No. ( 1979 )

Dr. Calvin Frazier Commissioner of Education Colorado Department of Education State Office Building 201 East Colfax Avenue Denver, Colorado 80203

Dear Dr. Frazier:

Your questions concerning the duties of the State Board of Education regarding the adoption of "standards of incompetency and unethical behavior" and the relationship of those standards to the Code of Ethics of the Professional Practices Commission can be answered as follows:

QUESTIONS PRESENTED AND CONCLUSIONS

1. Under the requirement of 22-60-110(4), is the State Board of Education obligated to utilize the wording of the Professional Practices Commission's code of ethics and professional standards?

The State Board of Education is not required to utilize the Professional Practices Commission's code of ethics and professional standards.

2. Can the State Board of Education suspend or revoke a certificate on the basis of a code and standards approved by the Professional Practices Commission but not subjected to the rulemaking procedures of the state board?

"No," the State Board of Education cannot suspend or revoke a certificate based upon the code of ethics and professional standards adopted by the Professional Practices Commission but not adopted by the State Board of Education under state rulemaking procedures.

3. Is the State Board of Education bound to follow the Professional Practices Commission's adopted procedures relative to the processing of a complaint alleging a violation of the standards established?

"No." The state board is not bound to follow the procedures adopted by the Professional Practices Commission for processing of complaints.

4. (October 18, 1978) Can the State Board of Education adopt and promulgate the existing code of ethics and professional standards and existing rules for handling complaints to meet their responsibilities under C.R.S. 1973, 22-60-110(3) and (4) to define both "the standards of unethical behavior and professional incompetency?" If they cannot, why not? If the state board cannot or does not adopt existing "Code of Ethics and Professional Standards," what is the status of the existing code?

a. The State Board of Education may adopt the code of ethics and professional standards adopted by the Professional Practices Commission, after notice and hearing under the rulemaking procedures of 24-4-101 et seq., pursuant to the authority granted by C.R.S. 1973, 22-60-113 (Supp. 1976), insofar as the provisions of the code of ethics may be found by the board adequately and properly to define "standards of unethical behavior and professional incompetency." To the extent that the present code defines an ideal of behavior rather than a criterion of professional behavior which a teacher may not transgress without the suspension or revocation of his certificate, certain portions might well be inappropriate as "standards of unethical behavior or professional incompetency." Such standards must be drawn with careful attention to due process and concerns regarding vagueness, since the potential loss of a property right exists.

b. To the extent that the rules for processing complaints adopted by the Professional Practices Commission satisfy due process and vagueness standards and are not in conflict with the Administrative Procedure Act the board may adopt the same procedures.

c. The code of ethics remains as a positive standard of behavior adopted by the teachers of the State of Colorado and by the Professional Practices Commission regardless of the action of the State Board of Education.

ANALYSIS

Referencing question No. 1, the State Board of Education has the duty to adopt "standards of unethical behavior and professional incompetency" under C.R.S. 1973, 22-60-110(4) (Supp. 1976). The provisions of C.R.S. 1973, 22-65-101 et seq., (Supp. 1976), establishing the Professional Practices Commission do not limit the State Board of Education's discretion in the exercise of that duty. Subsection 22-65-105(8) expressly states that: "The actions of the (professional practices) commission under this section shall in no way be binding upon or constitute any action of the State Board of Education or the department." The State Board of Education may, of course, consider the code of ethics adopted by the Professional Practices Commission in its deliberations and is free to adopt the language of those provisions which the board deems to constitute a suitable basis for the suspension or revocation of a teacher certificate.

Referencing question No. 2, C.R.S. 1973, 22-60-110(3) (Supp. 1976) allows the State Board of Education to suspend or revoke a certificate or letter of authorization "if the state board finds and determines that the holder thereof has become professionally incompetent or guilty of unethical behavior." Subsection (4) requires the State Board of Education to "promulgate appropriate rules and regulations defining the standards of unethical behavior and professional incompetency." The board must exercise its discretion under 22-60-110(4) and must adopt the standards according to the procedures established by C.R.S. 1973, 24-4-102 to 24-4-107, as amended, the rulemaking and licensing procedures of the State Administrative Procedure Act. Actions not based upon rules properly adopted after public notice and hearing by the board would be subject to attack.

Referencing question No. 3, the State Board of Education must adopt its own procedures for handling of complaints consistent with the provisions of the Administrative Procedure Act. C.R.S. 1973, 22-60-111 (Supp. 1976). (See question 2.)

SUMMARY

In summary, the State Board of Education may adopt standards of incompetency and unethical behavior different than those contained in the code of ethics of the Professional Practices Commission. The State Board of Education cannot suspend or revoke a teacher's certificate on the basis of standards adopted by the Professional Practices Commission but not adopted as rules of the State Board of Education. The State Board of Education may adopt its own procedures for processing complaints. The State Board of Education may adopt, through proper rulemaking procedures, the code of ethics and grievance procedures adopted by the Professional Practices Commission if they are found by the board to properly define "standards of unethical behavior and professional incompetency."

Very truly yours,

J.D. MacFARLANE Attorney General

TEACHERS EDUCATION ETHICS STATE AGENCIES

C.R.S. 1973, 22-60-110(3) and (4) C.R.S. 1973, 22-65-101 et seq. C.R.S. 1973, 22-60-111 C.R.S. 1973, 22-60-113

EDUCATION, DEPT. OF Administration

(1) State Board of Education may adopt standards of incompetency and unethical behavior different than those contained in the code of ethics of the Professional Practices Commission. (2) State Board of Education cannot suspend or revoke a teacher's certificate on the basis of standards adopted by the Professional Practices Commission but not adopted as rules of the State Board of Education. (3) State Board of Education may adopt its own procedures for processing complaints. (4) State Board of Education may adopt, through proper rulemaking procedures, the code of ethics and grievance procedures adopted by the Professional Practices Commission if they are found by the Board to properly define "standards of unethical behavior and professional incompetency."