No. 38010 (New Rule): Rule R686-102. Request for Licensure Reinstatement and Reinstatement Procedures

(New Rule)

DAR File No.: 38010
Filed: 09/16/2013 11:01:19 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to establish procedures regarding educator license reinstatement procedures.

Summary of the rule or change:

The rule provides definitions, procedures for a Utah Professional Practices Advisory Commission (UPPAC) review for reinstatement of a license, reinstatement hearing, and reinstatement hearing reports.

State statutory or constitutional authorization for this rule:

• Subsection 53A-6-306(1)(a)

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings to the state budget. Much of the language in this rule was in Rule R686-100, which is being repealed and reenacted. (DAR NOTE: The repeal and reenactment of Rule R686-100 is under DAR No. 38008 in this issue, October 1, 2013, of the Bulletin.)

local governments:

There is no anticipated cost or savings to local government. Much of the language in this rule was in Rule R686-100, which is being repealed and reenacted.

small businesses:

There is no anticipated cost or savings to small businesses. Much of the language in this rule was in Rule R686-100, which is being repealed and reenacted.

persons other than small businesses, businesses, or local governmental entities:

There is no anticipated cost or savings to persons other than small businesses, businesses, or local government entities. Much of the language in this rule was in Rule R686-100, which is being repealed and reenacted.

Compliance costs for affected persons:

There are no compliance costs for affected persons. Much of the language in this rule was in Rule R686-100, which is being repealed and reenacted.

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.

Martell Menlove, State Superintendent

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:

10/31/2013

This rule may become effective on:

11/07/2013

Authorized by:

Carol Lear, Director, School Law and Legislation

RULE TEXT

R686. Professional Practices Advisory Commission, Administration.

R686-102. Request for Licensure Reinstatement and Reinstatement Procedures.

R686-102-1. Definitions.

A. "Administrative hearing" means a formal adjudicative proceeding consistent with 53A-6-601. The Utah State Board of Education and Utah State Office of Education licensing process is not governed by the Utah Administrative Procedures Act, Title 63G, Chapter 4.

B. "Allegation of misconduct" means a written or oral report alleging that an educator has engaged in unprofessional or criminal 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 as provided in R277-515.

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

D. "Comprehensive Administration of Credentials for Teachers in Utah Schools (CACTUS)" means the electronic file owned and maintained on all licensed Utah educators. The file includes information such as:

(1) personal directory information;

(2) educational background;

(3) endorsements;

(4) employment history; and

(5) a record of disciplinary action taken against the educator's license.

E. "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 UPPAC.

F. "Hearing" means an administrative proceeding held pursuant to Section 53A-6-601, is a formal adjudication in which allegations made in a complaint are examined before a hearing officer and UPPAC hearing panel, 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 UPPAC hearing panel, prepares a hearing report and submits it to the Executive Secretary.

G. "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 UPPAC to manage the proceedings of a hearing. The hearing officer may not be an acting member of UPPAC. The hearing 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.

H. "Hearing panel" means a hearing officer and three or more members of UPPAC agreed upon by UPPAC to assist the hearing officer in conjunction with the hearing panel in conducting a hearing and preparing a hearing report.

I. "Hearing report" means a report prepared by the hearing officer 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.

J. "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.

K. "Petitioner" means the individual seeking an educator license following denial of a license or seeking reinstatement following license suspension or in the event of compelling circumstances, following revocation.

L. "Prosecutor" means the attorney designated by the USOE to represent the complainant and present evidence in support of the complaint. The prosecutor may also be the investigator, but does not have to be.

M. "Suspension" means an invalidation of a Utah educator license. A suspension may include specific conditions that an educator shall satisfy and may identify a minimum time period that shall elapse before the educator can request a reinstatement hearing before UPPAC.

N. "Utah Professional Practices Advisory Commission (UPPAC)" means an advisory commission established to assist and advise the Board in matters relating to the professional practices of educators, as established under Section 53A-6-301.

O. "USOE" means the Utah State Office of Education.

 

R686-102-2. Authority and Purpose.

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

B. The purpose of this rule is to establish procedures regarding educator license reinstatement.

 

R686-102-3. Application for Licensing Following Denial or Loss of License.

A. An individual who has been denied licensing or lost his license through 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 reinstatement of a license. The request for review shall be in writing and addressed to the UPPAC Executive Secretary at the USOE mailing address, and shall have the following information:

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

(2) action being requested;

(3) specific evidence and documentation of compliance with terms and conditions of any remedial or disciplinary requirements or recommendations from UPPAC or the Board;

(4) reason(s) that individual seeks reinstatement;

(5) signature of person requesting review.

B. The Executive Secretary shall review the request with UPPAC.

(1) If UPPAC determines that the request is incomplete or invalid, the person requesting reinstatement shall be notified of the denial.

(2) If UPPAC determines that the request is complete, timely and appropriate, a hearing shall be scheduled and held as provided under Section R686-102-4.

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

(1) Individuals requesting reinstatement of a suspended license shall:

(a) show sufficient evidence of compliance with any conditions imposed in the past disciplinary action;

(b) provide sufficient evidence to the reinstatement hearing panel that the educator shall not engage in recurrences of the actions that gave rise to the suspension and that reinstatement is appropriate;

(c) undergo a criminal background check consistent with Utah law and R277-517; and

(d) provide materials for review by the hearing panel that demonstrate petitioner's compliance with directives from UPPAC or the Board found in petitioner's original stipulated agreement or hearing report.

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

D. An individual whose license has been suspended or revoked in another state shall seek reinstatement in the other state prior to approval of a request for a reinstatement hearing.

 

R686-102-4. Reinstatement Hearing Procedures.

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

B. A hearing officer shall preside over the hearing and shall rule on all procedural issues as they arise.

C. A hearing panel, made up of three members of UPPAC, shall hear the evidence and along with the prosecutor and hearing officer, question the petitioner regarding the appropriateness of reinstatement.

D. A petitioner may be represented by counsel and may present evidence and witnesses.

E. Presentation of evidence and witnesses by either party shall be consistent with R686-101.

F. The hearing officer shall direct one or both parties to explain the background of a case to provide necessary information about the initial misconduct and subsequent UPPAC and Board action to panel members at the beginning of the hearing.

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

H. The State, represented by the UPPAC prosecutor, shall present any evidence or documentation that explains and supports the State's recommendation in the matter.

I. Other evidence or witnesses may be presented by either party and shall be presented consistent with R686-101.

J. The petitioner shall:

(1) focus on the petitioner's actions and rehabilitative efforts and performance following license denial or suspension;

(2) explain item by item how each condition of the hearing report or stipulated agreement was satisfied;

(3) provide documentation in the form of evaluations, reports, or plans, as directed by the hearing report or stipulated agreement of satisfaction of all required and outlined conditions;

(4) be prepared to completely and candidly respond to the UPPAC prosecutor and hearing panel questions about the misconduct that caused the license suspension, subsequent rehabilitation activities, any counseling or therapy related to the original misconduct, and work and professional actions and behavior between the suspension and reinstatement request;

(5) present and be prepared to question witnesses (including counselors, current employers, support group members) at the hearing who can provide substantive corroboration of rehabilitation or current professional fitness to be an educator;

(6) provide copies of all reports and documents to the UPPAC prosecutor and hearing officer at least five days before a reinstatement hearing; and

(7) bring eight copies of all documents or materials that shall be introduced at the hearing to the hearing.

K. The UPPAC prosecutor, the hearing panel and hearing officer shall thoroughly question the petitioner as to the petitioner's:

(1) specific and exact compliance with reinstatement requirements;

(2) counseling, if required for reinstatement. Petitioner shall state, under oath, that he provided all relevant information and background to his counselor or therapist;

(3) specific plans for avoiding previous misconduct; and

(4) demeanor and changed understanding of petitioner's professional integrity and actions consistent with R277-515.

L. The appointed hearing officer shall rule on procedural issues in a reinstatement hearing in a timely manner as they arise.

M. No more than 20 days following a reinstatement hearing, the hearing officer, with the assistance of the hearing panel, shall prepare a hearing report, which shall comply with the requirements set forth in R686-102-5, and which shall be provided to the UPPAC Executive Secretary.

(1) The hearing report shall be submitted to UPPAC at the next meeting following receipt by the Executive Secretary.

(2) If the recommendation in the hearing report is for reinstatement of an educator license that was suspended, UPPAC may do the following upon receipt of the hearing report:

(a) accept the recommendation as prepared in the hearing report;

(b) amend the recommendation with conditions or modifications to the panel's recommendation which shall be directed by UPPAC and prepared by the UPPAC Executive Secretary and attached to the hearing report;

(c) reject the recommendation.

(3) If UPPAC rejects a recommendation for reinstatement of an educator license, the Executive Secretary shall notify the educator within 20 working days of the UPPAC meeting in which the recommendation was rejected.

 

R686-102-5. Reinstatement Hearing Report.

A. A reinstatement hearing report shall:

(1) provide a summary of the background of the original disciplinary action;

(2) provide adequate information, including summary statements of evidence presented, documents provided, and petitioner's testimony and demeanor for both UPPAC and the Board to evaluate petitioner's progress and rehabilitation since petitioner's original disciplinary action;

(3) specifically address petitioner's appropriateness and fitness to be a public school educator again; and

(4) provide a statement that the hearing panel's recommendation to UPPAC was unanimous or provide the panel's vote concerning reinstatement.

B. The conclusions section of a reinstatement hearing report is public information. Other parts of the hearing report are protected.

C. If a license is reinstated, an educator's CACTUS file shall show that the educator's license was reinstated and the date of formal Board action reinstating the license.

 

KEY: licensure, reinstatement, hearings

Date of Enactment or Last Substantive Amendment: 2013

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

 

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