R277-212-3. Appointment and Duties of the Hearing Officer and Hearing Panel

  (1)(a) The Executive Secretary shall appoint a hearing officer to chair the hearing panel and conduct the hearing.

  (b) The Executive Secretary shall select a hearing officer on a random basis from a list of available contracted hearing officers, subject to availability and conflict of interest.

  (c) 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.

  (d) A hearing officer:

  (i) may require the parties to submit a brief and a list of witnesses prior to the hearing;

  (ii) presides at the hearing and regulates the course of the proceeding;

  (iii) administers an oath to a witness as follows: "Do you swear or affirm that the testimony you will give is the truth?";

  (iv) may take testimony, rule on a question of evidence, and ask a question of a witness to clarify a specific issue; and

  (v) prepares and submits a hearing report to the Executive Secretary at the conclusion of the proceedings in consultation with panel members and the timelines of this rule.

  (2)(a) UPPAC shall select three or more individuals to serve as members of the hearing panel.

  (b) The majority of panel members shall be current UPPAC members.

  (c) As directed by UPPAC, a licensed educator or member of the community may serve as a panel member, if needed.

  (d) UPPAC shall select panel members on a rotating basis to the extent practicable.

  (e) UPPAC shall accommodate each prospective panel member based on the availability of the panel member.

  (f) If the respondent is a teacher, at least one panel member shall be a teacher.

  (g) If the respondent is a non-teacher licensed educator, at least one panel member shall be a non-teacher licensed educator.

  (3) The requirements of Subsection (2) may be waived only upon the stipulation of both UPPAC and the respondent.

  (4)(a) A UPPAC panel member shall:

  (i) assist a hearing officer by providing information concerning professional standards and practices of educators in the respondent's particular field of practice and in the situations alleged;

  (ii) ask a question of a witness to clarify a specific issue;

  (iii) review all evidence and briefs, if any, presented at the hearing;

  (iv) make a recommendation to UPPAC as to the suggested disposition of a complaint; and

  (v) assist the hearing officer in preparing the hearing report.

  (b) A panel member may only consider the evidence approved for admission by the hearing officer.

  (c) The Executive Secretary may make an emergency substitution of a panel member for cause with the consent of the parties.

  (d) The agreement to substitute a panel member shall be in writing.

  (e) Parties may agree to a two-member UPPAC panel in an emergency situation.

  (f) If the parties do not agree to a substitution or to having a two-member panel, the Executive Secretary shall reschedule the hearing.

  (5)(a) A party may request that the Executive Secretary disqualify a hearing officer by submitting a written request for disqualification to the Executive Secretary.

  (b) A party shall submit a request to disqualify a hearing officer to the Executive Secretary at least 15 days before a scheduled hearing.

  (6)(a) The Executive Secretary shall review a request described in Subsection (5) and supporting evidence to determine whether the reasons for the request are substantial and compelling.

  (b) If the Executive Secretary determines that the hearing officer should be disqualified, the Executive Secretary shall appoint a new hearing officer and, if necessary, reschedule the hearing.

  (7) A hearing officer may recuse himself or herself from a hearing if, in the hearing officer's opinion, the hearing officer's participation would violate any of the Utah Rules of Professional Conduct consistent with the Supreme Court Rules of Professional Practice.

  (8)(a) If the Executive Secretary denies a request to disqualify a hearing officer described in Subsection (5), the Executive Secretary shall notify the party within ten days prior to the date of the hearing.

  (b) The requesting party may submit a written appeal of the Executive Secretary's denial to the Superintendent no later than five days prior to the hearing date.

  (c) If the Superintendent finds that the appeal is justified, the Superintendent shall direct the Executive Secretary to appoint a new hearing officer and, if necessary, reschedule the hearing.

  (d) The decision of the Superintendent described in Subsection (8)(c) is final.

  (e) If a party fails to file an appeal within the time requirements of Subsection (8)(b), the appeal shall be deemed denied.

  (f) If the Executive Secretary fails to meet the time requirements described in Subsection (6) or (8), the request or appeal is approved.

  (9)(a) A UPPAC member shall recuse himself or herself 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 the panel member believes would compromise the panel member's ability to make an impartial decision.

  (b) A party may request that a UPPAC panel member be disqualified by submitting a written request to the following:

  (i) the hearing officer; or

  (ii) to the Executive Secretary if there is no hearing officer.

  (c) A party shall submit a request described in Subsection (9)(b) no less than 15 days before a scheduled hearing.

  (d) The hearing officer, or the Executive Secretary, if there is no hearing officer, shall:

  (i) review a request described in Subsection (9)(b) and supporting evidence to determine whether the reasons for the request are substantial and compelling enough to disqualify the panel member; and

  (ii) if the reasons for the request described in Subsection (9)(b) are substantial and compelling, disqualify the panel member.

  (e) If the panel member's disqualification leaves the hearing panel with fewer than three UPPAC panel members:

  (i) UPPAC shall appoint a replacement; and

  (ii) the Executive Secretary shall, if necessary, reschedule the hearing.

  (f) If a request described in Subsection (9)(b) is denied, the hearing officer or the Executive Secretary if there is no hearing officer, shall notify the party requesting the panel member's disqualification no less than ten days prior to the date of the hearing.

  (g) The requesting party may file a written appeal of a denial described in Subsection (9)(f) with the Superintendent no later than five days prior to the hearing date.

  (h) If the Superintendent finds that an appeal described in Subsection (9)(g) is justified, the Superintendent shall direct the hearing officer or the Executive Secretary if there is no hearing officer, to replace the panel member.

  (i) If a panel member's disqualification leaves the hearing panel with fewer than three UPPAC panel members, UPPAC shall agree upon a replacement and the Executive Secretary shall, if necessary, reschedule the hearing.

  (j) The decision of the Superintendent described in Subsection (9)(h) is final.

  (k) If a party fails to file an appeal within the time requirements of Subsection (9)(g), the appeal shall be deemed denied.

  (l) If the hearing officer, or the Executive Secretary if there is no hearing officer, fails to meet the time requirements described in this Subsection (9), the request or appeal is approved.

  (10) The Executive Secretary may, at the time the Executive Secretary selects a hearing officer or panel member, select an alternative hearing officer or panel member following the process for selecting those individuals.

  (11) The Executive Secretary may substitute a panel member with an alternative panel member if the Executive Secretary notifies the parties of the substitution.