Certified Final Objection No. 77 of the

Joint legislative Committee on Administrative Rules

At its meeting on June 21, 1996, the Joint legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 96-031 containing proposed rules Ed 500 of the Board of Education (Board) relative to certification standards for educational personnel.. The Board responded by letter dated August 2, 1996, received by the Office of Legislative Services on August 5, 1996.

At its meeting on September 20, 1996, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-031. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:

After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

The following summarizes the bases for the Committee’s final objection:

New Hampshire Constitution Part I, Article 28-a

The Committee objected that, to the extent that it violates Part 1, Article 28-a of the New Hampshire Constitution, Final Proposal 96-031 is beyond the authority of the Board, pursuant to Committee Rule 401.04, and contrary to legislative intent, pursuant to Committee Rule 402.04. That constitutional provision states that:

The state shall not mandate or assign any new, modified or expanded programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.

The Committee noted that the Board has undertaken to amend extensively and readopt Ed 500. The Committee further noted that the political subdivisions of the state are required to comply with the provisions contained in this chapter. Thus, to the extent that the political subdivisions will be required to comply with provisions that have been amended in such a way as to increase the cost of compliance therewith, the Committee concluded that the rules conflict with Pt. 1, Art. 28-a.

Ed 508.06

The Committee objected that Ed 508.06 is beyond the authority of the Board, pursuant to Committee Rule 401.01(c), and contrary to legislative intent, pursuant to Committee Rule 402.02(a), by conflicting with RSA 541-A:22, III(c), as discussed below.

Ed 508.06 contains Table 508-1 Educator Certification Fee Schedule. The Committee concluded that four of the fees listed in that table are not "specifically authorized by a statute enforced or administered by" the Board, as is required by RSA 541-A:22, III(c). The fees cited by the Committee as not being authorized are for "Additional Certificates", "Permission to Employ", "Duplicate Credentials", and "Late Filing Fee". RSA 186:11, X(b), authorizes fees for "…the administration of proficiency exams, other competence evaluations and for the issuance of educational credentials." The Committee concluded that this provision related to the issuance of educational credentials in the first instance, and did not authorize the Board to charge fees for providing the four items listed.

Ed 511 and Ed 512

The Committee objected that Ed 511 and Ed 512 are contrary to the public interest pursuant to Committee Rules 403.02(c) by not being capable of uniform enforcement, and are beyond the authority of the Board pursuant to Committee Rule 401.01(c).

Ed 511 sets forth ethical standards for New Hampshire teachers, and Ed 512 sets forth requirements for staff development and recertification. The Committee concluded that the provisions of Ed 511 and Ed 512 are without specificity and provide little guidance to the teacher who must comply with them or, respectively, face disciplinary action for non-compliance or have recertification denied. As the requirements are not specific, the Committee determined that they can be interpreted differently by the Board, by those in the Department of Education, by the school district, and by the teacher. In the Committee’s view, the very purpose of rules is to make clear what the regulated community must do or refrain from doing to remain in compliance.

The Committee also noted the addition by the Board of Ed 511.06 in the objection response. Paragraph (a) is a statement of "legislative intent" that asserts that the General Court wanted the Board to regulate "ethical behavior" of teachers on a state-wide basis. The Board cited four statutory provisions as support for its assertion: RSA 186:11, X; RSA 186:60; RSA 186:61; and RSA 189:39.

The Committee concluded that the provisions cited did not authorize the Board to adopt rules relative to ethical requirements for teachers. That provision requires the Board to adopt rules relative to certification and qualifications of teachers, among others. The Committee concluded, however, that the language of that provision was intended to refer to educational qualifications, and was not intended to be carte blanche for the Board to create qualifications in other areas. RSA 186:60 sets up an advisory board and specifies its duties and functions, and the only mention of the Board is in the context of receiving advice from the advisory board. RSA 186:61 relates to the establishment of an adult high school education program and, in the view of the Committee, does not address the teaching profession at all. RSA 189:39 provides the process by which teachers are hired at the local level, and contains a requirement that ‘teachers hold a valid educational credential issued by the state board of education." The Committee determined that this provision does not in any way authorize ethical rules.

The Committee also noted that, while other licensing boards do have rules regarding ethics for their licensees, such other boards’ rulemaking statutes specifically authorize the adoption of rules regarding ethical requirements. Further, in the Committee’s view, teachers are unlike many of the other licensed professions in that they cannot work independently but work for an employer, typically political subdivisions. The Committee concluded that, because teachers work under contracts with their employers, the creation of ethical requirements is a contractual issue between the employer and the teacher and state-imposed ethical requirements interferes with that relationship and usurps local control.