Vermont School Boards Association, Vermont Superintendents Association, Vermont Principals’ Association

EDUCATION LEGISLATIVE REPORT

April 4, 2011 - Issue #8

Procedures for Hiring Prospective Employees in Flux; School Officials Advised to Follow Developments Closely

On April 1, 2011 provisions of last year’s Act 157 were scheduled to take effect which would have required extensive administrative procedures related to evaluating prospective school employees. That implementation date has been delayed to July 1, 2011. We anticipate that additional legislation addressing this topic will be approved prior to that date.

H.431 was approved by the Legislature and Governor and enacted into law last week. It delays the implementation date for section 18 of Act 157 of 2010 to July 1, 2011. Section 18 requires school districts and other employers whose employees work with vulnerable populations to contact all of a prospective employee’s employers from the past ten years and seek written responses regarding information about the person’s work history. It also requires that the former employers respond to those requests. Our Associations and a number of other large employers including UVM and Fletcher Allen testified that these procedures would be difficult to process, would create liability concerns, and would have a limited impact in its intended effect (protecting children and other vulnerable persons).

The House Judiciary Committee has developed legislation that is intended to inform employers about prospective employees and protect vulnerable populations without the rigid administrative procedures in section 18 of Act 157. The Committee voted to approve its language last week but, as of this writing, the bill does not have a formal number. The Committee’s bill would repeal section 18 of Act 157 and would provide immunity from liability for current or former employers who share information regarding a person’s “job performance” to a prospective employer. This liability immunity would apply only to current or former employers who are sharing information with a prospective employer whose employees work with vulnerable populations. Job performance would be defined as:

• Suitability of the employee for employment;
• The employee’s work-related duties, skills, abilities, attitude, effort, knowledge, and habits as they may relate to suitability for future employment;
• In the case of a former employee, the reason for the employee’s separation; and
• Any illegal or wrongful act committed by the employee.

The immunity would be void if the current or former employer knowingly disclosed false information, or information the employer should have reasonably known was false, or information that cannot be shared by law.

Our Associations testified before the Judiciary Committee in favor of the approach that it has taken. Assuming the Committee’s bill is enacted, it will be important for school officials to be well-informed on how to both request and provide job performance information in a manner that maximizes protection of children without violating the immunity clause or other state and federal employment laws.

House Education Committee Passes Gubernatorial Appointment Bill

The House Education Committee, on a vote of 10-0 with one absent member, voted to approve H.440, a bill that would create a Secretary and Agency of Education to replace the current Commissioner and Department of Education. The Secretary would be appointed by the Governor with the consent of the Senate. Under current law, the Commissioner is appointed by the State Board of Education with approval by the Governor. The change would be effective July 1, 2012.

The State Board of Education would also be reconfigured in this bill. The Board would be expanded from a ten-member board (eight adults, one voting student, and one non-voting student) to a twelve-member board (ten adults, one voting student, and one non-voting student) at the end of a transition period. The adult Board members would be appointed to three-year terms and could be reappointed (current law gives Board members a six-year term and does not allow a member to serve consecutive full terms). Five of the non-student members would remain at-large appointments, and five other members would be nominated from pools put forward by specific organizations. All appointments would be made by the Governor, as is current law. The following organizations would nominate three candidates for selection by the Governor (the nominations do not need to be current or former members of the named organization):

• VT Superintendents Association;
• VT School Boards Association;
• VT Principals’ Association;
• VT-National Education Association; and
• VT Business Roundtable.

The State Board would actually have more than twelve members during a transition period of several years wherein the named organizations would nominate candidates to be appointed and begin sitting on the Board in 2012 alongside all current members, none of whom would have abrogated terms.

The bill would direct the Legislature’s legal staff to prepare a companion bill for the 2012 session that would make necessary technical and substantive changes to Title 16 to accommodate the new governance structure.

H.440 is now under consideration in the House Committee on Government Operations, chaired by Rep. Donna Sweaney.

Governor Shumlin was quoted in the Times Argus on March 20 as supporting H.440. The VSBA and VT-NEA were quoted in the same article opposing the gubernatorial appointment of the state education chief.

Mandatory Work Break Bill Passes House

H.41, a bill that would specify that workers in Vermont must be provided at least 30 minutes of break time for each six hours worked, has passed the House after lengthy floor debate including several amendments. The 30 minutes of break time need not be consecutive. The House-passed version of the bill includes the following stipulations:

• Businesses with fewer than three on-duty employees who have many opportunities for breaks would be exempt.
• Collective bargaining agreements would not be permitted to diminish the 30-minute break standard, but could provide a more generous allotment.
• H.41 specifies that, “If the break from work would pose a threat to property, life, public safety, or public health, the employer may offer a shorter break or reschedule to the time that the break may be taken.”
• An employer found to have violated this proposed provision of law would be subject to fines of up to $1,000 per month.

The bill has been assigned to the Senate Committee on Economic Development, Housing, and General Affairs, chaired by Sen. Vince Illuzzi.

Miscellaneous Tax Bill Passes House

H.436 is this year’s edition of the miscellaneous tax bill, a bill that sets education property tax rates and includes other changes to state fees and taxes. H.436 passed the House on March 23. The bill would set FY 2012 statewide education tax rates at $0.87 for homestead property and $1.36 for nonresidential property. The bill would also freeze the base education amount at $8544, the same amount it has been since FY 2010.

H.436 would also direct the Legislature’s fiscal office to develop a proposal for an outside company to “evaluate the outcomes of [Act 60 and Act 68].” The study would examine available data to compare and evaluate Vermont’s education property tax system on a number of measures. The study would compare different municipalities within Vermont and outside of Vermont, with the outside emphasis on New England states and states “committed to equity.” The data the study would be required to compare and evaluate include measures of equity, education quality, comparative costs, funding sources, demographics, impact on the economy, and correlations between community wealth and spending. The company selected to draft the study would be required to engage the public and deliver a report in the spring of 2012. The anticipated budget for the study is approximately $210,000.

The study in H.436 is likely to replace a study that had been commissioned under the auspices of the Blue Ribbon Tax Commission. Although nothing has been officially announced, it appears that the Blue Ribbon Tax Commission will not undertake a study of education finance as it had been directed to in prior legislation.

Senate Committees Approve Miscellaneous Education Bill

In our prior Education Legislative Report, we indicated the Senate Education Committee was developing a miscellaneous education bill. They have completed their work and voted S.100 out 5-0. The Senate Appropriations and Senate Finance Committees also examined and approved the bill. S.100 is scheduled for consideration on the Senate floor this week. Here are its provisions:

• S.100 would make technical edits to language in Title 16.
• S.100 would amend Act 153 of 2010 to require that any supervisory union assuming the provision of transportation services from its member districts must recognize transportation-employee bargaining units, if any existed among the member district’s employees. The recognition must include an agreement that would address issues of seniority, reduction in force, layoff and recall for organized transportation employees.

Editor’s Note: This is the same language as one provision of H.428, which we reported on in our Education Legislative Report Issue 7.

• S.100 would reduce the Department of Education and State Board of Education’s role in approving postsecondary programs, and would increase fees postsecondary programs must pay to operate in the state.
• S.100 would allow school food grants to be passed through superintendent offices for distribution to their member districts. S.100 would also make teen parent education programs eligible to receive school food grants.
• S.100 adds a reference to Dual Enrollment in Title 16, and states that, “It is the policy of the state of Vermont to encourage and support increased access to dual enrollment opportunities for publicly funded students enrolled in public and approved independent schools.” The statement continues and specifies that dual enrollment should be “encouraged and supported” for children from groups that attend college at “disproportionately low rates.” The bill also puts forward a definition of dual enrollment. It does not mandate that secondary students have access to dual enrollment.

This section specifies that the credits a secondary school would award students for dual enrollment courses would be determined by the school. It also notes that “qualified” high school faculty may be selected by the postsecondary institution to teach dual enrollment courses. Finally, the bill notes that dual enrollment courses may be offered at either the high school or postsecondary campus, or online.

• S.100 requires four issues to be studied and reports to be issued in time for the 2012 Legislative session. The topic areas are:
• Driver’s education;
• Technology in schools;
• A special education information management system; and
• The early education delivery system.

Prekindergarten ADM Cap Repeal Bill Poised to Pass Senate

S.53, a bill that would repeal the current-law cap on the number of prekindergarten children a school district can count in its average daily membership, has been granted preliminary approval by the Senate. On the floor the of the Senate, an amendment was added that clarifies that districts that were previously capped would receive the full equalized pupil value prescribed by law for prekindergarten children in FY 2012, the first year that S.53 would be effective. The bill must receive final Senate confirmation before moving to the House for consideration.

“Green” Cleaning Bill Passes Senate

S.92, a bill that would require public and approved independent schools to use environmentally preferable cleaning products, has been approved by the Senate. It has moved to the House Education Committee for consideration. For a full description of S.92, see our Education Legislative Report Issue 7.

Capital Bill Passes House

H.446, a bill that authorizes bonded capital construction aid appropriations, has been approved by the House. This year’s capital bill is notable because it is the first time that we are aware of that the capital bill is intended to cover a two-year period (FY 2012-13), in lieu of a traditional one-year bill. Presumably, the Legislature could modify its capital appropriation in the second half of this biennium, but absent any adjustment, H.446 sets the blueprint for two years of state-funded construction aid.

The House-approved version of H.446 would appropriate $8.1M for school construction aid in each year of the biennium for a total of $16.2M. Department of Education figures indicate that the total outstanding aid that the state owes to districts is $28.1M so the proposed two-year appropriation would pay 56 percent of the aid owed while setting aside $600,000 for emergency aid.

On an annualized basis, the state aid appropriated in H.446 is more than was appropriated in FY 2011 ($6.4M) and less than in FY 2010 ($10.3M).

The moratorium on new state aid for school construction remains in effect. The projects that are slated to receive aid were approved prior the moratorium’s enactment in 2007, or are emergency or consolidation projects which are exempt from the moratorium.

Senate Approves Open Meeting Bill

The Senate approved S.67, a bill that would make modifications to Vermont’s open meeting law. The bill would:

• Require that if a member of the public body participates by electronic means, that the electronic system is audible to all meeting participants and observers, that the meeting is warned 24 hours in advance, and that votes be taken by roll.
• Require that meeting agendas be posted online and in three physical places in the municipality.
• Prohibit use of executive session to consider appointment of a person to a public body or board.
• Allow use of executive session to, “discuss or consider municipal or school security or emergency measures, the disclosure of which could jeopardize public safety.”
• Require that public bodies respond to allegations that they violated open meeting statutes, and if the body acknowledges that the meeting was in violation, void any actions taken.

The bill is now under consideration in the House Committee on Government Operations.

House Committees Approve Public Records Bill

The House Government Operations Committee has developed an approved H.73, a bill that would make amendments to Vermont’s public records law. The bill has also been approved by the House Appropriations Committee. It is scheduled to be considered on the House floor early this week. What follows are descriptions of provisions of H.73 that could affect public school districts:

• A person may inspect public records during customary business hours.
• A public agency (e.g., a school district) may charge for staff time if complying with the public records request takes longer than two hours; the current law standard allows an agency to charge if the request takes longer than 30 minutes.
• Prior to January 1, 2012, H.73 would require that each municipality (including school districts) appoint a municipal public records officer who would be responsible for managing and advising the municipality on public records laws and procedures. The public records officer must complete an annual training course provided by the state archivist and the officer’s name must be posted in the municipality’s offices and on its website.
• H.73 would define a person’s (or employee’s) right to privacy as the Vermont Supreme Court has narrowed the definition:

[Right to privacy] is violated or invaded only if disclosure of information about the person reveals intimate details of a person’s life, including any information that may subject the person to embarrassment, harassment, disgrace, or loss of employment or friends.

A public employee’s salary is not considered an intimate detail.

• A public agency would be required to furnish a record within three business days of the request, or issue the statutory basis for denial of the record within the same period.
• A public agency would not be permitted to withhold an entire record on the basis that some exempt content is included; the exempt content would be necessarily redacted and the record provided, including an explanation of why some content was redacted.
• If the person making a record request is disabled, the person may request that the record is provided in a manner that allows the person equal access to the record.
• Require that public agencies pay the attorney’s fees of complainants who prevail in a court action against an agency withholding a public record, unless the public agency’s attorney concedes the that record is public within 10 days of the court date.
• H.73 commissions a legislative study committee on public records. The committee would complete an annual report on public records each of the next four years.

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