Recommendations

Elaine M. Howle State Auditor Doug Cordiner Chief Deputy July 10, 2014 2014‑502 The Governor of California President pro Tempore of the Senate Speaker of the Assembly State Capitol Sacramento, California 95814 Dear Governor and Legislative Leaders: This letter report presents the results of a follow‑up review of the Commission on Teacher Credentialing (commission) subsequent to recommendations made in 2011 by the California State Auditor (state auditor). In April 2011 the state auditor submitted a report to the governor and legislative leaders titled Commission on Teacher Credentialing: Despite Delays in Discipline of Teacher Misconduct, the Division of Professional Practices Has Not Developed an Adequate Strategy or Implemented Processes That Will Safeguard Against Future Backlogs, Report 2010‑119. The report recommended that the commission improve its investigations of alleged educator misconduct by formalizing investigative procedures and tracking critical stages in the investigative process. The report also recommended that the commission revise its strategic plan to include challenges, goals, and actions, and obtain a legal opinion from the Office of the Attorney General (attorney general) on the legal authority and extent to which the Committee of Credentials (committee) can delegate its discretionary authority to staff in the Division of Professional Practices (division). As the Table beginning on page 2 shows, this follow‑up review found that the commission has fully implemented almost all of our recommendations or resolved the underlying issues related to two of them. Background The commission was created in 1970 with the responsibility of ensuring excellence in education by establishing high standards for the preparation and licensing of public school educators. The commission consists of 19 members, 15 of whom are voting members, and it appoints an executive director to oversee the commission’s four divisions and one section. The commission also appoints the members of the committee—a seven‑member body. The committee reviews allegations of misconduct and determines the relationship between the alleged misconduct and the credential holder’s fitness, competence, or ability to effectively perform the duties authorized by the credential, and whether there is probable cause to take adverse action against the credential holder. The committee then reports its findings of probable cause and makes recommendations for appropriate adverse actions to the commission for adoption. The commission’s division conducts the investigations of misconduct on behalf of the committee and the commission. Upon receiving reports or allegations of misconduct, the division gathers the documents and testimony necessary to determine whether probable cause exists for discipline and a recommendation for an adverse action against the credential holder, prepares the necessary reports for review, and provides support for any proceedings, such as appeals of committee and commission findings and recommendations. 621 Capitol Mall, Suite 1200 Sacramento, CA 95814 916.445.0255 916.327.0019 fax www.auditor.ca.gov The Governor of California President pro Tempore of the Senate Speaker of the Assembly July 10, 2014 Page 2 In our February 2013 report titled Implementation of State Auditor’s Recommendations: Audits Released in January 2011 Through December 2012, we concluded, based on the commission’s responses, that it had fully implemented all of the recommendations from our April 2011 report. The state auditor’s practice is to occasionally follow up on past audit reports to verify the agency’s assertions regarding its implementation of our recommendations. For this follow‑up review, we interviewed staff and reviewed documentation supporting the commission’s implementation of our recommendations. The Table summarizes the results of our review. Table Status of Recommendations Made in California State Auditor’s Report 2010‑119 STATUS BASED ON RECOMMENDATION FOLLOW‑UP REVIEW To comply with the law and reduce unnecessary workload, the Division of Professional Practices (division) should continue to notify the California Department of Justice (Justice) of reports of arrest and prosecution (RAP sheets) Fully Implemented for individuals in whom the division is no longer interested, so Justice will no longer notify the division of criminal activity for these individuals. (1.1)* The Commission on Teacher Credentialing (commission) should revise its strategic plan to identify the Partially programmatic, organizational, and external challenges that face the division and the Committee of Credentials Implemented† (committee), and determine the goals and actions necessary to accomplish its mission. (2.1) To ensure that it can effectively process its workload in the future, the commission should collect the data needed to Fully Implemented identify the staffing levels necessary to accommodate its workload. (2.2) The commission should seek a legal opinion from the Office of the Attorney General (attorney general) to determine the legal authority and extent to which the committee may delegate to the division the discretionary Resolved authority to close investigations of alleged misconduct without committee review, and take all necessary steps to comply with the attorney general’s advice. (2.3) Once the commission has received the attorney general’s legal advice regarding the extent to which the committee may delegate case closure to the division, the commission should undertake all necessary procedural and statutory Resolved changes to increase the number of cases the committee can review each month. (2.4) The division should develop and formalize comprehensive written procedures to promote consistency in, and Fully Implemented conformity with, management’s policies and directives for reviews of reported misconduct. (2.5) The division should provide the training and oversight, and should take any other steps needed, to ensure that the case information in its case management database is complete, accurate, and consistently entered to allow for the Fully Implemented retrieval of reliable case management information. (2.6) The commission should continue to implement its new procedures related to deleting cases from its database to ensure that all such proposed deletions are reviewed by management for propriety before they are deleted and a record is Fully Implemented kept of the individuals to which each such deleted case record pertains. Further, the commission should develop and implement policies and procedures related to managing changes and deletions to its database. (2.7) To ensure that the division promptly and properly processes the receipt of all the various reports of educator misconduct it receives, such as RAP sheets, school reports, affidavits, and self‑disclosures of misconduct, it should develop and implement procedures to create a record of receipt of all these reports that it can use to account for Fully Implemented them. In addition, the process should include oversight of the handling of these reports to ensure that case files for the reported misconduct are established in the commission’s database to allow for tracking and accountability. (2.8) To adequately address the weaknesses we discuss in its processing of reports of misconduct, the division should revisit management’s reports and processes for overseeing the investigations of misconduct to ensure that the reports and practices provide adequate information to facilitate the following: • Reduction of the time elapsed to perform critical steps in the review process. (2.9.a) Fully Implemented • Adequate tracking of the reviews of reports of misconduct that may require mandatory action by the commission to ensure the timely revocation of the credentials for all individuals whose misconduct renders them unfit for the Fully Implemented duties authorized by their credential. (2.9.b) • Prompt requests for information surrounding reports of misconduct from law enforcement agencies, the courts, Fully Implemented schools, and knowledgeable individuals. (2.9.c) • An understanding of the reasons for delays in investigating individual reports of misconduct without having to Fully Implemented review the paper files for the cases. (2.9.d) continued on next page . . . The Governor of California President pro Tempore of the Senate Speaker of the Assembly July 10, 2014 Page 3 STATUS BASED ON RECOMMENDATION FOLLOW‑UP REVIEW • Clear evidence of management review of reports intended to track the division’s progress in its investigations of Fully Implemented misconduct. (2.9.e) • Clear tracking of the dates at which the commission will lose its jurisdiction over the case as a result of the Fully Implemented expiration of statute‑based time frames for investigating the misconduct. (2.9.f) The division should develop and implement procedures to track cases after they have been assigned to the Fully Implemented investigative process. (2.10) To better ensure that its hiring decisions are fair and that employment opportunities are equally afforded to all eligible candidates, and to minimize employees’ perceptions that its practices are compromised by familial relationships or employee favoritism, the commission should do the following: • Prepare and/or formally adopt a comprehensive hiring manual that clearly indicates hiring procedures and Fully Implemented identifies the parties responsible for carrying out various steps in the hiring process. (3.1.a) • Maintain documentation for each step in the hiring process. For example, the commission should maintain all applications received from eligible applicants and should preserve notes related to interviews and reference Fully Implemented checks. Documentation should be consistently maintained by a designated responsible party. (3.1.b) • Hiring managers should provide to the commission’s office of human resources documentation supporting their appointment decisions, and the office of human resources should maintain this documentation so that it can Fully Implemented demonstrate that the hiring process was based on merit and the candidate’s fitness for the job. (3.1.c) To ensure that employees understand their right to file either an Equal Employment Opportunity (EEO) complaint or a grievance, and to reduce any associated fear of retaliation, the commission should do the following: • Include in its EEO policy a statement informing staff members that they may make complaints without fear of Fully Implemented retaliation. (3.2.a) • Actively notify employees annually of its EEO complaint and grievance processes, including the protection from Fully Implemented retaliation included in both. (3.2.b) • Conduct training on its EEO complaint process on a periodic basis. (3.2.c) Fully Implemented Sources: Recommendations made in the report by the California State Auditor (state auditor) titled Commission on Teacher Credentialing: Despite Delays in Discipline of Teacher Misconduct, the Division of Professional Practices Has Not Developed an Adequate Strategy or Implemented Processes That Will Safeguard Against Future Backlogs, Report 2010‑119 (April 2011), and the state auditor’s analysis of the commission’s actions related to the recommendations. * This number corresponds to the recommendation number in the state auditor’s report titled Implementation of State Auditor’s Recommendations: Audits Released in January 2011 Through December 2012, Report 2013‑406 (February 2013). † Based on our follow‑up review, we changed the status of this recommendation from fully implemented to partially implemented because we found the commission’s strategic plan lacked timelines and measurable targets. Further, the commission only informally tracks and evaluates the status of each goal. The Commission Implemented Almost All of Our Recommendations or Resolved the Recommendation’s Underlying Issues The commission has fully implemented 19 of our recommendations, partially implemented another, and resolved the underlying issues related to the remaining two recommendations from our April 2011 report. Specifically, the commission has formalized a variety of procedures intended to improve its oversight of investigations into alleged educator misconduct. For example, the commission implemented a process to improve the accuracy and completeness of the division’s Credential Automation System Enterprise (CASE) database. In addition, the commission developed procedures for cases that have the potential for mandatory action, which should help it to better track the cases it is reviewing and investigating to ensure that it can take timely adverse action against credential holders when necessary. Further, according to its records, the commission has reduced the percentage of assigned cases open more than 180 days from 63 percent in February 2012 to 20 percent in June 2014. The commission has also formalized hiring procedures and Equal Employment Opportunity (EEO) polices to ensure that hiring decisions are fair and the fear of retaliation associated with EEO complaints is eliminated. The Governor of California President pro Tempore of the Senate Speaker of the Assembly July 10, 2014 Page 4 However, we found that the commission could make minor improvements to obtain greater benefits related to two recommendations, one that it initially reported as fully implemented, but we assessed as partially implemented, and another that it fully implemented. For example, the commission updated its strategic plan to identify challenges and goals as we recommended in our April 2011 report and reported this recommendation fully implemented. However, our follow‑up review found that the strategic plan would be more useful if the commission included timelines and measurable targets to help it better measure its progress toward meeting its goals. Additionally, the commission only informally tracks and evaluates the status of each goal. For these reasons, we assessed this recommendation as partially rather than fully implemented. The commission plans to revise its strategic plan in August 2014. For another recommendation we assessed as fully implemented, we recommended that the commission develop and formalize Types of Cases the Commission on comprehensive written procedures to promote consistency in, Teacher Credentialing Has Delegated Its and conformity with, management’s policies and directives for Ministerial Authority to Close to the reviews of reported misconduct. In our follow‑up review we Division of Professional Practices found that the commission has prepared and placed on its No Jurisdiction: The Commission on Teacher Credentialing intranet a variety of individual documents that describe specific (commission) does not have formal jurisdiction pursuant to procedures for division staff to follow when performing reviews California Education Code, Section 44242.5(b). of reported misconduct. However, there is no index or guide for these procedure documents, making it difficult for division staff Mental Health Suspension: The credentials of an individual to use these procedures. To be more effective we suggest that the are indefinitely suspended by the commission for mental commission create a table of contents or a similar document with health issues pursuant to Title 5, California Code of Regulations, Section 80309. electronic links that connect staff to the procedures for each step of the review process. With these minor improvements, the Expired Credentials: Cases where credentials are commission can continue to build on its successful expired and no application is pending unless the alleged implementation of our recommendations. misconduct also involves any of the following: • Allegations of sexual misconduct The commission did not fully implement two of our • Crimes against children recommendations, but it has taken alternative actions that appropriately resolve the concerns we raised. We recommended • Reports filed by school districts, and actions taken by other that the commission seek a legal opinion from the attorney licensing agencies general to determine the legal authority and the extent to which Single Misdemeanor Alcohol Offense: Cases with the committee may delegate to division employees the authority one misdemeanor alcohol‑related offense unless the to close investigations of alleged misconduct without committee offense also involves any of the following: review. Further, we recommended that it undertake all necessary • A child procedural and statutory changes to increase the number of cases the committee can review once it receives the opinion. • A school or school property The commission attempted to seek an opinion from the attorney • Adverse publicity that impacts the local community general in order to implement these two recommendations, Vehicle Code Violations: Cases with a conviction of while at the same time increasing the number of cases it multiple infractions or a single misdemeanor under the reviewed each month: from an average of 50 to 60 per month California Vehicle Code unless the violation also involves any as noted in our April 2011 report, to an average of 72 to 103 per of the following: month for fiscal years 2011–12 through 2013–14. In addition, the commission took formal action to provide specific written • A child guidance and direction to staff as to which cases they had the • A school or school property authority to close without further review by the committee. • Adverse publicity that impacts the local community Based on this new guidance relating to the extent of its delegation of authority, our legal counsel concluded that division Sources: Commission meeting agendas. staff are acting in an appropriate ministerial capacity when closing the types of cases shown in the text box. The Governor of California President pro Tempore of the Senate Speaker of the Assembly July 10, 2014 Page 5 This action by the commission resolved our concern that only the commission may exercise discretionary authority—that is, authority that involves the exercise of judgment—over case closures, and that division staff may act only in a ministerial capacity. Under this new guidance the division must forward to the committee for its review those cases that require the committee to exercise its discretion. For example, the division would forward to the committee for its review all cases of alleged misconduct that involve an alcohol‑related incident, which also involves a child, school property, or negative publicity. These types of cases require the committee to weigh the facts and exercise its judgment before making a decision as to the appropriate action to take, if any, against the individuals allegedly involved in the misconduct. As a result of these actions, the commission withdrew its request to the attorney general at its August 2012 meeting. Although the commission has appropriately delegated its authority to division staff to close five types of ministerial cases of educator misconduct, at the time of our follow‑up review the commission had developed procedures for only four of five of these case types. Specifically, the commission had not developed procedures for closing cases involving expired credentials; rather, it directed staff to use procedures for another case type. Without clear procedures for closing cases involving expired credentials, staff may inappropriately apply their judgment in determining whether a case should be closed. After we brought this matter to the commission’s attention, it developed procedures in June 2014 that specifically addressed how staff are to close cases involving expired credentials. Recommendations To make its strategic plan a more useful mechanism for accomplishing its mission, the commission should ensure that, to the extent possible, its goals have timelines and are measureable. Further, the commission should periodically evaluate and track its progress towards meeting its goals. We conducted this review under the authority vested in the California State Auditor by Section 8543 et seq. of the California Government Code. We limited our review to those areas specified in the letter report. Respectfully submitted, ELAINE M. HOWLE, CPA State Auditor Staff: John Baier, CPA, Audit Principal Jerry A. Lewis, CICA Brenton Clark, MPA Lisa Sophie, MPH For questions regarding the contents of this report, please contact Margarita Fernández, Chief of Public Affairs, at 916.445.0255. The Governor of California President pro Tempore of the Senate Speaker of the Assembly July 10, 2014 Page 6 Commission on Teacher Credentialing 1900 Capitol Avenue Sacramento, CA 95811 (916) 322-6253 Fax (916) 445-0800 www.ctc.ca.gov Office of the Executive Director June 25, 2014 Elaine M. Howle, CPA* California State Auditor Bureau of State Audits 621 Capitol Mall, Suite 1200 Sacramento, California 95814 Dear Ms. Howle: The Commission on Teacher Credentialing welcomes the opportunity to respond to the follow up review of your April 2011 audit. The 2011 audit was sobering review of business practices in the Division of Professional Practices, the division that manages the Commission’s educator discipline program. While the audit’s criticisms were painful for the Commission, your recommendations provided a catalyst for change and improvement and as a result, energized the agency as a whole and the Division of Professional Practices in particular. We are committed to continuing to improve our business practices to better serve the public. While government is often criticized for an inability to implement change, your follow-up report shows that the Commission has achieved substantial and lasting reforms. In 2011 and 2012 the Commission’s priority was implementing the recommendations made by your office and eliminating the backlog of discipline cases. We continue to review, refine and improve our work and business practices to enhance the safety of students and the integrity of the education profession. As your report notes, the Commission is scheduled to begin the process of developing a new strategic plan at its August 2014 meeting. I am sure the Commission will consider your recommendation to have goals which include timelines and measurable targets as it develops an updated plan. Your follow up report also contains a suggestion for developing a table of contents for the procedures used by staff. After the suggestion was raised by your staff during the audit, Commission management developed a table of contents and disseminated it to division staff. A copy of the table was provided to 1 your staff. We appreciate the time and effort of the Bureau of State Audits in conducting this follow up review. Sincerely, Mary Vixie Sandy, Ed.D Executive Director Ensuring Educator Excellence * California State Auditor’s comment appears on page 7. The Governor of California President pro Tempore of the Senate Speaker of the Assembly July 10, 2014 Page 7 Comment CALIFORNIA STATE AUDITOR’S COMMENT ON THE RESPONSE FROM THE COMMISSION ON TEACHER CREDENTIALING To provide clarity and perspective, we are commenting on the Commission on Teacher Credentialing (commission) response to our audit. The number below corresponds to the number we have placed in the margin of the commission’s response. 1 The “table of contents” that the commission mentions is simply a listing of documents by topic on the commission’s intranet, but it lacks any electronic links to the procedures. Therefore, we believe it is of limited value because staff will continue to need to manually search the electronic file of documents on the commission’s intranet when they want to reference any procedures.