OPFKE OF THE ArrORNLY GENERAL. STATE OF TrxAr JOHN CORNYN

June 29,200O

Ms. Pamela B. Tackett Executive Director State Board for Educator Certification 1001 Trinity Street Austin. Texas 78701-2603 Opinion No. JC-0241 Re: Whether the State Board for Educator Certification’s Internet website may serve as a portal fordistance-learning courses developed and offered by other entities, and related questions (RQ-0179-JC)
Dear Ms. Tackett: You inquire about the authority ofthe State Board for Educator Certification (the “SBEC”) to use its Internet website as aportal for distance-learning courses developed and offered by other entities. You ask several questions:

1. Through the agency’s Internet website, may SBEC serve as aportal for distance-learning courses developed and offered by other entities as an alternative to site-based programs for certification candidates satisfying educator preparation requirements; renewable certificate holders needing continuing education credit; and school personnel seeking professional or career development training? 2. If the answer to Question No. 1is “Yes,” may athird-party, information technology (IT) vendor contract with SBEC to facilitate the delivery of distance-learning courses through SBEC’s website? If so, would the services of such a thirdparty vendor need to be procured through the competitive bidding process, even ifone ofthe potential contractors was willing not to charge SBEC? 3. If the answers to Questions No. 1 and 2 are “Yes,” may a Board member of SBEC lawfully serve as such and also be employed by a third-party IT vendor that contracts with SBEC to facilitate the delivery of other entities’ distancelearning courses through SBEC’s website?Ms. PamelaB. Tackett - Page 2 UC-0241)

Letter from Ms. Pamela Tackett, Executive Director, SBEC, to Honorable John Comyn, Texas Attorney General, at 1-2 (Jan. 27,200O) (on file with Opinion Committee) [hereinafter “Request Letter”]. In connection with the first question, you ask us to consider “any liability issues related to SBEC’s hosting of distance-learning opportunities for educators,” including issues under the Americans with Disabilities Act, the Texas Commission on Human Rights Act, and the Family Educational Rights and Privacy Act. Id. at 4. We conclude that the SBEC’s authority does not encompass authority to use its Internet website asaportal for distance-learning courses developed and offered by other entities. Given this conclusion, we do not answer your remaining questions. You explain the proposed portal arrangement:

SBEC has been asked to serve asaportal fordistance-learning courses offered by educator preparation programs and continuing professional education providers. Related to educator certification, these courses would be delivered over the Internet. The persons taking the courses would be educator preparation students seeking certification and certificate holders satisfying certification renewal requirements. Entities delivering the courses would include the following:

. SBEC-accredited educator preparation programs;

. SBEC-approved providers offering continuing education courses to holders ofrenewable certificates; and

. providers of professional development training, such as school districts that require their staff to participate in professional development programs. The educator preparation courses would meet Board standards, but SBEC would not participate indeveloping the courses. The prospective educators would apply for admission to an educator preparation program and register for courses by accessing SBEC’s website, but staff at the preparation program would process the admission application and course registration materials. The preparation program would administer the course[]work. The student would enter the virtual classroom atSBEC’s website and travel down acybernated corridor to aserver operated by the preparation program orby athird-party contractor on behalf of the program and SBEC.Ms. Pamela B. Tackett - Page 3 (X-0241)

The continuing education courses might be developed by SBEC in collaboration with other approved entities, but they could also be offered independently of SBEC as a provider. Educators wanting to obtain continuing education credits would register for courses through SBEC’s website, but the registration would be processed and the course delivered by the provider. The same would be true for career development courses not taken for credit. All course providers would process any fees charged for the offerings. Request Letter, supra, at 3. We examine the SBEC’s authority to permit its website to be used as such aportal in light ofthe SBEC’s statutory powers. A state agency created by the legislature has only those powers that are explicitly orimplicitly delegated to it. See City ofSherman v.Public Util. Comm ‘n,643 S.W.2d 681, 686 (Tex. 1983); accord Stauffer v. City ofSan Antonio, 344 S.W.2d 158, 160 (Tex. 1961); Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145,148 (Tex. App.-Austin 1998, no pet.); Tex. Att’y Gen. Op. Nos. JC-0064 (1999) at4; DM-101 (1992) at 6. Chapter 21, subchapter B of the Education Code establishes the SBEC to “regulate and oversee all aspects of the certification [and] continuing education

. ofpublic school educators.” TEX. EDUC. CODE ANN.521.031(a) (Vernon 1996). The SBEC has explicit authority to:

(1) provide for the regulation of educators and the general administration of this subchapter.

. ; (2) specify the classes of educator certificates to be issued

. . . ; (3) specify the period for which each class of educator certificate is valid, (4) specify the requirements for the issuance and renewal of an educator certificate: (5) provide forthe issuance ofan educator certificate to aperson who holds a similar certificate issued by another state or foreign country

. . . . (6) provide for special or restricted certification of educators

. ;Ms. PamelaB. Tackett - Page 4 (X-0241)

(9) provide for continuing education requirements; and (10) provide for certification ofpersons performing appraisals under Subchapter H. Id. 521.041(b) (footnote omitted). No person may be employed as a teacher unless the person has obtained an educator certificate. See id. $21.003(a). With respect to educator certificates, the SBEC must establish the training requirements and minimum academic requirements for a person who wishes to obtain a certificate. See id. $ 21.044; see also id. $5 21.046, .0481 (Vernon 1996 & Supp. 2000) (superintendent orprincipal certification; master reading teacher certification); 19TEX.ADMIN.CODE $5 230.191 - ,199 (1999) (SBEC Program Requirements for Preparation of School Personnel for Initial Certificates and Endorsements). The SBEC must establish standards for the approval and continuing accountabilityofeducator-preparationprograms. %~TEX.EDUC.CODEANN. 521.045(a) (Vernon Supp. 2000); 19TEX. ADMIN. CODE$5229.1 -.5(1999) (SBEC Accountability System for Educator Preparation); id. $5 230.151 - ,161 (SBEC Professional Educator Preparation and Certification). The SBEC also must develop the process by which “centers for professional development” may be established through institutions of higher education “for the purpose of integrating technology and innovative teaching practices in the preservice and staff development training ofpublic school teachers and administrators.” TEX.EDUC.CODEANN.921.047(a) (Vernon 1996); see 19 TEX. ADMIN. CODE 5230.121 (1999) (SBEC Centers for Professional Development and Technology). The SBEC must adopt rules “providing for educator certification programs as an alternative totraditional educator preparation programs.” TEX.EDUC.CODEANN.921.049 (Vernon 1996); see also 19 TEX. ADMIN. CODE 4 230.231 (1999) (SBEC Alternative Certification of Teachers). With respect to continuing-education and career-development programs, the SBEC must adopt rules to establish aprocess “for identifying continuing education courses and programs that fulfill educators’ continuing education requirements.” TEX.EDUC.CODEANN.$21.054(a) (Vernon 1996); see also 19TEX.ADMIN.CODE$4 230.199, ,610 - ,611 (1999) (SBEC Endorsements and Continuing Education). Certified educators must complete a total of 150 “clock hours” of continuing professional education every five years to renew a certificate. See SBEC, FAQs: IssuanceoftheStandard Cert~ificateandRenewalRequirements, Including ContinuingProfessional Education (visited Apr. 24, 2000) <http://www.sbec.state.tx.us/certren/certren.htm>. Superintendents, principals, and assistant principals must complete 200 clock hours of continuing professional education every five years. See id. And the SBEC by rule must provide for “acertified educator to qualify for additional certification to teach at a grade level or in a subject area not covered by the educator’s certificate.” TEX.EDUC.CODEANN.521.056 (Vernon Supp. 2000); see also 19 TEX.ADMIN.CODE5230.199 (1999) (SBEC Endorsements). In sum, the SBEC’s rule-making authority extends to establishing standards for various certification and continuing-education programs and to establishing a system for evaluatingMs. Pamela B. Tackett - Page 5 (X-0241)

certification and continuing-education programs. Additionally, the SBEC has authority to identify “continuing education courses and programs that fulfill educators’ continuing education requirements.” TEX.EDUC.CODEANN. $J 21.054(a) (Vernon 1996). In our opinion, the SBEC lacks authority to use its Internet website as aportal that may be used to directly access certification, continuing-education, or career-development courses offered by other entities. The authority to establish standards for and evaluate certification and continuingeducation courses and to identify approved courses does not encompass authority to allow the SBEC to use its website to directly facilitate the sale ofvarious courses to consumers. Nor can the SBEC’s statutory authority to “regulate” and “oversee” the certification and continuing education ofpublic school educators be stretched to suggest that the legislature contemplated that the SBEC would use its identity to provide direct access to approved courses. See id. 5 21.03 l(a). The authority to regulate is the authority to control or direct by rule, see XIII OXFORDENGLISHDICTIONARY 524 (1989); the authority to oversee is the authority “to watch over,” “to inspect,” or “to supervise.” X OXFORDENGLISHDICTIONARY1115-16 (1989). Your remaining questions, regarding the SBEC’s potential liability for illegal conduct onthe part ofthose course providers to which the SBEC provides access on its website, arepremised upon aconclusion that the SBEC may, in fact, use its website as an Internet portal. See Request Letter, supra, at 4. You also suggest that the SBEC’s proposed use of its website might be viewed by consumers as endorsing those courses to which the SBEC provides direct access, and you ask whether such ause might conflict with the SBEC’s statutory authority. Id. Given our conclusion, we do not answer these questions. Nevertheless, the issues you raise underline important policy reasons for concluding as we have. Where, ashere, astate agency proposes toparticipate inInternet commerce by allowing thirdparty course providers to use a state website as amethod of direct access between consumers and course providers, we believe the agency should have legislative approval. The legislature is the appropriate public body to determine whether and the extent to which astate agency created by the legislature may use its government website toparticipate inInternet commerce orto facilitate others’ participation in such commerce.Ms. PamelaB. Tackett - Page 6 (JC-0241)



### SUMMARY The State Board forEducator Certification has no authority to use its Internet website as aportal for distance-learning courses that other entities have developed and offered.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General CLARK KENT ERVIN Deputy Attorney General - General Counsel ELIZABETH ROBINSON Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General - Opinion Committee