BEFORE THE BOARD OF PUBLIC EDUCATION

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 10.57.217, 10.57.601 through 10.57.609, and 10.57.611 relating to educator/specialist discipline

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

TO:  All Concerned Persons

 

            1.  On March 13, 2012 at 1:30 p.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 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 February 28, 2012, 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 rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

10.57.217  APPEAL PROCESS FOR RENEWAL ACTIVITY  (1)  Decisions of the superintendent on matters of renewal unit activity or provider status may be appealed to the Board of Public Education pursuant to ARM 10.57.603.

 

AUTH:  20-4-102, MCA

IMP:      20-4-108, MCA

 

Reason:  Although denial of renewal unit activity may be appealed, there is no process for the appeal.  The rule amendment is necessary to provide a specific procedure for the Board of Public Education to address such an appeal.

 

10.57.601  REQUEST FOR DISCIPLINE AGAINST THE LICENSE OF AN EDUCATOR/SPECIALIST TEACHER, SPECIALIST, OR ADMINISTRATOR: PRELIMINARY ACTION  (1)  Pursuant to 20-4-110(2), MCA, requests to issue a letter of reprimand or to suspend or revoke a teacher, specialist or administrator an educator/specialist license shall be brought before the Board of Public Education by only:

(a)  an official action of the board of trustees of a local district for any teacher, specialist or administrator licensed educator/specialist currently employed by that district or under contract or otherwise employed by that district at any time during the 12 months prior to the receipt by the Board of Public Education of the request to issue a letter of reprimand or to suspend or revoke; or

(b)  the Superintendent of Public Instruction.

(2)  The Superintendent of Public Instruction may initiate a request to the Board of Public Education for discipline against an educator/specialist's license within 12 months from the date of receiving direct notification from a local school district board of trustees or from any other credible source.

(3)  Requests shall specify whether a letter of reprimand, revocation, or suspension is sought and shall include:

(a)  the specific charge(s) against the teacher, specialist or administrator educator/specialist;

(b) through (d) remain the same.

 

AUTH:  20-4-102, MCA

IMP:      20-4-110, MCA

 

Reason:  The rule amendment is necessary to make terminology consistent throughout the rules and to address the timeline for asking for disciplinary action for educator/specialist misconduct.  The superintendent typically becomes aware of teacher misconduct later than a local district becomes aware.  This clarification is necessary to ensure the superintendent has reasonable time to investigate and assess the situation, and not be expected to act until the superintendent has actual, credible notice of the misconduct.

 

10.57.601A  DEFINITION OF "IMMORAL CONDUCT"  (1)  "Immoral conduct" related to the teaching profession, under 20-4-110(1)(f), MCA, includes, but is not limited to:

(a)  sexual contact, as defined in 45-2-101, MCA, or sexual intercourse as defined in 45-2-101, MCA, between a teacher, specialist, or administrator an educator/specialist and a person the teacher, specialist, or administrator educator/specialist knows or reasonably should know is a student at a public or private elementary or secondary school;

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

(iv)  45-5-505, MCA, (deviate sexual conduct), if the conduct either was nonconsensual or involved a person the teacher, specialist or administrator educator/specialist knows or reasonably should know is a student at a public or private elementary or secondary school;

            (v) through (e)(iii) remain the same.

            (iv)  inaccurate employment history.;

(f)  significant misuse of technology or electronic communication with a person a licensed educator/specialist knows or reasonably should know is a student at a public or private elementary or secondary school, including but not limited to misuse of computers, cellular telephones, or other electronic devices; or

(g)  intentionally falsifying or deliberately misrepresenting information regarding standardized assessment of students, including but not limited to providing or changing test answers or using inappropriate testing accommodations or modifications.

 

AUTH:  20-4-102, MCA

IMP:      20-4-110, MCA

 

Reason:  The amendment is necessary to provide clarification and notice to licensed educators/specialists regarding misconduct which could result in licensing action by the Board of Public Education.

 

10.57.601B  INVESTIGATION REVIEW  (1)  Upon receipt of a request made pursuant to 20-4-110(2), MCA and ARM 10.57.601, and for the purpose of complying with 20-4-110(5), MCA, the Board of Public Education shall implement an investigation review the allegations to determine whether or not a substantial reason exists to hold a hearing for the issuance of a letter of reprimand or the suspension or revocation of the teacher, specialist or administrator educator/specialist license.  This investigation review shall include notifying the affected teacher, specialist or administrator licensed educator/specialist of the charges against him/her the educator by certified mail and allowing him/her the educator/specialist ten days to respond to those charges.  After receiving a response, the board may request further information to ensure the preliminary investigation review properly reflects the facts and position of each party. 

 

AUTH:  20-4-102, MCA

IMP:      20-4-110, MCA

 

Reason:  The amendment is necessary to accurately define and describe the action taken by the Board of Public Education when a request for licensing action is received, and prior to proceeding with a hearing.  The board reviews requests for disciplinary action against an educator/specialist license to ensure there is enough evidence to support allegations of misconduct over which they have jurisdiction.   They do not conduct an independent investigation.

 

10.57.602  NOTICE AND OPPORTUNITY FOR HEARING UPON DETERMINATION THAT SUBSTANTIAL REASON EXISTS TO HOLD A HEARING     (1)  On the basis of the preliminary investigation review conducted pursuant to ARM 10.57.601B, the Board of Public Education shall determine whether or not a substantial reason exists to hold a hearing to issue a letter of reprimand or to suspend or revoke the teacher, specialist or administrator educator/specialist license.

(a) remains the same.

            (b)  If the board determines that there is substantial reason to hold such a hearing, the board shall provide notice of the pending action to the teacher, specialist or administrator licensed educator/specialist, by certified mail not less than 30 days prior to the date of the hearing.  Such notice shall include:

            (i) through (iv) remain the same.

            (v)  a designation of who will hear the allegation; and

            (vi) remains the same.

            (c)  The notice shall advise the teacher, specialist or administrator licensed educator/specialist that he/she the educator/specialist has the right to contest the proposed action of the board, and that he/she the educator/specialist may do so by appearing at the hearing either personally or through counsel, or by requesting the board to consider the matter on the basis of the available evidence without an appearance by the teacher, specialist or administrator educator/specialist.

(d)  The board shall enclose with the notice an election form on which the teacher, specialist or administrator educator/specialist shall be asked to indicate whether he/she the educator/specialist intends to appear at the hearing and contest the board's proposed action, contest the board's proposed action without appearing at the hearing, or accept the proposed letter of reprimand, suspension, or revocation without contesting it.  The notice shall require the teacher, specialist or administrator licensed educator/specialist to return the election form within 20 days of the date on which the notice was mailed, and shall inform the teacher, specialist or administrator educator/specialist that failure to return the form in a timely manner shall result in a letter of reprimand or the suspension or revocation of the license by default.

(e)  If the teacher, specialist or administrator educator/specialist does not return the completed election form within 20 days or elects to accept the proposed letter of reprimand, suspension, or revocation without contesting it, the board, at its next meeting, shall suspend or revoke the teacher, specialist or administrator educator/specialist license or shall direct the chair to issue a letter of reprimand.

(f)  If the teacher, specialist or administrator licensed educator/specialist elects to contest the proposed letter of reprimand, suspension, or revocation and complies with (1)(d), the board shall conduct a hearing. 

(2)  If resolution is reached prior to the hearing, the parties may report such resolution to the board and ask for dismissal of the matter.  Dismissal of the matter by the board based on mutual agreement of the parties must be granted in writing, but need not contain findings of fact or conclusions of law.

 

AUTH:  20-4-102, MCA

IMP:      20-4-110, MCA

 

Reason:  The amendment is necessary for consistent terminology through the rules and to clarify procedure during an appeal before the Board of Public Education.

 

            10.57.603  HEARING IN CONTESTED CASES  (1) through (1)(c) remain the same.

            (2)  At the time and place set in the notice to the teacher, specialist or administrator educator/specialist, the chairperson of the Board of Public Education, the designated committee, or an appointed hearing examiner shall conduct the hearing in accordance with Rules 9 ARM 1.3.211 through 21 1.3.224 of the Attorney General's model rules for hearing contested cases, as found in the Administrative Rules of Montana. 

            (3)  In the case of an appeal made pursuant to ARM 10.57.217 regarding a denial of renewal units or provider status, written notice of the appeal must be made to the board within 30 days of the denial by the Superintendent of Public Instruction.  For this type of appeal, the board may follow informal proceedings pursuant to 2-4-604, MCA, and the final board decision may be issued by letter from the chair of the board to the appellant.

 

AUTH:  20-4-102, MCA

IMP:      20-4-110, MCA

 

Reason:  The amendment is necessary to ensure consistency of terminology throughout the rules, and to provide procedure for an appeal of issues related to denial of renewal units.  The numbering for the Attorney General's model rules was modified in 2008.

 

            10.57.604  POST HEARING PROCEDURE  (1)  After Either immediately following the hearing, or within 60 days of the conclusion of the hearing regarding an educator/specialist license, the board shall, as provided herein:

            (a)  make a final decision to:

            (i)  dismiss the matter;

            (ii)  issue a letter of reprimand;

            (iii)  enter into a stipulated agreement; or

            (iv)  suspend or revoke the license for a specific period of time, up to permanent revocation of the educator/specialist license; and

            (b)  adopt consistent with its decision, issue findings of fact, conclusions of law, and an order issuing a letter of reprimand or suspending or revoking for suspension or revocation of the teacher, specialist or administrator educator/specialist license; or

            (b)  (c) dismiss the request for letter of reprimand, revocation, or suspension.

            (2)  Consistent with the board's decision, the board chair or designee shall sign the stipulated agreement, the letter of reprimand, or in the case of a suspension or revocation, the final findings of fact, conclusions of law, and order.

(3)  The board shall enter record its decision on in its minutes and shall serve the letter of reprimand, or a copy of the findings of fact, conclusions of law, and order by certified mail on the teacher, specialist or administrator educator/specialist and on any other involved party within 30 days of its decision. 

(4)  Pursuant to 2-4-623, MCA, decisions of the Board of Public Education shall be available for public inspection.  Confidential information such as names of any minors, the educator/specialist's address, telephone number, or medical records may be redacted from the posted final decision. 

 

AUTH:  20-2-121, 20-4-102, MCA

IMP:      20-4-102, 20-4-110, MCA

 

Reason:  The amendments are necessary to ensure consistent terminology, provide clarification to appellants and board members on Board of Public Education hearing procedures, the parameters of authority of the board regarding their decision, and to ensure compliance with statute.

 

            10.57.605  SURRENDER OF A TEACHER, SPECIALIST OR ADMINISTRATOR AN EDUCATOR/SPECIALIST  LICENSE  (1)  A teacher, specialist or administrator licensed educator/specialist may surrender his/her that educator/specialist's license to the Superintendent of Public Instruction.  The Superintendent of Public Instruction, upon review, may accept or reject the license surrender.

            (2) remains the same.

            (3)  The Superintendent of Public Instruction may investigate further following the surrender of a teacher, specialist or administrator's an educator/specialist's license and shall maintain a record of the circumstances surrounding the surrender of any license.  The contents of that record shall be available for review by the licensing authority from any other jurisdiction in which the teacher, specialist or administrator educator/specialist seeks licensure.

            (4)  Surrender of a license is permanent and irrevocable, unless specified otherwise in the document of surrender.  Surrender of a license may prejudice the ability of teacher, specialist or administrator an educator/specialist to successfully seek relicensure in Montana in the same or any other class of license or educational endorsement.

(5) remains the same.

 

AUTH:  20-4-114, MCA

IMP:      20-2-121, MCA

 

Reason:  The amendments are necessary to ensure consistent terminology and clarify the legal significance of a surrender of a license.

 

10.57.606  REPORTING OF THE SURRENDER, DENIAL, REVOCATION, OR SUSPENSION OF A LICENSE  (1) remains the same.

            (2)  Upon receipt of a license surrendered pursuant to ARM 10.57.605, the Superintendent of Public Instruction shall report to the NASDTEC clearinghouse that the superintendent accepted the surrender of a license held by the teacher, specialist or administrator educator/specialist. 

            (3) through (4)(b) remain the same.

            (5)  The Superintendent of Public Instruction shall report to the NASDTEC clearinghouse the suspension or revocation of a license held by a teacher, specialist or administrator an educator/specialist licensed in Montana.

(6)  The Superintendent of Public Instruction shall maintain, pursuant to the superintendent's record retention policies, a record of the circumstances surrounding the surrender, denial, revocation, suspension, or reprimand involving a teacher, specialist or administrator's an educator/specialist's license.  The contents of that record shall be available for review by the certifying authority from any other jurisdiction in which the teacher, specialist or administrator educator/specialist seeks licensure. 

 

AUTH:  20-4-102, MCA

IMP:      20-4-110, MCA

 

Reason:  The amendments are necessary to ensure consistent terminology.

 

            10.57.607  APPEAL FROM DENIAL OF A TEACHER, SPECIALIST OR ADMINISTRATOR AN EDUCATOR/SPECIALIST LICENSE  (1) Appeal  Written notice of appeal from the decision of the Superintendent of Public Instruction to deny issuance or renewal of a teacher, specialist or administrator an educator/specialist license shall be brought before must be submitted to the Board of Public Education by written request from the applicant to the board received within 30 days of the notice to deny.  Written notice of appeal must be received by the board no later than 30 days from the date of the letter of denial sent from the office of the Superintendent of Public Instruction.

            (2) through (2)(c) remain the same.

 

AUTH:  20-2-121, 20-4-102, MCA

IMP:      20-4-102, 20-4-110, MCA

 

Reason:  The amendments are necessary to clarify notice requirements, which could be disputed under the existing language, and to ensure consistency in terminology.

 

10.57.608  CONSIDERATIONS GOVERNING ACCEPTANCE OF APPEAL IN CASES ARISING UNDER 20-4-104, MCA  (1)  The Board of Public Education shall not consider an appeal from a denial by the Superintendent of Public Instruction based on 20-4-104, MCA, if the appellant has made an appeal to the board from the denial of a teacher, specialist or administrator an educator/specialist license within three years prior to the application which is at issue, and that appeal was denied by the board following a hearing, unless at the time of notice of appeal pursuant to ARM 10.57.607 the appellant can show demonstrates substantial changes in circumstances relating to the appellant's eligibility for a license.

(2)  The board shall not consider an appeal by an educator/specialist regarding a suspended, revoked, or surrendered license during the period of suspension, revocation, or surrender.

 

AUTH:  20-4-102, MCA

IMP:      20-4-110, MCA

 

Reason:  The amendments are necessary to ensure consistent terminology and to clarify the Board of Public Education's authority to hear an appeal related to a suspended, revoked, or surrendered license.

 

            10.57.609  HEARING ON APPEAL  (1) remains the same.

            (2)  On appeal the burden is on the appellant to establish by a preponderance of the evidence that the appellant satisfies the statutory criteria for issuance of a teacher, specialist or administrator an educator/specialist license.  In the case of a request for letter of reprimand, suspension, or revocation of an educator/specialist license, the burden is on the requestor to establish by a preponderance of the evidence that the request for board action should be granted.

            (3)  In cases in which the superintendent of public instruction has denied issuance or renewal of a teacher, specialist or administrator license under 20-4-104, MCA,  the board of public education may require the appellant to undergo a mental or physical examination by a physician or health professional designated by the board. In cases in which the superintendent of public instruction has denied issuance of a new license, the examination shall be at the appellant's expense.  In cases in which the superintendent of public instruction has denied issuance of a renewal license, the examination shall be at the superintendent of public instruction's expense.  The report of examination shall be admissible evidence in the appeal proceedings before the board, subject to the appellant's  right to cross-examine the maker of the report. 

 

AUTH:  20-4-102, MCA

IMP:      20-4-110, MCA

 

Reason:  The amendment is necessary to ensure consistency in terminology, to clarify the parties' burden of proof, and to remove unnecessary/problematic language related to payment responsibility for evaluations, which is case specific and should not be assigned by rule.

 

            10.57.611  SUBSTANTIAL AND MATERIAL NONPERFORMANCE

            (1) through (2)(c) remain the same.

            (3)  Licensed staff members violating 20-4-110(1)(g), MCA shall may be penalized according to the following guidelines:

            (a) through (c) remain the same.

            (4)  In considering determining the severity of the sanction, if any, to impose for a violation, the board will consider the following:

            (a)  any direct, harmful impact on students caused by the breach of contract;

            (b)  the length of prior notice, if any, provided to the employing board by the licensed staff member; and

            (b) the arrangements made and resources provided by the licensed staff member to ensure continuing instruction to pupils;

            (c)  the difficulties faced by the employing district in recruiting a suitable replacement;

            (d)  (c)  the impact of the licensed staff member's breach of contract on the district's compliance with accreditation standards; and

            (e)  other hardships suffered by the employing district as a result of the licensed staff member's breach of contract.

            (5) remains the same.

 

AUTH:  20-2-114, 20-2-121, MCA

IMP:      20-2-121, 20-4-110, MCA

 

            Reason:  Amendment is necessary to clarify when a sanction is appropriate, making potential harm to students primary to the board's decision to sanction.

 

4.  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., March 13, 2012.

 

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

 

6.  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 4 above or may be made by completing a request form at any rules hearing held by the board.

 

7.  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.

 

8.  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 January 30, 2012.