H.B. 129 Education Board Amendments: transcript

Thank you. If this turn, thank you. Thank you, Madam Chair. Um, members of the committee. So I will be speaking to the first substitute of the bill. So hopefully you all didn't spend too much energy looking at the full bill and wondering what is he trying to do. 'cause all we need to really look at is the first substitute of the bill. So, um, state, state statute currently allows the state board, by the way, the state board is an independently elected executive branch, just like the governor. So if you think about this, um, the board, they have the same level of authority as the governor. And statute currently allows the state board to make rules to execute the state board's duties and responsibilities under the Constitution and state law. Um, and that becomes problematic when the state board tries to take on legislative roles that they try to solve problems through legislative action, which they actually can't do. And so this statute is actually not clear. Um, and so the proposed first sub would specify that the state board may only make rules, one, as required by statute or two if necessary, to implement the requirements of a statute if there are no statutory rulemaking directives. So the state board would still have rulemaking authority delegated from the legislature, but this would clarify that that is a delegated authority, not an inherent authority. So if you think about it, if the way the statute's written, it's not clear, and they might say, well, it says under our constitutional duty so we can make rules just because we want to. And the reality is that they cannot, they are, they're not a legislative branch, they're an executive branch, and rulemaking is a legislative authority. So that's what this does, is this just clarifies that they only have rulemaking authority under the delegation of powers because rules have the effect of law. And so that can only be done under the delegated legis legislative authority from the state legislature. And with that Matt, Madam chair, I'd be happy to take any questions.

Thank you. I move that we adopt the first substitute to HB 1 29.

It seems pretty common sense. Alright, Thanks. And to the bill sponsor, I would appreciate that motion very much To the committee.

I move that we favorably recommend HB 1 29 education board amendments as substituted.

I'll and to the bill sponsor? Yeah. Thank you committee for your time. But this is, this is an important clarification just so that we all know what the rules of the game are and what everybody's role that we all play is. So I appreciate your support.

I'll move that we add this to the consent Calendar. Okay.

I will waive to the sponsor, waive and the committee.

Thank you Mr. Chairman. I would just note that there is an amendment that needs to be adopted. That's when the time is right. Um,

Uh, I, I probably should just, uh, this amendment adds in language that was requested by USBE staff to make the bill complete. Uh, so it is important amendment.

Thank you Mr. Chair members, the committee. So this, um, particular topic has somewhat of a checkered past. There have been people who have tried to use bills to, um, change the board's rulemaking authority. And that is not my intent at all. So I wanna make make it absolutely clear that, that despite the fact that they may have been in bills in the past by whoever sponsors, that is not my intent today. Our intent today is simply, uh, I was working on a different version of this bill, and our alleged research pointed out to me that there's an inconsistency in the code. That part of the code in entitled 53 E has different language that doesn't comport, uh, properly with 60 3G. And so that creates some confusion. Uh, the intent of the bill is to clarify the board's rulemaking authority as it exists today with no changes, so that there's no, there is no discrepancy between these two parts of the statute. And so that added language in 53 e points directly to 60 3G. And that makes this match up what's in 53 E with what's in 60 3G. And there is no confusion about which part is ruling and which part isn't ruling because they're now linked together. There'll be a clear bridge. Um, and I believe that if, if there are technical questions, we have members of U-U-S-B-E staff that may be able to answer technical questions. But of course, they would be neutral on the bill, but they could answer technical questions. And that concludes my presentation.

I'd like to make a motion to send house bill 1 29 sub one out with a favorable recommendation education board amendments.

Yeah, I don't have anything to add other than my presentation, so I appreciate the motion.

Thank you, Mr. Speaker. So, uh, colleagues, we are the legislative branch. We pass laws and occasionally as my colleague from Utah County has mentioned, we give people rulemaking authority. Um, when we give people rulemaking authority, we are giving them the ability to act as, as a, an agent of the legislative branch. We're allowing them to make laws too, and we should be very careful with that power that we give to the Executive branch to do that sort of thing. So, um, when it comes to the State Board of Education, they are an executive branch agency. They do not have inherent or constitutional powers to make laws or to make rules or to pass laws or to pa make rules. They have the authority that we give them to make rules. So in the current statute, if you look on lines 44 to 46, it clearly says that the state board may make rules to execute the state board's duties and responsibilities under the Constitution and state law. The problem is that sentence is incomplete. It could be interpreted to say that they have plenary legislative powers inherent to the fact that they're mentioned the Constitution. So what this simply does is it clarifies that they do not, that they are an executive branch agency, just like the Governor's team, attorney General, other executive branch agencies, and that they can only make rules if those rules are required by statute. So in other words, we've told them to, or absent any express authority, it would be necessary to implement the, the effect of the law. So that's what it does, is it just clarifies that they are not an, uh, legislative branch, they're an executive branch, and their rulemaking authority is restricted to only the types of things that we allow them to do. With that, I would ask for your support.

Thank you, Mr. Speaker with a sponsor yield to potentially a series of questions

Sponsor yield to a series of questions. I'll Be glad to Go ahead.

Uh, thank you Mr. Speaker ProAm. So if I understand correctly, the, the Constitution itself doesn't specifically outline the State Board of Education as an executive branch agency, and they seem to have kind of a dual role in legislative and executive. And they, and they do report to the legislative branch, uh, as much as they do the executive. I'm wondering if the sponsor could walk me through the understanding of how this is essentially assigning them an executive branch role.

So thank you Mr. Speaker Pro tem. So I think the Constitution and our current statute is very clear. There's case law that the State Board of Education is exclusively an executive branch. They're not like a county commission where they have potentially a dual role of being executive and legislative. They are like the Attorney general, the state treasurer of state auditor, the governor. They are only the executive branch. They do not have inherent powers to make binding laws, um, on their own authority. Thank,

Thank you Mr. Speaker. Pro Tem. I, I have struggled with this, uh, this concept for some time. The, um, there is a discussion to be had, I think, uh, in policy and whether or not we want a state Board of education that actually fulfills their duty of, of managing the daily operations and management of the schools. Um, they are an elective body, um, as well as what the legislature's role is in education. And I think that in many times the state board has, um, kind of allowed the legislature to take over their duties and tell them essentially what it is that we want them to do. But at the same time, when you talk to the, uh, school boards, when you talk to the, um, at, at the local level, when you talk to LEAs, when you talk to principals and teachers, there's a lot of discussion and argument over whether or not the legislature is really the best place to make those, those seemingly day-to-day roles. Um, and the, the whole purpose of the, uh, state Board of Education is to kind of manage that process, giving them rulemaking authority. And the Constitution isn't necessarily just to interpret the will of the legislature, but there's actually a lot of things that have to be done that doesn't require just the legislature to meet and discuss, um, and debate and vote, and then set the policy for all schools in the state down to the, to the school level. And that's why we have a state board of education. Otherwise, I would recommend that we just disband the State Board of Education, change the constitution, and allow our local boards to do the will of the legislature if that's the goal. And so I, I, I struggle with this. Um, otherwise I do understand the intent and I appreciate the bodies.

Thank you, Mr. Speaker Broan. Would the sponsor yield to a series of questions? Will the sponsor yield to a series of questions? I would be happy to Go Ahead. Under the, under this bill, would the State Board of Education still be able to respond to, uh, federal law or funding conditions as part of their, uh, administrative rulemaking authority?

Thank you, Mr. Speaker ProAm. Uh, so under this bill, they would be able to make rules that are necessary to implement the requirements of a statute. So, and that would include the appropriation. So if we have appropriated for them to receive and spend federal funds and they needed to make rules to do that, that would be included under that. So, um, yes.

So just to clarify, when when the bill speaks of statute, it means both, uh, state law as well as federal statute.

Uh, so I think the implication here as required by statute, if you go back to read 60 3G chapter three, and I wouldn't expect anyone to read that whole thing, but if you do read that, it's the Utah Administrative Rulemaking Act. We clarify for all executive branch agencies what are the terms, conditions, limitations, et cetera, circumstances when they can make rules. And so this just clarifies that those abilities of the state board are just the same as every other executive branch agency, that there is no extra special powers just because they're a state board of education, they don't be, they don't have the opportunity to act outside of the legislative framework.

So our constitution also designates that the state board should have general control and supervision of the public education system and the courts.

There's case law that has, there's, there's actually been case on this exact point as to what does that mean? And the courts have said that that is as determined by the legislature. So we decide what their domain is, we decide what their authorities are, and we decide what rulemaking authority they have.

Thank you. Uh, Mr. Speaker Rotem, I, I'm struggling a bit with this bill because of that Article 10 Power that the, the sponsor referenced. The, the State Board of Education needs to be nimble enough to, to respond to federal law and funding conditions like IDEA, like Title one and civil rights obligations. There is a, uh, I, I resist this idea that the State Board of Education is part of, uh, is just like any other executive branch agency. It is empowered in our constitution and in order to fulfill its function with its general supervision over our public education system, it needs to be able to enact administrative rules, uh, whether the the legislature has put statute into place or not. And that that goes to everything from, um, school accreditation criteria, David, a privacy curriculum frameworks, graduation requirements. There is a role for both the State Board of Education, independent of the legislature and the executive branch, as well as, um, what we, uh, insist that they do through our statutes and our bills. So, uh, I'm still deciding whether or not I'm gonna vote in favor of this bill. Thank you.

Thank you, Mr. Speaker. Pro te I think the, the idea is a great idea and, um, this is giving, this is really, uh, difficult, but I will be voting against this because this is discussing rulemaking authority, something that I promised my constituents I would not vote for. However, at the same time, um, I am learning a lot about rulemaking authority and maybe, um, how to improve on things and, and in the way that I think. So thank you.

You, Mr. Speaker Pro Tim. So Article 10, section one clearly states that the legislature is responsible for providing for the establishment and maintenance of the state's education system. That's our role. Section three mentions that the general control and supervision of that system is vested in the state board of education. That's the executive branch. So under that authority, which has been confirmed by the courts to be executive branch authority, they do not have the ability to create binding law on their own authority only we have the authority to create binding law. We can delegate that authority to the board and give them rulemaking process. And that system is outlined in Title 60 3G, chapter three. But there are limitations on that. The state board cannot of their own volition create a binding law that impacts any part of the state system without some sort of legislative delegated authority. So this is just clarifying that they only have authority to make binding law as it is delegated to them by the legislature. Thank you, Mr. Speaker, pro tem.

Thank you. So there's some ambiguity in our code between two sections in Title 60 3G. The State School Board has, uh, has a limitation on rulemaking authority. And then in Title 53 E it has, uh, a looser and less definitive standard on that. And what this does is clarify so that the two standards match. And, uh, and that's it. It just creates that consistency between the, the two sections of code with regards to the rulemaking ability of the Utah State Board of Education. And I'm open to any questions.

Thank you Mr. President. One question for the sponsor. Senator Brammer, will you yield? I will. Senator Fillmore, Uh, since they are going from unmatching to matching,

which standard did you pick? Yeah, so this goes to the more specific of the two standards. So it would be the title, uh, 60 3G standard, which under the current framework, if you were looking at it judicially, you would the, the more specific would typically govern, but it also creates ambiguity if you're looking into the education code. But there's a more specific one somewhere else that you're, you're not thinking about. And so we wanted to align those.

I will waive Thank you. And call the Question. Thank you. The question

Comm. Thank you Mr. Speaker. Motion to concur.

Yeah. So there was a clause that needed to be added to the bill so that it, that it connected to the proper section of code in another part which establishes the status quo.

Thank you Mr. Speaker Motion. UNC circle.