ARM 10.55.705(2)(a) or (2)(b).

            (d) through (2) remain the same.


AUTH:  10-2-114, MCA

IMP:      20-2-121, MCA


10.55.708  TEACHING ASSIGNMENTS  (1) and (2) remain the same.

(3)  Clarifications of teaching assignments in grades 5 through 12 departmentalized settings are published in the Licensure Endorsement Requirements Related to Teaching Assignments, adopted by the Board of Public Education July 2012, a copy of which may be found at: http://www.opi.mt.gov/pdf/ Accred/Ch55/Appendices.pdf (Appendix A). 

(4) and (5) remain the same.


AUTH:  20-2-114, MCA

IMP:      20-2-121, MCA


10.55.804  GIFTED AND TALENTED  (1) through (3) remain the same.

At its December 15, 1989, meeting, the Administrative Code Committee unanimously voted that this rule is invalid because it mandates a gifted and talented children program in each school district.  Section 20‑7‑902(1), MCA, provides that "a school district may identify gifted and talented children and devise programs to serve them".  The code section thus makes establishment of the program discretionary, at the choice of the school district.  An administrative rule is invalid if it conflicts with a statute.  See 2-4-305(5) and (6)(a), MCA.  The committee, which has general legislative branch oversight over the adoption and application of administrative rules, has done extensive research into the validity of this rule and considered the matter at numerous committee meetings.  This objection is authorized by, and is published pursuant to, 2-4-406, MCA, which also provides that once the objection is published the agency that adopted the rule bears the burden, in any action challenging the legality of the rule, of proving that the rule or portion of the rule objected to was adopted in substantial compliance with sections 2‑4‑302, 2-4-303, and 2-4-305, MCA.  That section also provides that the court may award costs and reasonable attorney fees against the agency if the court finds that the agency failed to meet its burden of proof and that the rule was adopted in arbitrary and capricious disregard for the purposes of the statute that authorized the rule.  The Administrative Code Committee's objection to the rule does not constitute a vote or opinion on the question of the desirability of gifted and talented children programs, but rather, an opinion solely on the issue of whether the rule violates the Montana Administrative Procedure Act found in Title 2, Chapter 4, of the Montana Code Annotated in that the rule makes mandatory what the Montana Code Annotated makes discretionary.


AUTH:  20-2-114, MCA

IMP:      20-2-121, MCA


10.55.906 HIGH SCHOOL CREDIT  (1) through (4) remain the same.

(a)  Montana high schools shall accept such units of credit taken with the approval of the accredited Montana high school in which the student was then enrolled and which appear on the student's official high school transcript.


AUTH:  20-2-114, MCA

IMP:      20-2-121, MCA


            5.  The effective date of the rules being adopted and the amendments to the rules in ARM Title 10, chapter 55 is July 1, 2013.


6.  REASON:  New Rule I is being proposed to help establish data linkages between K-12 and post secondary education.  The Office of Public Instruction, in partnership with the Office of the Commissioner of Higher Education, received a $4 million grant from the U.S. Department of Education to establish data linkages between K12 and postsecondary education.  The data linkage is required to create a connection between high school coursework and postsecondary performance.  This data will also allow for the creation of an electronic transcript service to facilitate the process for high school students to apply for admission to postsecondary institutions.


            ARM 10.55.701, 10.55.704, and 10.55.708 are being amended to correct errors and for consistency with rules adopted in the Notice of Adoption and Amendment published on October 11, 2012.


            ARM 10.55.804 is being amended to delete the Administrative Code Committee objection.  After receiving the Administrative Code Committee's objection, the Board of Public Education determined that it would not change its rule citing authority granted to it by the Montana Constitution.  At the request of the Administrative Code Committee the 1991 Legislature enacted House Bill 116 repealing ARM 10.55.804.  The Board of Public Education brought a declaratory judgment action against the Administrative Code Committee to determine if the Board had constitutional rulemaking powers to enact this rule. 


            Judge Sherlock in his March, 1992 decision determined that "The Board of Public Education, pursuant to Article X, Section 9(3), of the Montana Constitution is vested with rule-making authority.  This provision is self-executing and independent of any power that is delegated to the Board by the legislature.  The Board's rule mandating gifted and talented programs is within the purview of the Board's constitutional power of general supervision... ." 


            The Administrative Code Committee did not appeal the Court's decision and therefore the determination made by Judge Sherlock controls.  The Administrative Code Committee's objection has been overruled by the Court and should be deleted from the Administrative Rules. 


7.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Peter Donovan, Executive Secretary, 46 North Last Chance Gulch, P.O. Box 200601, Helena, Montana,  59620-0601; telephone (406) 444-0302; fax (406) 444-0847; or e-mail pdonovan@mt.gov and must be received no later than 5:00 p.m., April 25, 2013.


8.  Peter Donovan, Executive Secretary for the Board of Public Education has been designated to preside over and conduct this hearing.


9.  The Board of Public Education maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this board. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 7 above or may be made by completing a request form at any rules hearing held by the board.


10.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.


11.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.



/s/ Peter Donovan                                        /s/ Patty Myers

Peter Donovan                                             Patty Myers, Chair

Rule Reviewer                                              Board of Public Education


Certified to the Secretary of State March 18, 2013.



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