On the heels of reopening the search for its first permanent executive director, the Professional Educator Licensing and Standards Board is looking to postpone another major to-do item: formalizing the rules governing the state’s new teacher licensure system. 

Since PELSB — the new state board overseeing teacher licensure — had initially posted the executive director job over the winter holidays in a failed effort to hire someone before the start of the 2018 Legislative session, many board members expressed concern that the timing had limited their candidate pool. By simply reposting the job this week, they’re hoping to make the posting more visible.

The one thing they seem certain about, at this point, is the need to start filling some of the open PELSB staff positions to help “alleviate the stress” staff are feeling as they close in on the July 1 start date for the state’s new four-tiered teacher licensure system.

In order to accurately process teacher licensure applications and renewals, staff will be relying on licensure criteria that PELSB adds clarity to through its rulemaking duties. If PELSB members have their way, this task won’t be completed until July 1, 2019.

“This extension request is due to PELSB encountering constraints in timelines and having a strong commitment ensure that the rulemaking process is done with fidelity and due diligence,” said board member Heidi Hahn. 

What, exactly, is rulemaking?

When state lawmakers drafted the new licensure system in 2017, they spelled out the credentials for each licensure tier in state statute. But as the state agency charged with overseeing the process, PELSB is responsible for filling in the details.

That’s where the rulemaking comes in. For instance, statute says that someone must post a job opening before they act on hiring a Tier 1 teacher — those with the fewest teaching credentials — to prove they had first made an effort to hire a more qualified applicant. In the bottom rung of the system, Tier 1 teachers are largely intended to serve as a temporary solution for hard-to-fill teaching positions, whether due to geography or the requirement for content specialists. 

In this instance, PELSB is responsible for fleshing out specifics, like where the job must be posted and for how many days.

In the rush to meet the original July 1 rulemaking deadline, PELSB had scheduled a hearing for March 2 to move forward on finalizing the draft rules it had inherited from its predecessor, the Minnesota Board of Teaching.

But things came to a halt at Saturday’s meeting for board members to address a highly critical report issued by state Chief Administrative Law Judge Tammy Pust. Pust said that PELSB had violated state law by failing to publish a Request for Comment on or after Jan. 1. Rather, the new board moved forward on a timeline already set in motion by its predecessor, the state Board of Teaching. Pust pointed out that the Board of Teaching’s rulemaking process “died with the [Board of Teaching].” While PELSB was allowed to use the Board of Teaching’s draft rules as a starting point, the new board should have reinitiated the entire rulemaking process on its own.

While the report simply raised issue with the board’s rulemaking misstep — not the actual content of the draft rules — it struck a chord with some who were already skeptical that the handoff had been done in good faith.

The state Board of Teaching had been working on the draft teacher licensure rules right up until the handoff, even though state lawmakers had made it clear that PELSB shouldn’t be the Board of Teaching reincarnated. Rather, the new board — comprised of nine new members and two incumbents — was created as part of a fresh start to the state’s teacher licensure system that also included a detailed restructure of license types and standards.

These changes came on the heels of an extremely critical state audit of the state’s teacher licensure system that had been published in the spring of 2016. The audit came as a final blow to the state Board of Teaching, which had already irked state lawmakers for neglecting its rulemaking duties related to issuing teaching licenses through it’s old portfolio system. 

Daniel Sellers, executive director of Ed Allies, a local education reform group that’s been closely following the teacher licensure overhaul, says that while the Board of Teaching may have taken public input on the draft set of teacher licensure rules it passed on to PELSB, that’s no substitute for PELSB taking public input.

“It doesn’t make sense that the old board, on their way out, as their last act, posted these rules, even when the law made it clear that the intent was for the new board to post the rules,” he said. “It wasn’t like we would have had to wait months, or it would have slowed them down. It would have literally been waiting several weeks for PELSB to make that decision on their own: Are they ready to post the rules? And then go from there.”

Uncertain path forward

Anne Krafthefer, the PELSB chair who had previously served on the Board of Teaching, says the agency is asking the Legislature for a year-long extension on their rulemaking deadline. While PELSB is responsible for writing teacher licensure rules, Krafthefer points out that the rules they draft have to go through the Office of the Revisor to make sure it aligns with statute.

“So if we misstep, we have a checks and balances,” she said in an interview after the meeting Saturday. “We are going to ask the Legislature for the amount of time that is required to write good rules and follow the process, as intended.”

Since this course of action would require Legislative approval, however, the board also voted on Saturday to start the rulemaking process over, as outlined in one of the multiple scenarios Alex Liuzzi, PELSB’s interim executive director, had presented to the board for consideration.

In preparation, Liuzzi had already published a new public hearing notice to initiate the request for public comments. If the administrative law judge grants the board an expedited 30-day comment period, and the draft rules don’t encounter any negative feedback during the mandatory public hearing — a scenario that seems highly unlikely — PELSB could potentially still hit its July 1 deadline.

If the Legislature grants PELSB a rulemaking deadline extension, Liuzzi says his staff will still be able to issue tier 1, 2, 3, and 4 licenses come July 1. That’s because the new tiered licensure statute is a whole lot more specific than old statute. But relying solely on the criteria outlined in statute isn’t an ideal plan, he stressed.

“If you start digging into that statute, you realize there’s a lot of things that need definition, that need explanation about process,” he said. “So every day we don’t have rule, we’d be open to more lawsuits — presumably because there would be people applying that we didn’t think even met the intent of statute. And we would deny them a license. And then they would have grounds to argue that we are interpreting statue without rule to back up that interpretation.”

Contacted by phone Monday morning, Rep. Sondra Erickson, chair of the House Education Innovation Policy Committee, was skeptical: “I just don’t think rulemaking should take 12-18 months,” she said, noting the prior board’s involvement in drafting the rules has already drawn things out quite a bit. “I think that’s an absurd timeline given the fact that so often rules are not needed to be so embellished beyond state statute.”