You asked (1) what procedure the State Board of Education (SBE) must follow when adopting new teacher certification regulations; (2) what the relationship is among statutes, agency regulations, and agency procedures or policies; and (3) what authority the State Department of Education (SDE) had to use a portfolio assessment, including a video, to assess beginning teachers under the beginning educator support and training (BEST) program.

The Office of Legislative is not authorized to issue legal opinions and nothing in this report should be considered one.

SUMMARY

The SBE and the SDE, like all state agencies, are subject to the Uniform Administrative Procedure Act (UAPA) which, among other things, establishes procedures for agencies to formulate and adopt new or amended regulations or repeal prior regulations. Any amendments to SBE's teacher certification regulations are subject to the UAPA requirements. These include submitting the proposed regulation to the attorney general and the Legislative Regulation Review Committee (LRRC) for approval as to legal sufficiency and filing it with the Office of the Secretary of the State. Other procedures, such as notice in the Connecticut Law Journal, also apply for most regulations. (Emergency regulations and certain technical amendments have slightly different requirements which are not covered in this report.)

The state constitution gives the General Assembly broad power to delegate authority to the executive branch and its agencies to implement laws. Agencies must have statutory authority to adopt regulations and any regulations they adopt must comply with the authorizing law. All regulations must be adopted according to UAPA procedures. The Connecticut Supreme Court has ruled that any agency policy that applies generally and has substantial impact on the rights and responsibilities of those it regulates is subject to UAPA requirements even if the agency does not call it a “regulation.”

BEST is a support, training, and assessment program for new teachers, who must complete the program successfully to retain their teaching certificates. When it enacted the program, the legislature set certain requirements in the law and also required the SBE to adopt regulations to implement the program. One provision of the BEST law requires assessments of beginning teachers to be based at least partly on data from assessors' observations conducted using an “assessment instrument.” In its BEST program regulations, the SBE fleshed out this requirement by defining a valid assessment instrument and requiring that the assessors' observation of beginning teachers be “on-site” observations.

The SDE's use of a portfolio assessment does not appear to contravene the BEST law or regulations, which do not designate any particular assessment instrument. The department's requirement that teachers submit videos of their classroom instruction as part of the portfolio so assessors can assess them also appears to meet a literal reading of the statute's requirement that assessments be based partly on observation. But use of videotapes does not seem to match the requirement in SBE's regulations for “on-site observation.”

The issue is moot since the General Assembly barred use of videos in assessments starting July 1, 2008 and repealed the current BEST program entirely as of July 1, 2009.

PROCEDURES FOR ADOPTING STATE REGULATIONS

Notice

Before a state agency can adopt a regulation, it must give at least 30 days notice of its intention to do so by publishing the notice in the Connecticut Law Journal. The Law Journal notice must include:

1. a description of the proposed regulation's terms or substance that is detailed enough to inform someone likely to be affected of the subjects and issues involved;

2. the purposes for proposing the regulation;

3. the agency's statutory authority for adopting it; and

4. when, where, and how interested people can present their views on it.

The agency must also mail a notice to (1) each General Assembly standing committee with cognizance over the subject of the regulation and (2) anyone who asked the agency for advance notice of its regulation-making proceedings. It must also send a copy of the proposed regulation to anyone who asks for it. An agency can charge a reasonable fee for providing the notices and copies (CGS § 4-168(a)).

Fiscal Note

After publishing the Law Journal notice, the agency must prepare a fiscal note for the proposed regulation that includes its estimated cost or revenue impact on the state or any municipality. If the agency requests it, a municipal governing body must give the agency any information it needs for the fiscal note, within 20 working days of the request (CGS § 4-168(a)).

Regulatory Flexibility Analysis

Each time an agency proposes a regulation, it must decide if it adversely affects small businesses and, if so, consider other regulatory methods that could reduce this burden and still achieve the regulation's purpose. If the agency determines that the proposed regulation could burden small businesses, it must notify the Department of Economic and Community Development, which must help it prepare the flexibility analysis (CGS § 4-168 (a) and (c)).

Public Inspection and Comment

After providing the required notice, the agency must give all interested parties a reasonable opportunity to submit data, views, and arguments concerning the proposed regulation either orally at a hearing or in writing. The agency must hold a hearing on the regulation if asked to do so by (1) at least 15 people, (2) a government agency or subdivision, or (3) an association with at least 15 members. The agency must receive the hearing request within 14 days after the date it publishes the notice.

The agency must also allow a reasonable opportunity for those who are interested to inspect and copy the fiscal note on the proposed regulation (CGS § 4-168(a)).

Notice of Final Wording

The agency must fully consider all comments received and revise the fiscal note to reflect any changes it makes in the proposed regulation. If the agency decides to proceed with the proposed regulation or to change its wording from that originally proposed, it must mail notice of the fact to everyone who submitted written or oral comments or information and who asked to be notified. It must mail the notice at least 20 days before submitting the regulation to the LRRC. It must state in the notice that the following are available for inspection and copying: (1) the text of the final regulation, (2) statements of the principal reasons for and against the agency's action, and (3) its reasons for rejecting opposing considerations (CGS § 4-168 (a) and (d)).

Attorney General's Approval

An agency must submit any proposed new or amended regulation or any proposal to repeal a regulation to the attorney general for approval. The attorney general's consideration of the regulation is limited to a determination of its legal sufficiency. By law, “legal sufficiency” means that (1) the regulations do not conflict with state or federal constitutions, laws, or regulations and (2) the agency has met the UAPA's notice and hearing requirements (CGS § 4-169).

The attorney general has 30 days from submission to approve or disapprove the regulations. Failure to act within the required time is considered approval.

LRRC Action

All regulations, except emergency regulations, must be approved by the 14-member bipartisan LRRC. Agencies must submit regulations to the committee, along with their fiscal notes, and must mail or submit a copy of the regulations and the fiscal note to the Office of Fiscal Analysis and the legislative committees of cognizance.

The LRRC must review the regulations and may hold hearings on them. It is authorized to take three possible actions with respect to any regulation:

1. Approval of the whole or a part

2. Disapproval of the whole or a part

3. Rejection without prejudice, also of the whole or a part

If the committee approves the regulation, it becomes effective when filed in the proper form with the secretary of the state. If the committee approves the regulation in part, the agency must delete the offending part of the proposed language. If the committee disapproves a regulation or a part of it (effectively requiring deletion of the part it disapproves), the agency is prohibited from implementing it. If the committee rejects a regulation (or a part of it) without prejudice, it must notify the agency of its reasons. The agency must then resubmit the revised regulation for the committee's review.

If the committee fails to act within 65 days after the regulation is submitted to it, the regulation is considered approved. In the case of a resubmission, the committee has 35 days to act (CGS § 4-170)

Deadline for Proposing Required Regulations

If a public act requires an agency to adopt regulations, the agency must publish the Law Journal notice within five months after the act's effective date or by any other deadline specified in the act. If the agency fails to meet the deadline, it must submit a written statement of its reasons to the governor, the legislative committee of cognizance, and the LRRC. An agency may begin the regulation-making process before the effective date of the act requiring regulations, but the regulations themselves cannot take effect before the act's effective date (CGS §4-168 (b), (c)).

An agency must submit required regulations to LRRC within 180 days after it publishes the Law Journal notice or submit a written statement to the committee explaining its reasons for failing to do so. An agency must file an approved regulation with the secretary of the state within 14 days after LRRC approval or must notify the committee within five days after the 14-day period ends why it has not done so

If an agency fails to meet the regulation timetable prescribed in the law, the agency head must submit a written explanation to the LRRC. The committee, by a two-thirds vote, may extend a time limit. If no extension is granted, the agency head must personally appear before the committee to explain the agency's failure to comply with the law. After the appearance, the committee, also by a two-thirds vote, may report the noncompliance to the governor. Within 14 days after that, the governor must report to the committee on her action to ensure compliance (CGS § 4-170 (f)).

Challenging How a Regulation is Adopted

No regulation adopted after October 1, 1985 is valid unless it is adopted substantially according to the statutory procedure. No regulation is considered invalid solely because the agency failed to give prior notice to each legislative committee of cognizance as long as it notified at least one such committee (CGS §4-168 (a)). Any challenge to a regulation based on faulty adoption procedures must be instituted within two years after it takes effect (CGS § 4-168 (h)).

RELATIONSHIPS AMONG STATUTES, REGULATIONS, AND AGENCY POLICIES

Statutes

The Connecticut Constitution allows the legislature to delegate regulatory authority to executive agencies (Article XVIII of the Amendments to the Connecticut Constitution). Agencies cannot adopt regulations without having the statutory authority to do so.

State statutes supersede regulatory provisions in case of a conflict. Regulations must comply with the specific authority granted by the law. “If an agency adopts a regulation that falls outside of the rulemaking powers delegated by statute to that agency, then the regulation exceeds statutory authority and is theoretically invalid” (Legislative Commissioners' Office, Manual for Drafting Regulations, p. 3).

Regulations

State agency regulations approved in accordance with the UAPA have the force of law. The UAPA defines a “regulation” as an agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The following are not considered regulations: (1) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public, (2) declaratory rulings, or (3) intra- or interagency memoranda (CGS § 4-166 (13)).

The Connecticut Supreme Court has ruled that, in determining whether a particular agency policy is a regulation, it is not conclusive that an agency has, or has not, called its action a regulation or that it has, or has not, promulgated it procedurally in the fashion that would be required of a regulation. “The test is, rather, whether a rule has a substantial impact on the rights and obligations of parties who may appear before the agency in the future” (Walker v. Commissioner, Department of Income Maintenance, 187 Conn. 458). According to LCO's Regulations Manual, the UAPA applies to “any directive that has general applicability, whether or not is designated a regulation . . .” (p. 5).

TEACHER ASSESSMENT UNDER THE BEST PROGRAM

Statutory Authority

The BEST program was established by state law as a two-year program of support and assessment for new teachers (CGS § 10-220a (d)). Among other things, this authorizing statute required a beginning teacher's assessment to “be based upon, but not limited to, data obtained from observations conducted by assessors using an assessment instrument.” Until July 1, 2009, satisfactory completion of the BEST program is required for new classroom teachers employed in public schools and approved private special education facilities.

Two statutes required the SBE to adopt regulations for the BEST program. First, § 10-220a (d) specified: “The cooperating teacher and beginning teacher support and assessment programs shall operate in accordance with regulations adopted by the State Board of Education in accordance with chapter 54 . . .” Second, § 10-145d (5) requires the board to adopt regulations on “the composition of, and the procedures to be utilized by, the assessment teams implementing the beginning educator program.”

Regulations

SBE's BEST program regulations took effect on July 24, 1992 and have never been amended. The regulations were adopted under the UAPA and, as such, they were approved by the attorney general and the LRRC as being within the statutory authority granted by the BEST law. The regulations define various terms and establish program requirements for such things as selection, training, and responsibilities of cooperating teachers, mentors, and assessors; how beginning teachers must be assessed; and how assessment results are reported (Regs. of Ct. State Agencies §§ 10-220a-1-19).

The regulations require the BEST assessment “instrument or instruments” to be (1) validated by the SDE and (2) based on the Connecticut Teaching Competencies, which they define as “those descriptors, as adopted by the Board, of skills and abilities teachers should possess” (Regs. § 10-220a-1 (b) and (l)).

The regulations follow the BEST statute by requiring that assessors use data from observations as part of their assessment, but unlike the statute they require that data to come from “on-site” observations. The regulations also require (1) each beginning teacher to be observed by assessors and (2) that at least one of the assessors be a certified teacher employed a board of education (Regs. § 10-220a-10).

SDE Policy Change

According to a 2007 Program Review and Investigation Committee report on the BEST program, starting in the mid-1990s, after SBE adopted the BEST regulations, SDE began using a portfolio to assess beginning teachers. The portfolio had to include:

1. daily lesson plans for one unit of classroom instruction with one class;

2. examples of work from two students and the teacher's assessment of the work;

3. the teacher's commentaries reflecting on his or her teaching practices and students' learning; and

4. a videotape showing the teacher's classroom instruction (Beginning Educator Support and Training Program, Legislative Program Review and Investigations Committee, December 2007).

SDE's Portfolio Assessment and Video Requirements

The BEST assessment law and regulations appear broad enough to allow SDE to use a portfolio as an assessment instrument for beginning teachers. The BEST law does not define an “assessment instrument” and SBE's regulations require only that (1) it be based on the SBE's teaching competencies and (2) the SDE consider it valid.

Both the statute and the SBE's regulations require assessors to conduct observations of beginning teachers and use data from them as part of their assessment. According to the Program Review report, it appears that SDE has used the videotape part of the portfolio to meet these observation requirements. It could be argued that watching a videotape of a teacher's classroom instruction meets a literal reading of the statutory requirement for the assessor to “observe” the beginning teacher. On the other hand, assessment via videotape alone does not seem to comply with the SBE regulations requiring “on-site observation.” That term implies that the observations must occur while the assessor and the beginning teacher are in the same place or the same classroom.

In the absence of any determination by the attorney general, the LRRC, or a court, we cannot tell if the SBE had the statutory authority to amend the BEST regulations to substitute videos for on-site observations. No such determinations were made because the SDE implemented the new policy without changing the regulations. It is possible that the change could have been challenged on the grounds that the video requirement was, in effect, a new regulation and that the SDE could not adopt it without complying with the UAPA. Now, however, the issue is moot. In the 2008 legislative session, the General Assembly eliminated (1) the video component from the BEST assessment for new teachers for the 2008-09 school year and (2) the entire BEST program as of July 1, 2009 (PA 08-107).

JL:ts