No. 29037 (Amendment): R686-100. Professional Practices Advisory Commission, Rules of Procedure: Complaints and Hearings

DAR File No.: 29037
Filed: 09/15/2006, 05:22
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is amended to improve hearing and complaint procedures after several years of practice and evaluation.

Summary of the rule or change:

The changes include adding and amending definitions, providing notice that records of complaints will be maintained permanently, updating terminology, clarifying procedures for stipulated agreements, clarifying probation procedures, clarifying criteria for warning and reprimand letters, and providing for consequences if the hearing officer fails to satisfy responsibilities.

State statutory or constitutional authorization for this rule:

Subsection 53A-6-306(1)(a)

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget. The amendments will streamline the process and clarify the process for all participants.

local governments:

There are no anticipated costs or savings to local government. The amendments require no additional efforts or costs for participating school districts.

other persons:

There are no anticipated costs or savings for other persons. The amendments clarify the professional practices procedures for individuals but will require no additional financial responsibilities for respondents.

Compliance costs for affected persons:

There are no compliance costs for affected persons. The amendments clarify the professional practices procedures for individuals but will require no additional financial responsibilities for respondents.

Comments by the department head on the fiscal impact the rule may have on businesses:

I have reviewed this rule and I see no fiscal impact on businesses. Patti Harrington, State Superintendent of Public Instruction

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Professional Practices Advisory Commission
Administration
250 E 500 S
SALT LAKE CITY UT 84111

Direct questions regarding this rule to:

Carol Lear at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/31/2006

This rule may become effective on:

11/08/2006

Authorized by:

Carol Lear, Director, School Law and Legislation

RULE TEXT

R686. Professional Practices Advisory Commission, Administration.

R686-100. Professional Practices Advisory Commission, Rules of Procedure: Complaints and Hearings.

R686-100-1. Definitions.

A. "Allegation of misconduct" means a written or oral report alleging that an educator has engaged in unprofessional, criminal, or incompetent conduct; is unfit for duty; has lost his license in another state due to revocation or suspension, or through voluntary surrender or lapse of a license in the face of a claim of misconduct; or has committed some other violation of standards of ethical conduct, performance, or professional competence.

B. "Applicant for a license" means a person seeking a new license or seeking reinstatement of an expired, surrendered, suspended, or revoked license.

C. "Board" means the Utah State Board of Education.

[G]D. "Chair" means the Chair of the Commission.

[F]E. "Commission" means the Utah Professional Practices Advisory Commission (UPPAC) as defined and authorized under Section 53A-6-301 et seq.

[H]F. "Complaint" means a written allegation or charge against an educator.

[I]G. "Complainant" means the Utah State Office of Education.

[D]H. "Computer Aided Credentials of Teachers in Utah System (CACTUS)" means the electronic file maintained on all licensed Utah educators. The file includes such as:

(1) personal directory information;

(2) educational background;

(3) endorsements;

(4) employment history;

(5) professional development information; and

(6) a record of disciplinary action taken against the educator.

All information contained in an individual's CACTUS file is available to the individual, but is classified private or protected under Section 63-2-302 or 304 and is accessible only to specific designated individuals.

I. "Criminal conduct" means a criminal offense the conviction for which would likely create, or has created, a substantial and adverse impact on the educator's ability to perform the duties of his employment, including his duty as a role model for students.

J. "Days": in calculating any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included; the last day of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Saturdays, Sundays and legal holidays shall not be included in calculating the period of time if the period prescribed or allowed is less than seven days, but shall be included in calculating periods of seven or more days.

K. "Educator" means a person who currently holds a license, held a license at the time of an alleged offense, is an applicant for a license, or is a person in training, to obtain a license.

L. "Executive Committee" means a subcommittee of the Commission consisting of the Executive Secretary, Chair, Vice-Chair, and one member of the Commission at large. All Executive Committee members, excluding the Executive Secretary, shall be selected by the Commission. Substitutes may be appointed from within the Commission by the Executive Secretary as needed.

M. "Executive Secretary" means an employee of the Utah State Office of Education who is appointed by the State Superintendent of Public Instruction to serve as the executive officer, and a non-voting member, of the Commission.

[EE]N. "Final action" means any action by the Commission or the Board which concludes an investigation of an allegation of misconduct against a licensed educator.

[N]O. "Hearing" means a proceeding in which allegations made in a complaint are examined, where each party has the opportunity to present witnesses and evidence relevant to the complaint and respond to witnesses or evidence presented by the other party. At the conclusion of a hearing, the hearing officer, after consulting with members of the Commission assigned to assist in the hearing, prepares a hearing report and submits it to the Executive Secretary.

[O]P. "Hearing Officer" means a person who is experienced in matters relating to administrative procedures, education and education law and is either a member of the Utah State Bar Association or a person not a member of the bar who has received specialized training in conducting administrative hearings, and is appointed by the Executive Secretary at the request of the Commission to manage the proceedings of a hearing. The [h]Hearing [o]Officer may not be an acting member of the Commission. The [h]Hearing [o]Officer has broad authority to regulate the course of the hearing and dispose of procedural requests but shall not have a vote as to the recommended disposition of a case.

[P]Q. "Hearing Panel" means a [h]Hearing [o]Officer and three or more members of the Commission agreed upon by the Commission to assist the [h]Hearing [o]Officer in conjunction with the hearing panel in conducting a hearing and preparing a hearing report.

[Q]R. "Hearing report" means a report prepared by the [h]Hearing [o]Officer [with the assistance]consistent with the recommendations of the hearing panel at the conclusion of a hearing. The report includes a recommended disposition, detailed findings of fact and conclusions of law, based upon the evidence presented in the hearing, relevant precedent, and applicable law and rule.

[R]S. "Informant" means a person who submits information to the Commission concerning alleged misconduct by a person who may be subject to the jurisdiction of the Commission.

[S]T. "Investigator" means a person who is knowledgeable about matters which could properly become part of a complaint before the Commission, as well as investigative procedures and rules and laws governing confidentiality, who is appointed by the Utah State Office of Education's Investigations Unit at the request of the Executive Secretary to investigate an allegation of misconduct.

[T]U. "Jurisdiction" means the legal authority to hear and rule on a complaint.

[E]V. "License" means a teaching or administrative credential, including endorsements, which is issued by a state to signify authorization for the person holding the license to provide professional services in the state's public schools.

[U]W. "Licensing file" means a file that is opened and maintained on an educator following a written complaint to the Commission.

[V]X. "National Association of State Directors of Teacher Education and Certification (NASDTEC) Educator Information Clearinghouse" means a database maintained by NASDTEC for its members regarding persons whose licenses have been suspended or revoked.

[W]Y. "Office" means the Utah State Office of Education.

[X]Z. "Party" means the complainant or the respondent.

[Y]AA. "Recommended disposition" means a recommendation for resolution of a complaint.

BB. "Prosecutor" means the attorney designated by the Board to represent the complainant and present evidence in support of the complaint.

[Z]CC. "Request for agency action" means a document prepared by the Executive Secretary, containing one or more allegations of misconduct by an educator, a recommended course of action, and related information.

[AA]DD. "Respondent" means the party against whom a complaint is filed or an investigation is undertaken.

[BB]EE. "Serve" or "service," as used to refer to the provision of notice to a person, means delivery of a written document or its contents to the person or persons in question. Delivery may be made in person, by mail or by other means reasonably calculated, under all of the circumstances, to apprise the interested person or persons to the extent reasonably practical or practicable of the information contained in the document. Service of a complaint upon an educator shall be by mail to the address of the educator as shown upon the records of the Commission.

[CC]FF. "State" means the United States or one of the United States; a foreign country or one of its subordinate units occupying a position similar to that of one of the United States; or a territorial unit, of the United States or a foreign country, with a distinct general body of law.

[DD]GG. "Stipulated [a]Agreement" means an agreement between a [r]Respondent and the Board or a [r]Respondent and the Commission under which disciplinary action against an educator's license status has been taken, in lieu of a hearing. At anytime after an investigative letter has been sent, a stipulated agreement may be negotiated between the parties, approved by the Commission, and becomes binding when approved by the Board, if necessary.

 

R686-100-2. Authority and Purpose.

A. This rule is authorized by Section 53A-6-306(1)(a) [which directs]directing the Commission to adopt rules to carry out its responsibilities under the law.

B. The purpose of this rule is to establish procedures regarding complaints against educators and licensing hearings for the Commission to follow. The standards and procedures of the Utah Administrative Procedures Act do not apply to this rule under the exemption of Section 63-46b-1(2)(d). However, the Commission [reserves]has the right to invoke and use sections or provisions of the Utah Administrative Procedures Act as found in Section 63-46b as necessary to adjudicate an issue.

 

R686-100-3. Receipt of Allegations of Misconduct and Disposition by Commission and Records of Allegations.

A. Initiating Proceedings Against an Educator: The Executive Secretary may initiate proceedings against an educator upon receiving an allegation of misconduct or upon the Executive Secretary's own initiative.

(1) An [i]Informant may be asked to submit information in writing, including the following:

(a) Name, position (e.g. administrator, teacher, parent, student), telephone number and address of the informant;

(b) Name, position (e.g. administrator, teacher, candidate), and if known, the address and telephone number of the educator against whom the allegations are made;

(c) The facts on which the allegations are based and supporting information;

(d) A statement of the relief or action sought from the agency;

(e) Signature of the [i]Informant and date.

(2) If an [i]Informant submits a written allegation of misconduct as provided in Section R686-100-3A(1) above, the [i]Informant shall be told he may receive notification of final actions taken by the Commission or the Board regarding the allegations by filing a written request for information with the Executive Secretary.

(3) [Allegations]Information received through telephone calls, letters, newspaper articles, notices from other states or other means may also form the basis for initiating proceedings against an educator.

B. At the discretion of the Commission, all written allegations and subsequent dismissal or disciplinary action of a case against an educator may be maintained permanently in the individual's paper licensing file.

 

R686-100-4. Review of Request for Agency Action.

A. Initial Review: [Upon]On reviewing the request for agency action, the Executive Secretary or the Executive Committee or both shall recommend one of the following to the Commission:

B. Dismiss: If the Executive Committee determines that the Commission lacks jurisdiction or that the request for agency action does not state a cause of action[ which]that the Commission should address, the Executive Committee shall recommend that the Commission dismiss the request.[ The informant shall be served with notice of the action. If the informant believes that the dismissal has been made in error, the informant may request review by the State Superintendent of Public Instruction within 10 days of the mailing date of the Notice of Dismissal. The Superintendent's decision relative to the dismissal is final.]

C. Initiate an Investigation: If the Executive Secretary and the Executive Committee determine that the Commission has jurisdiction and that the request states a cause of action which may be appropriately addressed by the Commission, the Executive Secretary shall [ask the Investigations Unit to ]appoint an investigator to gather evidence relating to the allegations.

(1) The investigator shall review relevant documentation and interview individuals who may have knowledge of the allegations.[, including to the extent reasonably practicable all persons specifically named in the request for agency action, and]

(2) The investigator shall prepare a written report of the findings of the investigation.

(3) [Should]If the investigator discovers additional evidence of [any additional allegation]unprofessional conduct which should have been included in the original request, it may be included in the investigation report.

(4) The completed report shall be submitted to the Executive Secretary, who shall review the report with the Commission.

(5) The investigation report shall become part of the permanent case file.

D. Prior to the initiation of any investigation, the Executive Secretary shall send a letter to the educator to be investigated, [and ]a copy of the letter to the [employing school ]district of current employment, [or to the district of most recent employment,]and to the district where the alleged activity occurred, with information that an investigation has been initiated. The letter shall indicate to the educator and the district(s) that an investigation will take place and is not evidence of unprofessional conduct.

E. Secondary Review: The Executive Committee shall review the investigation report and upon completing its review shall recommend one of the following to the Commission:

(1) Dismiss: If the Executive Committee determines no further action should be taken, [the Executive Committee]it shall recommend to the Commission [to dismiss]that the request for agency action be dismissed as provided in Section R686-100-4B, above; or

(2) Prepare and Serve COMPLAINT: If the Executive Committee determines further action is appropriate, the Executive Committee shall recommend [to]that the Commission[ to] direct the [Executive Secretary]Prosecutor to prepare and serve a [c]Complaint and a copy of these rules upon the [r]Respondent. The [c]Complaint shall have a heading similar to that used for the request for agency action, and shall include[ in the body]:

(a) A statement of the legal authority and jurisdiction under which the action is being taken;

(b) A statement of the facts and allegations upon which the complaint is based;

(c) Other information which the [Commission]Prosecutor believes to be necessary to enable the [r]Respondent to understand and address the allegations;

(d) A statement of the potential consequences should the allegations be found to be true or substantially true;

(e) A statement that,[ if] the [r]Respondent [wishes to]shall respond to the [c]Complaint [or], request a hearing, or discuss a stipulated agreement, within 30 days of the date the Complaint was mailed to the Respondent, by filing a written response [shall be filed with]addressed to the Executive Secretary of the Professional Practices Advisory Commission, [250 East 500 South, P.O. Box 144200, Salt Lake City, Utah 84114-4200 within 30 days of the date when the complaint was mailed to the respondent, and]at the mailing address for the Office. The statement shall advise the Respondent of the potential consequences [should]if the [r]Respondent [default by failing]fails to respond to the [c]Complaint within the designated time;

(f) Notice that, if a hearing is requested, the hearing shall be scheduled not less than 25 days, nor more than 180 days, after receipt of the [r]Respondent's response[ and hearing request by the Executive Secretary], unless a different date is[ approved by the Commission for good cause shown or is] agreed [upon]to by both parties in writing. On his own motion, the Executive Secretary, or designee with notice to the parties, may reschedule a hearing date.

(3) [a s]A Stipulated [a]Agreement between the parties.

(4) [t]That the action be taken by the Commission.

F. RESPONSE to the [c]Complaint: [If the respondent wishes to respond to the complaint, the respondent shall submit]Any response to the compliant shall be made by filing a written response signed by the [r]Respondent or his representative [to]with the Executive Secretary within 30 days [of the mailing date of]after the [c]Complaint was mailed. The [response]answer may include a request for a hearing or a stipulated agreement and shall include:

(1) The file number of the [c]Complaint;

(2) The names of the parties;

(3) A statement of the relief that the [r]Respondent seeks; and

(4) A statement of the reasons that the relief requested should be granted.

(5) Final Review: As soon as reasonably practicable after receiving the [response]answer, or [following the passage of the]no more than 30 days after [response period if no response is received]the answer was due, the Executive Secretary shall review any response received, the investigative report, and other relevant information with the Executive Committee. The Executive Committee shall[ then] recommend one of the following to the Commission:

(a) Enter a Default: If the [r]Respondent fails to file an [response]answer, fails to request a hearing, fails to request [a]or respond to a proffered [s]Stipulated [a]Agreement within 30 days after service of the [c]Complaint, or surrenders a license in the face of allegations of misconduct without benefit of a stipulated agreement, the Executive Committee shall recommend [to]that the Commission[ to enter the respondent's default and] direct the [Executive Secretary]Prosecutor to prepare findings in default and a recommended disposition for submission to the Commission in accordance with Section R686-100-16.

(b) Dismiss the Complaint: If the Executive Committee determines that there are insufficient grounds to proceed with the complaint, the Executive Committee shall recommend to the Commission that the complaint be dismissed. If the Commission votes to uphold the dismissal, the [i]Informant and [r]Respondent shall each be served with notice of the dismissal.[ If the informant believes that the dismissal has been made in error the informant may request review by the State Superintendent of Public Instruction within 10 days of service of notice of the dismissal. The Superintendent's decision concerning the dismissal is final.]

(c) Schedule a Hearing: If the [r]Respondent requests a hearing, the Commission shall direct the Executive Secretary to schedule a hearing as provided in Section R686-100-5.

(d) Respond to a request for a [s]Stipulated [a]Agreement: [If the respondent requests to enter into]Respondent may agree to a [s]Stipulated [a]Agreement at any time after an investigative letter has been sent[, the Executive Secretary shall inform the Commission that the Commission may reject the request or authorize the Executive Secretary to meet with the respondent to prepare recommendations for a]. No [s]Stipulated [a]Agreement shall be final until authorized by the Commission and, if the Agreement is for suspension or revocation, acted on by the Board.

[(i)]G. A [s]Stipulated [a]Agreement shall, at minimum, include[ the following]:

([A]1) A summary of the facts, the allegations, the evidence relied upon by the Commission in its decision, and the [r]Respondent's response, if any;

([B]2) A statement that the [r]Respondent [has chosen to]agrees to limitations on his license or surrenders his license rather than contest the charges [in a hearing]and the Respondent accepts the facts recited in the Stipulated Agreement as true;

([C]3) A commitment [that]from the [r]Respondent that he shall not seek or provide professional services in a public school in any state, or otherwise seek to obtain or use a license in any state, or work or volunteer in a public K-12 setting in any capacity unless or until the [r]Respondent first obtains a valid Utah license or [clearance]authorization from the Board to obtain such a license, or satisfy other provisions provided in the Stipulated Agreement;

([D]4) Provision for surrender of [r]Respondent's license or evidence in a form acceptable to the Commission that the Respondent does not have a paper copy of the license;

([E]5) [Acknowledgment]A statement that the surrender and the [s]Stipulated [a]Agreement [will]shall be reported to other states through the NASDTEC Educator Information Clearinghouse; and

([F]6) Other[ relevant] provisions applicable to the case, such as remediation, counseling, rehabilitation, and conditions--if any--under which the [r]Respondent [could seek restoration]may request a reinstatement hearing or resissuance of his license.

(7) A statement that the Respondent waives his right to a hearing to contest the allegations in the Complaint, or the contents of the Stipulated Agreement, and that the Respondent agrees to the terms of the Stipulated Agreement.

(8) A statement that Respondent waives any right to contest the facts stated in the Stipulated Agreement at a subsequent reinstatement hearing, if any.

(9) A statement that all records related to the Stipulated Agreement shall remain permanently in the educator's licensing file at the Office.

([ii]a) The [s]Stipulated [a]Agreement shall be forwarded to the Commission for [consideration]approval.

([iii]b) If the Commission rejects the request or the [s]Stipulated [a]Agreement, the [r]Respondent shall be served with notice of the decision, which shall be final, and the proceedings shall continue from the point under these procedures at which the request was made, as if the request had not been submitted.

([iv]c) If the Commission accepts the [s]Stipulated [a]Agreement, the agreement shall be forwarded to the Board for consideration.

([v]d) If the Board rejects the agreement, the Executive Secretary shall notify the parties of the decision and the proceedings shall continue from the point under these procedures at which the request was made, as if the request had not been submitted.

(e) If, after requesting a Stipulated Agreement, a Respondent fails to sign or respond to a proffered Agreement within 30 days after the Agreement is mailed, the Executive Committee shall recommend that the Commission direct the Prosecutor to prepare findings in default and a recommended disposition for submission to the Commission in accordance with Section R686-100-16.

(f) Violations of the terms of a valid Stipulated Agreement may result in an additional five-year revocation of the Respondent's license.

[(e)]H. Other Disciplinary Action:

(1) Recommend that the Commission direct the Executive Secretary to take appropriate disciplinary action against an educator which may include: an admonishment, a letter of warning, a written reprimand, or an agreement not to teach.

([i]2) If so directed, [D]documentation of [this]the disciplinary action shall be sent to the [r]Respondent's employing school district or to a district where the [r]Respondent finds employment[, if so directed].

([ii]3) Additional conditions of retention and documentation of disciplinary actions taken by the Commission are provided in R686-100-15.

[G]I. Agreement not to teach:

(1) If compelling circumstances exist, as determined by the Commission, an educator may [be offered an agreement]agree not to be employed in the schools of any state without thorough and exhaustive review of all allegations of misconduct.

(2) Compelling circumstances may include a single serious allegation with mitigating circumstances that did not involve students within a long-term, otherwise exemplary, career.

(3) Other provisions:

(a) The educator shall surrender his educator license to the Commission;

(b) The NASDTEC Clearinghouse shall receive notification of the invalidation of the educator's license;

(c) The educator may be required to provide to the Commission annually [to the Commission ]employment and current address information;

(d) Acknowledgment may be made of the existence of the agreement not to teach, otherwise the agreement and its provisions shall remain confidential[ between the Commission and the educator].

(e) [Should]If the educator breaches the agreement not to teach, the agreement shall be voidable at the sole discretion of the Commission, and the Commission may initiate further disciplinary action against the educator.

J. Probation

(1) If compelling circumstances exist, as determined by the Commission, an educator may be placed on probation for a specified period of time.

(2) A hearing report or a Stipulated Agreement may provide directives for an educator during the specified probation period.

(3) A probationary term shall be reported to the educator's employing district or school and referenced on the educator's Cactus file.

(4) At the end of the probation term, the educator may petition the Executive Secretary for termination of probation. The petition shall include:

(a) complete documentation of satisfaction of all terms of probation. Incomplete, inaccurate or misleading documentation shall not be considered;

(b) a written statement by the educator explaining the reasons termination of probation is warranted;

(c) results of a criminal background check completed within six months of the request;

(d) any other documentation or evidence requested by the Executive Secretary.

(5) The Executive Secretary and Investigator shall review the documentation, may schedule an informal hearing with the probationary educator, and make a recommendation to Commission if termination of probation is warranted.

(6) If the Executive Secretary or the Commission determine that termination is not warranted, the educator may reapply for termination of probation no sooner than one year from the date of the Executive Secretary or Commission decision.

(7) Consequences for violation of probation or failure to satisfy all conditions of probation may include an extended probation, a renewed investigation, and notice to an employer that the individual is in violation of a professional probation agreement.

[H]K. Surrender:

(1) [Should]If an educator surrenders his license, the surrender shall have the effect of revocation unless otherwise designated by the Commission;

(2) The Board shall receive official notification of the surrender at an official Board meeting; and

(3) The Executive Secretary shall enter findings in the educator's licensing file explaining the circumstances of the surrender.

(4) Surrender of an educator's license is not a final action. Surrender shall include a [s]Stipulated [a]Agreement or findings of fact, as determined by the Commission, to complete the educator's misconduct file, except as provided in Section (6) and (7) of this part.

(5) Upon receipt of the educator's license by the Executive Secretary[ of the Commission], the educator shall be notified in a timely manner that:

(a) he has the right to a hearing before the Commission to contest specific allegations against him;

(b) he has a right to consult an attorney concerning the allegations;

(c) absent response by the educator, the educator admits that the allegations set forth in the [c]Complaint are substantially true;

(d) the Board may take action to suspend or revoke the educator license following the surrender and notice of procedures and consequences to the educator; and

(e) following final administrative action by the Commission or action by the Board, the status of the educator's license shall be indicated on the educator's CACTUS file.

(6) An educator who agrees to surrender his license pursuant to a plea, diversion, or similar agreement from a court shall be deemed to have waived his right to a [s]Stipulated [a]Agreement or hearing before the Commission. The Board may take action to revoke his license upon receipt of the applicable plea or diversion agreement[ from the court].

(7) An educator who returns his license to the Commission without signing a [s]Stipulated [a]Agreement or requesting a hearing within 60 days after the receipt of his license by the Office shall be deemed to have waived his right to an agreement or a hearing[ before the Commission].

 

R686-100-5. Hearing Procedures.

A. Scheduling the Hearing: The Commission shall agree upon Commission panel members, and the Executive Secretary shall appoint a [h]Hearing [o]Officer from among a list of [h]Hearing [o]Officers identified by the state procurement process approved by the Commission, and schedule the date, time, and place for the hearing. The selection of [h]Hearing [o]Officers shall be on a rotating basis, to the extent practicable, from the list of available [h]Hearing [o]Officers. The selection of a [h]Hearing [o]Officer shall also be made based on availability of individual [h]Hearing [o]Officers and whether any financial or personal interest or prior relationship with parties might affect the [h]Hearing [o]Officer's impartiality or otherwise constitute a conflict of interest. The Executive Secretary shall provide such information about the case as necessary to determine whether the Hearing Officer has a conflict of interest and shall disqualify any Hearing Officer that cannot serve under the Utah Rules of Professional Conduct. The date for the hearing shall be scheduled not less than 25 days nor more than 180 days from the date the response is received by the Executive Secretary. If exceptional circumstances exist which make it impracticable for a party to be present in person, the Executive Secretary may, with the consent of the parties, permit participation by electronic means. The required scheduling periods may be waived by mutual written consent of the parties or by the Commission for good cause shown.

B. Change of Hearing Date:

(1) A request for change of hearing date by any party shall be submitted in writing, include a statement of the reasons for the request, and be received by the Executive Secretary at least five days prior to the scheduled date of the hearing.[ The request may originate from either party and shall show cause.]

(2) The Executive Secretary shall [make the determination of]determine whether the cause stated in the request is sufficient to warrant a change of hearing date.

(a) If the cause is found to be sufficient, the Executive Secretary shall promptly notify all parties of the new time, date, and place for the hearing.

(b) If the cause is found to be insufficient, the Executive Secretary shall immediately notify the [party making the request and the hearing shall proceed as originally scheduled]parties that the request has been denied.

(c) The Executive Secretary and the parties may waive the time period required for requesting a change of hearing date for exceptional circumstances.

 

R686-100-6. Appointment and Duties of the Hearing Officer and Hearing Panel.

A. Hearing Officer: The Executive Secretary shall appoint a [h]Hearing [o]Officer at the request of the Commission to chair the hearing panel and conduct the hearing. The [h]Hearing [o]Officer:

(1) [M]may require the parties to submit briefs and lists of witnesses prior to the hearing;

(2) [Shall ]presides at the hearing and regulates the course of the proceedings;

(3) [May ]administers oaths to witnesses as follows: "Do you swear or affirm that the testimony you will give is the truth?";

(4) [M]may take testimony, rule on questions of evidence, and ask questions of witnesses to clarify specific issues;

(5) [Shall ]prepares and submits a hearing report at the conclusion of the proceedings in consultation with[ other] panel members consistent with R686-100-1R and the timelines of this rule.

B. Commission Panel Members: The Commission shall agree upon three or more Commission members to serve as Commission members of the hearing panel. As directed by the Commission, former Commission members who have served on the Commission within the three years prior to the date set for the hearing may be used as panel members. The majority of panel members shall be current Commission members.

(1) The selection of panel members shall be on a rotating basis to the extent practicable. However, the selection shall also accommodate the availability of panel members.

(2) The majority of a panel shall be educators.

(3) If the [r]Respondent is a teacher, at least one panel member shall be a teacher. If the [r]Respondent is an administrator, at least one panel member shall be an administrator unless the [r]Respondent objects to the configuration of the panel.

(4) Duties of the Commission panel members include:

(a) Assisting the [h]Hearing [o]Officer by providing information concerning common standards and practices of educators in the [r]Respondent's particular field of practice and in the situations alleged;

(b) Asking questions of all witnesses to clarify specific issues;

(c) Reviewing all briefs and evidence presented at the hearing;

(d) Assisting the [h]Hearing [o]Officer in preparing the hearing report.

(5) The panel members shall not receive [for review relevant written materials including the initial complaint and briefs if ordered by the hearing officer, at least 30 minutes prior to the hearing.]any documents prior to the hearing except the Complaint and Response, and a list of witnesses who will participate in the hearing. The Hearing Officer may provide any documents to the panel members prior to the hearing that the parties stipulate may be provided. Unless a different time is agreed to by the parties, documents shall be provided to the panel 30 minutes prior to the hearing.

(6) The Executive Secretary may make an emergency substitution of a[ Commission] panel member for cause with the agreement of the parties. The agreement should be in writing but if time does not permit written communication of the agreement to reach the Executive Secretary prior to the scheduled time of the hearing, an Acceptance of Substituted Hearing Panel Member shall be signed by the parties prior to commencement of the hearing. If the panel cannot be filled within a reasonable time, the Executive Secretary may reschedule the hearing date.

C. Disqualification of the Hearing Officer or a panel member:

(1) Hearing Officer:

(a) A party may seek disqualification of a [h]Hearing [o]Officer by submitting a written request for disqualification to the Executive Secretary, which request must be received not less than 15 days before a scheduled hearing. The Executive Secretary shall review the request and supporting evidence and, upon a finding that the reasons for the request are substantial and sufficient, shall appoint a new [h]Hearing [o]Officer and, if necessary, reschedule the hearing. A Hearing Officer may recuse himself from a hearing if, in the Hearing Officer's opinion, his participation would violate any of the Utah Rules of Professional Conduct consistent with the Supreme Court Rules of Professional Practice, Chapter 13.

(b) If the Executive Secretary denies the request, the party requesting the disqualification shall be notified not less than ten days prior to the date of the hearing. The requesting party may submit a written appeal of the denial to the State Superintendent, which request must be received not less than five days prior to the hearing date. If the State Superintendent finds that the appeal is justified, he shall direct the Executive Secretary to appoint a new [h]Hearing [o]Officer and, if necessary, reschedule the hearing.

(c) The decision of the State Superintendent is final.

(d) Failure of a party to meet the time requirements of Section R686-100-6C(1) shall result in denial of the request or appeal; if the Executive Secretary fails to meet the time requirements, the request or appeal shall be approved.

(2) Commission panel member:

(a) A Commission member shall disqualify himself as a panel member due to any known financial or personal interest, prior relationship, personal and independent knowledge of the persons or issues in the case, or other association that would compromise the panel member's ability to make an impartial decision.

(b) A party may seek disqualification of a Commission panel member by submitting a written request for disqualification to the [h]Hearing [o]Officer, or the Executive Secretary if there is no Hearing Officer, which request [must]shall be received not less than 15 days before a scheduled hearing. The [h]Hearing [o]Officer, or the Executive Secretary, if there is no Hearing Officer, shall review the request and supporting evidence and, upon a finding that the reasons for the request are substantial and compelling, shall disqualify the panel member. If the disqualification leaves the hearing panel with fewer than three Commission panel members, the Commission shall appoint a replacement and the [h]Hearing [o]Officer shall, if necessary, reschedule the hearing.

(c) If the[ hearing officer denies the] request is denied, the party requesting the disqualification shall be notified not less than ten days prior to the date of the hearing. The requesting party may [submit]file a written appeal of the denial to the State Superintendent, which request [must]shall be received not less than five days prior to the hearing date. If the State Superintendent finds that the appeal is justified, he shall direct the [h]Hearing [o]Officer, or the Executive Secretary if there is no Hearing Officer, to [disqualify]replace the panel member.

(d) If a disqualification leaves the hearing panel with fewer than three Commission panel members, the Commission shall agree upon a replacement and the [h]Hearing [o]Officer shall, if necessary, reschedule the hearing.

(e) The decision of the State Superintendent is final.

(f) Failure of a party to meet the time requirements of Section R686-100-7C(2) shall result in denial of the request or appeal; if the [h]Hearing [o]Officer fails to meet the time requirements, the request or appeal shall be approved.

E. The Executive Secretary may, at the time he selects the Hearing Officer or panel members, select alternative Hearing Officers or panel members following the process for selecting those individuals.

 

R686-100-7. Preliminary Instructions to Parties to a Hearing.

A. Not less than [20]30 days before the date of a hearing the Executive Secretary shall provide the parties with the following information:

(1) Date, time, and location of the hearing;

(2) Names and school district affiliations of the[ Commission members on the hearing] panel members, and the name of the [h]Hearing [o]Officer;

(3) Procedures for objecting to any member of the hearing panel; and

(4) Procedures for requesting a change in the hearing date.

B. Not less than [15]20 days before the date of the hearing, the [r]Respondent and the [c]Complainant shall serve the following upon the other party and submit a copy and proof of service to the [h]Hearing [o]Officer:

(1) A brief, if requested by the Hearing Officer, containing any procedural and evidentiary motions along with that party's position regarding the allegations. Submitted briefs shall include relevant laws, rules, and precedent;

(2) The name of the person who [will]shall represent the party at the hearing, a list of witnesses [who will]expected to be called, a summary of the testimony which each witness is expected to present, and a summary of documentary evidence which [will]shall be submitted.[ If either party fails to comply with identification of witnesses or documentary evidence in a fair and timely manner and consistent with the provisions of this rule, the hearing officer may limit either party's presentation of witnesses and documentary evidence at the hearing.

C. Upon receipt of any of the above documents, the hearing officer shall provide a copy of the documents to each of the Commission panel members for review at least one hour prior to the hearing.]

[D]C. If a party fails to comply in good faith with a directive of the [h]Hearing [o]Officer under Section R686-100-7A, including time requirements for service, the [h]Hearing [o]Officer may prohibit introduction of the testimony or evidence or take other steps reasonably appropriate under the circumstances including, in extreme cases of noncompliance, entry of a default against the offending party. Nothing in this section prevents the use of rebuttal witnesses.

[E]D. Parties shall provide materials to the [h]Hearing [o]Officer, panel members and Commission as directed[ under this rule. Materials shall not be provided directly to panel members until and unless parties are so directed] by the [h]Hearing [o]Officer.

 

R686-100-8. Hearing Parties' Representation.

A. Complainant: The Complainant shall be represented by a person appointed by the [Investigations Unit of the Utah State Office of Education]State Superintendent or his designee.

B. Respondent: A [r]Respondent may represent himself or be represented, at his own cost, by another person[ of his choosing].

C. The informant has no right to individual representation at the hearing or to be present or heard at the hearing unless called as a witness.

D. The Executive Secretary shall receive timely notice in writing of representation by anyone other than the Respondent.

 

R686-100-9. Discovery Prior to a Hearing.

A. Discovery [shall be]is permitted to the extent necessary to obtain relevant information necessary to support claims or defenses, as determined by the appointed [h]Hearing [o]Officer.

B. Discovery, especially burdensome or unduly legalistic discovery, may not be used to delay a hearing.

C. Discovery may be limited by the [h]Hearing [o]Officer at his discretion or upon a motion by either party. The [h]Hearing [o]Officer [makes the final determination as to the scope of]rules on all discovery requests and motions.

D. Subpoenas and other orders to secure the attendance of witnesses or the production of evidence shall be [issued upon request]issued pursuant to Section 53A-6-306(2)(c) if requested by either party at least five working days prior to the hearing[ by the Executive Secretary in accordance with Section 53A-6-603 when requested by either party or any of the panel members].

E. Either party[ or its representative] may request the names of witnesses[ who have been asked to testify for] the opposing party expects to call at the hearing and to receive a copy of or examine all documents and exhibits that the opposing party intends to [present]use as evidence during the hearing.

F. Except as provided in R100-7C, [N]no witness or evidence may be presented at the hearing if the opposing party has requested to be notified of such information and has not been fairly apprised at least [five]10 days prior to the hearing. [The parties may waive such time period only by written agreement.]The timeliness requirement may be waived by agreement of the parties or by the Hearing Officer upon a showing of good cause or the Hearing Officer's determination that no prejudice has occurred to the opposing party. This restriction shall not apply to rebuttal witnesses whose testimony, where required, cannot reasonably be anticipated before the time of the hearing.

G. No expert witness report or testimony may be presented at the hearing unless the requirements of Section R686-100-13 have been met.

 

R686-100-10. Burden and Standard of Proof for Commission Proceedings.

A. In matters other than those involving applicants for licensing, and excepting the presumptions under Section R686-100-14G, the complainant shall have the burden of proving that action against the license is appropriate.

B. An applicant for licensing [shall bear]has the burden of proving that licensing is appropriate.

C. Standard of proof: The standard of proof in all Commission hearings is a preponderance of the evidence.

D. Evidence: The Utah Rules of Evidence are not applicable to Commission proceedings. The criteria to decide evidentiary questions shall be:

(1) reasonable reliability of the offered evidence;

(2) fairness to both parties; and

(3) usefulness to the Commission in reaching a decision.

E. The [applicability and admissibility of evidence consistent with this rule shall be in the sole discretion of the h]Hearing [o]Officer has the sole responsibility to determine the application of the hearing rules and the admissibility of evidence.

 

R686-100-11. Deportment.

A. Parties, their representatives, witnesses, and other persons present during a hearing shall conduct themselves in an appropriate manner during hearings, giving due respect to members of the hearing panel and complying with the instructions of the [h]Hearing [o]Officer. The [h]Hearing [o]Officer may expel persons from the hearing room who fail to conduct themselves in an appropriate manner and may, in response to extreme instances of noncompliance, disallow testimony or declare an offending party to be in default.

B. Parties, attorneys for parties, or other participants in the professional practices investigation and hearing process shall not harass, intimidate or pressure witnesses or other hearing participants, nor shall they direct others to harass, intimidate or pressure witnesses or participants.

 

R686-100-12. Hearing Record.

A. The hearing shall be tape recorded at the Commission's expense, and the tapes shall become part of the permanent case record, unless otherwise agreed upon by all parties.

B. Individual parties may[ not], at their own expense, make recordings of the proceedings with[out] notice to[ and consent of] the Executive Secretary.

[C. Any party, at his own expense, may have a person approved by the Commission prepare a transcript of the hearing.

D]C. If an exhibit is admitted as evidence, the record shall reflect the contents of the exhibit.

[E]D. All evidence and statements presented at a hearing shall become part of the permanent case file and shall not be removed except by order of the Board.

[F]E. [Taped]The Office record of the proceedings may be reviewed upon request of a party under supervision of the Executive Secretary and only at the[ State] Office[ of Education].

 

R686-100-13. Expert Witnesses in Commission Proceedings.

A. A party may call an expert witness at its own expense. Notice of intent of a party to call an expert witness, the identity and qualifications of such expert witness and the purpose for which the expert witness is to be called shall be provided to the [h]Hearing [o]Officer and the opposing party at least [20]15 days prior to the hearing date.

B. The [h]Hearing [o]Officer may appoint any expert witness agreed upon by the parties or of the [h]Hearing [o]Officer's own selection. An expert so appointed shall be informed of his duties by the [h]Hearing [o]Officer in writing, a copy of which shall become part of the permanent case file. The expert shall advise the hearing panel and the parties of his findings and may thereafter be called to testify by the hearing panel or by any party. He [shall be subject to cross-examination]may be examined by each party or by any of the hearing panel members.

C. Defects in the qualifications of expert witnesses, once a minimum threshold of expertise is established, go to the weight to be given their testimony and not to its admissibility.

D. Experts who are members of the Complainant's staff or a school district staff may testify and have their testimony considered as part of the record along with that of any other expert.

E. Any report of an expert witness which a party intends to introduce into evidence shall be provided to the opposing party at least [10]15 days prior to the hearing date.

 

R686-100-14. Evidence and Participation in Commission Proceedings.

A. The [h]Hearing [o]Officer may not exclude evidence solely because it is hearsay.

B. [The hearing officer shall afford e]Each party [the opportunity to produce]has the right to call witnesses, present evidence, argue, respond, cross-examine witnesses who testify in person at the hearing, and submit rebuttal evidence.

C. [If a party intends to submit documentary evidence, the party intending to present such evidence shall provide one copy to each member of the hearing panel at least one hour prior to the hearing, and one copy to the opposing party.

D. ]All testimony presented at the hearing, if offered as evidence to be considered in reaching a decision on the merits, shall be given under oath.

[E]D. In any case involving allegations of child abuse or of a sexual offense against a child, upon request of either party or by a member of the hearing panel, the [h]Hearing [o]Officer may determine whether a significant risk exists that the child would suffer serious emotional or mental harm if required to testify in the [r]Respondent's presence, or whether a significant risk exists that the child's testimony would be inherently unreliable if required to testify in the [r]Respondent's presence. If the [h]Hearing [o]Officer determines either to be the case, then the child's testimony may be admitted in one of the following ways:

(1) An oral statement of a victim or witness younger than 18 years of age which is recorded prior to the filing of a complaint shall be admissible as evidence in a hearing regarding the offense if:

(a) No attorney for either party is in the child's presence when the statement is recorded;

(b) The recording is visual and aural and is recorded on film or videotape or by other electronic means;

(c) The recording equipment is capable of making an accurate recording, the operator of the equipment is competent, and the recording is accurate and has not been altered; and

(d) Each voice in the recording is identified.

(2) The testimony of any witness or victim younger than 18 years of age may be taken in a room other than the hearing room, and be transmitted by closed circuit equipment to another room where it can be viewed by the [r]Respondent. All of the following conditions shall be observed:

(a) Only the hearing panel members, attorneys for each party, persons necessary to operate equipment, and a person approved by the [h]Hearing [o]Officer whose presence contributes to the welfare and emotional well-being of the child may be with the child during his testimony.

(b) The [r]Respondent may not be present during the child's testimony;

(c) The [h]Hearing [o]Officer shall ensure that the child cannot hear or see the [r]Respondent;

(d) The [r]Respondent shall be permitted to observe and hear, but not communicate with, the child; and

(e) Only hearing panel members and the attorneys may question the child.

(3) The testimony of any witness or victim younger than 18 years of age may be taken outside the hearing room and recorded if the provisions of Sections R686-100-14E(2)(a)(b)(c) and (e) and the following are observed:

(a) The recording is both visual and aural and recorded on film or videotape or by other electronic means;

(b) The recording equipment is capable of making an accurate recording, the operator is competent, and the recording is accurate and is not altered;

(c) Each voice on the recording is identified; and

(d) Each party is given an opportunity to view the recording before it is shown in the hearing room.

(4) If the [h]Hearing [o]Officer determines that the testimony of a child [will]shall be taken under Section R686-100-14E(1)(2) or (3) above, the child may not be required to testify in any proceeding where the recorded testimony is used.

[F]E. On his own motion or upon objection by a party, the [h]Hearing [o]Officer:

(1) May exclude evidence that the [h]Hearing [o]Officer determines to be irrelevant, immaterial, or unduly repetitious;

(2) Shall exclude evidence that is privileged under law applicable to administrative proceedings in Utah unless waived;

(3) May receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document;

(4) May take official notice of any facts that could be judicially noticed under judicial or administrative laws of Utah, or from the record of other proceedings before the agency.

[G]F. Presumptions:

(1) A rebuttable evidentiary presumption exists that a person has committed a sexual offense against a minor child if the person has:

(a) Been found, pursuant to a criminal, civil, or administrative action to have committed a sexual offense against a minor;

(b) Failed to defend himself against such a charge when given a reasonable opportunity to do so; or

(c) Voluntarily surrendered a license or allowed a license to lapse in the face of a charge of having committed a sexual offense against a minor.

(2) A rebuttable evidentiary presumption exists that a person is unfit to serve as an educator if the person has been found pursuant to a criminal, civil, or administrative action to have exhibited behavior evidencing unfitness for duty, including immoral, unprofessional, or incompetent conduct, or other violation of standards of ethical conduct, performance, or professional competence. Evidence of such behavior may include:

(a) [Been convicted]conviction of a felony;

(b) [Been charged with ]a felony charge and subsequent[ly convicted of] conviction for a lesser related charge pursuant to a plea bargain or plea in abeyance;[ or]

(c) [Lost his license ]an investigation of an educator's license, certificate or authorization in another state[ through revocation or suspension, or through surrender of a license or allowing a license to lapse in the face of an allegation of misconduct, if the person would not currently be eligible to regain his license in that state][.]; or

(d) the expiration, surrender, suspension, revocation, or invalidation for any reasons of an educator license.

H. The Hearing Officer may confer with the Executive Secretary or the panel members or both while preparing the Hearing Report. The Hearing Officer may request the Executive Secretary to confer with the Hearing Officer and panel following the hearing.

I. The Executive Secretary may return a Hearing Report to a Hearing Officer if the Report is incomplete, unclear, or unreadable.

 

R686-100-15. Hearing Report.

A. Within 20 days after the hearing, or within 20 days after the deadline imposed for the filing of any post-hearing materials permitted by the [h]Hearing [o]Officer, the [h]Hearing [o]Officer shall [prepare, ]sign and issue a Hearing Report consistent with the recommendations of the panel that includes:

(1) A detailed findings of fact and conclusions of law based upon the evidence of record or on facts officially noted. Findings of fact may not be based solely upon hearsay, and conclusions shall be based upon competent evidence;

(2) A statement of relevant precedent, if available;

(3) A statement of applicable law and rule;

(4) A recommended disposition of the Commission panel members which shall be one of the following:

(a) Dismissal of the Complaint: The hearing report shall indicate that the complaint should be dismissed and that no further action should be taken.

[(b) Warning: The hearing report shall indicate that respondent's conduct is deemed unprofessional and that the hearing report shall constitute an official warning. The hearing report may indicate if the letter of warning shall be sent to the employing school district, if the letter and notation of warning shall be retained in the respondent's licensing and CACTUS files and for how long the letter and notation of warning shall be retained. If the hearing report has no specified time period for retention of the letter of warning, the letter and notation shall be retained permanently. The report shall also state that no further action concerning the complaint should be taken and that the complaint and disposition could be considered should the respondent's conduct be brought into question in the future.

(c) Reprimand: The hearing report shall indicate that the respondent's conduct is deemed unprofessional and that the hearing report shall constitute an official reprimand. The hearing report shall indicate that the employing school board shall receive a copy of the reprimand and that record of the reprimand shall be made on all Utah State Board of Education licensing records maintained in the licensing file, to include a notation of the letter of reprimand in the respondent's licensing files. The hearing report may also include a recommendation for how long the reprimand and the notation of the reprimand shall be maintained in the respondent's file and conditions under which it could be removed. If the hearing report has no specified time period for retention of the letter and notation of reprimand, they shall be retained permanently. The report shall also state that no further action concerning the complaint should be taken and that the complaint and disposition could be considered should the respondent's conduct be brought into question in the future.](b) Warning: the hearing report shall indicate that Respondent's conduct is deemed unprofessional and shall direct the Executive Secretary to write a letter of warning to the Respondent. A letter of warning:

(i) shall be maintained permanently in Respondent's paper licensing file;

(ii) shall be mailed to Respondent or, if Respondent is represented by counsel, to Respondent's counsel;

(iii) shall state that the letter does not affect Respondent's license status;

(iv) shall not be noted on Respondent's active CACTUS file;

(v) shall not be copied and mailed to the Respondent's employing school district, although the employing school district shall be notified that Respondent received a warning letter;

(vi) shall not be public information, although, as a final administrative decision, the existence of the letter is public information;

(vii) shall state that a letter of warning may be considered by the Commission or the Board if formal allegations are made regarding Respondent's conduct in the future; and

(viii) may be acknowledged and summarized to prospective employers upon request.

(c) Reprimand: the hearing report shall indicate that Respondent's conduct is deemed unprofessional and shall direct the Executive Secretary to write a letter of reprimand to the Respondent. A letter of reprimand:

(i) shall be maintained permanently in Respondent's paper licensing file;

(ii) shall be mailed to Respondent or, if Respondent is represented by counsel, to Respondent's counsel;

(iii) shall state that the letter does not affect Respondent's license status;

(iv) shall be noted on Respondent's active CACTUS file for the period stated in the hearing report and until Respondent's written request for removal of the letter is granted;

(v) shall be copied and send to Respondent's employing school district;

(vi) shall not be public information, although, as a final administrative decision, the existence of the letter is public information; and

(vii) shall state that a letter of reprimand may be considered by the Commission or the Board if formal allegations are made regarding Respondent's conduct in the future; and

(viii) may be acknowledged and summarized to prospective employers upon request.

(d) It is the [r]Respondent's responsibility to petition the Commission for removal of letters of warning and reprimand from his licensing and CACTUS files.

(e) Probation: The hearing report shall determine [that]whether the [r]Respondent's conduct was unprofessional, that the [r]Respondent shall not lose his license, but that a probationary period is appropriate. If the report recommends probation, the report shall designate:

(i) a probationary time period;

(ii) conditions that can be monitored;

(iii) a person or entity to monitor a [r]Respondent's probation;

(iv) a statement providing for costs of probation.

(v) whether or not the [r]Respondent may work in any capacity in education during the probationary period.

A probation may be [stated as]imposed substantially in the form of a plea in abeyance[:]. The [r]Respondent's penalty is stayed subject to the satisfactory completion of probationary conditions. The decision shall provide for discipline should the probationary conditions not be [completed]fully satisfied.

(f) Suspension: The hearing report shall recommend to the[ State] Board[ of Education] that the license of the [r]Respondent be suspended for a specific period of time and until specified reinstatement conditions have been met before [r]Respondent may petition for reinstatement of his license. The hearing report shall indicate that, should the Board confirm the recommended decision, the [r]Respondent shall return the printed suspended license to the[ State] Office[ of Education] and that the Educator Licensing Section of the[ Utah State] Office[ of Education will]shall notify the employing school district, all other Utah school districts, and all other state, territorial, and national licensing offices or clearing houses of the suspension in accordance with R277-514.

(g) Revocation: The hearing report shall recommend to the State Board of Education that the license of the [r]Respondent be revoked for a period of not less than five years. The hearing report shall indicate that should the Board confirm the recommended decision, the [r]Respondent shall return any paper copies of the revoked license to the[ State] Office[ of Education] and that the Educator Licensing Section of the[ Utah State] Office[ of Education will]shall notify the employing school district, all other Utah school districts, and all other state, territorial, and national licensing offices or clearing houses of the revocation in accordance with R277-514.

[ (5) The hearing report may recommend that the warning letter or that the reprimand remain permanently in the licensing file. The hearing report shall also provide that the substance of the warning letter or reprimand or terms of probation may be communicated by designated USOE employees to prospective employers upon request.

] ([6]5) Notice of the right to appeal; and

([7]6) Time limits applicable to appeal.

B. Processing the Hearing Report:

(1) The [h]Hearing [o]Officer shall circulate the draft report to hearing panel members prior to the 20 day completion deadline of the hearing report.

(2) Hearing panel members shall notify the [h]Hearing [o]Officer of any changes to the report as soon as possible after receiving the report and prior to the 20 day completion deadline of the hearing report.

(3) The [h]Hearing [o]Officer shall file the completed hearing report with the Executive Secretary, who shall review the report with the Commission.

(4) If the Commission, upon review of the hearing report, finds by majority vote, that there have been significant procedural errors in the hearing process or that the weight of the evidence does not support the conclusions of the hearing report, the Commission[ as a whole] may direct the Executive Secretary to prepare an alternate hearing report and follow procedures under R686-100-15B(2).

(5) The Executive Secretary may be present, at the discretion of the Commission, but may only participate in the Commission's deliberation as a resource to the Commission in explaining the hearing report and answering any procedural questions raised by Commission members.

(6) If the Commission finds that there have not been significant procedural errors or that recommendations are based upon a reasonable interpretation of the evidence presented at the hearing, the Commission shall vote to uphold the [h]Hearing [o]Officer's report and do one of the following:

(a) If the recommendation is for final action to be taken by the Commission, the Commission shall direct the Executive Secretary to prepare a corresponding final order and serve all parties with a copy of the order and hearing report. A copy of the order and the hearing report shall be placed in and become part of the permanent case file. The order shall be effective upon approval by the Commission.

(b) If the recommendation is for final action to be taken by the Board, the Executive Secretary shall forward a copy of the hearing report to the[ State] Board[ of Education] for its further action. A copy of the hearing report shall also be placed in and become part of the permanent case file.

(7) If the Commission determines that procedural errors or that the [h]Hearing [o]Officer's report is not based upon a reasonable interpretation of the evidence presented at the hearing to the extent that an amended hearing report cannot be agreed upon, the Commission shall direct the Executive Secretary to schedule the matter for rehearing before a new [h]Hearing [o]Officer and panel.

C. Consistent with Section 63-2-301(1)(c), the final administrative disposition of all administrative proceedings, the Recommended Disposition section of the Hearing Report, of the Commission shall be public. The hearing findings/report of suspensions and expulsions shall be public information and shall be provided consistent with Section 63-2-301(1)(c). The Recommended Disposition portion of the Hearing Report of warnings, reprimands and probations (including the probationary conditions) shall be public information. All references to individuals and personally identifiable information about individuals not parties to the hearing shall be redacted prior to making the disposition public.

D. Failure to comply with the terms of a final disposition that includes a suspension or revocation of the Respondent's license may result in an additional five-year revocation of the license.

E. If a hearing officer fails to satisfy his responsibilities under this rule, the Commission may:

(1) notify the Utah State Bar of the failure;

(2) reduce the hearing officer's compensation consistent with his failure;

(3) take timely action to avoid disadvantaging either party; and

(4) preclude the hearing officer from further employment by the Board for Commission purposes.

F. Deadlines within this section may be waived by the Commission for good cause shown.

G. All criteria of letters of warning and reprimand, probation, suspension and revocation shall also apply to final Stipulated Agreements, agreed to and signed by both parties.

 

R686-100-16. Default Procedures.

A. An order of default may be issued against a [r]Respondent under any of the following circumstances:

(1) The [Executive Secretary may enter]Prosecutor may prepare an order of default by preparing a report of default including the order of default, a statement of the grounds for default, and a recommended disposition if the [r]Respondent fails to file a response to a complaint or respond to a proffered Stipulated Agreement following written notice and telephone contact, to the extent possible, for an additional 20 days following the time period allowed for response to a complaint under R686-100-[5E]4F or G.

(2) The [h]Hearing [o]Officer may enter an order of default against a [r]Respondent by preparing a hearing report including the order of default, a statement of the grounds for default and the recommended disposition if:

(a) The [r]Respondent fails to attend or participate in a properly scheduled hearing after receiving proper notice. The [h]Hearing [o]Officer may determine that the [r]Respondent has failed to attend a properly scheduled hearing if the [r]Respondent has not appeared within 30 minutes of the appointed time for the hearing to begin, unless the Respondent shows good cause for failing to appear in a timely manner.

(b) The [r]Respondent or the [r]Respondent's representative [is guilty of serious]commits misconduct during the course of the hearing process as provided under Section R686-100-8D.

B. The [report]recommendation of default [or hearing report shall be forwarded to the Commission by the Executive Secretary for further action under Section R686-100-16B]may be executed by the Executive Secretary following all applicable time periods, without further action by the Commission.

 

R686-100-17. Appeal.

A. Either party may appeal a final[ action or] recommendation of the Commission for a suspension of the Respondent's license for two or more years or a revocation to the State Superintendent. A request for review by the State Superintendent shall follow the procedures in R277-514-3 and be submitted in writing within 15 days from the date that the Commission sends written notice to the parties of its recommendation.[by requesting review following the procedures of R277-514-3 or R277-514-4.]

(1) Either party may appeal the Superintendent's decision to the Board following the procedures in R277-514-4.

B. [If a party elects to appeal a Commission recommendation for a suspension of two years or more, or to appeal a Commission determination regarding a license revocation, the appellant shall follow the procedures of R277-514-3]Either party may appeal a Commission recommendation for a suspension of less than two years or dismissal of the case to the Board following the procedures in R277-514-4B.

C. [If a party elects to appeal a Commission recommendation for a suspension of less than two years or for any other issue, dismissal, or failure to discipline, the appeal shall be made directly to the Board under R277-514-4B.

D. The]A request for appeal to the State Superintendent or the Board shall [consist of the following]include:

(1) name, position, and address of appellant;

(2) issue(s) being appealed; and

(3) signature of appellant.

 

R686-100-18. Remedies for Individuals Beyond Commission Actions.

Despite Commission or Board actions, informants or other injured parties who feel that their rights have been compromised, impaired or not addressed by the provisions of this rule, may appeal directly to district court.

 

R686-100-19. Application for Licensing Following Denial or Loss of License.

A. An individual who has been denied licensing or lost his license through revocation or suspension, or through surrender of a license or allowing a license to lapse in the face of an allegation of misconduct, may request review to consider[ the possibility of a grant or] reinstatement of a license.

(1) The request for review shall be in writing and addressed to the Executive Secretary, Professional Practices Advisory Commission, [250 East 500 South, P.O. Box 144200, Salt Lake City, Utah 84114-4200]at the Office mailing address, and shall have the following heading:

 

TABLE 1

------------------------------------------------------------

                                 )

Jane Doe,                        ) Request for Agency Action

     Petitioner                  ) Following Denial or Loss of

     vs                          ) License

Utah State Office of Education,  ) File no.: ............

UPPAC

     [Respondent]The State.                 )

                                 )

-----------------------------------------------------------

 

B. The body of the request shall contain[ the following information]:

(1) Name and address of the individual requesting review;

(2) Action being requested;

(3) Evidence of compliance with terms and conditions of any remedial or disciplinary requirements or recommendations;

(4) Reasons for reconsideration of past disciplinary action;

(5) Signature of person requesting review.

C. The Executive Secretary shall review the request with the Commission.

(1) If the Commission determines that the request is invalid, the person requesting reinstatement shall be notified by certified mail of the denial.

(2) If the Commission determines that the request is valid, a hearing shall be scheduled and held as provided under Section R686-100-6.

D. Burden of Proof: The burden of proof for granting or reinstatement of a license shall fall on the individual seeking the [license]reinstatement.

(1) Individuals requesting reinstatement of a suspended license [must]shall show sufficient evidence of compliance with any conditions imposed in the past disciplinary action as well as undergo a criminal background check in accordance with Utah law.

(2) Individuals requesting licensing following revocation shall show sufficient evidence of compliance with any conditions imposed in the past disciplinary action as well as providing evidence of qualifications for licensing as if the individual had never been licensed in Utah or any other state.

(3) Individuals requesting licensing following denial shall show sufficient evidence of completion of a rehabilitation or remediation program, if applicable.

 

R686-100-20. Reinstatement Hearing Procedures.

A. The individual seeking reinstatement of his license shall be the petitioner.

B. The petitioner shall have the responsibility of presenting the background of the case.

C. The petitioner shall present documentation or evidence that supports reinstatement.

D. The [respondent (the ]State[)], represented by the Commission Prosecutor, shall present any evidence or documentation that would not support reinstatement.

E. Other evidence or witnesses shall be presented consistent with R686-100-14.

F. The appointed [h]Hearing [o]Officer shall rule on other procedural issues in a reinstatement hearing in a timely manner as they arise.

 

R686-100-21. Temporary Suspension of License Pending a Hearing.

A. If the Executive Secretary determines, after affording [r]Respondent an opportunity to discuss allegations of misconduct, that reasonable cause exists to believe that the charges [will]shall be proven to be correct and that permitting the [r]Respondent to retain his license prior to hearing would create unnecessary and unreasonable risks for children, then the Executive Secretary may order immediate suspension of the [r]Respondent's license pending final Board action.

B. Evidence of the temporary suspension may not be introduced at the hearing.

C. Notice of the temporary suspension shall be provided to other states under R277-514.

 

KEY: teacher [certification]licensing, conduct, hearings

Date of Enactment or Last Substantive Amendment: [October 16, 2002]2006

Notice of Continuation: February 27, 2003

Authorizing, and Implemented or Interpreted Law: 53A-6-306(1)(a)