No. 39392 (Repeal): Rule R686-103. Utah Professional Practices Advisory Commission Review of Licensure Due to Background Check Offenses

(Repeal)

DAR File No.: 39392
Filed: 05/15/2015 09:15:40 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

H.B. 345, Education Abuse Policy, 2015 General Session, changed rulemaking authority from UPPAC to the Utah State Board of Education (Board). This rule is repealed in response to the legislation.

Summary of the rule or change:

Rule R686-103 is repealed in its entirety.

State statutory or constitutional authorization for this rule:

• Subsection 53A-6-306(1)(a)

Anticipated cost or savings to:

the state budget:

It is anticipated that there is likely no cost or savings to the state budget. Rule R686-103 is repealed and will be replaced with a new Board rule under Title R277. (DAR NOTE: The proposed new rules are Rule R277-200 under DAR No. 39382, Rule R277-201 under DAR No. 39383, Rule R277-202 under DAR No. 39384, Rule R277-203 under DAR No. 39385, Rule R277-204 under DAR No. 39386, Rule R277-205 under DAR No. 39387, and Rule R277-206 under DAR No. 39388 in this issue, June 1, 2015, of the Bulletin.)

local governments:

It is anticipated that there is likely no cost or savings to local government. Rule R686-103 is repealed and will be replaced with a new Board rule under Title R277.

small businesses:

It is anticipated that there is likely no cost or savings to small businesses. Rule R686-103 is repealed and will be replaced with a new Board rule under Title R277.

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

It is anticipated that there is likely no cost or savings to persons other than small businesses, businesses, or local government entities. Rule R686-103 is repealed and will be replaced with a new Board rule under Title R277.

Compliance costs for affected persons:

There are likely no compliance costs for affected persons. Rule R686-103 is repealed and will be replaced with a new Board rule under Title R277.

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

I have reviewed this rule and I believe that there is likely no fiscal impact on businesses.

Brad C. Smith, 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:

• Benjamin Rasmussen 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:

07/01/2015

This rule may become effective on:

07/08/2015

Authorized by:

Angela Stallings, Associate Superintendent, Policy and Communication

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.

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

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

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

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, of UPPAC.

G. "License" means a 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.

H. "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 establishing under Section 53A-6-301.

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 UPPAC to adopt rules to carry out its responsibilities under the law.

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 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 that details the circumstances, the final disposition, and any explanation for the offense the applicant may want to provide 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. 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 UPPAC.

E. Upon receipt of any requested documentation, including the applicant's written letters of explanation and advocacy, 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 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 UPPAC deny an applicant's licensing request, 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 R686-103-3A 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 R686-101 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 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 UPPAC; or

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

(4) signature of person requesting review.

D. The 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 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. 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 UPPAC in denying the applicant's licensing request were based on the grounds enumerated in R686-103-3C.

C. The hearing shall be heard before a panel (three members) of UPPAC or UPPAC, chosen under the same procedures and having the same duties as delineated in R686-101.

D. The Executive Secretary or UPPAC Chair shall conduct the hearing and act as hearing officer. The hearing officer's duties shall be the same duties as delineated in R686-101.

E. At the sole discretion of the hearing officer, the hearing shall be conducted consistent with R686-101, as applicable. All procedural matters shall be at the 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 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 recommended by the panel for a reapplication for clearance by the applicant.

G. 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: November 7, 2013

Notice of Continuation: October 5, 2012

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

 

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