BREAKING NEWS: Draft amendment proposes to increase power and authority of NH education commissioner

At the 4/11/17 Senate Education committee meeting, Senator Reagan (R-District 17), introduced a draft amendment that proposes to substantially increase the authority and power of the Office of the Commissioner of Education. 

The proposed draft amendment 1236s would:

  • eliminate the four existing divisions (details below) at the Department and replace them with four new divisions (responsibilities TBD) under the direction of the Commissioner; 
  • transfer the existing responsibilities of the Deputy Commissioner to the Commissioner; and, 
  • place authority over essentially all programs, funds, and personnel solely within the Office of the Commissioner.

The amendment is a non-germane amendment to HB 356, which the Senate Education committee will act on this month. The amendment would impact all aspects of education in New Hampshire, from K-12 public education, to special education services, higher education, and adult learning. 

Here is a short summary of some of the proposed changes and how they would impact Granite Staters:

I. Dramatically reorganize the Department of Education so that the Commissioner has greater authority and discretion.

Impact on Granite Staters: Leadership of the divisions would no longer be accountable to the public for specific responsibilities written in New Hampshire law. Currently, the existing divisions are accountable to the public for the implementation of many educational programs, services, and accountability systems under NH law. This amendment would transfer all authority  to the Commissioner and empower the Commissioner to create four new divisions – with as yet unknown responsibilities and authorities. This would remove an institutional check put in place to prevent the Department and New Hampshire public education from becoming overly-politicized.

As an example, currently the Division of Educational Improvement has the responsibility to “determine if a district is making diligent efforts to resolve personnel shortages that result in children with disabilities being placed out of district.” (RSA 186-C:5,I(b)) This amendment would transfer that responsibility and authority to the Commissioner. 

Impact on Granite Staters: The standard for appointing division directors would be weakened, opening the door for nominees who lack deep experience or advanced education in relevant fields.  Division directors are nominated by the Commissioner, in consultation with the State Board of Education,  and appointed by the Governor and Executive Council. Currently, RSA 21-N:3, II states that “The directors [of the divisions within the Department of Education] shall be qualified to hold their respective positions by reason of education and experience.” This sets a rigorous standard for appointing directors as they must be qualified to oversee the specific responsibilities assigned to the director in law. By eliminating the specific responsibilities of the directors, the amendment lowers the standard for appointing directors–the governor and executive council will no longer be able to assess whether the Commissioner’s nominees have the education and experience necessary to serve New Hampshire’s kids and families.   

As an example, currently the director of the Division of Career Technology and Adult Learning has the responsibility for “ Administering career technology and adult learning programs” in the state (RSA 21-N:9, I). The amendment transfers this responsibility to the Commissioner, eliminates the Division, and empowers the Commissioner to create a new division with unknown responsibilities. How will the Governor and Executive Council be able to assess a nominee if there are no clear responsibilities for the position?

II. The Commissioner would have new authority to move significant funds within and across the Department.

  • The amendment provides the Commissioner with greater discretion to move funds around within the Department.

Impact on Granite Staters: Accountability for the manner in which public funds are leveraged by the Department would decline. Department funds are assigned to specific activities under state and federal (for federal funds) law (e.g., the state budget appropriates funds for specific programs and restricts the Department’s latitude over the disbursement of those funds). The amendment would make it harder for the public to know how the Department is using funds as the Commissioner would have discretion to re-purpose public funds.  

This amendment would enable the Commissioner to take funds allocated for a specific purpose and re-allocate them for another purpose. While the amendment would require approval from the fiscal committee of the legislature and from the Governor and Council for transfers of $75,000 or more, this amendment provides substantial  power to the Commissioner to decide how to spend public funds. 

III. Special education rate setting authority would move from area experts to the Commissioner.

  • The amendment transfers authority over setting the approved rate for private providers of special education services from the Division of Educational Improvement, to the Commissioner.

Impact on Granite Staters: The division of the Department with the expertise needed to manage programs for NH children with disabilities, would have diminished authority to do so. The rate setting process serves as both a critical quality control measure and as a way to manage costs for districts. Currently, RSA 186-C:7-c provides authority for the Division of Educational Improvement to “ensure that each school district develops approved programs for children with disabilities in the school district,” and “set an approved rate for private providers of special education services pursuant to RSA 21-N:5,I(H).” This rate then sets a ceiling above which no provider can charge the Department of Education or, any school district. Transferring authority to the Commissioner, while also eliminating the Division of Educational Improvement, could change how the Department works with private providers. 

By moving authority and responsibility away from the Division currently charged with the work, the amendment could introduce uncertainty into a delicate system that provides critical guardrails for students with disabilities and the students’ families.  

IV. The Commissioner would gain increased authority over public school accountability.

  • The amendment grants the Commissioner authority to administer the standards for how our elementary, middle, and high schools are approved and for integrating the school approval process with the state’s accountability system to ensure that all NH students receive the opportunity for an adequate education. 

Impact on Granite Staters: Introduces greater volatility and uncertainty around how we hold NH schools and districts accountable for delivering an adequate education to our children. The concentration of authority over both approval standards and accountability measures would make it easier for the Commissioner to change how the Department holds schools and districts accountable for the delivery of an adequate education.

This amendment would make it easier for public funds to go towards schools or educational offerings that are not subject to rigorous public oversight. (Please note: when used here, “adequate” is a technical term and does not refer to any goals or aspirations set by the Department or State Board of Education for student academic achievement.)   

The amendment would grant the Commissioner of Education expansive authority that exceeds the discretion provided to most other state departments. While the authorities granted to the Commissioner of Education by the amendment are in some ways similar to the authorities currently granted to the Commissioner of Health and Human Services, the two Departments play notably different roles in the state. The Department of Education, consistent with New Hampshire’s local control ethos, has historically served primarily as the provider of state education funding and as the intermediary between local school districts and the federal Department of Education. In these roles, the Department provides much needed expertise and serves as an important guardian of students’ rights to a public education. 

The amendment addresses a highly technical and complex subject – one that deserves greater public scrutiny via public hearing. Unfortunately, it amends legislation (HB 356) that has already gone through the public hearing process and there is currently no plan to hold a hearing on the amendment. Ideally, the Senate Education Committee would host a public work session where individuals from the legislature, Department of Education, and broader public, could provide briefings on the proposed changes. This would afford the public the opportunity to hear the rationale behind proposing such a significant consolidation of authority – and, weigh in on its potential impact.