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Senate | July 15, 2015 | Committee Room | Education and Higher Education

Full MP3 Audio File

Alright folks, I thought you needed a little history this morning. We've got two bills on the calendar today and we're going to try to wrap up these bills by the end of next week so we will have another Ed meeting, I'm sure we'll have to have, but House Bill 390. Representative Tom you've got both county, Community College, Washington county, we're trying to get a service area straightened out here. There's your bill. Thank you Mr. Chairman. Whenever you feel it's appropriate Sir, we do have an amendment that would change the effective date. Bring the amendment up. Mr. Chairman, Mr. Chairman? Yes Sir. Representative Turner asked me if I present the amendment which would change the effective date of this from July 1st which we've missed to August 1st. Very good, thank you. I believe this July 1st is coming [xx]. Alright, we got the amendment before us Senator changes the date, all in favor, aye. Any opposed? Alright the amendment is go ahead. Thank you Mr. Chairman, this bill has to do with WAshington County whose one of our more economically challenged counties in the state as employment rate, the K through 12 system is ranking in the bottom in most measurements but they are working hard to improve and one of the things that we have determined that can greatly help this county is that if we can get a community college presence in Washington County. The biggest issue that that we have right now is that it's doll served, it is served for the adult services by community college, it is served for the [xx] 12 services, they vote for community college and neither can get the right critical mass in order t o present a facility there been working with the Washington Board of Commissioners, they recognise this issue also and went through a process exploration with both community colleges, once they are completed with that they felt that both the community colleges would be able to best serve this's there need and so they pass there resolution unanimously asking for proper community college to be the soul provider for that county. This is been a long going it started in 1987, it's been before previous committees up here, may be eight years ago. Well I believe that representative Glacier told me that it was in front of one of his committees years ago, but it's time that we rip off the band aid and say lets have one done and move forward so I ask for your support. Thank you representative Styn you've heard, the bill and I'm going to go back and do it correctly the amendment the way it should have be done, we had a motion by senator Waters no sir we had a motion for senator Waters, and the vote should be in my statement. It should be, the motion is that, those in favor of the report to the bill as amended we enrolled it? No we don't, we didn't do the amendment right. Did we? Alright, okay. Senator thank you you've learned extremely well. Alright we've heard the bill now and we've got the amendment enrolled into the bill we have some folks from the audience that have signed up to speak and I'm going to ask one from each side and I'm going to ask commissioner Roony smith Martin County board of commissioners to speak first you have two minutes and we have a timekeeper there so go right ahead commissioner give us your name and who you're representing.  I'm Ronny Smith Martin County commissioner chair can you hear me? first of all as chair of Martin  County board of commissioners. His mic is down push that green button there I have tried it before. Didn't work. First of all I'd say good morning and I know in the past that the senate and a house always agreed and I hope this is one of those days, as a chairman of Morton county commissioners we're asking that you modify house bill 390 to include Washington and Morton county and the amendment was so that Morton county community college was [xx] community colleges will be treated equal as to the service areas when you do your evaluation by the next five years we've been serving Washington county now for more than 40 years, we've invested numerous dollars, time and the people of Washington county, and it's not right for Washington county to be snatched away from Morton county we talk about economic, counties that

tier one counties, Morton County is also a tier county, Morton county [xx] as Washington county commissioners we have a great relationship, we had it sometimes, we want to continue with that relation and we will, but this issue here is something that came up, we were not aware of it. We never had opportunities to sit down with Washington county, we haven't had opportunity to sit down with Boston county and make a decision as county commissioners, and we have like I said, we have a great relationship, partnership that several things that we work together and this thing came about and we just was not aware of it. Communication was not there, what happened in the year 2000, there was a study and that study indicated that Morton county community college was the best to serve the basic skills in Washington county. There is numerous reason why we feel that Morton County is the best, it's because we have the largest basic skills department, we have law enforcement bar and I believe the time keeper counted time out on you. Thank you sir. Thank you sir. And now from the other side, Curtis Porter, the Washington County Attorney, you have two minutes sir. Give us your name. Good morning senators. My name is Curtis Porter, I'm the County Attorney of Washington County. You heard from Martin County this morning and I think we all understand that they have some concerns, but ultimately this bill is not about Martin Community College, this bill is about doing what's right for the education and economic opportunities of Washington County. I think that Representative Tom did a great job summarising where we've come from and where we're at at this point. I would just reiterate. This is a key stage, a key opportunity once in decade, or almost once in a lifetime. If this bill goes forward Washington County already has a state of the art facility that is wired for distance education to provide community college services and the current system that we have where we were split and to service areas is not working. We've shown that as the years have gone by. What we need is a strong community college partner who is capable of partnering with us so that we can only deal with one party in the room to provide all of the necessary educational services at one place for the benefit of our citizens. Thank you. Thank you. Thank you very much, Bater. Alright, you've heard those two sides of it. Members I do have a motion, Senator we'll hold that for a minute. Senator Pate, you look like you have a question there sir No sir I just hold my hands up in the air. You don't have a question? Alright next member?  Oh, you do have one. Thank you Mr. Chair, Representative. Stine, Representative Time, excuse me. What is the position. We'll get this right after a while, before the I definitely want to claim that name. I think that's mutual on both. I have a question [xx] starting no sir. Go ahead Senator [xx] Rep. Time, Yes sir. What is the position of the community college system on this request. Have they weighed into it or, is it of their concern? Rep. Time, They've taken no opposition on this, the original creation of this issue stems from the community college board, and decision made in I believe, 1987 we went to them and asked them to look at it, and they said, "If you would seek a legislative decision on it. " That's what we did. Alright good question Senator Payne. Senator Cook, [xx] Yeah Can't urgue that. Wake county go right ahead. Great place, hope you all come visit, I've talked to the President, and The Chairman of the board of the school Beaufort County Community College, and Beaufort made sure to me this is a good thing for Beaufort as well as for the folks of Washington. Also I want to say I've seen of this bill, and what we're attempting to do here is good for the students. Most importantly, it's good for the students. It's unfortunate that Martin County wasn't able to provide what the students need best. But this bill will correct

that and the students will benefit, and I think that's what we should focus our attention. Thank you. Thank you Senator. This issue has been around since Moses' day and I am  Was that before or after you? That was about my time. I can't believe that the two sides have not sat down and worked together On this, and over the years I know there have been discussions about this. Whether you've had a formal meeting or not, I don't know but this is the issue that's before us now and it's time to put it to rest. I do have a motion from Senator Woodard, I believe you were the first one to make this motion for favorable.  All in favor aye, any opposed? Alright, the bill passes now. The motion is favorable to the bill as amended, is rolled into a PCS and with a favorable report to committee substitute and unfavorable report to the original bill. I got it, thank you. So you want to run that on t he floor. I believe that the senator representative [xx] has the [xx] on this. We'll try to pass it. Okay, thank you sir. We've the second bill that's on the agenda today is house bill 561, school says some authorization regarding illegal proceedings, representative Glazier and representative Blackwell, honorables welcome to the senate. Always a privilege to be in front of you and be on the senate is tough, this bill came through your senate jay committee, senate jay two committee I think without objection unanimous, senator Daniels handled it, I was absent. I think it's a fairly straightforward bill that is intending to deal with what we think is maybe a gap in the current statute in terms of authority that school boards have and when they become involved in potential litigation or investigation especially if by a quasi-judicial agency, that might be the North Carolinian  department security commission, the EEOC, the office of civil rights North Carolina industrial commission in North Carolina department of labor. And what it does is simply say that confidential files of employees normally are restricted to four things that are listed in the statute. That a school board has the discretion when it thinks that's it so appropriate to make disclosure from those personnel files to the extent needed to defend itself and some of these agencies or in the court case. The second thing that it does is it allows the school board which in some instances has the authority for conducting investigations of his own to subpeona not just witnesses which the current statute allows but also to subpeona things that are relevant where somebody like an employee is charged with some sort of misconduct. And that's pretty much it. Representative Glazier do you have comments? Did he say well enough for you?  He did All right you've heard the bill do we have any question Senator Stan? Thank you Representatives. On section two the bit about disclosing tangible things will that include my cellphone if were a teacher?   The Supenos it says start down on 36 would be for tangible thing may be issued no matter when employee is suspected of committing job related and in desecration of the board require investigation. Beyond that, I would say that would be potentially the case that they could require some production of a cell phone, yeah. And is that the same standard for standard employees with their supervisors that these things that there's no requirements that there would be a reasonable suspicion or any kind of standard other than a suspicion, what is this? A suspected, suspected of committing can misconduct. I just wonder if we need some greater standard to require somebody to give up their personal property. I mean it include their home computer, I think it  can even include their home computer, and he's going to make sure that we're not authorizing superintendents to get people stuff based

on whatever feelings they may have against that employee without some reasonable grounds. Senator, I don't know that I have a complete answer to that concern, but I would offer this at least as I respond maybe a partial of answer at least. As with the issue of subpoena generally, I would think that an employee who felt that the board was going going beyond a reasonable area in its request and it had an over broad subpoena, would be able to seek protection from the court for that in the same sense that we go to court frequently in discovery matters because we object that something is overboard burden somewhat or the like, and that the court if that circumstance were to arise could issue protective orders. Representative Blackwell, I think where representative Glazier being a legal man, former school board chair, et cetera, et cetera, may want to Chairman here, Senator Stan, I think you can maybe shed a little light on this.  I'm going to follow my Harvard logo and who actually knows this better. Maybe. Representative Blackwell but I think two points senator Stan, I think number one I agree with representative Blackwell that motion to quash would be what will be filed by the employee and I think under rule 45, the civil rules they could do that, and I don't think there's any bad in that and that seems to be how it has been handled. In the other sittings like Camy Commisioner setting and other areas, the second thing you pointed out the spindle, I think the suspected follow the track the reasonable suspicion standard and I think that's the same language that have been used, so we wasn't any time to change any different language for School board and anyone else. alright thank you [xx] did you get your question in? No sir. You want to make a motion for a favor on board? Senator Reuben [xx] Yes sir. I'm not sure if it's a comment or question or I'm sort of reluctant to get mixed up in a legal thing with some common sense, but I'm getting the feeling in a lot of these cases because no one has looked in it the aggregate that's going on that individuals' rights to privacy are fast eroding in a lot of the things that we do and across the state and the nation. I think we have to start looking as people in the General Assembly at this and getting that one thing at a time. I can't see any reason why a lot of this stuff needs to be made available by some force-able issue we're on a slippery slope of having nothing confidential and nothing wide open which I'm not sure is, not being a lawyer, I've got to say it you I think the constitution gives me a certain right to privacy and I think were pushing against that wall and it need to be looked at very, very closely. Thank you. Thank you for that question.comment. Rep. Black. Just quickly to this particular bill has been through the House Judiciary Committee. It's already been through your Judiciary Committee, and we all share the concern that Sen. Rabin raise but I think the fallback position is what we were discussing with senator Stan. If someone's privacy is being improperly violated then the motion to squash the subpoena is available. Follow up please. Follow up when who decides what this line is. We keep going on and on and on and someone keeps moving the scale and moving the scale and I think we have to be careful about the direction we're going in in regards to personal freedoms and confidential existence. Alright Senator Bryant, I saw your hand and we may want a response here too but go ahead and get your question in. I was just going back on the same general track as Senator Rabin but he's asking his question on a broader scale. As it relates to this particular statue I was going on ask the staff to describe who gets to the decide what is the procedure for getting this subpeon and who gets to the decide because it look like at least it would take a majority of the board the superintend really can't do this. Kenny I've just he or she can somebody clarify that? The language of the statute says the Local Board of Education shall have the power to issue subpeonas so it would be an act of the board. Which follow up, which would mean at least they would have to have a majority vote right?  I mean be an

action of the board by majority vote, so that's a little it's not depending on the board and where it is, is not a lot of protection but it is not like if so one person gets to go on a fishing expedition. Alright. And it would be in a public A follow up, One other question would this be required a vote in public or will it depend on whether it was a Personal actions are done in private by the board most times. This because of the specific nature the new language specifically says the pinis for the production of tangible things may be issued in matters where an employee is suspected of job related misconduct. I can't speak for every situation that arose that would involve any kind of disciplinary action personnel record that type of thing, [xx] would probably do it in closed session. Okay, follow up. Okay, one more follow up. To the sponsors, it might be worth looking at the detail of how that will work, I don't know if there are circumstances where we would want any of that to be public. I'm just not sure but that would cause me a little concern. Well, thank you for that but I don't believe these meetings are open to the public if, to solve my personal issues. Senator Wales have a staff question. Yes, let's get another one, it might be related. Are other public they have some kind of power when they are suspicion of this contact ground jobs for employees? That's what we are trying to look up we don't know the answer to that one right now. we got question now, response from the responses represented by [xx] we covered a little ground here, let me see if I can do so understanding under the current law this board of education already has peanut power for witnesses this is simply adding that they can also be certain tangible thing that maybe relevant to the investigation. Whether or not that will be publicly voided or on private may depend upon on exactly who you are dealing with if you are investigating allegation of misconduct you may not want to expose the employee to some sort of personal neutrality, until you've actually investigated. I would suggest in that context they might take a vote in private which I believe will be authorized under the statute. But if there is no reason for confidentiality with respect to the procedure that I would think under the normal rules you would do it in public. Again the protections here are the one that we will refer to earlier, and that is, if the school board simply says we subpoenaing your selfie, and if I were the attorney for the employee I would object to that and say you've got to narrow this and somebody needs to maybe, take a look at just the part that may relate to the time period during which I might be alleged to have communicated with an underage student about some sort of improper Carrying is on, but our feeling is, is this basically is clarifying that information that's in confidential files can be disclosed if it relates to the topic that's as being disputed, or litigated or investigated with all the normal court protections available. If someone feels like they're being abused, or their constitutional rights violated, then they can seek protective orders, and quashing of subpoenas and the like. I'm going to go to another question here, just a moment. I haven't dealt with this on a basis in the school system several times, you may have writings that a teacher has done to a student that would reveal some relationships that are highly improper. You may have telephone conversations, and if you can't get your heads on those and that teacher is going to continue to be in that school, if they're exonerated, and they're going to continue to do these things. Sometimes you've to have these evidence other than hear-say. and this hard evidence of items and articles can provide that where testimony sometimes can be disputed and denied, and as him against her etc. remember in the real life world you've got to have some proof., Senator Stan. Thank you Mr. Chairman and I appreciate the Bill sponsors for sponsoring us, and particularly Senator Brian's question because I think I have a better understanding there but I want you all to confirm it. So, when I'm reading on line one and two of

the second page, where it talks about the discretion of the board or the superintendent. That isn't giving the superintendent the discretion to issue the subpoena. That's only the superintendent saying there's something that needs investigating, but still it's exclusively the power of the board to issue the subpoena for the documents. That's our intent, I would ask staff if they agree that the rest of the statutes would confirm that we can certainly put something in there that says that only the board can do it I mean I believe that's what it says because it starts out the local board have the power to issue those penus and that senator time reference the way it's wanted the job related misconduct which I we are following back to the job related misconduct in the discretion of the board of the superintendent requires investigation, investigation of the job related misconduct. I think plain reading of that would not mention, lead to another. I appreciate that. Thank you [xx] and I think that's good as in response and seeing one other hand, senator Byrant. Mr. Chairman that's what concerns me as well I'm worried that a plain reading of this might imply that the board has the authority to issue the sapiner that somehow the they would have to honor the superintendent discretion to issue this subpoena versus subpoena he's having some ability to recommend to them that he thinks the matters are the tangible items are related. Senator Brown I'm going to let council over here respond  to there I believe there's mayor in there out of shell. If you look on line 36, Senator O'Brien subpoena for the production of tangible things maybe issued, I hear you but that's kind a nice, a familiar raise in a little bit but for an average person, looking at this and trying to figure out what to do or even that some of our local officials to me it  might have imply that somehow the superintendent has authorities that we are intending. Let me ask this question, what authority how come is needed? I think the. Council let's have your response from that [xx] I think, I don't know that that sentence gives the superintendent any authority to do any thing, it just says in their discretion if they see something requiring investigation so I guess it gives them authority to state to their board, just requires investigation, they don't have the ability to issue the [xx] the superintendent does not. Yes, thank you, you don't give the superintendent any powers in this bill whatsoever. He has by law the authority to make recommendations to the board, that this case needs an investigation, the board must then decide whether they have a hearing. You've got legal advice on both sides, this has been through two judiciary committees full of lawyers, and it's now before for us and we're trying to make some quasi-decisions about, this bill gives no authority to the superintendent to do anything other than what the law prescribes. He has no vote, he can only recommend and that doesn't change that as I see it. Seeing one other question Senator Tarte. Thank you, Mr. Chair. Just a comment since though I think we've covered this topic pretty well, this is a comment directed at Representative Glazier, and since I don't know that another opportunity opportunity will present itself in this kind of formal setting, I'm going to take the liberty in speaking for all the Senators in this room and wish you well in your future endeavor, and as a member who's respected across both aisles and in both Chambers, it's been an absolute pleasure serving with you directly. Thank you very much. Thank you, that's well deserved he's going to be leaving us and he will be hard to replace, I can tell you that because I know him well. Counsel has one other comment to make about this issue. We've been doing a few quick searches, just try to look at other areas and other bodies that have subpoena power of course under OAH Administrative Law judges who would rule on employment issues for State employees do have subpoena power, and then city councils do have a statute that specifically gives them the power to

investigate the affairs of the city, and for that purpose to subpoena witnesses, a administer of oaths and compel the production of evidence. Thank you deputy for your able [xx]. Looking around I see Senator Wade with Tillman who's inherited that from Hall who inherited that from God. Motion to approve, all in favor Aye. Any opposed? The bill passes, who are you going to have to handle that bill? Senator Daniel. Senator Daniel, okay. He's another one of those country lawyers. Thank you. Pretty good. Good job. Good job. This meeting is adjourned and thank you very much. Keep your eyes on the calendar and I'm sure we will have another meeting.