Do Not Hire” Registry

What Noncertified Educators and District Employees Should Know About TEA’s New Process for Investigating Alleged Misconduct

BY PAUL TAPP, ATPE MANAGING ATTORNEY

One of the Texas Legislature’s more significant actions in 2019 was creating a system to investigate alleged misconduct by noncertified educators and establishing a “Do Not Hire” registry that lists the names of individuals who, because of their actions, are not allowed to work in public education. Because there is a high correlation between certification and employment contracts, these changes will mostly affect at-will employees who have a serious allegation made against them. Additionally, these changes will likely affect how allegations are handled locally. We’ve broken down the latest changes and provided a timeline of how we got here.

STEPS IN A TEA INVESTIGATION OF NONCERTIFIED SCHOOL STAFF

STEP 1: Employer required to notify TEA of allegation

Public school district superintendents are required to report an allegation of abuse, an unlawful act with a student or minor, or the solicitation of a romantic relationship with a student or minor within seven days of the employee resigning or being terminated. (The reporting requirement for certified educators has not changed and continues to be more extensive, requiring a report in more circumstances; however, 2019’s Senate Bill (SB) 1476 also establishes that a report for a certified educator is not required if the local investigation clears the certified educator.)

SB 1230 expands the reporting requirement to private schools. Private schools are now also required within seven days of the employee resigning or being terminated to report criminal history, as well as report allegations of abuse, unlawful acts with a student or minor, or the solicitation of a romantic relationship. A superintendent who fails to file a required report is subject to discipline and possible criminal prosecution. The district is required to

complete a local investigation into the allegation, even if the employee has resigned or been terminated.

TEA will add the employee’s name to an online database indicating they are under investigation. This database is separate from the Do Not Hire registry. It is similar to the “under investigation” notice currently placed on certified educators’ virtual certificates by the State Board for Educator Certification (SBEC) when allegations have been made against a certified educator.

STEP 2: TEA notifies individual of allegation, and individual has right to respond

After receiving a report, TEA will notify the accused individual of the allegation. The notice must include: • An explanation that the accused individual has 10 days from the date of receiving notice to request a hearing; • A request that the person submit a written response within 10 days showing why the commissioner should not investigate the allegations; and • A statement reminding the educator that if they cannot show cause why an investigation is not needed, their name will be placed on the “under investigation” internet portal. If an accused individual does not request a hearing before the deadline, the commissioner shall determine, based on the superintendent’s report, whether the person engaged in the alleged misconduct. If the commissioner determines the person engaged in the misconduct, the person’s name will be placed on the Do Not Hire registry.

Under administrative regulations still pending at the time of publication, the notice will be sent to the address the district has provided, so it is all the more critical for all school employees to maintain a current address with their district. (Certified educators are already required to maintain a current address with SBEC.)

STEP 3: Hearing

If the person requests a hearing before the deadline, the hearing will be conducted under rules still pending at the time of publication. The Texas Administrative Code and Texas Government Code have long-standing procedural rules, and it is likely the final hearing process will be similar to the processes in place, involving legal representation and the presentation of evidence and witness testimony to a judge. The judge will rule on whether the evidence establishes the alleged misconduct occurred.

If the final decision is the person engaged in the misconduct, the person’s name will be added to the Do Not Hire registry. If the final decision is the person did not engage in the conduct, the person’s name will be removed from the “under investigation” portal and will remain eligible for employment in schools.

LITTLE CHANGE FOR CERTIFIED EDUCATORS Nothing has changed regarding: • A superintendent’s duty to report alleged misconduct to SBEC, other than clarification that a report is not required if a local investigation clears the educator. • The requirement that SBEC permanently revoke the certificate of an educator who has abused a student or minor, committed an unlawful act with a student or minor, or solicited a romantic relationship with a student. The only change is that in addition to notice of revocation being placed on the educator’s certificate, the educator’s name will also be included in the Do Not Hire registry, which is intended to ensure an educator cannot gain employment by accepting a position where certification is not required.

STEP 4: Do Not Hire registry

The Do Not Hire registry is an internet portal developed and maintained by TEA and available to public and private schools. It lists persons not eligible for employment in public education and will include: • A person not eligible for employment due to the individual’s criminal history. Not all criminal history makes an individual ineligible for employment. It must be for a conviction under circumstances established in 2007 (see page 15). • A person not eligible for employment due to the person’s certificate or permit being revoked by SBEC because of a finding the person abused or otherwise committed an unlawful act with a student, was involved in a romantic relationship with a student, or solicited a romantic relationship with a student. • A person not eligible for employment due to a determination by the commissioner of education after an investigation and due process because of a finding the person abused or otherwise committed an unlawful act with a student, was involved in a romantic relationship with a student, or solicited a romantic relationship with a student. TEA has stated that the public will have access to the names included in the registry but will not have access to other personally identifiable information, such as dates of birth. STILL TO COME

Administrative regulations defining the specifics of this process are still pending. Look for additional information via ATPE’s various communication platforms as these rules are finalized.

Addressing Alleged Misconduct: A Timeline 2003 Superintendents are required to report certain alleged misconduct by certified educators to the State Board for Educator Certification (SBEC). 2007

A criminal history database is created so districts can see if an employee or applicant has a criminal history that prohibits employment in a public school. Applicants and employees are required to submit to fingerprinting to facilitate this database. School districts, open-enrollment charter schools, and shared-services arrangements are prohibited from hiring or employing any employee convicted of: • A felony under Title 5 of the Texas Penal Code, which includes crimes against the person, such as assault and sexual offenses. • An offense requiring the person to register as a sex offender. Employment is prohibited regardless of where the conviction occurred, unless the conviction took place more than 30 years before employment and other conditions are met. 2015

Superintendents’ reporting requirements to SBEC are expanded to include an alleged inappropriate relationship or alleged solicitation of a romantic relationship by a certified educator if the educator resigns or is terminated. Many superintendents report allegations immediately rather than waiting for a termination or resignation. SBEC is required to revoke the certification of any individual found to have engaged in an inappropriate relationship or solicited a romantic relationship. 2017

Principals are required to report allegations of an inappropriate relationship or solicitation of an inappropriate relationship to the superintendent, who is then required to report to SBEC. Penalties for failure to report are expanded to include a fine and possible criminal prosecution. Certified educators are required to complete a preemployment affidavit certifying whether they have or have not been found to have engaged in inappropriate conduct with a student. 2019

Before 2019, SBEC had authority to investigate educators certified by SBEC and, if the investigation led to a determination the educator was guilty of misconduct, take steps to discipline the educator. This authority covered certified teachers, certified administrators, and classroom aides. This has not changed; SBEC will continue to investigate and discipline certified educators. SBEC had no authority, however, over the school district employees not certified by SBEC—from support and office staff to noncertified teachers. Changes in public education, from an increase in noncertified teachers to the proliferation of Districts of Innovation, many of which have opted out of certification requirements, created concerns that noncertified educators suspected or with a history of misconduct could be found in classrooms and would have close and unsupervised proximity to students. Because SBEC had no authority over these noncertified individuals, no entity other than the criminal justice system could investigate allegations of inappropriate conduct. But because the criminal justice system only investigates allegations of criminal activity, no mechanism existed to investigate individuals who were not certified but had allegedly acted inappropriately but not criminally with students. This was a problem due to concerns about increased reports of inappropriate teacher-student relationships. As such, SBEC decided an individual who had even solicited a romantic relationship, which is not a prosecutable crime, should not be in public education. The board adopted a rule requiring the permanent revocation of an educator’s certification on a finding the educator had engaged in or even solicited a romantic relationship. But again, this only applied to certified educators, not noncertified staff. And it was also possible educators who had lost their certification due to inappropriate conduct could be hired by an unknowing district for a noncertified position because the district would have had no reason to check an applicant’s certification history for a noncertified position. This rise in noncertified individuals who could have close contact with students led to legislative action. First, Texas legislators authorized TEA to investigate noncertified school employees, just as SBEC was authorized to investigate certified educators. Second, they authorized the creation of a digital Do Not Hire database, giving public and private schools a resource where they could quickly determine whether an individual who applied for any job could be hired. The legal information provided here is accurate as of the date of publication. It is provided for general purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Eligible ATPE members may contact the ATPE Member Legal Services Department.