Alabama School Communicators Association Due Process and Alabama Educator Code of Ethics Presented by Susan Crowther, J.D. 1
Due Process State’s Procedural Due Process (U.S. Constitution – 14th Amendment)
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“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.� Fourteenth Amendment 3
When an individual is facing deprivation of life, liberty, or property, procedural due process requires that he or she be afforded adequate notice, a hearing, and a neutral judge. Goldberg v. Kelly, 397 U.S. 254 (1970)
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However, the Supreme Court set out a balancing test to determine how much process is due‌
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“[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.“ Eldridge v. Williams, 424, U.S. 319, 335 (1976) 6
In Alabama, due process is afforded in teacher certification cases following the Alabama Administrative Procedure Act. (Ala. Code ยง 41-22-1, et seq.) and the Alabama Administrative Code rules.
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Under Ala. Code § 16-23-5 (1975), the State Superintendent has authority to revoke certificates (there is additional authority under the Child Protection Act, which authorizes background checks to be performed). This statute was found to be Constitutional under Alford v. Ingram, 931 F. Supp 768 (M.D. Ala. 1996). The case sets out factors to be considered in weighing the revocation of the certification against the person’s property right in that certificate. 8
Alford factors: • The likelihood that the conduct may have adversely affected students or fellow teachers • The degree of such adversity anticipated, • The proximity or remoteness in time of the conduct • The type of teaching certificate held by the party involved • The extenuating or aggravating circumstances, if any, surrounding the conduct… 9
Alford factors, cont.: • The praiseworthiness or blameworthiness of the motives resulting in the conduct • The likelihood of recurrence of the questioned conduct • And the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers 10
Procedures in Teacher Certification cases: An independent committee makes a recommendation that action is warranted to be taken against a certificate holder/applicant. If the State Superintendent of Education agrees with this recommendation, notice is given of the intended action. In response, the certificate holder/applicant may request a hearing, submit a written response, voluntarily surrender her certificate (if applicable) , or do nothing.
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The certificate holder/applicant is given 15 days upon receipt of the notice letter to request a hearing or submit a written response. If there is no response, then action is taken by default. If a written response is received, the State Superintendent reviews the information submitted as well as any other information obtained by the Department and makes a decision based on this information.
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If the certificate holder/applicant (now respondent) requests a hearing, then a hearing is scheduled and the respondent is given a copy of the non-privileged documentation to be used against him or her. There is an opportunity for discovery. Witness lists and exhibits are exchanged. If a settlement is not reached, a hearing is held before an impartial hearing officer. 13
The Respondent may be represented by counsel but may also represent him- or herself. Evidence and testimony is presented. After the completion of the hearing, which is conducted before a court reporter, the hearing officer renders a recommendation to the State Superintendent of Education.
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The Superintendent may adopt the decision of the hearing officer or set it aside and make a different decision. The respondent has 15 days to request reconsideration and 30 days to appeal the decision of the State Superintendent.
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While ยง 16-23-5 explicitly grants authority to revoke certificates, it implicitly grants authority to take lesser actions. The Alabama State Board rules set out what that implied authority is.
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Alabama Administrative Rule 290-3-2-.34(1) clarifies that the State Superintendent may revoke, suspend, recall, non-renew, or refuse to issue a certificate or license; he may issue a public reprimand; put a certificate holder on probation; or require drug testing or remedial training as a condition of a person’s certificate or license. The State Superintendent may issue an emergency suspension of a certificate, pursuant to the Alabama Administrative Procedure Act. This rule also makes it clear that the Superintendent’s decision is a permanent decision concerning an individual’s fitness to teach and suitability for public employment.
Rule 290-3-2-.34(3) reflects the fact that two laws authorize the State Superintendent to take action against a person’s certificate: Ala. Code §16-23-5 (1975), and the Child Protection Act of 1999, as amended. The rule also protects a certificate or license holder from unnecessary and premature public attention when a report of misconduct is made to the Department. Decisions made pursuant to the Fincher Act need not follow the procedures set out in this portion of the rule (more about this later). 18
Rule 290-3-2-.34(4) incorporates procedures that : (a) allow for electronic service of documents, (b) preserve the confidentiality of hearings when necessary or agreed upon by the parties, (c) clarify how the Rules of Evidence apply, and (d) specify that a hearing officer may recommend an action that is less than what the Department proposed. Rule 290-3-2-.34(8) specifies that the Department shall report action taken by the State Superintendent against a person’s certificate or license to the NASDTEC interstate clearinghouse, consistent with its compact. 19
Fincher Law
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The Fincher Act Under this Act, a certificate is revoked when an individual is convicted of the following offenses: capital murder or any Class A felony, including, but not limited to, rape, murder, kidnapping, or robbery, or any of the following: (1) Rape in the first or second degree. (2) Sodomy in the first or second degree. (3) Sexual torture. (4) Sexual abuse in the first or second degree. (5) Enticing a child to enter a vehicle, room, house, office, or other place for immoral purposes. (6) Promoting prostitution in the first or second degree. 21
Fincher Act, cont‌ (7) Violation of the Alabama Child Pornography Act. (8) Kidnapping a minor, except by a parent, in the first or second degree. (9) Incest, when the offender is an adult and the victim is a minor. (10) Transmitting obscene material to a child by computer. (11) Facilitating solicitation of unlawful sexual conduct with a child. (12) Electronic solicitation of a child or facilitating the online solicitation of a child. 22
Fincher Act, cont‌ (13) Traveling to meet a child for an unlawful sex act or facilitating the travel of a child for an unlawful sex act. (14) Any solicitation, attempt, or conspiracy to commit any of the offenses listed in subdivisions (1) to (13), inclusive. (15) Any crime committed in any state or a federal, military, or foreign jurisdiction which, if committed in this state under the law existing at the time of the offense, would constitute an offense listed in subdivisions (1) to (13), inclusive. 23
Fincher Act, cont‌ (16) Any criminal sex offense in which the victim is a child under the age of 12 or any offense involving child pornography. (17) Any crime committed in any jurisdiction which, regardless of the specific description or statutory elements, may be characterized or known as rape, sodomy, sexual assault, sexual battery, sexual abuse, sexual torture, solicitation of a child, enticing or luring a child, child pornography, lewd and lascivious conduct, taking indecent liberties with a child, or molestation of a child. (18) Any crime not listed in this subsection involving endangerment to the health, safety, or welfare of a child that may be created on or after March 31, 2010. 24
ALABAMA EDUCATOR CODE OF ETHICS
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Alabama Educator Code of Ethics • A resolution was passed by the State Board of Education adopting the Educator Code of Ethics. • The Board approved codification of the Educator Code of Ethics in its Administrative Code. • After approval by the Board, the Legislative Council overruled the adoption of the rules saying the rules were “too vague” despite them already being adopted by the State Board of Education and in place for a number of years. • The Governor vetoed the Legislative Council’s action. • The Legislature overrode the Governor’s veto. • However, the Educator Code of Ethics still remains as a Board Resolution. 26
NOTE: THE EDUCATOR CODE OF ETHICS CAN STILL BE INCORPORATED (AND HAS BEEN) INTO EMPLOYMENT CONTRACTS AND LEA’S POLICY MANUALS.
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The Alabama Educator Code Of Ethics • Standard 1: Professional Conduct: An educator should demonstrate conduct that follows generally recognized professional standards. • Standard 2: Trustworthiness: An educator should exemplify honesty and integrity in the course of professional practice. • Standard 3: Unlawful Acts: An educator should abide by federal, state, and local laws and statutes. • Standard 4: Teacher/Student Relationship: An educator should always maintain a professional relationship with all students, both in and outside the classroom. • Standard 5: Alcohol, Drug and Tobacco Use or Possession: An educator should refrain from the use of alcohol and/or tobacco during the course of professional practice and should never use illegal or unauthorized drugs.
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Ala. Educator Code of Ethics, cont. • Standard 6: Public Funds and Property: An educator entrusted with public funds and property should honor that trust with a high level of honesty, accuracy, and responsibility. • Standard 7: Remunerative Conduct: An educator should maintain integrity with students, colleagues, parents, patrons, or businesses when accepting gifts, gratuities, favors, and additional compensation. • Standard 8: Maintenance of Confidentiality: An educator should comply with state and federal laws and local school board policies relating to confidentiality of student and personnel records, standardized test material, and other information covered by confidentiality agreements. • Standard 9: Abandonment of Contract: An educator should fulfill all of the terms and obligations detailed in the contract with the local board of education or educational agency for the duration of the contract.
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Too vague? By comparison‌
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Lawyer Code of Ethics • CANON 1. A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession • CANON 2. A Lawyer Should Assist the Legal Profession in Fulfilling its Duty to Make Legal Counsel Available • CANON 3. A Lawyer Should Assist in Preventing the Unauthorized Practice of Law • CANON 4. A Lawyer Should Preserve the Confidences and Secrets of a Client • CANON 5. A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client • CANON 6. A Lawyer Should Represent a Client Competently • CANON 7. A Lawyer Should Represent a Client Zealously Within the Bounds of the Law • CANON 8. A Lawyer Should Assist in Improving the Legal System • CANON 9. A Lawyer Should Avoid Even the Appearance of Professional Impropriety 31
Questions?
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