8-2802-8219-1
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA STATE BOARD OF TECHNICAL COLLEGES
In the Matter of Proposed Adoption
of the Rules of the State of Minnesota, REPORT OF
THE
State Board of Technical Colleges,
ADMINISTRATIVE LAW JUDGE
General Studies and General Education,
Minn. Rules Part 3700.1200 to
3700.1280.
The above-entitled matter came on for hearing before
Administrative Law Judge Jon L. Lunde on November 30, 1993, at
9:00 a.m. in the Fifth Floor Conference Room, Veterans Services
Building, 20 West Twelfth Street, St. Paul, Minnesota.
This Report is part of a rulemaking proceeding held pursuant
to Minn. Stat. 14.131 to 14.20 (1990) to hear public comment,
determine whether the Minnesota State Board of Technical Colleges
("the Board") has fulfilled all relevant substantive and
procedural requirements of law applicable to the adoption of the
rules, evaluate whether the proposed rules are needed and
reasonable, and determine if any modifications to the rules
proposed by the Board after initial publication are substantially
different from those originally proposed.
Charles Mottl, Assistant Attorney General, Suite 1200, NCL
Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2130,
appeared on behalf of the Board. The Board's hearing panel
consisted of Georgia Pomroy, License Specialist, and Helen
Henrie, Deputy Chancellor. Twelve persons attended the hearing.
Eleven persons signed the hearing register. The Administrative
Law Judge received twenty-seven agency exhibits and one public
exhibit as evidence during the hearing. The hearing continued
until all interested persons, groups, and associations had an
opportunity to be heard concerning the adoption of the rules.
The record remained open for the submission of written
comments until December 7, 1993, five working days following the
date of the hearing. Pursuant to Minn. Stat. 14.15, subd. 1
(1992), five additional working days were allowed for filing
responsive comments. On December 14, 1993, the rulemaking record
closed for all purposes. The Administrative Law Judge received
one written comment from interested persons during the comment
period and one written comment during the reply period. The
Board also submitted post-hearing comments responding to matters
discussed at the hearing. The Board did not propose any further
amendments to the rules.
This Report must be available for review by all affected
individuals upon request for at least five working days before
the Board takes any further action on the rules. The Board may
then adopt final rules or modify or withdraw its proposed rules.
If the Board makes changes in the rules other than those
recommended in this Report, it must submit the rules with the
complete hearing record to the Chief Administrative Law Judge for
a review of the changes prior to final adoption. Upon adoption
of final rules, the Board must submit the rules to the Revisor of
Statutes for a review of the form of the rules. The agency must
also give notice to all persons who requested to be informed when
the rules are adopted and filed with the Secretary of State.
Based upon all the testimony, exhibits, and written comments,
the Administrative Law Judge makes the following:
FINDINGS OF FACT
Procedural Requirements
1. On August 27, 1993, the Board filed the following
documents with the Chief Administrative Law Judge:
(a) a copy of the proposed rules certified by the Revisor of
Statutes;
(b) a copy of the Board's Order for Hearing and an Authorizing
Resolution;
(c) a copy of the proposed Notice of Hearing;
(d) a Statement of Need and Reasonableness (SONAR) with
supplements;
(e) an estimate of the number of persons expected to attend
the hearing and the expected length of the Board's
presentation at the hearing; and
(f) a statement indicating that the Board would provide
additional, discretionary notice of the hearing to
Technical College officers, curriculum staff, and some
members of the Board.
2. On June 1, 1993, a copy of the proposed rules on general
studies were published at 17 State Register 2966. On June 7,
1993, a copy of the proposed rules on general education were
published at 17 State Register 3045. On October 11, 1993, a
Notice of Hearing was published at 18 State Register 1058. The
Notice of Hearing cited the June 1, 1993 publication for the text
of the proposed rule on general studies and the June 7, 1993
publication for the text of the proposed rule on general
education. An amendment to the proposed rule relating to general
studies license conversions is included in the October 11, 1993
publication.
3. On October 5, 1993, the Board mailed the Notice of Hearing
to all persons and associations who had registered their names
with the Board for the purpose of receiving notice of the
proposed adoption of rules by the Board. This mailing included
those persons to whom discretionary notice was given.
4. On November 2, 1993, the Board filed the following
documents with the Administrative Law Judge:
(a) the Notice of Hearing as mailed;
(b) a copy of the State Register pages containing the Notice
of Hearing and the proposed rules;
(c) an affidavit stating that the Notice of Hearing was mailed
on October 5, 1993, to all persons on the Board's mailing
list;
(d) an affidavit certifying that the Board's mailing list was
accurate and complete as of September 27, 1993;
(e) a copy of the Notices of Intent to Solicit Outside
Information published in 17 State Register 1764 (January
11, 1993) and 17 State Register 2521 (April 19, 1993); and
(f) a list of persons on the Board's hearing panel.
Small Business Considerations
5. Minn. Stat. 14.115, subd. 2 (1990), requires state
agencies proposing rules which may affect small businesses to
consider methods for reducing adverse impact on those businesses.
In its Notice of Hearing, the Board asserted that the small
business statute is inapplicable to this rulemaking proceeding.
Minn. Stat. 14.115, subd. 2 (1990), requires that methods
for reducing the impact on small businesses be taken into account
when agencies propose rules "which may affect small businesses."
"Small business" is defined in 14.115, subd. 1, as "a business
entity . . . that (a) is independently owned and operated; (b)
is not dominant in its field; and (c) employs fewer than 50
full-time employees or has gross annual sales of less than
$4,000,000." The rules relate only to technical colleges. They
are not small businesses within the meaning of Minn. Stat.
14.115, subd. 1 (1990). Therefore, the Board need not consider
the statutory factors for reducing the impact of its rules on
small businesses.
Fiscal Notice
6. Minn. Stat. 14.11, subd. 1 (1990), requires agencies
proposing rules which will require the expenditure of public
funds in excess of $100,000 per year by local public bodies to
publish an estimate of the total cost to local public bodies for
the two-year period immediately following adoption of the rules.
The proposed rules do not affect "local public bodies."
Therefore, the preparation of a fiscal notice is not required for
these rules.
Impact on Agricultural Land
7. Minn. Stat. 14.11, subd. 2 (1990), requires that
agencies proposing rules that have a "direct and substantial
adverse impact on agricultural land in the state" comply with the
requirements set forth in Minn. Stat. 17.80 to 17.84 (1990).
Under those statutory provisions, adverse impact is deemed to
include acquisition of farmland for a nonagricultural purpose,
granting a permit for the nonagricultural use of farmland, the
lease of state-owned land for nonagricultural purposes, or
granting or loaning state funds for uses incompatible with
agriculture. Minn. Stat. 17.81, subd. 2 (1990). Because the
proposed rules will not have a direct and substantial adverse
impact on agricultural land within the meaning of Minn. Stat.
14.11, subd. 2 (1990), these statutory provisions do not apply.
Outside Information Solicited
8. In formulating the proposed rules, the Board published two
Notices of Intent to Solicit Outside Information: in January,
1993 and April, 1993. See 17 State Register 1764 (January 11,
1993) and 17 State Register 2521 (April 19, 1993). The Board
subsequently published its initial versions of the rules in the
State Register on June 1 and 7, 1993. At that time, the Board
believed that it would be able to adopt the proposed rules
without a public hearing. However, hundreds of comments were
received by the Board in response to those notices. The large
number of comments and hearing requests received by the Board in
response to the June publications required a hearing. In
response to the comments received following the June notices, the
Board made modifications before publishing the final version of
the rules. By the time the Board published its final version of
the rules, nearly all concerns previously expressed had been
resolved. The few remaining concerns are addressed in this
Report.
Objection to Reply Comment
9. On December 14, 1993, Roger A. Peterson, of Peterson,
Engberg & Peterson, Attorneys at Law, submitted a comment on
behalf of the Minnesota Federation of Teachers (MFT). That
comment included a memorandum dated December 29, 1992, from
Dayton Perry, Director of Evaluation for the Board. The
memorandum included the results of a survey to determine which
occupational programs offered in Minnesota technical colleges are
accredited or certified or require licensure, certification or
registration of graduates. The Board objected to the inclusion
of this survey in the record. Under Minn. Stat. 14.15, subd.
2, additional evidence may not be submitted during the second,
five-day comment period. The survey is "additional evidence"
within the meaning of the statute. Hence, it cannot be
considered.
Error in Mailing List Certification
10. The Board staff certified the Board's mailing list as
accurate and complete on September 27, 1993. The Board's mailing
to that list occurred on October 5, 1993. The purpose of
certifying the list is to ensure that all persons whose names are
on the list on the day of mailing receive notice. Although the
Board's certification of the accuracy and completeness of the
mailing list is technically defective, the defect is wholly a
matter of form. When advised of the problem, the Board responded
with a letter asserting that no changes occurred to the mailing
list between September 27, 1993, and October 5, 1993, and the
mailing list was accurate and complete on the date of mailing.
In 1992, the Administrative Procedure Act was amended by
adding a provision excusing harmless errors. Minn. Stat.
14.15, subd. 5. Under the statute, in determining if
noncompliance is harmless, the Administrative Law Judge must
decide if any person was deprived of an opportunity to
participate and whether the agency took any corrective action.
There is no indication that any person or association who asked
to be on the list failed to receive notice of the hearing.
Because no person was deprived of an opportunity to participate,
the technical defect in the Board's initial certification of the
mailing list constitutes a harmless error under Minn. Stat.
14.15, subd. 5(1) and must be disregarded. See also City of
Minneapolis v. Wurtele, 291 N.W.2d 386, 391 (Minn. 1980); Handle
with Care v. Department of Human Services, 406 N.W.2d 518 (Minn.
1987).
Need for and Reasonableness of the Proposed Rules in General
11. Among other things, the Administrative Law Judge must
determine if the Board established the need for and
reasonableness of the proposed rules by an affirmative
presentation of fact. The Board prepared a Statement of Need and
Reasonableness ("SONAR") to support adoption of the proposed
rules. At the hearing, the Board primarily relied upon the SONAR
as its affirmative presentation of need and reasonableness. The
SONAR was augmented by a "supplemental" SONAR, comments made by
the Board at the hearing, and its written, post-hearing comments.
To be reasonable a rule must have a rational basis. Thus
Minnesota Court of Appeals has held a rule to be reasonable if it
is rationally related to the end sought to be achieved by the
statute. Broen Memorial Home v. Minnesota Department of Human
Services, 364 N.W.2d 436, 440 (Minn.App. 1985); Blocker Outdoor
Advertising Company v. Minnesota Department of Transportation,
347 N.W.2d 88, 91 (Minn.App. 1984). To establish reasonableness,
the Supreme Court of Minnesota has held that an agency must
"explain on what evidence it is relying and how the evidence
connects rationally with the agency's choice of action to be
taken." Manufactured Housing Institute v. Pettersen, 347 N.W.2d
238, 244 (Minn. 1984).
This Report is generally limited to a discussion of the rules
that received significant critical comment or otherwise need
discussion. Due to the large number of students and other
interested individuals who submitted comments and the substantive
uniformity of the comments, only a limited number of the
individuals who filed comments will be individually identified.
Persons or groups who do not find their particular comments
summarized in this Report should know that the Administrative Law
Judge has read and considered each suggestion. Because nearly
all sections of the proposed rules were unopposed and were
adequately supported by the SONAR, a detailed discussion of each
section of the proposed rules is unnecessary. The Administrative
Law Judge specifically finds that the need for and reasonableness
of the any provisions not discussed in this Report have been
demonstrated by an affirmative presentation of facts, and that
such provisions are specifically authorized by statute.
Statutory Authority
12. In its Notice of Hearing, the Board asserted that Minn.
Stat. 136C.04, subd. 9, provides authority for the promulgation
of the proposed rules. Minn. Stat. 136C.04, subd. 9, reads in
pertinent part:
the state board [of technical colleges] may adopt rules under
chapter 14 for licensure of teaching, support, and supervisory
personnel in post-secondary and adult vocational education.
The Administrative Law Judge concludes that the Board has
authority under Minn. Stat. 136C.04, subd. 9 to adopt these
rules.
Background
13. Prior to 1983, the State Board of Education established
the teacher licensure requirements for secondary (high school),
post-secondary and adult vocational technical education. Minn.
Stat. 121.11, subd. 1 and 125.184, subd. 4 (1982). In 1983,
the State Board of Vocational Technical Education (now the Board
of Technical Colleges) was established, and it was given general
supervisory authority over post-secondary and adult vocational
education. The new State Board of Vocational Technical Education
was also given statutory authority to license post-secondary and
adult vocational teachers. See Minn. Laws 1983, c. 258, 61,
subd. 9, codified as Minn. Stat. 136C.04, subd. 9. Existing
rules of the State Board of Education (see, 5 MCAR
1.0780-1.0798, later recodified as Minn. Rules, Ch. 3515.)
relating to post-secondary and adult vocational education were,
by statute, transferred to the new State Board of Vocational
Technical Education. See, Minn. Stat. 15.039, subd. 3 (1982).1
Furthermore, Minn. Laws 1983, c. 258, 63, subd. 1 stated that
the "functions of the state board for vocational education
relating to post-secondary and adult vocational education are
transferred to the state board of vocational technical
education." It also specifically stated that the rules of the
State Board for Vocational Education governing post-secondary and
adult vocational education licensure were transferred to the
Board of Vocational Technical Education. The State Board for
Vocational Education referred to in the 1983 Act was, in fact,
the State Board of Education. Under Minn. Stat. 121.11, subd.
1 (1982) the State Board of Education served as the State Board
for Vocational Education.
14. The proposed rules set standards for licensing persons
seeking to teach general studies and general education in
technical colleges. Advisory committees were established to add
input in the development of license requirements in both areas.
General studies includes applied math, applied communications,
applied physics, applied chemistry, applied anatomy/ physiology,
first aid instructor, cardio-pulmonary resuscitation (CPR),
developmental math, developmental reading, and occupational
English as a second language (ESL). The rules also indicate how
existing general studies licenses will be converted to new
licensing categories. Existing licenses are allowed to transfer
to the new categories in the corresponding subject area. For
example, a "related math" license will be replaced with an
"applied math" license. Licensure standards are also proposed
for general education. A general education teacher can teach a
variety of courses for which the teacher is licensed. Licensed
fields include biology, chemistry, English, ecology/
environmental science, economics, geography, geology, history,
journalism, math, music, communications, philosophy, physics,
political science, psychology, sociology, and visual arts. Among
other things, an applicant must
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1. Minn. Stat. 15.039, subd. 3 relates to the transfer of
powers among state agencies. In subdivision 3, it
requires that rules adopted pursuant to responsibilities
which are transferred to a new or different agency remain
effective and must be enforced until amended or replealed
by the agency to which the powers and responsibilities are
transferred.meet the occupational and educational
requirements for general studies license. However, a
provisional license provision is proposed for those who
cannot meet other, new license requirements.
General Studies
15. For over ten years, the Board has issued general studies
licenses. In the past, the licenses have been issued under Minn.
Rules, Ch. 3515 (1991) to individuals holding the appropriate
degree and having the necessary occupational experience. Chapter
3515 was originally promulgated by the Board of Education acting
as the State Board of Vocational Education. After the Board
succeeded to the powers of the Board of Education, it became
responsible for the licensure of post-secondary vocational
technical education teachers and "inherited" the Board of
Education's responsibilities and powers under chapter 3515.
Since that time, the Board has begun to develop new rules in
chapter 3700 to supplant those in chapter 3515.
16. The requirements for applicants seeking licensure in
general studies are set out in proposed rule 3700.1200. Each
subpart of the proposed rules is discussed below.
Subpart 1.
17. Subpart 1 of proposed rule 3700.1200 contains the
qualifications an applicant for a general studies license must
have. Among other things, an applicant must meet the standards
in part 3700.0100 (general requirements for post-secondary
vocational teachers) and the particular standards for the
specific license sought. Part 3700.0100 requires, among other
things, that an applicant for licensure comply with parts
3515.0100 to 3515.4400 and 3515.5000. The Board established that
the licensing requirements in subpart 1 are needed and reasonable
as proposed. However, the title of the subpart ("Listed here")
has no meaning. Since the title is not part of the rule itself
this is not a defect. However, the Board should change the title
to "License Requirements" or something similar.
Subpart 2. Do not apply
18. Subpart 2 identifies eight rule parts (or portions
thereof) that do not apply to general studies license applicants.
The specific requirements excluded relate to committee review,
occupational experience, demonstration of knowledge,
reexamination, appeals, instructors in related post-secondary
subjects, and licensure charts. The wording of subpart 2 is
particularly terse. The rule states "Parts 3515.0100, subpart
25; 3515.4100; *** "do not apply." The rule would be clearer if
it stated, "The requirements in parts 3515.0100, subpart 25; ***
do not apply to applicants for licensure in general studies."
The change would improve the clarity of the rule and would not
constitute a substantial change. Also, the title should be
clarified by changing the heading from "Do not apply" to "Rules
not applicable" or Inapplicable rules."
19. Under subpart 1, the new general studies requirements are
in addition to the requirements in part 3700.0100. Part
3700.0100 states that applicants must comply with parts 3515.0100
to 3515.4400 and 3515.5000. In subpart 2, some parts of chapter
3515 are excluded. They include 3515.0100, subp. 25; 3515.4100;
3515.4200; 3515.4300; 3515.4400; 3515.6005, subpart 1; 3515.9920;
and 3515.9941. Read together, these subparts are confusing. For
example, subpart 2 states that part 3515.0100, subp. 25 does not
apply to the licensure of general studies teachers. Subpart 25,
however, is merely a definition. Because the new general studies
rule contains occupational experience requirements, the Board
apparently does not intend to apply any of the occupational
experience requirements in parts 3515.1200 and 3515.1300 to
general studies teachers. Apparently, it is the Board's
intention to only require persons applying for a general studies
license to comply with part 3515.2100 and the teaching education
sequence in 3515.1400. If that is so, the rule should be
clarified by including parts 3515.1200 and 3515.1300 in the
exclusionary language of subpart 2. Alternatively, and
preferably, the Board should consider eliminating subpart 2 and
changing subpart 1 to include a specific reference to the
additional rules that apply to applicants for a general studies
license. For example, subpart 1 could state "An applicant for a
license in general studies must only meet the requirements in
this part and the requirements in parts . . . ."
20.The Minnesota Federation of Teachers (MFT) opposed
exclusion of the committee review process in Part 3515.4100 from
the general studies licensure requirements. The committee review
process allows an applicant who fails to meet the vocational
licensure requirements in Chapter 3515 to petition the
Commissioner of Education for a qualification reevaluation. That
reevaluation is performed by a committee of at least three people
with specific qualifications in the relevant educational and
vocational areas. If the applicant's qualifications are found to
be equivalent to licensure standards the license is granted. MFT
maintains that the Board has not demonstrated the need or
reasonableness of excluding general studies from committee review
.
21. The committee review procedure, which was initially
adopted by the Department of Education acting as the Board for
Vocational Education, authorizes the issuance of a license if the
review committee finds that an individual's qualifications are
equivalent to the licensure standards in Chapter 3515. The rule
states that an individual who disputes an adverse committee
review recommendation may appeal the recommendation pursuant to
appeal procedures of the Board of Teaching in part 8700.2500.
Because the Board now has exclusive authority to license
post-secondary and adult vocational technical teachers, it is
questionable whether the Commissioner of Education has any
authority to make determinations of equivalency under the rule.
It seems unlikely that any reference to a decision by an
individual, officer or board other than the Technical College
Board has any effect. However, that issue need not be
considered. The only issues raised by MFT's objections are
whether applicants for general studies licensure should have the
committee review process available to them.
22. In its first public SONAR,2 which was issued when the
Board attempted to adopt the rules without a public hearing, the
Board stated:
Since the technical colleges do not have the authority to
grant degrees or degree equivalencies it is reasonable and
necessary not to allow the technical colleges to grant degree
equivalen- cies through the process of committee review.
Therefore committee review for this credential is no longer an
option.
SONAR for General Studies, at 3.
23. The Board received a large number of comments on general
studies after publication of its notice proposing to adopt rules
without a hearing. Therefore, it prepared a supplemental SONAR
to address issues raised in those comments. In its supplemental
SONAR, the Board discussed the need for committee review stating:
Committee review is a provision whereby a committee of
specified individuals evaluates the qualifications of an
applicant, [sic] who has been denied a license because the
evidence of qualifications presented by the candidate for
licensure did not meet the qualifications identified in the
rule.
The option of committee review is not provided for in the
general studies rule in order to eliminate duplication of
effort, reduce costs and provide a reevaluation process.
A process for the revaluation [sic] of evidence of courses and
majors exists in the form of a degree equivalency option under
Minnesota Rules, part 3515.0100, subp. 17. This option is
implemented in the following manner. If a candidate believes
that the education (degrees and/or courses) which they are
presenting may not clearly demonstrate that they have met the
requirements established in the rule they may seek a
determination of equivalent preparation from any
post-secondary institution authorized to grant the
corresponding degree or major. Under this process the
candidate is free to select the institution and department and
work directly with representatives of the institution and
department. The only restriction placed upon the choice of
institution and department is that the institution is
authorized to grant the degree/major required in the licensure
field. This process may be conducted before or during the
original application process, thus increasing the efficiency
of the process and reducing costs for the
applicant. When the institution/department has completed the
review and granted the equivalency, documentation of that
decision is provided by the candidate to the State Board
Licensure Unit. The statement of equivalency is accepted by
the State Board as evidence that the candidate does meet the
educational requirement stated in the rule and the license
would be granted.
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2. MFT asserted that the language supporting this rule was
different in a prior SONAR. The Board speculated that the
MFT may have seen a draft copy of the first SONAR. There
is no reason to consider agency drafts in determining the
need and reasonableness of a rule. The agency is entitled
to formally determine what theory it will pursue and what
facts it will present to support its proposed rules.
Therefore, drafts will not be
considered. P
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The cost associated with the reevaluation through the
degree/major equivalency option are [sic] less than those
which occur when a committee review is conducted by the Board
Office. In addition to the $50.00 application fee, a fee of
$100.00 is charged for committee review in those licenses
where it is used as an option for reevaluation.
Supplemental SONAR for General Studies, at 2-3.
24. MFT asserts that the equivalency reevaluation is not a
substitute for committee review because the instructor who seeks
committee review typically does not hold a degree in the field
for which equivalency would be sought. MFT acknowledges that the
existing rules require instructors to hold such a degree to be
eligible to teach such courses. According to the MFT, the lack
of such a degree should not be a bar to teaching such courses,
because the credits for general studies courses do not transfer
to other institutions but are taken only to support vocational
studies at the technical college. MFT also stated that the Board
has allowed persons not holding the appropriate degree to teach
general studies courses in the past. Those objections have no
merit.
25. General studies credits are not transferable to state
colleges or community colleges. Therefore, the qualifications of
persons teaching those courses in technical colleges arguably
need not be as stringent as the qualifications of persons
teaching courses whose credits do transfer. However, this fact
does not mean that the Board must abandon all standards for
instructors of general studies courses or that it cannot require
the same standards of them as are required of community college
instructors. Whether such courses are taken to support
vocational education or for independent reasons, the instructors
must be held to a standard of educational ability and
credentialing necessary to appropriately train students taking
technical college courses. Because the proposed rules for
general studies licensure contain the same academic requirements
which were established over ten years ago, the need and
reasonableness of those educational requirements need not be
established in this proceeding. Under Minn. Rules, pt.
1400.0500, subp. 1C. (1991) an agency proposing amendments to
existing rules need not demonstrate the need for and
reasonableness of previously adopted rules which are not affected
by newly proposed amendments.
26. Under the committee review process in part 3515.4100, a
license applicant may follow the committee review process in
order to establish that the applicant's education or experience
are equivalent to license standards under that rule. There is no
evidence that anyone has been granted a license who does not have
the appropriate degree under that rule. Assuming that in a
particular case a person's education could be found equivalent to
degree requirements not strictly met, the Administrative Law
Judge is still persuaded that elimination of the committee review
process is necessary and reasonable. Applicants who do not have
the necessary degree, but who have equivalent educational
experience, may obtain verification of that experience from any
institution accredited to grant a degree or major in the area
required for licensure. Consequently, having a second,
duplicative process, is unnecessary. The Board's decision to
eliminate the committee review process for general studies
licenses is necessary and reasonable because it eliminates the
unnecessary duplication of procedures. Furthermore, to the
extent that the committee review process would authorize the
licensure of persons not having the necessary baccalaureate
degree, or its equivalent, elimination of that process simply
guarantees that persons teaching in general studies have the
appropriate educational background. It has always been the
Board's position that general studies teachers must have an
appropriate baccalaureate degree. Preserving that policy is
necessary and reasonable. The fact that courses taught by
properly educated general studies teachers in technical colleges
are not transferable does not mean that the qualifications of
general studies teachers in technical colleges should be relaxed.
27. The existing requirements for general studies teachers
apparently have not been met by some current instructors. MFT
asserts that the Board has been aware of this situation and is,
therefore, estopped from enforcing those requirements. No case
law or treatise has been cited to support the claim of estoppel.
To establish a claim of estoppel, MFT must show that the Board
made representations which were reasonably relied upon and will
cause harm if the estoppel is not granted. Brown v. Minnesota
Department of Public Welfare, 368 N.W.2d 906, 910 (Minn.
1985)(citing Northern Petrochemical Co. v. United States Fire
Insurance Co., 277 N.W.2d 408, 410 (Minn. 1979)). When estoppel
is sought against the government, the harm to the party asserting
it must be balanced against the harm to the public interest if
the estoppel is granted.
28. At the hearing, the Board indicated that it has not
pursued enforcement actions absent complaints about the
credentials of an instructor hired to fill a technical college
position. MFT asserts that unlicensed instructors have obtained
positions based on the perceived nonenforcement of the existing
rule. The passivity of the Board, if any, in ignoring the use of
improperly credentialed instructors is not a representation on
which an unqualified person could reasonably rely. No evidence
in the record shows that the Board affirmatively advised
unqualified instructors that they need not comply with the
existing licensure rules. The instructors cited by MFT as "at
risk" under the proposed rules must have reasonably relied upon a
representation to establish estoppel. If the Board's failure to
act constitutes a representation, the instructors' failure to
obtain the credentials expressly required by rule remains
unreasonable. Reliance upon nonenforcement of the Board's rule
simply is not reasonable in light of the lack of any Board
statements and the express language of the rule.
29. Even if all three elements of estoppel existed in this
case, wrongful conduct by the Board must be shown before any
balancing between private and public harm is undertaken. In the
Matter of Westling Manufac- turing, Inc., 422 N.W.2d 328, 332-33
(Minn. Ct. App. 1989. There is no evidence of wrongful conduct
by the Board. For some years, the Board has treated its rules on
licensure as enforcable only after a complaint. This approach is
a legitimate exercise of discretion, given the Board's perception
of the problems posed by instructors with improper credentials
and the extent of the Board's resources. Although reasonable
persons could disagree regarding the efficacy of the Board's
conduct, its conduct was not wrongful.
30. Assuming that the elements of estoppel and wrongful
conduct by the Board had been shown, a balancing test must be
conducted weighing the harm to the party and the harm to the
public if estoppel is granted or denied. In this case the harm
to the instructors is that they will be excluded from teaching
some general studies courses in technical colleges. The harm to
the public takes three forms. Students are denied courses taught
by properly credentialed instructors. Technical colleges are
harmed by lowering the standards of the credentialing process for
their faculty. Properly credentialed instructors are denied the
benefit of positions which are held by instructors without those
credentials. The harm to the improperly credentialed instructors,
occurs merely through the application of existing standards. The
proposed rule does not change the existing standard, it merely
applies that standard. The harm to the public outweighs the
private harm and thus estoppel is inappropriate.
31. MFT argued that since the improperly credentialed
instructors have been teaching general studies courses
"successfully" for a number of years, it is unreasonable to
require these instructors to meet the minimum standards in the
proposed rules. The reasonableness of the rule, however, is not
measured by whether individuals may or may not qualify under a
rule. Rather, the rule must be measured objectively. In
Mammenga v. Dept. of Human Services, 442 N.W.2d 786, 789-90
(Minn. 1989), the Minnesota Supreme Court stated:
The rule itself is unreasonable (and therefore invalid) when
it fails to comport with substantive due process because it is
not rationally related to the objective sought to be achieved.
* * *
The mere fact, however, that the application of a rule
may yield a harsh or undesirable result in a particular case
does not make the rule invalid. [citations omitted]. To say
a rule is "invalid as applied" means that the rule is invalid
if, as employed, it is unreasonable in a due process sense,
i.e., that the rule is not rationally related to the
legislative ends sought to be achieved. . . [citations
omitted].
MFT's arguments that elimination of committee review is
inappropriate due to the fact that some general studies teachers
currently employed at technical colleges do not have the
appropriate baccalaureate degree or its equivalent must be
rejected. The argument confuses the issues properly considered
in a contested case proceeding and in a rulemaking proceeding.
The rule is clearly appropriate in its future application to
persons who have not been teaching general studies courses at
technical colleges without the appropriate educational
experience. As to all persons seeking licensure who do not
currently hold a teaching position at a technical college the
rule is clearly necessary and reasonable. It should be approved
on that ground even if the Board were estopped from applying it
in a particular case on the grounds of estoppel. In this
proceeding, individual claims of estoppel cannot be adjudicated.
Therefore, it is appropriate to approve the rule. If application
of the rule to a particular individual is subsequently challenged
on the grounds of estoppel, the challenging applicants
entitlement to licensure and the applicant's claims of estoppel
can be adjudicated. If the Board is estopped from applying
licensure requirements in a particular case, the rule is still
valid in all other cases.
The legislative end sought to be achieved by the general
studies rule is the maintenance of appropriate standards for
teaching general studies courses in technical colleges.
Requiring a degree or significant number of credits in the field
is rationally related to establishing standards for instructors.
Eliminating a method by which persons without such qualifications
obtain approval to teach those courses is also rationally related
to maintaining standards.
Subpart 3. Occupational Experience
32. The existing general studies license requirements ensure
that persons with direct, "hands-on" experience in particular
areas of expertise are on the faculty of the State Technical
College system. The Board has concluded, however, that qualified
persons were being excluded from teaching by overly restrictive
occupational experience requirements. General Studies SONAR, at
3. Therefore, the Board has proposed five different ways for
meeting the occupational experience requirement. The first is
completion of a three credit course in applied occupational
concepts; second is 500 hours of occupational experience in the
program area; third is current licensure as an instructor in an
occupational program area; fourth is completion of an approved
internship sponsored by the Board. The fifth and final (Subpart
3(C)) alternative is:
40 clock hours verified by an authorized administrator in a
combination of all the following:(1)ex officio occupational advisory committees;
(2) business/industrial site visits; and
(3) occupational program classroom/laboratory observation.
The five alternative ways of meeting the occupational experience
requirements necessary for licensure in general studies were
shown to be reasonable and needed. However, the alternative
found in Subpart 3C of the rule should be clarified. It is not
clear, for example, who an authorized administrator is. If it is
a technical college administrator, the rules should say that.
Also, the rule should state whether the 40 clock hours can be
earned in any combination of the three subitems. If it can, the
words "any combination" rather than "a combination" should be
used. In order to clarify the rule, the Administrative Law Judge
suggests that it be rewritten to read as follows:
40 clock hours of participation, verified by an authorized
technical college administrator, in any combination of the
following:
(1) ex officio occupational advisory committees;
(2) business/industrial site visits; or(3) occupational program classroom/laboratory
observation.
While participation is a broad term, it does indicate some formal
connection with the three listed options. Whatever language is
selected for item C, the language used must inform the regulated
public what experience meets the occupational experience
requirement.
Proposed Rule 3700.1210 - General Studies, Applied Math, Etc.
33. Proposed rule 3700.1210 sets the specific standard for
instructors who teach in the general studies area of applied
math. No commentator objected to any of the specific standards
in this rule. However, the title of subpart 1 ("May teach") is
awkward. While the title cannot constitute a defect in the
proposed rule, the Judge suggests that the Board replace it with
"Eligible teacher." This comment applies to all the rule parts
for a specific field. Proposed rule 3700.1210 is needed and
reasonable.
Proposed Rule on Application
34. Commentators responding after the first publication of the
proposed rules questioned how existing licenses were to be
treated. The Board added additional language before the second
rule publication to meet these concerns. At the end of proposed
rule 3700.1280, entitled "General Studies, Occupational English
as a Second Language," the Board has placed rule language
entitled "Application." A further title states "Conversion of
Existing Instructors Licenses." The first paragraph of the body
of the rule relates to bilingual, bicultural reading and math
licenses and how those licenses may be retained or converted to
the general studies equivalents of those licenses. The second
paragraph contains a table indicating existing license titles and
the new titles for those licenses. The Board has shown this rule
to be needed and reasonable. The rule would be clearer if it was
set out as a separate rule part with each paragraph designated as
a subpart.
Repealer
35. In response to the first publication of the proposed
rules, some commentators questioned the repeal of Minn. Rule
3515.9942, a licensure chart. The Board indicated that three of
the licenses, Supplemental Support/Technical Tutor, Interpreter
for the Deaf, and Occupational English as a Second Language, were
either repealed, removed, or are in the proposed rule. However,
to meet the commentators concerns, the Board altered the language
in the repealer to state that rule 3515.9942 "no longer applies
to part 3700.1280." The repealer, as amended, is necessary and
reasonable, but it would be preferable to include the quoted
language in Subpart 2.
GENERAL EDUCATION
Proposed Rule 3700.1205 - General Education License
36. General education credits are earned by students seeking
an Associate of Applied Science Degree. The existing practice
for general education credits has been to have the course taught
under a cooperative arrangement with community colleges or the
State University system. Under such arrangements a licensed
instructor from the community college or state university teach
general education courses. Until recently, no technical college
has been eligible to provide general education courses by its own
instructors for students to earn those credits.
37. Under Minn. Stat. 136C.042, subd. 1, the Board may
"approve, disapprove, or modify a plan for awarding associate
degrees at a technical college." An agreement has authorized
Alexandria Technical College and Hutchinson Technical College to
offer courses in general education for which degree credits may
be earned. Supplemental SONAR on General Education, at 1. The
Board has indicated that the authorization is for up to 32
general education credits. Id. These credits are eligible for
transfer to Minnesota community colleges or the State University
system. Id.
38. Up to the present, technical colleges have not had
instructors licensed in general education. Since Alexandria
Technical College and Hutchinson Technical College are now
providing general education courses for which licensed
instructors are typically required, the Board has proposed that
licensure be required for instructors in general education
courses in technical colleges. Proposed rule 3700.1205
establishes the standards of this licensure.
Subpart 1 - May teach
39. The disciplines for which licensed general education
instructors are able to teach courses are set out in subpart 1 of
proposed rule 3700.1205. Eighteen fields are listed which are in
the science, social science, and humanities areas. No one
objected to subpart 1. As discussed above, the Board may choose
to change the title to "Eligible teacher." Subpart 1 is needed
and reasonable.
Subpart 2 - Other Requirements
40. Two other rules are cited in subpart 2 as requirements for
technical college instructors seeking licensure to teach general
education courses. These requirements are parts 3700.0100
(general requirements for post-secondary vocational teachers) and
3700.1200, subp. 3 (occupational experience). The Board
characterizes these rules as "generic to all general studies
general education staff." SONAR on General Education, at 2.
Part 3700.0100 is presently a promulgated rule. The Board has
shown that the requirements are needed and reasonable to
establish appropriate standards for general education
instructors.
Subpart 3 - Educational Experience Requirement
41. Persons seeking licensure as general education instructors
are required by subpart 3 to have minimal educational experience
in a particular field. As proposed, the minimum educational
experience is a master's degree with either a major in the
assigned field or 23 graduate credits in the assigned field. The
Board arrived at these standards after consultation with staff at
the community colleges, technical colleges, and the State
University system. SONAR on General Education, at 3.
42. Larry Anderson, Ann Craigmile, and Gary Albrecht objected
to the requirements of subpart 3 as applied to instructors who
have taught courses at the technical colleges for years. Some of
these instructors will have few opportunities to obtain 23
graduate credits in their field. Other instructors with the
opportunity to obtain those credits may choose not to do so just
for the opportunity to teach a few general education courses.
Anderson stated that he was not interested in taking additional
courses, since he is only two years away from retirement.
Craigmile and Albrecht asserted that the rule will have the
effect of depriving some instructors of their livelihood.
Anderson, Albrecht, and Craigmile urged the Board to exempt
existing teachers from the educational requirement for general
education.
43. The Board responded that some instructors teaching general
education courses in the Alexandria and Hutchinson Technical
Colleges are now doing so without licenses. The credits obtained
by students in courses taught by unlicensed instructors are not
transferable. This situation has caused an undue hardship for
students, who are forced to retake identical courses taught by
licensed instructors to obtain the credits necessary for meeting
degree requirements. To ensure that instructors without master's
degrees or the appropriate graduate credits have some
alternative, the Board has proposed a provisional status for
existing instructors. See, Finding 45, below.
44. Where technical colleges have altered their educational
mission by offering general education classes taught by their own
instructors, it is needed and reasonable to impose the same
licensure standards as the standards met by general education
instructors in community colleges or the State University system.
Without adequate minimum standards, transferring students will be
harmed by having to retake coursework already completed, but
taught by an unlicensed instructor. Subpart 3 is needed and
reasonable, as proposed.
Subpart 4 - Provisional Status
45. For instructors who do not meet the licensure standards
set in subpart 3, the Board offers provisional licensure. The
standards for provisional licensure are established in subpart 4.
These standards are:
A. a minimum of 15 quarter credits taught in the field within
the past five years;
B. a bachelor's degree (or some higher degree);
C. an individual education plan approved by the college
administration;
D. application for provisional licensure is made within one
year of the rule taking effect.
Instructors who meet these standards may receive a provisional,
three-year license. Subpart 4 is needed and reasonable.
However, item C is unclear. If there is some rule that governs
individual education plans, it should be cited. If there is no
such rule, the rules should state what the individual education
plan must do. For example, if it is a plan by which an
individual will obtain necessary educational experience to be
licensed as a general education instructor, it must say so.
Dick Wagenknecht, Math Director for St. Paul Technical
College, objected to the 15 credit minimum to teach remedial
math. Wagenknecht also opposed the removal of work experience
from the licensure provision. The Board pointed out that
provisional licensure is new and is intended only for existing
instructors. The minimum qualification of 15 quarter credits
within the past five years is intended to provide assurance that
only qualified instructors will obtain provisional licensure.
Recognition of applications for a provisional license to one year
after the rules take effect ensures that only current instructors
are eligible for provisional licensure. Since the work
experience requirement already exists for current instructors,
that requirement is not being "dropped" for provisional
licensure. The Board has shown that the provisional licensure
provision of subpart 4 and the renewal provision in subpart 5 are
needed and reasonable.
Based upon the foregoing Findings of Fact, the Administrative
Law Judge makes the following:
CONCLUSIONS
1. The Minnesota State Board of Technical Colleges ("the
Board") gave proper notice of this rulemaking hearing.
2. The Board has substantially fulfilled the procedural
requirements of Minn. Stat. 14.14, subds. 1, 1a and 2 (1990),
and all other procedural requirements of law or rule so as to
allow it to adopt the proposed rules.
3. The Board has demonstrated its statutory authority to
adopt the proposed rules, and has fulfilled all other substantive
requirements of law or rule within the meaning of Minn. Stat.
14.05, subd. 1, 14.15, subd. 3, and 14.50 (i) and (ii) (1990).
4. The Board has demonstrated the need for and reasonableness
of the proposed rules by an affirmative presentation of facts in
the record within the meaning of Minn. Stat. 14.14, subd. 2
and 14.50 (iii) (1990).
5. No additions or amendments to the proposed rules were
suggested by the Board after publication of the proposed rules in
the State Register and thus the rules are not substantially
different from the proposed rules as published in the State
Register within the meaning of Minn. Stat. 14.15, subd. 3
(1990), and Minn. Rules pts. 1400.1000, subp. 1, and 1400.1100
(1991).
6. Any Findings which might properly be termed Conclusions
and any Conclusions which might properly be termed Findings are
hereby adopted as such.
7. A finding or conclusion of need and reasonableness in
regard to any particular rule subsection does not preclude and
should not discourage the Board from further modification of the
proposed rules based upon an examination of the public comments,
provided that no substantial change is made from the proposed
rules as originally published, and provided that the rule finally
adopted is based upon facts appearing in this rule hearing
record.
Based upon the foregoing Conclusions, the Administrative Law
Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED that the proposed rules be adopted
consistent with the Findings and Conclusions made above.
Dated this 12th day of January, 1994.
JON L. LUNDE
Administrative Law Judge
Reported: Tape Recorded (No Transcript Made)