[Vision2020] Special Report to Constituents Regarding the ISTARS Program

[ttrail at moscow.com]

REPORT TO CONSTITUENTS CONCERNING THE ISTARS PROGRAM
 
Constituents:
 
One of the major education initiatives this Legislative Session is the
ISTARS Program proposed by Superintendent of Public Instruction, Tom Luna.
  The ISTARS Plan has been outlined in several of my past newsletters.  
Mr. Luna's plan would introduce merit pay for teachers in exchange for
giving up their continuing contract rights.  Teachers interested in
participating in the plan would then be placed under a Category 4 Contract
and in essence become at will employees.
 
Mr. Luna's plan was initially estimated to cost $65 million.  He then
scaled it back to $46 million.   However, with increasing concern about the
bleak economic outlook for the county and Idaho, we've heard that he has
five different lower cost options.
 
One of the issues that I raised with Mr. Luna concerned what would happen
if a teacher agreed to become a Category 4 contract teacher and then at a
future date the Legislature cut off funding for the program.  Would that
teacher be able to regain his/her continuing contract rights?   Mr. Luna
told me in private and also in a meeting of over 125 people in public
testimony that a teacher in this case would be able to switch back to the
continuing contract status if such an event as outlined above occurred.  He
said the protection was in his ISTARS proposal and also covered under
current Idaho Code.
 
I asked Mr. Luna to provide me the specific references.   I did not hear
back from him so spent considerable time in reviewing the statutes and his
ISTARS legislation.  I then asked the Idaho Attorney General's Office to
research my question and issue an opinion.  I normally would not go into
all of this detail; however, 80 percent of questions raised by constituents
revolve around ISTARs so I'm providing the Attorney General's Opinion since
this is one of the key issues raised by teachers.
 
ATTORNEY GENERAL'S OPINION 08-21617  
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Representative Trail  --  You have asked for guidance regarding the
proposed ISTARS legislation.  As I understand your request, you want to
know what will happen if a teacher agrees to become a Category 4 contract
teacher and the Legislature cuts off funding for the ISTARS program.  Your
request specifically seeks guidance as to whether the Category 4 contract
teacher will regain continuing contract status or somewhere else under
Idaho Code.
 
As currently configured, the ISTARS legislation does not address the
situation involving a lack of state funding for the Category 4 contract
teacher.  Nor is there any other provision in the Idaho Code that would
provide for a Category 4 contract teacher returning to continuing contract
status.
 
The ISTARS program makes very clear that a certificated employee who choose
to sign a Category 4 contract "is irrevocably terminating any rights to a
category 3 contract or to a renewable contract...."See Section 2 of Senate
Bill 1310 (proposed Idaho Code 33-514B (1)

The ISTARS program specifically proposes to amend Idaho Code 33-515
(issuance of Renewable Contracts) to exclude Category 4 contracts.  The
admonition regarding the permanent loss of continuing contract rights as a
result of signing a Category 4 contract is reiterated in Section 6 of S1310
(proposed Idaho Code 33-1004 (4)(b) and 33-1004 (4) ©)
 
Moreover, the ISTARS program appears to deny school districts the ability
to amend or alter Category 4 contracts or the awards to be paid pursuant to
them.  See Section 6 of S1310. Thus, the ISTARS program not only makes very
clear that a teacher who signs a Category 4 contract gives up any right to
continuing contract status at the time of signing or in the future but also
appears to severely limit a school district's ability to alter the contract
status with a Category 4 contract teacher.
 
The ability of a school district to alter or amend its contractual
relationship with a certificated employee is further limited by case law in
Idaho that establishes that a teacher's contract includes relevant
statutory provisions from the Idaho Code.  See, Rhoades v. Idaho Falls
School District No. 91, 131 Idaho 827, 965 P.2d 187 (1998), and Brown v.
Caldwell High School District No. 132, 127 Idaho 112, 898 P.2d 43 (1995). 
Therefore, the ISTARS "awards" to Category 4 contract employees would
become part of the employee's contract with the school district or charter
school.  Contract rights are protected by constitutional due process
considerations, as would be any reduction of compensation under a Category
4 contract during the contract period.   Should the Legislature not fund
ISTARS, the remedy of a Category 4 contract employee would be against the
school district or charter school.  The school may be liable for payment to
the employee pursuant to the Category 4 contract award provisions.  As part
of the relief sought by a teacher, a court could order that a teacher be
returned to continuing contract status or have access to such status. 
However, such a result would likely be on a case by case basis until the
issue was ultimately resolved by the Idaho Supreme Court
 ********************************************************************

The concerns brought forth by the AGs opinion will no doubt provoke for
great of discussions as the ISARS proposal goes through the legislative
process.   I'm usually quite brief and to the point in my newsletters;
however, this did seem an excellent opportunity to show that when in doubt
a legislator does have access to the Idaho Attorney General's Office for
legal assistance concerning problems affecting constituents.
 
Representative Tom Trail



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