Under the Radar: The Agency of Education Gets Busted For Unlawful Teacher Licensing Requirements

Legislative hearings on a sleeper of a bill, S. 217, have had the unintended consequence of exposing the Agency of Education’s long-standing unlawful teacher licensing process, as explained below, with important financial implications for taxpayers generally and even more serious legal and financial implications for teachers, schools and the Agency itself.

First of all, the unlawful system drives up both property taxes and income taxes. By statute, a person cannot be employed as a "teacher" in a public school without a valid license. 16 V.S.A. § 1692. However, the Agency of Education, and the Vermont Standards Board for Professional[1] (a lay body with a teacher majority membership) have created a licensing process that requires every general teacher’s license to carry a specific “endorsement.”[2] There are now 44 different endorsements (six for administrators and the rest for various categories of teachers). Dividing up the duties of teacher in this way, while prohibiting schools from employing teachers in areas outside of their endorsement area[3], contributes to overstaffing in schools. The system requires specialists and prohibits generalists. More teachers means more local staff cost for schools paid for by property taxes. It also means more members of the teachers’ retirement fund, a big chunk of the general fund, which is largely supported by the income tax. 

The second problem is that the unlawful system is expensive for teachers. To be eligible for a particular endorsement a teacher must meet very specific requirements for education and experience and demonstrate competency in certain skill areas. Separate ongoing professional development requirements for renewing a license apply to each endorsement. If a teacher has more than one endorsement the cost of meeting initial licensure and professional development requirements is increased.

Finally, the unlawful system has created more state employees. The Agency of Education has an entire licensing division devoted to determining whether teachers meet endorsement requirements. Licensing fees primarily fund the positions but the retirement costs are yet another general fund expenditure.

So why is the teacher licensing system unlawful? As recently discovered and exposed by the Vermont Secretary of State’s Office, AOE and the Standards Board have created these endorsements completely outside of Vermont’s statutory requirements for rule making.[4]This came to light because over the years AOE has expanded its’ endorsement turf to capture professions, like speech language pathologists and psychologists, already regulated by the Secretary of State’s office. S. 217 is intended to put an end to dual licensure and require a study of statewide licensure with an eye towards consolidation. As the hearings became contentious and turfy the Secretary of State made good on its commitment to transparency by taking a close look at the endorsement requirements.  Here’s what the Deputy Secretary of State had had to say:

“Endorsements are promulgated by the VSBPE (Standards Board) outside of the APA (Administrative Procedure Act) process…. It is well established and self evident that “when an agency adopts policy or procedure it should not supplant or avoid the adoption of rules.” See 3 V.S.A. § 800(4).

He goes on to point out a very specific APA rulemaking provision designed to control education costs:

“If a rule affects or provides for the regulation of public education and public schools, the agency proposing the rule shall evaluate the cost implications to local school districts and school taxpayers, clearly state the associated costs, and report them in a local school cost impact statement to be filed with the economic impact statement on the rule required by subsection 838(c) of this title. An agency proposing a rule affecting school districts shall also consider and include in the local school cost impact statement an evaluation of alternatives to the rule, including no rule on the subject which would reduce or ameliorate costs to local school districts while achieving the objectives or purposes of the proposed rule. The legislative committee on administrative rules may object to any proposed rule if a local school cost impact statement is not filed with the proposed rule, or the committee finds the statement to be inadequate, in the same manner in which the committee may object to an economic impact statement under section 842 of this title. 3 V.S.A. § 832(b).”

Senate Government Operations S.217

By ignoring the rule-making process both the Agency of Education and the Standards Board have avoided public input, cost analysis and legislative oversight. Then there’s the issue of enforcing “rules” that arguably don’t have the force and effect of law. [5]The implications here are staggering. How this gets sorted out is the responsibility of the Governor’s office and quite possibly the courts. Now that the Governor has direct supervisory authority over the Secretary of Education he needs to exercise it by insisting that teacher endorsements are subject to immediate rulemaking. The legislature in turn should take this as a lesson in why professional licensure should be housed entirely within an agency that understands and respects its’ legal obligations and its’ responsibility to the public.

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Barbara Crippen
Policy Coordinator

[1] Regulatory authority over licensing was transferred from the State Board of Education to the Vermont Standards Board. The Agency of Education has a full time staff issuing licenses, a Deputy Secretary for Educator Quality and attorneys and investigators preforming functions related to educator misconduct and/or incompetence complaints.

[2] Rules 5220.2 and 5440, Licensing of Educators and Preparation of Education Professionals.

[3] Rule 5220.7

[4] 3 V.S.A. Chpt. 25.

[5] See Parker v. Gorczyk, 170 Vt. 263 (1999).

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