Does a new Idaho rule represent merely a battle over semantics or an intentional muzzling of teachers that goes even beyond the restrictions passed by the Idaho Legislature last year?
The Idaho Education Association argues that it’s the latter. We say there’s a real difference between “including” and “limited to,” but House Education Committee members disagreed today in voting 14-3 to approve the State Board of Education’s rule 08-0201-1101.
Some more background: Before Senate Bill 1108 passed last year, teachers and school districts had broad latitude to negotiate “matters and conditions” related to professional employment. SB 1108 limited negotiations to salary and benefits and specified that “‘benefits’ includes employee insurance, leave time and sick leave benefits.”
Note the word “includes.” That implies that other things may be discussed as well, if the board and negotiators agree. Teachers care about far more than insurance, leave time and sick pay. They also care about class size, student safety, professional development, and much more.
The new rule reads: “Items that may be included in master contracts or negotiated agreements shall be limited to the specific items defined under the terms ‘compensation’ and ‘benefits.’
Note the phrase “shall be limited to.” The IEA argues that the rule has rewritten the statute and shuts off the possibility of teachers and board members discussing anything beyond the three items – insurance, leave time and sick leave – outlined in the rule.
In his testimony today (and last week before the Senate Education Committee, which approved the rule), IEA General Counsel Paul Stark brought up not only the difference in these two terms but a clear violation of separation of powers. In passing Senate Bill 1108, the Legislature did not authorize the State Board of Education to make a rule on this matter, as it did – for example – in requesting that the board come up with an online credits rule under Senate Bill 1184 as well as in countless other cases.
After Stark’s initial testimony two weeks ago, the Senate Education Committee requested an opinion from the Idaho Attorney General’s office. Brian Kane, a deputy AG, told both Senate and House committees that the rule is “legally defensible” because agencies have broad rulemaking authority. Stark contended that is not true under Idaho’s Administrative Procedures Act, which dictates that a statute must specifically grant an agency rulemaking authority.
House Education Committee member Rep. Brian Cronin (D-Boise) asked Dennis Stevenson, the state’s administrative rules coordinator, to give his take on the debate since Stevenson was sitting in the audience. Stevenson said “I don’t have a dog in this fight,” and added that it seemed to be a matter of semantics that, if pressed, could negate many Idaho rules.
But Stark said that the simple fact that previous rulemaking hasn’t been questioned in other cases doesn’t make it right in this instance. He drew an analogy that if 10 drivers are speeding and only one gets pulled over and ticketed, it doesn’t mean the other drivers were obeying the law.
Today’s action marked the end of rules consideration in the education committees. Lawmakers will now turn their attention to bills. As we noted last week, the IEA strongly supports S1220, the anti-bullying bill that awaits a hearing in the Senate Education Committee. The full Senate today heard the introduction of S1237, which revises the definition of online course
as it relates to fractional Average Daily Attendance to omit the restriction that a teacher cannot be “physically located at the school or place in which the student is receiving instruction.”
Two other bills have drawn our attention:
Rep. JoAn Wood (R-Rigby) introduced a bill today into the House Education Committee that would change an employee records and licensing law passed just last year. The committee agreed to print the bill. The IEA is analyzing it and we will have more details in a future Hotline.
Sen. Shirley McKague (R-Meridian) is promoting a personal bill, S1242, which would further limit collective bargaining for public employees. McKague floated a similar bill last year. We’re keeping an eye on this one, too.
Finally, this is Education Week at the Joint Finance-Appropriations Committee. The budget-writing panel heard today from university presidents. State Superintendent Tom Luna will make his presentation to JFAC starting at 8 a.m. Thursday. It could be interesting, given the behind-the-scenes wrangling between Luna and Gov. Butch Otter that the Idaho Statesman reported on last Friday.