No. 38011 (Amendment): Rule R686-103. Utah Professional Practices Advisory Commission Review of License Due to Background Check Offenses

(Amendment)

DAR File No.: 38011
Filed: 09/16/2013 11:01:47 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is amended to provide changes to Utah Professional Practices Advisory Commission (UPPAC) procedures for review of an applicant due to a background check offense.

Summary of the rule or change:

Changes include adding and amending definitions; providing new language for initial submission and evaluation of information; providing new language for appeal procedures; and changing terminology throughout the rule.

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. The changes to this rule are procedural and do not have a financial impact.

local governments:

There is no anticipated cost or savings to local government. The changes to this rule are procedural and do not have a financial impact.

small businesses:

There is no anticipated cost or savings to small businesses. This rule and the amendments apply to educator licensing and do not affect businesses.

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. The changes to this rule are procedural and do not have a financial impact.

Compliance costs for affected persons:

There is no compliance costs for affected persons. The changes to this rule are procedural and do not have cost implications.

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.

R686-103. Utah Professional Practices Advisory Commission Review of License Due to Background Check Offenses.

R686-103-1. Definitions.

A. "Applicant" means an individual seeking a clearance of a criminal background check pursuant to approval for an educational license at any stage of the licensing process from the USOE, including license renewal.

B. "Arrest" means a seizure or forcible restraint; the taking or keeping of a person in custody by legal authority, especially in response to a criminal charge; specifically the apprehension of someone for the purpose of securing the administration of the law. For purposes of this rule, "arrest" also means fingerprinting at the time of restraint or at a later time related to the cause for restraint.

[B]C. "Board" means the Utah State Board of Education.

D. "Conviction" means the act or process of judicially finding someone guilty of a crime.

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

[E]F. "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, o[r]f UPPAC.

[F]G. "License" means a[n authorization issued by the Board which permits the holder to serve in a professional capacity in a unit of the public education system or an accredited private school] teaching or administrative credential, including endorsements, which is issued by the Board to signify authorization for the person holding the license to provide professional services in Utah's public schools.

[C]H. "[Commission]Utah Professional Practices Advisory Commission (UPPAC)" means [the Utah Professional Practices Advisory Commission as defined and authorized under]an advisory commission established to assist and advise the Board in matters relating to the professional practices of educators, as establishing under Section 53A-6-301[ et seq].

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

 

R686-103-2. Authority and Purpose.

A. This rule is authorized by Section 53A-6-306(1) (a) which directs [the Commission]UPPAC to adopt rules to carry out its responsibilities under the law[ and Section 53A-6-107 which directs the Board to carry out its responsibilities].

B. The purpose of this rule is to establish procedures for an applicant to proceed toward licensing or be denied to continue when an application or recommendation for licensing or renewal identifies offenses in the applicant's criminal background check. The standards and procedures of the Utah Administrative Procedures Act do not apply to this rule under the exemption of Section 63G-4-102(2)(d).

 

R686-103-3. Initial Submission and Evaluation of Information.

A. Upon receipt of information as the result of a fingerprint check of all applicable state, regional, and national criminal records files pursuant to Section 53A-6-401, the Executive Secretary shall make a determination to approve the applicant's request for criminal background check clearance based on time passed since offense, violent nature of the offense (student safety), involvement or non-involvement of students or minors in the offense, and other relevant factors, or refer the application to [the Commission]UPPAC for a decision and request further information and explanation from the applicant. The Executive Secretary may require the applicant to provide additional information, including:

(1) a letter of explanation for each reported offense [reported to the Commission] that details the circumstances, the final disposition, and any explanation for the offense the applicant may want to provide [the Commission]UPPAC, including any advocacy for approving licensing.

(2) official documentation regarding each offense, including court records and police reports for each offense, or if both court records and police reports are not available, a letter on official police or court stationery from the appropriate court or police department involved, explaining why the records are not available.

B. [The Commission]UPPAC shall only consider an applicant's licensing request after receipt of all letters of explanation and documentation requested in good faith by the Executive Secretary.

C. If an applicant is under court supervision of any kind, including parole, informal or formal probation or plea in abeyance, there is a presumption that the individual shall not be approved for licensing until the supervision is successfully terminated.

D. It is the applicant's sole responsibility to provide the requested material to [the Commission]UPPAC.

E. Upon receipt of any requested documentation, including the applicant's written letters of explanation and advocacy, [the Commission]UPPAC shall either approve the applicant's request for criminal background check clearance; deny the applicant's licensing request; or seek further information, personally from the applicant or other sources, at the first possible meeting of [the Commission]UPPAC.

F. UPPAC has directed the Executive Secretary to approve the following without additional UPPAC review:

(1) singular offenses committed by an applicant, excluding offenses identified in R686-103-4G, if the arrest occurred more than two years prior to the date of submission to UPPAC for review;

(2) more than two offenses committed by the applicant, excluding offenses identified in R686-103-4G, if at least one arrest occurred more than five years prior to the date of submission to UPPAC for review; or

(3) more than two offenses committed by the applicant, excluding offenses identified in R686-103-4G, if all arrests for the offenses occurred more than 10 years prior to the date of submission to UPPAC for review.

G. UPPAC shall review all arrests and convictions for the following:

(1) convictions or pleas in abeyance for any offense where the arrest occurred less than two years prior to the date of submission to UPPAC;

(2) conviction(s) for felonies;

(3) arrests or convictions for sex-related or lewdness offenses;

(4) arrests or convictions for drug-related offenses where the charge or conviction is for a class A misdemeanor or higher; and

(5) convictions involving children in any way.

H. UPPAC directs the Executive Secretary to use reasonable discretion to interpret the information received from the Bureau of Criminal Identification (BCI) provided to BCI from multiple jurisdictions to comply with the provisions of R686-103-4F and G and to interpret strictly the provisions of R686-103-4F and G.

 

R686-103-4. Appeal.

A. Should [the Commission]UPPAC deny an applicant's licensing request, [the Commission]UPPAC shall inform the applicant in writing that the application for licensing has been denied and notify the applicant of the right to appeal that decision under this Rule.

B. The applicant shall have 30 days from notice provided under R686-10[4]3-3A to make formal written request for an appeal.

C. An applicant's request to appeal the denial of clearance shall follow the application criteria and format contained in R686-10[0-19(A)(1)]1 and shall include:

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

(2) action being requested;

(3) the grounds for the appeal, which are limited to:

(a) a mistake of identity;

(b) a mistake of fact regarding the information relied upon by [the Commission]UPPAC in making its decision;

(c) information that could not, with reasonable diligence, have been discovered and produced by the applicant previously and provided previously to [the Commission]UPPAC; or

(d) compelling circumstances that in the judgment of the [Commission] Executive Committee warrant an appeal.

(4) signature of person requesting review.

D. The [Commission] Executive Secretary shall make a determination regarding the grounds for appeal in a timely manner, inform the applicant in writing of the decision, and, if necessary, schedule an appeal hearing at the earliest possible date, consistent with the standard [Commission]UPPAC meetings.

 

R686-103-5. Appeal Procedure.

A. An applicant shall have the right to be represented by an attorney at an appeal hearing under this Rule. [The Commission]UPPAC shall be represented by a person appointed by the Investigations Unit of the USOE.

B. The burden of proof at an appeal hearing shall be on the applicant to show that the actions of [the Commission]UPPAC in denying the applicant's licensing request were based on the grounds enumerated in R686-10[4]3-3C.

C. The hearing shall be heard before a panel ([3]three members) of [the Commission]UPPAC or [the Commission]UPPAC, chosen under the same procedures and having the same duties as delineated in R686-10[0-6]1.

D. The [Commission] Executive Secretary or [Commissioner]UPPAC Chair shall conduct the hearing and act as hearing officer. The hearing officer's duties shall be the same duties as delineated in R686-10[0-6(A)]1.

E. At the sole discretion of the hearing officer, the hearing shall be conducted [under]consistent with R686-10[0-7 through 14]1, as applicable. All procedural matters shall be at the[ sole] discretion of the hearing officer and the Executive Secretary who has the right to limit witnesses and evidence presented by the applicant in support of the appeal.

F. Within 20 days after the hearing, the Executive Secretary or [Commission]UPPAC Chair shall issue a written report containing:

(1) detailed findings of fact related to the factual basis for the appeal;

(2) the decision and rationale of the hearing panel concerning the applicant's clearance of criminal background check request; and

(3) any time-line or conditions [set]recommended by the panel for a reapplication for clearance by the applicant.

G. [The decision of the hearing panel is final.]The panel's recommendation shall be reviewed by UPPAC at the first reasonable opportunity.

H. UPPAC's decision, upon review of the panel's recommendation, is the final administrative decision.

 

KEY: educator license, appeals

Date of Enactment or Last Substantive Amendment: [October 16, 2002]2013

Notice of Continuation: October 5, 2012

Authorizing, and Implemented or Interpreted Law: 53A-6-306(1)[; 53A-6-107]

 

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