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ISTARS Program Update - January 31, 2008
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
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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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