Opinion
Opinion Delivered December 17, 2008
The Honorable James Norton State Representative 3132 Bolin Hill Road Harrison, Arkansas 72601-9586
Dear Representative Norton:
I am writing in response to your request for an opinion concerning the requirements for obtaining an Arkansas School Administrator License. The following question is presented in this regard:
Do the Arkansas Department of Education Rules Governing Initial Standard License, August 2003, approved by the Arkansas State Board of Education, or the laws upon which the rules and regulations were written, exclude a certified licensed counselor from counting his/her years of experience as years of teaching experience?
RESPONSE
I am informed that the Arkansas Department of Education ("ADE") interprets the "teaching experience" requirement under the Arkansas Department of Education Rules Governing Initial and Standard Administrator License (August, 2003), to mean experience as a classroom teacher and not as a school counselor, at least for three of the required four years. Accordingly, the question is whether the ADE can validly impose this requirement. The answer is "yes," in my opinion. The State Board of Education, through the ADE, is the licensing agency for those seeking an administrator license. A.C.A. § 6-17-402. This statute provides in relevant part:
(a) As used in this section, "certified teaching license" means the license of a licensed classroom teacher, an administrator, a guidance counselor, or a librarian issued by the State Board of Education.
(b)(1) The State Board of Education shall promulgate rules and regulations for the issuance, licensure, relicensure, and continuance of licensure of teachers in the public schools of this state.
A.C.A. § 6-17-402 (Supp. 2007).
See also A.C.A. § 6-15-403(4) (Supp. 2007) ("The State Board of Education through the Department of Education shall . . . designate the licensure subject areas, establish . . . licensure requirements for all school-based personnel, and prescribe rules in accordance with initial, standard, and provisional licenses.")
Pursuant to this charge to administer the licensure of school personnel, the ADE has promulgated the Arkansas Department of Education Rules Governing Initial and Standard Administrator License (August, 2003). These rules state, inter alia, that to qualify for an Initial Administrator License, a candidate must "hold a current Standard teaching license," id. at Rule 4.02.1, and "have a minimum of four years teaching experience." Rule 4.02.2 (emphasis added). See also Rule 4.05 (requiring that the application for Initial Administrator License must provide verification of "the current Standard teaching license" and "the teaching experience.") This latter requirement regarding "teaching experience" is at issue in your request. The rules further provide in this regard: "For Curriculum/Program Administrator, at least three of the four years teaching experience must be at the level and/or in the area in which the candidate is seeking licensure." Rule 4.02.2.2 (emphasis added).
An "Initial Administrator License" is defined as:
[A] license, issued by the state, which allows one to serve as either a Beginning Building Level or Curriculum/Program Administrator in an Arkansas school district. This initial license is valid for no less than one, and no more than three years, during which time the administrator participates in Administrator Induction.
Rules Governing Initial Standard License at Rule 3.08.
I am informed that the ADE interprets the "teaching experience" requirement to mean experience in the classroom, at least with respect to three of the required four years. That interpretation must be given considerable deference. It will be upheld unless it is clearly erroneous or contrary to statute. See generally Clinton v. Rehab Hospital Services Corp., 285 Ark. 393, 688 S.W.2d 272 (1985) (observing that an agency's interpretation of its own rules, while not binding, will be controlling unless plainly erroneous or inconsistent); Arkansas Dept. Human Serv. v. Hillsboro Manor Nursing Home, Inc., 304 Ark. 476, 480, 803 S.W.2d 891 (1991) ("[A]n administrative agency's interpretation of a statute or its own rules will not be overturned unless it is clearly wrong.").
In my opinion, the ADE's interpretation of the "teaching experience" requirement under its licensure regulations is neither wrong nor contrary to statute. According to my review, the statutes neither include nor exclude a certified licensed counselor's years of experience for purposes of qualifying for an administrator license. Instead, the legislature has established the ADE as the licensing agency and has vested it with broad authority to develop the administrator licensing program. A.C.A. §§ 6-17-402 and 6-15-403(4), supra. The statutes in my opinion thus provide the ADE with ample authority to adopt and enforce a "teaching experience" requirement in connection with administrator licensure. As noted, the ADE has interpreted "teaching experience" to mean experience as a classroom teacher, and not as a school counselor. I cannot state that this interpretation is clearly wrong. Indeed, to the contrary, it appears consistent with a number of statutes that distinguish between counselors and those who are " engaged directly in instruction with students in a classroom setting. . . ." A.C.A. §§ 6-17-119(a)(4) (Supp. 2007) (part of the "Arkansas Alternative Pay Programs Act"), -811 (Supp. 2007) (incentives for teacher recruitment and retention), -2402(2) (Supp. 2007) (Teacher Compensation Program), and -2406(a) (Supp. 2007) (compensation under C-Step Program or Arkansas National Guard Youth Challenge Program); A.C.A. § 6-20-2303(4) (Supp. 2007) (Public School Funding Act); A.C.A. § 6-81-607 (Supp. 2007) (Teacher Opportunity Program). Although each of these statutes includes "guidance counselors" within the definition of "teacher" or "classroom teacher," each statute also separately distinguishes counselors from those who spend at least 70% of their time teaching students in the classroom. Subsection 6-17-119 is illustrative:
The inclusion of counselors as "teachers" under these statutes may be reflective of the fact that a counselor must have a teaching license. See A.C.A. § 6-17-402(a) (Supp. 2007) ("`[C]ertified teaching license' means the license of a licensed classroom teacher, an administrator, a guidance counselor, or a librarian issued by the State Board of Education").
"Teacher" means:
(A) Any person who is:
(i) Required to hold a teaching license from the department; and
(ii) Is engaged directly in instruction with students in a classroom setting for more than seventy percent (70%) of the individual's contracted time;
(B) A guidance counselor; or
(C) A librarian.
A.C.A. §§ 6-17-119(a)(4) (Supp. 2007) (emphasis added).
The emphasized language plainly excludes school counselors. See also A.C.A. § 6-17-412(a)(1) (Supp. 2007) (defining "classroom teacher" for purposes of National Board for Professional Teaching Standards certification as "an individual who is required to hold a teaching license from the Department of Education and who is engaged directly in instruction with students in a classroom setting for more than seventy percent (70%) of the individual's contracted time[.]"). In accordance with A.C.A. § 6-18-1005(b) (Supp. 2007), school counselors on the other hand must "spend at least seventy-five percent (75%) of work time each week providing direct counseling related to students and shall devote no more than twenty-five percent (25%) of work time each week to administrative activities provided that the activities relate to the provision of guidance services."
My research has disclosed one statute that includes a counselor's work experience within the definition of "teaching experience." Arkansas Code Annotated § 6-17-2602(3) (Supp. 2007) defines "teaching experience" for purposes of a "Lifetime Teaching License" as "the experience gained while working in an educational setting as a teacher, librarian, counselor, administrator, educational consultant, substitute teacher, or other certified employee." According to my review, however, this is an exception to the usual statutory distinction between counselors and those who teach in the classroom.
It is therefore my opinion that the ADE did not exceed its statutory authority when it imposed the requirement that a candidate for administrator licensure must have four years of "teaching experience," which requirement, as interpreted by the ADE, means experience as a classroom teacher for three of the required four years.
Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL, Attorney General