A tie vote Wednesday afternoon by the legislative Committee on Legal Services effectively killed the contentious State Board of Education rule that requires school districts to inform parents when employees are arrested for certain crimes.
The decision was the latest twist in a long story that has involved extensive negotiation among and multiple votes by board members, consistent opposition by the state’s mainline education interest groups and a lawsuit by the state’s largest teachers union.
The rule has been something of a personal crusade for SBE Chair Bob Schaffer, R-4th District, who was prompted to propose it by badly handled arrest reporting incidents in the Poudre schools. Schaffer lives in Fort Collins and is a charter school principal.
The board unanimously approved the rule last April (see story), a year after Schaffer first proposed it. The rule subsequently was challenged in court by the Colorado Education Association (see story). That case is pending, although a Denver judge earlier this fall denied a motion for an injunction against the rule.
Schaffer said his next move will be “likely to pick up the phone” to see if he can find a legislator willing to sponsor a bill that would put the parent notification rule into law.
The somewhat arcane constitutional question of whether SBE had authority to issue the rule is a central issue in the dispute.
State agency rules are governed by a complex review process. Once issued, rules are in effect until the following May 15. For rules to go into effect permanently, the legislature passes a law every year extending rules beyond May 15.
Lawyers from the Office of Legislative Legal Services review new rules and may make recommendations to the Legal Services Committee, a joint House-Senate panel.
In this case, legal services staff lawyers Michael Dohr and Brita Darling concluding that SBE exceeded its authority and recommended the committee not include the rule in the annual bill to permanently extend new regulations (read their memo). The staff lawyers recommended the parent notice rule not be extended because they concluded the board didn’t have the legal power to issue it.
Much of the one hour and 45 minute discussion Wednesday focused on the somewhat esoteric issue of whether the state board’s constitutional assignment of “general supervision” of schools gives it the power to issue such a rule – particularly considering that the vast majority of SBE rules are issued to implement specific laws passed by the legislature. The notification rule was the board’s own initiative and was not issued to implement legislation.
Dohr, who presented to the committee, said, “The rules in this case go beyond ‘general supervision.’”Senior Assistant Attorney General Tony Dyl, a longtime legal advisor to the state board, argued the opposite point of view, saying, “I believe the state board possesses both the constitutional and statutory authority” to issue the parent notice rule.
Committee members discussed the issue at length. Rep. Claire Levy, D-Boulder, warned that affirming the rule was “a dangerous slippery slope” that could expand the board’s authority beyond constitutional limits.
Both Levy and committee chair Sen. John Morse, D-Colorado Springs, expressed concerns that the rule requires reporting of arrests, not convictions.
The rule applies to arrests or charging of employees and former employees whose jobs require them to be in contact with students. In most cases, notice must be given within 24 hours of a district learning of an arrest.
Notification is required in cases involving any felony, drug crimes (except for misdemeanor marijuana cases), misdemeanor and municipal violations involving children, misdemeanor and municipal ordinance violations involving unlawful sexual behavior of various kinds, and any crime of violence. Drunken driving arrests are included if an employee’s duties involve transporting students in motor vehicles.
The rule contains no enforcement or reporting requirements on school districts.
In the end, a motion to extend the rule died on a 5-5 vote, with committee Republicans voting yes and Democrats voting no. Two Republicans, Rep. Mark Waller of Colorado Springs and Sen. Greg Brophy of Wray, said they had concerns with part of the rule but voted yes on the motion to continue the full rule. The vote means the rule will expire next May 15.
Speaking with reporters after the meaning, Schaffer said the vote means parents could be “stuffed back into the darkness” of not knowing when school employees are arrested and indicated he’ll seek a legislative solution to the issue. He said he hopes the partisan split on the committee “is not a reflection on the substantive policy issue” of protecting children.
Despite the lack of a reporting requirement, Schaffer said, “The rule has worked very well,” adding he’s heard of 10-12 cases in which districts have notified parents since the rule went into effect last spring.
Dyl indicated that although he expects a judge to rule on the CEA lawsuit before May 15, the committee’s action pretty much settles the issue.
Mike Wetzel, a CEA spokesman, said Wednesday evening, “We’re pleased that school districts will be allowed to resume local control in matters of school employee discipline, and educators will not run the risk of permanent damage to their personal and professional reputations should they ever be wrongly accused. The rule did nothing to protect students or help parents, and we hope this is the last we hear of this truly unnecessary measure.”