Opinion No. (1989) ( 1989 )

Dear Senator Smith:

This opinion is in response to your question asking:

Whether instructors, who are employed by the School District of Springfield R-12 and who instruct at the Graff Vo-Tech Extension Skills Center in programs funded pursuant to the Job Training Partnership Act, Title 29 U.S.C. § 1501, et seq., are "teachers" under the Missouri Teacher Tenure Statute, Section 168.102-168.130, RSMo.

The School District of Springfield R-12 (the District) has entered into an agreement with the Department of Elementary and Secondary Education (the Department) establishing a project to provide skill training programs (the Project) for individuals who are referred to the Project under the procedures and guidelines established in the Job Training Partnership Act,29 U.S.C. § 1501, et seq. (the Federal Act) and regulations promulgated pursuant thereto, 20 C.F.R. 626.1, etseq. A copy of the agreement is attached hereto as Appendix A. The Federal Act has as its purpose "to establish programs to prepare youth and unskilled adults for entry into the labor force and to afford job training to those economically disadvantaged individuals and other individuals facing serious barriers to employment, who are in special need of such training to obtain productive employment." 29 U.S.C. § 1501. The issues raised in the above-quoted question do not make it necessary to go into a detailed description of the structure of the funding and delivery of services under the Federal Act. It is sufficient to state that the Department receives federal funds under the Federal Act and has the authority to contract with other entities, such as the District, to provide the educational or training services to eligible participants. 29 U.S.C. § 1517 and 1533.

The District contracts with individuals to serve as teachers in the Project. A form contract is attached hereto as Appendix B. The third of the Terms and Conditions requires:

"The instructor will meet the certification requirements of the Missouri Department of Elementary and Secondary Education."

The Missouri Teacher Tenure Act (the Tenure Act) is set forth at Sections 168.102 to 168.130, RSMo 1986. The Tenure Act creates the classifications of "probationary teacher" and "permanent teacher" and assigns certain legal attributes to those classifications regarding the relationship between the teacher and the local board of education which employs the teacher. Whether the provisions of the Tenure Act apply to the school district employees who have contracted to teach in the Project in question here depends on whether they fit within the definition of "teacher" in subdivision (7) of Section 168.104, RSMo 1986. Hudson v. Marshall, 549 S.W.2d 147 (Mo.App., Spr.D. 1977). That definition provides:

"(7) ``Teacher', any employee of a school district, except a metropolitan school district, regularly required to be certified under laws relating to the certification of teachers, except superintendents and assistant superintendents."

There is no dispute that these individuals are "employees of the school district" and there is no dispute that the District is not a metropolitan school district. The only issue to be resolved is whether the teachers in the Project are "regularly required to be certified under laws relating to the certification of teachers, . . . ." Section 168.104(7), RSMo 1986.

"In resolving the issue of whether plaintiff was a ``teacher' as defined in section 168.104(7), this court may consider ``the general school laws, laws dealing with special school subjects, school laws enacted at the same time or on widely different dates, school laws once in force and later repealed, and contemporary history of those enactments.'" Hudson v. Marshall, supra, at 151.

The source of the requirement to be certificated must be in the law itself and not in a requirement set forth in the contract or otherwise by the local school board. Id. at 153.

In Hudson, the court identified Section 168.011 as the relevant law to determine whether the employee in that case was required to be certificated. Section 168.011, RSMo 1986 (Laws of Missouri, 1984, H.B. Nos. 1457 and 1501, Section 2, effective September 1, 1988), provides in pertinent part:

"1. No person shall be employed to teach in any position in a public school until he has received a valid certificate of license entitling him to teach in that position."

That statute does not require the teachers in the Project to be certificated because they do not teach in a "public school" as that term is used in Section 168.011. The relevant definition of "public school" is found in Section 160.011(7), RSMo 1986, which provides:

"As used in chapters 160, 161, 162, 163, 164, 165, 167, 168, 170, 171, 177 and 178, RSMo, unless the context otherwise requires:

* * *

(7) ``Public school' includes all elementary and high schools operated at public expense;"

* * *

The terms elementary and high schools are defined in subdivisions (2) and (4) of the same statute:

"(2) ``Elementary school' means a public school giving instruction in two or more grades not higher than the eighth grade;

* * *

(4) ``High school' means a public school giving instruction in two or more grades not lower than the ninth nor higher than the twelfth grade;"

That the certification requirement of Section 168.011 is restricted to elementary school and high school teachers is made explicit in Section 168.081, RSMo 1986 (Laws of Missouri, 1984, H.B. Nos. 1457 and 1501, Section 2, effective September 1, 1988) which provides:

"After September 1, 1988, no person without a valid Missouri certificate shall:

(1) Engage in the practice of teaching or the performance of education duties in grades kindergarten through twelve in any public school in the state;

(2) Act as a school administrator in any public school district."

Since the courses in question here are not part of the elementary or high school of the District, the teachers of those courses are not regularly required by Sections 168.011 and168.081 to be certified.

This does not end our inquiry, however, since Sections168.011 and 168.081 are not the only "laws relating to the certification of teachers" as that term is used in Section168.104(7). In the question presented, the individuals are employed to teach in the area of vocational education as that term is defined in Section 178.420(1), RSMo 1986:

"Unless a different meaning is clearly required by the context, the following words and phrases as used in sections 178.420 to 178.580 mean:

(1) ``Vocational education', education of less than college grade, the controlling purpose of which is to fit for profitable employment;"

* * *

The law, as expressed in Section 178.450, RSMo 1986, requires the State Board of Education to provide for the certification of teachers in vocational education:

"The state board of education shall make studies and investigations relating to prevocational and vocational training in agriculture, industrial, home economics and commercial subjects; . . .; establish standards for, test the qualifications of, and issue certificates to the teachers and supervisors of such subjects, and cooperate in the maintenance of schools, departments and classes supported and controlled by the public for the preparation of teachers and supervisors of such subjects." [Emphasis added.]

The conclusion that certification is a requirement for vocational education teachers is based particularly on the use of the word "shall" in the above-quoted statute. "The use of the word ``shall' indicates a mandate and will usually be interpreted to command the doing of whatever is required."Howard v. Banks, 544 S.W.2d 601, 604 (Mo.App. 1976), andState ex rel. Dreer v. Public School Retirement System of Cityof St. Louis, 519 S.W.2d 290, 296 (Mo. 1975).

In addition, the State Board of Education's administrative rules on vocational education reflect the same interpretation of Section 178.450.

"Missouri law and Department of Elementary and Secondary Education regulations require all teachers and administrators in vocational education programs to be specifically certificated for their teaching assignments. . . ." Handbook for Vocational Education in Missouri, page 31, promulgated as administrative rule at 5 CSR 60-120.020.

The interpretation of a statute by an agency charged with its administration is "entitled to great weight."Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197 (Mo. banc 1972).

It has been brought to our attention that the Department's practice has been not to require the certification of teachers in nonaccredited JTPA programs. In the administrative rule promulgated by the Department entitled "Standards For The Approval Of Courses For The Education of Veterans, Vocational Rehabilitation And The Job Training Partnership Act, P.L. 97-300," the Department provides as follows in regard to nonaccredited courses:

"(3) Nonaccredited Courses. The provisions of this section apply to courses which cannot be considered as accredited courses under section (2) of this rule.

* * *

(G) Personnel. There shall be sufficient, qualified and capable personnel connected with the institution to insure good administration, supervision and instruction.

* * *

3. All instructors must be proficient in the trade or occupation to be taught, as evidenced by at least three (3) years of experience beyond the learning stage in the trade, occupation or subject or shall possess a college degree with at least a minor in the subject involved. These qualifications must be clearly shown on a personnel record form submitted for each person on the school staff."

5 CSR 30-4.020(3).

This rule does not address the issue of whether certification is required when it sets forth the experience and degree requirements for teachers. According to departmental personnel, this rule was meant to apply only to situations in which individual referrals were being made into regular classes in public vocational technical schools and in private proprietary schools not accredited by a nationally recognized accrediting agency. Since teachers in the public vocational technical schools are going to be certificated under the vocational education laws anyway, this rule was primarily aimed at the nonaccredited private proprietary school classes. However, it is possible to argue that the rule's silence on the subject of certification could be taken to mean that certification is not required for nonaccredited JTPA courses.

There is no question that the JTPA courses which are the subject of this opinion request come within the term "vocational education" as defined in Section 178.420(1) and as used in Section 178.450. Regardless of what the Department's "practice" is concerning the certification of teachers in nonaccredited JTPA courses and regardless of what it intended by5 CSR 30-4.020(3) (G)3, Section 178.450 requires certification of teachers in all courses coming within the definition of vocational education in Section 178.420(1). Therefore, teachers in the JTPA program in question are required by laws relating to the certification of teachers to be certificated and are "teachers" as that term is defined in Section 168.104(7) of the Missouri Teacher Tenure Act.

CONCLUSION

It is the opinion of this office that instructors who are employed by a local school district to instruct in programs funded pursuant to the Job Training Partnership Act,29 U.S.C. § 1501 et seq., are "teachers" as that term is defined in Section 168.104(7), RSMo 1986, of the Missouri Teacher Tenure Act.

Very truly yours,

WILLIAM L. WEBSTER Attorney General

JTPA PROJECT OPERATING PLAN

PROJECT OPERATING PLAN NARRATIVE PART II

1. The following agency will give immediate supervision to this project:

The Springfield Public Schools Graff Vo-Tech Extension Center 237 South Florence Springfield, MO 65806 Telephone Number — 417 831-0092

2, 3. Ronald E. Holmes, Assistant Director for Graff Vo-Tech Center, will be the chief contact person for this project and assume responsibility for participant records.

4. The program consists of three 18 week skill programs and Adult Basic Education support. The three programs will have continuous enrollment, admitting students each Monday. Trainees receive a certificate upon completion with competencies attained listed. Students who do not have the ability to reach all the competencies listed in 18 weeks may receive up to an additional six weeks of training, if mutual consent is obtained from the training agency and the Job Council of the Ozarks (administrative entity). Students who are not high school graduates will be required to commit extra time to a study program to prepare to take the GED exam. Although every effort is made to help students reach the training objectives, trainees who do not show satisfactory progress or have excessive absences will be terminated. These students will be referred to other agencies for additional help or a new job plan will be developed by the administrative entity. The maximum number in the three programs at one time will be 40.

No classes will be held on the following dates:

July 4, 1988 Independence Day July 25 — 29, 1988 Missouri Vocational Association Convention and Teachers Workshop Days September 5, 1988 Labor Day November 24 25, 1988 Thanksgiving December 23 1988 — January 2, 1989 Christmas Vacation January 20, 1989 Teacher Workshop Day February 20, 1989 President's Day March 24, 1989 Good Friday May 29, 1989 Memorial Day

No articles are to be constructed.

The General information regarding the three skill training programs is outlined below.

OCCUPATIONAL TITLE:

OFFICE OCCUPATIONS

Occupational Titles Code:

Bookkeeper — 210.382-014 File Clerk — 206.363-010 Stenographer — 202.363-014 Duplicating Machine Operator — 207.682-010 Transcribing Machine Operator — 203.582-010 Receptionist — 237.367-038 Clerk-Typist — 203.363-010 Secretary — 201.363-030 Typist — 203.582-066

The project will consist of one section of 50 trainees.

Length of Training:

Hours per week — 35 hours Normal Training Time — 18 weeks Maximum Training Time — 24 weeks Daily training schedule — 8:00 a.m. to 3:30 p.m.

Course Information

Accounting I

Objective — to present the accounting cycle in its simplest form so that the student can analyze, record in journals, and post in a general ledger the financial data of a service business.

1. Set up a bookkeeping system 2. Make entries in a journal 3. Post to the ledger 4. Prepare financial statements — service business 5. Close the ledger — service business

Accounting II

Objective — will be developed throughout the year

1. Manage merchandising business records 2. Manage a checking account 3. Adjust the ledger 4. Prepare financial statements — merchandising business 5. Close the ledger — merchandising business 6. Manage payroll records

Personality Development for Business

Objective — will be developed throughout the year

1. Demonstrates personal attribute of dependability 2. Is well-groomed 3. Communicates well — written and spoken 4. Successfully works with others 5. Continued professional growth

Filing

1. File business correspondence 2. Set up a filing system

Clerical Office Procedures

Objective — will be developed throughout the year

1. Prepare mailable letters 2. Compose basic business letters 3. Type business reports 4. Sort and distribute mail 5. Meet the public 6. Manage the phone 7. Prepare travel arrangements and reports

Machines

Objectives — will be developed throughout the year

1. Add, subtract, multiply and divide on a 10-key adding machine 2. Add, subtract, multiply and divide on a calculator 3. Prepare a mailable copy from a transcriber 4. Prepare a mailable copy using a memory typewriter 5. File and store material using a memory typewriter

Word Processor

Task list provided by Industrial Advisory Committee

1. Write a document 2. Modify a document 3. File a document 4. Demonstrate understanding of all commands on the CRT system 5. Type a business letter and envelope 6. Type finance report 7. Type telegrams 8. Type a letter or report on a continuous form 9. Type checks, brochures and purchase orders 10. Fill in requested information on a standardized form using CRT system

Typewriting

Objective — will be developed throughout the year

1. Operate the typewriter 2. Type inner office memorandums 3. Type business letters 4. Address envelopes using the typewriter 5. Type columnar tables 6. Type columnar tables with horizontal and vertical ruling 7. Type columnar tables with horizontal and vertical ruling 8. Type a report in manuscript form 9. Type information on basic types of forms 10. Type a news release 11. Type a contractual agreement 12. Type financial statements

Shorthand

Objective — will be developed throughout the year

1. Read and write alphabetic characters 2. Memorize brief forms 3. Read and write amounts and figures 4. Phrasing 5. Recognize prefixes, suffixes, word beginnings and endings 6. Punctuation and application of grammar rules 7. Visualize symbols and write outlines 8. Transcribe shorthand dictation 9. Transcribe in mailable form

Normal Hours of Instruction — 630

OCCUPATIONAL TITLE:

TRANSPORTATION MECHANIC

Occupational Titles Code

Auto Mechanic — 620.261-010 Diesel Mechanic Helper — 625.684-010 Diesel Engine Tester — 625.261-010 Automobile-Radiator Mechanic — 620.381-010 Carburetor Mechanic — 620.281-034 Air Conditioning Mechanic — 620.281-010 Transmission mechanic — 620.281-062 Diesel Mechanic — 625.281-010 Brake Repairer — 620.281-026 Tune-up Mechanic — 620.281-066

The project will consist of one section of 20 trainees.

Length of Training:

Hours per week — 35 hours Normal Training Time — 18 weeks Maximum Training Time — 24 weeks Daily training schedule — 3:30 pm — 11:00 pm

The maximum number in the program at one time will be 10.

Course Information

The course is designed as a cluster of both Auto Mechanics and Diesel Mechanics. The trainee will receive training in either of the fields mentioned. Since there is an "over-lap" of training (i.e. — some training is applicable in either field), the trainee will receive a well-rounded training program. The trainee will be given a choice of emphasis of his particular interest as determined between the trainee and his/her counselor.

Brake System

Objective — will be developed throughout the year

1. Inspect and repair drum brakes system 2. Inspect and repair disc brakes system

Air Conditioning

Objective — in working with the A/C unit the student will demonstrate a knowledge and understanding of operation safety, special tools, trouble shooting for malfunction, evacuation and charging an A/C unit and replacing defective parts.

1. Diagnose, service or repair air conditioning system

Cooling System

Objective — this unit will familiarize the student with the various types of cooling systems the operation and purpose of the cooling system components, inspection, maintenance and repair procedures.

1. Test, remove and repair cooling system

Power Train

Objective — will be developed through the year

1. Inspect and replace clutch 2. Remove, repair and replace standard transmission 3. Remove, repair and replace automatic transmission 4. Remove, repair and replace drive line 5. Remove, repair and replace rear end 6. Remove, repair or replace differential

Hydraulic System

Objective — will be developed throughout the year

1. Diagnose, repair and service hydraulic system

Electrical System

Objective — will be developed throughout the year

1. Diagnose, remove, service or repair electrical system 2. Diagnose, remove or repair starting system] 3. Diagnose and repair lighting system

Engine Overhaul

Objective — will be developed throughout the year

1. Remove, repair, replace or overhaul engine 2. Inspect and repair valves 3. Diagnose and tune-up diesel or gasoline engine

Exhaust System

Objective — will be developed throughout the year

1. Diagnose and repair exhaust system

Suspension and Steering System

Objective — will be developed throughout the year

1. Inspect, repair and replace suspension system 2. Remove and replace springs 3. Remove, repair and replace gear box 4. Remove, repair and replace steering column

Fuel System

Objective — will be developed throughout the year

1. Remove, repair and replace fuel system

Air System

Objective — will be developed throughout the year

1. Diagnose and repair air intake

Electrical System

Objective — will be developed throughout the year

1. Remove, repair and replace charging system 2. Remove, repair and replace starting system 3. Test and replace battery 4. Inspect, repair and replace instrument panel

Accessories

Objective — will be developed throughout the year

1. Inspect, repair and charge air conditioner system

Normal Hours of Instruction — 630 hours

OCCUPATIONAL TITLE:

WELDING

Occupational Titles Code:

Arc Welder — 810.384-014 Gas Tungsten Arc Welder — 810.382-010 Gas Metal Arc Welder — 810.32-010 and 810.384-014 Gas Welder — 811.684-014

The project will consist of one section of 20 trainees

Length of Training:

Hours per week — 35 hours Normal Training Time — 18 weeks Maximum Training Time — 24 weeks Daily Training Schedule — 8:00 am — 3:30 pm

The maximum number in the program at one time will be 10.

Course Information

Oxy-Acetylene

Objective — will be developed throughout the year

1. Butt weld in flat position 2. Tee weld in flat position 3. Lap weld in flat position 4. Outside corner weld in flat position 5. Butt weld in horizontal position 6. Lap weld in horizontal position 7. Tee weld in horizontal position 8. Outside corner weld in horizontal position 9. But weld in vertical position 10. Lap weld in vertical position 11. Tee weld in vertical position 12. Outside corner welding vertical position 13. Butt weld in overhead position 14. Lap weld in overhead position 15. Tee weld in overhead position 16. Outside corner weld in overhead position 17. Cut with oxy-acetylene cutting torch 18. Braze common joints with oxy-acetylene torch

Shielded Metal Arc

Objective — in this unit students will learn principles, equipment, materials, technical information, skills and applications of arch welding.

1. Butt weld in flat position 2. Tee weld in flat position 3. Lap weld in flat position 4. Outside corner weld in flat position 5. Butt weld in horizontal position 6. Tee weld in horizontal position 7. Lap weld in horizontal position 8. Outside corner weld in horizontal position 9. Butt weld in vertical position 10. Tee weld in vertical position 11. Lap weld in vertical position 12. Outside corner weld in vertical position 13. Butt weld in overhead position 14. Tee weld in overhead position 15. Lap weld in overhead position 16. Outside corner weld in overhead position

Gas Tungsten Arc

Objective — will be developed throughout the year

1. Butt weld in flat position 2. Lap weld in flat position 3. Tee weld in flat position 4. Outside corner weld in flat position 5. Butt weld in horizontal position 6. Lap weld in horizontal position 7. Tee weld in horizontal position 8. Outside corner weld in horizontal position 9. Butt weld in vertical position 10. Lap weld in vertical position 11. Tee weld in vertical position 12. Outside corner weld in vertical position 13. Butt weld in overhead position 14. Lap weld in overhead position 15. Tee weld in overhead position 16. Outside corner weld in overhead position

Gas Metal Arc

Objective — will be developed throughout the year

1. Butt weld in flat position 2. Lap weld in flat position 3. Tee weld in flat position 4. Outside corner weld in flat position 5. Butt weld in horizontal position 6. Lap weld in horizontal position 7. Tee weld in horizontal position 8. Outside corner weld in horizontal position 9. Butt weld in vertical position 10. Lap weld in vertical position 11. Tee weld in vertical position 12. Outside corner weld in vertical position 13. Butt weld in overhead position 14. Lap weld in overhead position 15. Tee weld in overhead position 16. Outside corner weld in overhead position

Normal Hours of Instruction — 630 hours

5. This program has been in existence several years and has provided job specific training for several agencies, mainly CETA and now JTPA.

6. This project will serve out-of-work and economically disadvantaged individuals who can benefit from specific skill training.

7. This project will provide needed skill training for unemployed and underemployed individuals whose existing job skills are not adequate to match current job opportunities.

8, 9. Students are generally clients of Job Council of the Ozarks, JTPA SDA 8, and are referred by them to these programs. Other agencies "buy slots" into the program for their clients if enrollment of JTPA students is not affected. The Job Council of the Ozarks determine JTPA II-A eligibility for student participation. The Job council and the skill center provide data entry for MIS forms. Students must be 18 years of age or older when they complete the program to be eligible. No services are provided to 14 and 15 year olds.

10. Certain student data such as attendance, completions, performance, etc. is furnished to SDA-8 for their use in determining success of the project.

11. See attachment A.

12. See item 4 for relationship of skill training to Adult Basic Education. In addition to Adult Basic Education support while students are in skill training, certain students may be referred to full-time Adult Basic Education until basic skills are brought up to levels needed to enter job training.

EXHIBIT A

CLERICAL

20 slots x 100% utilization = 20 slots 20 slots x 62.3% completion = 12 completions per cycle

TRANSPORTATION (DIESEL AND AUTO)

10 slots x 100% utilization = 10 slots 10 slots x 62.3% completion = 6 completions per cycle

WELDING

10 slots x 100% utilization = 10 slots 10 slots x 62.3% completion = 6 completions per cycle

Maximum slots ......................... 40

100% utilization ...................... 40

Completion per cycle .................. 24

Minimum utilization ................... 40

RESULTS EXPECTED

The Skill Center will receive payment for the maximum slots available at any one time. More participants will be enrolled and the cost per slot will decrease to less than $5,650 as participants complete their 18-week cycle.

TRAINING PAYMENT SCHEDULE

$226,000 ÷ 40 SLOTS = $5,650

Payment will be made for the first 25 adults and first 15 youth. The skill center will submit claims for payment monthly.

A completer is defined as an enrollee who has fulfilled one or more of the following criteria:

1. Has completed all units of instruction and attended the full time allotted to the program (18 weeks).

2. Has completed all units of instruction in less than the full time allotted for the program.

3. Has completed a significant^* portion of instruction and leaves the program to enter unsubsidized employment.

The utilization and completion rates are dependent on intake procedure and general economic conditions. These factors are outside of the general influence of the Skill Center. Should conditions develop that create extended enrollment or completion problems, the contract will be subject to renegotiation.

GUARANTEE OF SLOTS

Should utilization in an instructional area fall below seventy-five percent (75%), for a period of three consecutive weeks, it shall be the prerogative of the Center to accept other enrollments on a "buy-in" basis. Acceptance of buy-in students will not in any way exclude administrative entity students up to the maximum stated in this agreement (20 Office Occupations, 10 Welding, 10 Transportation Mechanics). Specifics of Buy-In enrollment shall be determined by the Skill Center.

APPENDIX B

SPRINGFIELD PUBLIC SCHOOL DISTRICT R-12

Graff Extension Skill Center

Instructor Appointment

This is to certify the appointment of _____________________________________ as Instructor in JTPA Office Occupations

Beginning July 1, 1987 Ending June 30, 1988

Day(s) 260 paid days Time ______________ Total Hours 1820

under the following Terms and Conditions:

1. Remuneration $13.32 per hour (12 monthly payments of $2,020.20)

2. The instructory will perform the duties assigned in a professional manner.

3. The instructor will meet the certification requirements of the Missouri Department of Elementary and Secondary Education.

4. The instructor will x , will not _____ participate in the Missouri Teachers Retirement System.

5. The instructor will ____, will not x participate in the Missouri Non Teacher Retirement System.

6. The instructor will ____, will not x participate in FICA (Social Security).

7. The instructor will x , will not ____ be eligible for district fringe benefits.

8. Continuation of this appointment is dependent upon the availability of state and federal funding and sufficient student participation to justify the expenditures.

9. The appointment is not official until all signatures have been affixed.

10. 15 days vacation; 21 sick days, none of which will carry over past June 30, 1988; Employee Health and Life Insurance.

________________________________ 7/1/87 ______________________ 7/1/87 Assistant Director's Signature Date Instructor's Signature Date

________________________________ ______ ________________________________ Assistant Director's Signature Date Instructor's Social Security No.

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Pay Record

Amount Amount

July _________________ January _________________

August _________________ February _________________

September _________________ March _________________

October _________________ April _________________

November _________________ May _________________

December _________________ June _________________

Copy 1 District Copy 2 Instructor APPENDIX B

^* Significant must be agreed upon by Contractor and the Administrative Entity.