BILL REQ. #:  H-4903.3 

READ FIRST TIME 02/03/10.   

     AN ACT Relating to standards and accountability in education; amending RCW 28A.305.225, 28A.655.110, 41.56.100, 41.59.120, and 41.59.910; adding new sections to chapter 28A.655 RCW; adding a new section to chapter 41.56 RCW; adding a new chapter to Title 28A RCW; creating a new section; recodifying RCW 28A.305.225; and providing an expiration date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 101   The legislature finds that it is the state's responsibility to create a coherent and effective accountability framework for the continuous improvement for all schools and districts. This system must provide an excellent and equitable education for all students; an aligned federal/state accountability system; and the tools necessary for schools and districts to be accountable. These tools include the necessary accounting and data reporting systems, assessment systems to monitor student achievement, and a system of general support, targeted assistance, and if necessary, intervention.
     The office of the superintendent of public instruction is responsible for developing and implementing the accountability tools to build district capacity and working within federal and state guidelines. The legislature assigned the state board of education responsibility and oversight for creating an accountability framework. This framework provides a unified system of support for challenged schools that aligns with basic education, increases the level of support based upon the magnitude of need, and uses data for decisions. Such a system will identify schools and their districts for recognition as well as for additional state support. For a specific group of challenged schools, defined as persistently lowest-achieving schools, and their districts, it is necessary to provide a required action process that creates a partnership between the state and local district to target funds and assistance to turn around the identified lowest-achieving schools.
     Phase I of this accountability system will recognize schools that have done an exemplary job of raising student achievement and closing the achievement gaps using the state board of education's accountability index. Phase I will also target the lowest five percent of persistently lowest-achieving schools defined under federal guidelines to provide federal funds and federal intervention models through a voluntary option in 2010, and for those who do not volunteer and have not improved student achievement, a required action process beginning in 2011.
     Phase II of this accountability system will work toward implementing the state board of education's accountability index for identification of schools in need of improvement, including those that are not Title I schools, and the use of state and local intervention models and state funds through a required action process beginning in 2013, in addition to the federal program. Federal approval of the state board of education's accountability index must be obtained or else the federal guidelines for persistently lowest-achieving schools will continue to be used.
     The expectation from implementation of this accountability system is the improvement of student achievement for all students to prepare them for postsecondary education, work, and global citizenship in the twenty-first century.

NEW SECTION.  Sec. 102   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "All students group" means those students in grades three through eight and high school who take the state's assessment in reading and mathematics required under 20 U.S.C. Sec. 6311(b)(3).
     (2) "Title I" means Title I, part A of the federal elementary and secondary education act of 1965 (ESEA) (20 U.S.C. Secs. 6311-6322).

NEW SECTION.  Sec. 103   (1) Beginning in 2010, and each year thereafter, by December 1st, the superintendent of public instruction shall annually identify schools that are the persistently lowest-achieving schools in the state. A school shall be identified as one of the state's persistently lowest-achieving schools if the school is a Title I school, or a school that is eligible for but does not receive Title I funds, that is among the lowest-achieving five percent of schools in the state.
     (2) The criteria for determining whether a school is among the persistently lowest-achieving five percent of Title I schools or Title I eligible schools under subsection (1) of this section shall be established by the superintendent of public instruction. The criteria must meet all federal requirements for the receipt of a federal school improvement grant under the American recovery and reinvestment act of 2009 and Title I of the elementary and secondary act of 1965, and take into account both:
     (a) The academic achievement of the "all students" group in a school in terms of proficiency on the state's assessment, and any alternative assessments, in reading and mathematics combined; and
     (b) The school's lack of progress on the mathematics and reading assessments over a number of years in the "all students" group.

NEW SECTION.  Sec. 104   (1) Beginning in January 2011, the superintendent of public instruction shall annually recommend to the state board of education school districts for designation as required action districts. A district with at least one school identified as a persistently lowest-achieving school shall be designated as a required action district if it meets the criteria established by the superintendent. However, a school district shall not be recommended for designation as a required action district if the district was awarded a federal school improvement grant by the superintendent in 2010, and for three consecutive years following the receipt of the grant it implemented a federal school intervention model at each school identified for improvement. The state board of education may designate a district that received a school improvement grant in 2010 as a required action district if after three years of voluntarily implementing a plan the district continues to have a school identified as persistently lowest-achieving and meets the criteria for designation established by the superintendent of public instruction.
     (2) The superintendent of public instruction shall provide a school district superintendent with written notice of the recommendation for designation as a required action district by certified mail or personal service. A school district superintendent may request reconsideration of the superintendent of public instruction's recommendation. The reconsideration shall be limited to a determination of whether the school district met the criteria for being recommended as a required action district. A request for reconsideration must be in writing and served on the superintendent of public instruction within ten days of service of the notice of the superintendent's recommendation.
     (3) The state board of education shall annually designate those districts recommended by the superintendent in subsection (1) of this section as required action districts. A district designated as a required action district shall be required to notify all parents of students attending a school identified as a persistently lowest-achieving school in the district of the state board of education's designation of the district as a required action district and the process for complying with the requirements set forth in sections 105 through 110 of this act.

NEW SECTION.  Sec. 105   (1) The superintendent of public instruction shall contract with an external review team to conduct an academic performance audit of the district and each persistently lowest-achieving school in a required action district to identify the potential reasons for the school's low performance and lack of progress. The review team must consist of persons under contract with the superintendent who have expertise in comprehensive school and district reform and may not include staff from the agency, the school district that is the subject of the audit, or members or staff of the state board of education.
     (2) The audit must be conducted based on criteria developed by the superintendent of public instruction and must include but not be limited to an examination of the following:
     (a) Student demographics;
     (b) Mobility patterns;
     (c) School feeder patterns;
     (d) The performance of different student groups on assessments;
     (e) Effective school leadership;
     (f) Strategic allocation of resources;
     (g) Clear and shared focus on student learning;
     (h) High standards and expectations for all students;
     (i) High level of collaboration and communication;
     (j) Aligned curriculum, instruction, and assessment to state standards;
     (k) Frequency of monitoring of learning and teaching;
     (l) Focused professional development;
     (m) Supportive learning environment;
     (n) High level of family and community involvement; and
     (o) Alternative secondary schools best practices.
     (3) Audit findings must be made available to the local school district, its staff, the community, and the state board of education.

NEW SECTION.  Sec. 106   (1) The local school district superintendent and local school board of a school district designated as a required action district must submit a required action plan to the superintendent of public instruction for approval. Unless otherwise required by subsection (3) of this section, the plan must be submitted under a schedule as required by the superintendent of public instruction. A required action plan must be developed in collaboration with administrators, teachers, and other staff, parents, unions representing any employees within the district, students, and other representatives of the local community. The superintendent of public instruction shall provide a district with assistance in developing its plan if requested, including providing assistance to ensure the plan is consistent with federal guidelines. The school board must conduct a public hearing to allow for comment on a proposed required action plan.
     (2) A required action plan must include all of the following:
     (a) Implementation of one of the four federal intervention models required for the receipt of a federal school improvement grant in those persistently lowest-achieving schools that the district will be focusing on for required action. However, a district may not establish a charter school under a federal intervention model without express legislative authority. The intervention models are the turnaround, restart, school closure, and transformation models. The intervention model selected must address the concerns raised in the academic performance audit and be intended to improve student performance to allow a school district to be removed from the list of districts designated as a required action district by the state board of education within three years of implementation of the plan;
     (b) Submission of an application for a federal school improvement grant to the superintendent of public instruction;
     (c) A budget that provides for adequate resources to implement the federal model selected and any other requirements of the plan;
     (d) A description of the changes in the district's or school's existing policies, structures, agreements, processes, and practices that are intended to attain significant achievement gains for all students enrolled in the school;
     (e) Identification of the measures that the school district will use in assessing student achievement at a school identified as a persistently lowest-achieving school, which include improving mathematics and reading student achievement and graduation rates as defined by the office of the superintendent of public instruction that enable the schools to no longer be identified as a persistently lowest-achieving school.
     (3)(a) For any district designated for required action, the parties to any collective bargaining agreement negotiated, renewed, or extended under chapter 41.59 or 41.56 RCW after the effective date of this section must reopen the agreement, or negotiate an addendum, if needed, to make changes to terms and conditions of employment that are necessary to implement a required action plan.
     (b) If the school district and the employee organizations are unable to agree on the terms of an addendum or modification to an existing collective bargaining agreement, the parties, including all labor organizations affected under the required action plan, shall request the public employment relations commission to, and the commission shall, appoint an employee of the commission to act as a mediator to assist in the resolution of a dispute between the school district and the employee organizations. Beginning in 2011, and each year thereafter, mediation shall commence no later than April 15th. All mediations held under this section shall include the employer and representatives of all affected bargaining units.
     (c) If the executive director of the public employment relations commission, upon the recommendation of the assigned mediator, finds that the employer and any affected bargaining unit are unable to reach agreement following a reasonable period of negotiations and mediation, but by no later than May 15th of the year in which mediation occurred, the executive director shall certify any disputed issues for a decision by the superior court in the county where the school district is located. The issues for determination by the superior court must be limited to the issues certified by the executive director.
     (d) The process for filing with the court in this subsection (3)(d) must be used in the case where the executive director certifies issues for a decision by the superior court.
     (i) The school district shall file a petition with the superior court, by no later than May 20th of the same year in which the issues were certified, setting forth the following:
     (A) The name, address, and telephone number of the school district and its principal representative;
     (B) The name, address, and telephone number of the employee organizations and their principal representatives;
     (C) A description of the bargaining units involved;
     (D) A copy of the unresolved issues certified by the executive director for a final and binding decision by the court; and
     (E) The academic performance audit that the office of the superintendent of public instruction completed for the school district.
     (ii) Within seven days after the filing of the petition, each party shall file with the court the proposal it is asking the court to order be implemented in a required action plan for the district for each issue certified by the executive director. Contemporaneously with the filing of the proposal, a party must file a brief with the court setting forth the reasons why the court should order implementation of its proposal in the final plan.
     (iii) Following receipt of the proposals and briefs of the parties, the court must schedule a date and time for a hearing on the petition. The hearing must be limited to argument of the parties or their counsel regarding the proposals submitted for the court's consideration. The parties may waive a hearing by written agreement.
     (iv) The court must enter an order selecting the proposal for inclusion in a required action plan that best responds to the issues raised in the school district's academic performance audit, and allows for the award of a federal school improvement grant to the district from the office of the superintendent of public instruction to implement one of the four federal intervention models. The court's decision must be issued no later than June 15th of the year in which the petition is filed and is final and binding on the parties. However the court's decision is subject to appeal only in the case where it does not allow the school district to implement a required action plan consistent with the requirements for the award of a federal school improvement grant by the superintendent of public instruction.
     (e) Each party shall bear its own costs and attorneys' fees incurred under this statute.
     (f) Any party that proceeds with the process in this section after knowledge that any provision of this section has not been complied with and who fails to state its objection in writing is deemed to have waived its right to object.
     (4) All contracts entered into between a school district and an employee must be consistent with this section and allow school districts designated as required action districts to implement one of the four federal models in a required action plan.

NEW SECTION.  Sec. 107   (1) A required action plan developed by a district's school board and superintendent must be submitted to the superintendent of public instruction for approval. The superintendent of public instruction must accept for inclusion in any required action plan the final decision by the superior court on any issue certified by the executive director of the public employment relations commission under the process in section 106 of this act. The superintendent of public instruction shall approve a plan proposed by a school district only if it meets the requirements set forth in section 106 of this act. Any addendum or modification to an existing collective bargaining agreement related to student achievement or school improvement and negotiated under section 106 of this act or by agreement of the district and the exclusive bargaining representative shall not go into effect until approval of a required action plan by the superintendent of public instruction.
     (2) If the superintendent of public instruction does not approve a proposed plan, the superintendent must notify the local school board and local district's superintendent in writing with an explicit rationale for why the plan was not approved. Nonapproval by the superintendent of public instruction of the local school district's initial required action plan submitted is not intended to trigger any actions under section 108 of this act. With the assistance of the office of the superintendent of public instruction, the superintendent and school board of the required action district shall either: (a) Submit a new plan to the superintendent of public instruction for approval within forty days of the notification that the plan was rejected, or (b) submit a request to the state board of education for reconsideration of the superintendent's rejection within ten days of the notification that the plan was rejected. The reconsideration by the state board of education shall be based on whether the superintendent of public instruction gave appropriate consideration to the unique circumstances and characteristics of the local school district whose plan was rejected. The state board may reaffirm the decision of the superintendent of public instruction, recommend that the superintendent reconsider the rejection, or recommend changes to the plan that should be considered by the district and the superintendent of public instruction to secure approval of the plan. The superintendent of public instruction shall consider the recommendations of the state board of education and issue a decision in writing to the local school district and the state board of education. If the school district must submit a new required action plan to the superintendent of public instruction, the district must submit the plan within forty days of the superintendent's decision. The state board of education and superintendent of public instruction must develop timelines and procedures for their deliberations so that school districts can implement a required action plan within the time frame required under this section.
     (3) If federal funds are not available, the plan is not required to be implemented until such funding becomes available. A required action plan must be implemented in the immediate school year following the district's designation as a required action district.

NEW SECTION.  Sec. 108   The superintendent of public instruction may require a school district that has not submitted a final required action plan for approval, or has submitted but not received approval of a required action plan by the beginning of the school year in which the plan is intended to be implemented, to redirect the district's Title I funds based on the academic performance audit findings.

NEW SECTION.  Sec. 109   A school district must implement a required action plan upon approval by the superintendent of public instruction. The office of superintendent of public instruction must provide the required action district with technical assistance and federal school improvement grant funds, if available, to implement its approved plan. The district must submit a report to the superintendent of public instruction that provides the progress the district is making in meeting the student achievement goals based on the state's assessments, identifying strategies and assets used to solve audit findings, and establishing evidence of meeting plan implementation benchmarks, as set forth in the required action plan.

NEW SECTION.  Sec. 110   (1) The superintendent of public instruction must provide a report to the state board of education twice a year regarding the progress made by all school districts designated as required action districts.
     (2) The superintendent of public instruction must recommend to the state board of education that a school district be released from the designation as a required action district after the district implements a required action plan for a period of three years, has made progress as defined by the superintendent of public instruction in reading and mathematics on the state's assessment over the past three consecutive years, and no longer has a school within the district identified as persistently lowest achieving. The state board shall release a school district from the designation as a required action district upon confirmation that the district has met the requirements for a release.
     (3) If the state board of education determines that the required action district has not met the requirements for release, the district remains in required action and must submit a new or revised plan under the process set forth in section 106 of this act.

NEW SECTION.  Sec. 111   The superintendent of public instruction and the state board of education each have the authority to adopt rules in accordance with chapter 34.05 RCW as necessary to implement this chapter.

Sec. 112   RCW 28A.305.225 and 2009 c 548 s 503 are each amended to read as follows:
     (1) The state board of education shall continue to refine the development of an accountability framework that creates a unified system of support for challenged schools, that aligns with basic education, increases the level of support based upon the magnitude of need, and uses data for decisions.
     (2) The state board of education shall develop an accountability index to identify schools and districts for recognition, for continuous improvement, and for additional state support. The index shall be based on criteria that are fair, consistent, and transparent. Performance shall be measured using multiple outcomes and indicators including, but not limited to, graduation rates and results from statewide assessments. The index shall be developed in such a way as to be easily understood by both employees within the schools and districts, as well as parents and community members. It is the legislature's intent that the index provide feedback to schools and districts to self-assess their progress, and enable the identification of schools with exemplary student performance and those that need assistance to overcome challenges in order to achieve exemplary student performance. ((Once the accountability index has identified schools that need additional help, a more thorough analysis will be done to analyze specific conditions in the district including but not limited to the level of state resources a school or school district receives in support of the basic education system, achievement gaps for different groups of students, and community support.
     (3) Based on the accountability index and in consultation with the superintendent of public instruction, the state board of education shall develop a proposal and timeline for implementation of a comprehensive system of voluntary support and assistance for schools and districts. The timeline must take into account and accommodate capacity limitations of the K-12 educational system. Changes that have a fiscal impact on school districts, as identified by a fiscal analysis prepared by the office of the superintendent of public instruction, shall take effect only if formally authorized by the legislature through the omnibus appropriations act or other enacted legislation.
     (4)(a) The state board of education shall develop a proposal and implementation timeline for a more formalized comprehensive system improvement targeted to challenged schools and districts that have not demonstrated sufficient improvement through the voluntary system. The timeline must take into account and accommodate capacity limitations of the K-12 educational system. The proposal and timeline shall be submitted to the education committees of the legislature by December 1, 2009, and shall include recommended legislation and recommended resources to implement the system according to the timeline developed.
     (b) The proposal shall outline a process for addressing performance challenges that will include the following features: (i) An academic performance audit using peer review teams of educators that considers school and community factors in addition to other factors in developing recommended specific corrective actions that should be undertaken to improve student learning; (ii) a requirement for the local school board plan to develop and be responsible for implementation of corrective action plan taking into account the audit findings, which plan must be approved by the state board of education at which time the plan becomes binding upon the school district to implement; and (iii) monitoring of local district progress by the office of the superintendent of public instruction. The proposal shall take effect only if formally authorized by the legislature through the omnibus appropriations act or other enacted legislation.
     (5))) (3) The state board of education, in cooperation with the office of the superintendent of public instruction, shall annually recognize schools for exemplary performance as measured on the state board of education accountability index.
     (4) In coordination with the superintendent of public instruction, the state board of education shall seek approval from the United States department of education for use of the accountability index and the state system of support, assistance, and intervention, to replace the federal accountability system under P.L. 107-110, the no child left behind act of 2001.
     (((6))) (5) The state board of education shall work with the education data center established within the office of financial management and the technical working group established in section 112, chapter 548, Laws of 2009 to determine the feasibility of using the prototypical funding allocation model as not only a tool for allocating resources to schools and districts but also as a tool for schools and districts to report to the state legislature and the state board of education on how the state resources received are being used.

NEW SECTION.  Sec. 113   (1) The legislature finds that a unified and equitable system of education accountability must include expectations and benchmarks for improvement, along with support for schools and districts to make the necessary changes that will lead to success for all students. Such a system must also clearly address the consequences for persistent lack of improvement. Establishing a process for school districts to prepare and implement a required action plan is one such consequence. However, to be truly accountable to students, parents, the community, and taxpayers, the legislature must also consider what should happen if a required action district continues not to make improvement after an extended period of time. Without an answer to this significant question, the state's system of education accountability is incomplete. Furthermore, accountability must be appropriately shared among various levels of decision makers, including in the building, in the district, and at the state.
     (2)(a) A joint select committee on education accountability is established with the following members:
     (i) The president of the senate shall appoint two members from each of the two largest caucuses of the senate.
     (ii) The speaker of the house of representatives shall appoint two members from each of the two largest caucuses of the house of representatives.
     (b) The committee shall choose its cochairs from among its membership.
     (3) The committee shall:
     (a) Identify and analyze options for a complete system of education accountability, particularly consequences in the case of persistent lack of improvement by a required action district;
     (b) Identify and analyze appropriate decision-making responsibilities and accompanying consequences at the building, district, and state level within such an accountability system;
     (c) Examine models and experiences in other states;
     (d) Identify the circumstances under which significant state action may be required; and
     (e) Analyze the financial, legal, and practical considerations that would accompany significant state action.
     (4) Staff support for the committee must be provided by the senate committee services and the house of representatives office of program research.
     (5) The committee shall submit an interim report to the education committees of the legislature by September 1, 2011, and a final report with recommendations by September 1, 2012.
     (6) This section expires June 30, 2013.

NEW SECTION.  Sec. 201   A new section is added to chapter 28A.655 RCW to read as follows:
     (1) By August 2, 2010, the superintendent of public instruction may revise the state essential academic learning requirements authorized under RCW 28A.655.070 for mathematics, reading, writing, and communication by provisionally adopting a common set of standards for students in grades kindergarten through twelve. The revised state essential academic learning requirements shall be substantially identical with the standards developed by a multistate consortium in which Washington participated, be consistent with the requirements of RCW 28A.655.070, and may include additional standards if the additional standards do not exceed fifteen percent of the standards for each content area. However, the superintendent of public instruction shall not take steps to implement the provisionally adopted standards until the education committees of the house of representatives and the senate have an opportunity to review the standards.
     (2) By January 1, 2011, the superintendent of public instruction shall submit to the education committees of the house of representatives and the senate:
     (a) A detailed comparison of the provisionally adopted standards and the state essential academic learning requirements as of the effective date of this section, including the comparative level of rigor and specificity of the standards and the implications of any identified differences; and
     (b) An estimated timeline and costs to the state and to school districts to implement the provisionally adopted standards, including providing necessary training, realignment of curriculum, adjustment of state assessments, and other actions.
     (3) The superintendent may implement the revisions to the essential academic learning requirements under this section after the 2011 legislative session unless otherwise directed by the legislature.

NEW SECTION.  Sec. 301   A new section is added to chapter 28A.655 RCW to read as follows:
     Beginning with the 2010-11 school year, each school shall conduct outreach and seek feedback from a broad and diverse range of parents, other individuals, and organizations in the community regarding their experiences with the school. The school shall summarize the responses in its annual report under RCW 28A.655.110.

Sec. 302   RCW 28A.655.110 and 1999 c 388 s 303 are each amended to read as follows:
     (1) Beginning with the 1994-95 school year, to provide the local community and electorate with access to information on the educational programs in the schools in the district, each school shall publish annually a school performance report and deliver the report to each parent with children enrolled in the school and make the report available to the community served by the school. The annual performance report shall be in a form that can be easily understood and be used by parents, guardians, and other members of the community who are not professional educators to make informed educational decisions. As data from the assessments in RCW 28A.655.060 becomes available, the annual performance report should enable parents, educators, and school board members to determine whether students in the district's schools are attaining mastery of the student learning goals under RCW 28A.150.210, and other important facts about the schools' performance in assisting students to learn. The annual report shall make comparisons to a school's performance in preceding years ((and shall include school level goals under RCW 28A.655.050)), student performance relative to the goals and the percentage of students performing at each level of the assessment, a comparison of student performance at each level of the assessment to the previous year's performance, and information regarding school-level plans to achieve the goals.
     (2) The annual performance report shall include, but not be limited to: (a) A brief statement of the mission of the school and the school district; (b) enrollment statistics including student demographics; (c) expenditures per pupil for the school year; (d) a summary of student scores on all mandated tests; (e) a concise annual budget report; (f) student attendance, graduation, and dropout rates; (g) information regarding the use and condition of the school building or buildings; (h) a brief description of the learning improvement plans for the school; (i) a summary of the feedback from parents and community members obtained under section 301 of this act; and (((i))) (j) an invitation to all parents and citizens to participate in school activities.
     (3) The superintendent of public instruction shall develop by June 30, 1994, and update periodically, a model report form, which shall also be adapted for computers, that schools may use to meet the requirements of subsections (1) and (2) of this section. In order to make school performance reports broadly accessible to the public, the superintendent of public instruction, to the extent feasible, shall make information on each school's report available on or through the superintendent's internet web site.

Sec. 401   RCW 41.56.100 and 1989 c 45 s 1 are each amended to read as follows:
     (1) A public employer shall have the authority to engage in collective bargaining with the exclusive bargaining representative and no public employer shall refuse to engage in collective bargaining with the exclusive bargaining representative((: PROVIDED, That nothing contained herein shall require any public employer)). However, a public employer is not required to bargain collectively with any bargaining representative concerning any matter which by ordinance, resolution or charter of said public employer has been delegated to any civil service commission or personnel board similar in scope, structure and authority to the board created by chapter 41.06 RCW.
     (2) Upon the failure of the public employer and the exclusive bargaining representative to conclude a collective bargaining agreement, any matter in dispute may be submitted by either party to the commission. This subsection does not apply to negotiations and mediations conducted between a school district employer and an exclusive bargaining representative under section 106 of this act. If a public employer implements its last and best offer where there is no contract settlement, allegations that either party is violating the terms of the implemented offer shall be subject to grievance arbitration procedures if and as such procedures are set forth in the implemented offer, or, if not in the implemented offer, if and as such procedures are set forth in the parties' last contract.

NEW SECTION.  Sec. 402   A new section is added to chapter 41.56 RCW to read as follows:
     All collective bargaining agreements entered into after the effective date of this section between a school district employer and school district employees under this chapter, as well as bargaining agreements existing on the effective date of this section but renewed or extended after the effective date of this section, shall be consistent with section 106 of this act.

Sec. 403   RCW 41.59.120 and 1975 1st ex.s. c 288 s 13 are each amended to read as follows:
     (1) Either an employer or an exclusive bargaining representative may declare that an impasse has been reached between them in collective bargaining and may request the commission to appoint a mediator for the purpose of assisting them in reconciling their differences and resolving the controversy on terms which are mutually acceptable. If the commission determines that its assistance is needed, not later than five days after the receipt of a request therefor, it shall appoint a mediator in accordance with rules and regulations for such appointment prescribed by the commission. The mediator shall meet with the parties or their representatives, or both, forthwith, either jointly or separately, and shall take such other steps as he may deem appropriate in order to persuade the parties to resolve their differences and effect a mutually acceptable agreement. The mediator, without the consent of both parties, shall not make findings of fact or recommend terms of settlement. The services of the mediator, including, if any, per diem expenses, shall be provided by the commission without cost to the parties. Nothing in this subsection (1) shall be construed to prevent the parties from mutually agreeing upon their own mediation procedure, and in the event of such agreement, the commission shall not appoint its own mediator unless failure to do so would be inconsistent with the effectuation of the purposes and policy of this chapter.
     (2) If the mediator is unable to effect settlement of the controversy within ten days after his or her appointment, either party, by written notification to the other, may request that their differences be submitted to fact-finding with recommendations, except that the time for mediation may be extended by mutual agreement between the parties. Within five days after receipt of the aforesaid written request for fact-finding, the parties shall select a person to serve as fact finder and obtain a commitment from that person to serve. If they are unable to agree upon a fact finder or to obtain such a commitment within that time, either party may request the commission to designate a fact finder. The commission, within five days after receipt of such request, shall designate a fact finder in accordance with rules and regulations for such designation prescribed by the commission. The fact finder so designated shall not be the same person who was appointed mediator pursuant to subsection (1) of this section without the consent of both parties.
     The fact finder, within five days after his appointment, shall meet with the parties or their representatives, or both, either jointly or separately, and make inquiries and investigations, hold hearings, and take such other steps as he may deem appropriate. For the purpose of such hearings, investigations and inquiries, the fact finder shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. If the dispute is not settled within ten days after his appointment, the fact finder shall make findings of fact and recommend terms of settlement within thirty days after his appointment, which recommendations shall be advisory only.
     (3) Such recommendations, together with the findings of fact, shall be submitted in writing to the parties and the commission privately before they are made public. Either the commission, the fact finder, the employer, or the exclusive bargaining representative may make such findings and recommendations public if the dispute is not settled within five days after their receipt from the fact finder.
     (4) The costs for the services of the fact finder, including, if any, per diem expenses and actual and necessary travel and subsistence expenses, and any other incurred costs, shall be borne by the commission without cost to the parties.
     (5) Nothing in this section shall be construed to prohibit an employer and an exclusive bargaining representative from agreeing to substitute, at their own expense, their own procedure for resolving impasses in collective bargaining for that provided in this section or from agreeing to utilize for the purposes of this section any other governmental or other agency or person in lieu of the commission.
     (6) Any fact finder designated by an employer and an exclusive representative or the commission for the purposes of this section shall be deemed an agent of the state.
     (7) This section does not apply to negotiations and mediations conducted under section 106 of this act.

Sec. 404   RCW 41.59.910 and 1975 1st ex.s. c 288 s 19 are each amended to read as follows:
     (1) This chapter shall supersede existing statutes not expressly repealed to the extent that there is a conflict between a provision of this chapter and those other statutes. Except as otherwise expressly provided herein, nothing in this chapter shall be construed to annul, modify or preclude the renewal or continuation of any lawful agreement entered into prior to January 1, 1976 between an employer and an employee organization covering wages, hours, and terms and conditions of employment. Where there is a conflict between any collective bargaining agreement and any resolution, rule, policy or regulation of the employer or its agents, the terms of the collective bargaining agreement shall prevail.
     (2) All collective bargaining agreements entered into after the effective date of this section between an employer and educational employees under this chapter, as well as bargaining agreements existing on the effective date of this section but renewed or extended after the effective date of this section, shall be consistent with section 106 of this act.

NEW SECTION.  Sec. 405   Sections 101 through 111 of this act constitute a new chapter in Title 28A RCW.

NEW SECTION.  Sec. 406   RCW 28A.305.225 is recodified as a section in the chapter created in section 405 of this act.