When I first read House Bill 1044, I thought I saw amidst the style and form changes a small attack on teachers' labor rights. Reading the bill in the context of other statutes, rules, and practice have me thinking HB 1044 may not wreak much practical havoc in teachers' days.
Two parts of HB 1044 alarmed me:
- Section 10 appears to change who can start the process to take away a teacher's certificate. Current law says only "[t]he school board or governing body employing a teacher or administrator, the professional teachers practices and standards commission, professional administrators practices and standards commission, or the secretary of the Department of Education" may initiate a revocation or suspension proceeding. HB 1044 gives "any person" that right.
- Section 17 authorizes the Department of Education to "assess all or part of its actual costs for the proceeding" against a teacher who loses his or her certification in such a complaint proceeding.
Section 10 seems to open the door for grouchy parents to bypass local school board protocols and go after not just a teacher's job but statewide employability. However, as I understand from conversations with an education expert who prefers not to be caught cavorting on the blogs, grouchy parents and anyone else already enjoy the right to file complaints against teachers and challenge their certificates at the state level.
Hang on, here's where things get messy. Chapter 13-42 and Chapter 13-43 of state law appear to create separate streams for complaints against teachers. Chapter 13-42, dealing with certification, gives the Secretary of Education authority to certify or decertify teachers. Chapter 13-43, on employment of teachers, creates the Professional Teachers Standards and Practices Commission, which promulgates the Professional Teachers Code of Ethics and a complaint procedure there-around. These two chapters both mention complaint procedures. The Standards Commission's complaint procedure doesn't qualify who can file a complaint; the only relevant language just refers to "any person." The Standards Commission can't yank a certificate, but it can recommend that the Secretary of Education do so.
Existing statute thus seems to create two paths for complaints to the state against teachers: employers can complain directly to the Secretary of Education, while anyone can complain to the Standards Commission. In practice, the Department of Education has been directing all complaints from anyone to the Standards Commission. HB 1044 seeks to clarify and codify that there is one path, open to any all, to challenge a teacher's certificate in Pierre.
To my concern about maintaining a local filter for complaints, we can turn to existing Standards Commission rules. The Standards Commission specifies that "The formal written complaint shall identify the sections of the code of professional ethics alleged to be violated, the name and position of the individual involved, and local efforts to resolve the problem." That current rule requires anyone bringing an ethics complaint against a teacher to the state to explain what they've done at the local level—conversations with the teacher, formal complaints to the school administration—to address the alleged problem. This rule allows the Standards Commission to see if complainants have exhausted local remedies and turn them back if they haven't. That rule would appear to cover the complaint procedure post-HB 1044, but if it doesn't, Section 3 of HB 1044 grants the Standards Commission rule-making authority over "procedures for denial or nonrenewal of a certificate and disciplinary proceedings and assessment of costs," meaning the Standards Commission could easily work up a parallel rule on local protocols.
Section 10 clarifies that what look like two paths for complaints are really the same path and will be treated as a single path post-HB 1044. Section 17, on costs, makes a similar clarification. Complaints to the Standards Commission (Chapter 13-43) are heard as contested cases, a legal term that subjects those complaints to a whole nother chapter, SDCL 1-26. That chapter states that any professional who gets a ding on his or her license may be charged part or all of the cost of the proceedings that led to that ding. Evidently teachers who get dragged through the Standards Commission wringer, are found to have been naughty, and suffer some action against their certificate are already subject to paying for their complaint procedure. HB 1044 simply makes clear that, yes, the existing rules on cost recovery apply to complaints on teachers, whether those complaints go to the Secretary or the Standards Commission. It's all the same process.
Section 17 looked a little unfair in subjecting the decertified teacher to those costs but not an unsuccessful complainant for bringing bogus charges. But those proceedings costs, says my expert acquaintance, are usually limited to fees for publishing legal notice of the action. If there is no action, there's nothing to publish, and thus no cost to impose on a complainant.
I'm glad I'm not the Department of Education expert who has to explain House Bill 1044 to legislators. The bill goes to House Education, probably next week. I encourage Chairwoman Sly, Vice-Chair Johns, and my District 8 man Mathew Wollmann to ask the DOE reps lots of questions to make sure HB 1044 is as relatively harmless as it now seems and that there is not some lurking threat to teachers' due process rights.
Update 15:13 CST: I was curious just how often the Professional Teachers Practices and Standards Commission fields complaints about teachers and how often the state takes adverse action against teachers' certificates. The Department of Education provided me with the following relevant responses:
- The Standards Commission received 15 complaints in 2014.
- 10 of those 15 complaints came from members of the public. Superintendents and the DOE itself have initiated complaints against teachers.
- DOE confirms that, as indicated above, ARSD 24:08:04:01:01 authorizes "any person" to initiate a complaint to the Standards Commission.
- Of the 15 complaints in 2014, six have gone to hearing.
- Based on complaints to the Commission, the Secretary suspended or revoked two teaching certificates in 2012, one in 2013, and three in 2014.