R277-212-13. Hearing Report

  (1) Within 20 days after the hearing, or within 20 days after the deadline imposed for the filing of any post-hearing materials as permitted by the hearing officer, the hearing officer shall sign and issue a hearing report consistent with the recommendations of the panel that includes:

  (a) detailed findings of fact and conclusions of law based upon the evidence of record or on facts officially noted;

  (b) a statement of relevant precedent, if available;

  (c) a statement of applicable law and rule;

  (d) presumptions applied by UPPAC;

  (e) mitigating and aggravating circumstances considered by UPPAC;

  (f) a recommended disposition of UPPAC panel members that shall be one or an appropriate combination of the following:

  (i) dismissal of the complaint;

  (ii) letter of admonishment;

  (iii) letter of warning;

  (iv) letter of reprimand;

  (v) probation, to include the following terms and conditions:

  (A) it is the respondent's responsibility to petition UPPAC for removal of probation and letter of reprimand from the respondent's CACTUS file;

  (B) a recommended minimum probationary time;

  (C) conditions that can be monitored;

  (D) if recommended by the panel, a person or entity to monitor a respondent's probation;

  (E) a statement providing for costs of probation, if appropriate; and

  (F) whether or not the respondent may work in any capacity in public education during the probationary period;

  (vi) disciplinary action held in abeyance;

  (vii) suspension, to include the following terms and conditions:

  (A) a recommended minimum time period consistent with R277-215 after which an educator may request a reinstatement hearing under Rule R277-213; and

  (B) any recommended conditions precedent to requesting a reinstatement hearing under Section R277-213-2; or

  (viii) revocation; and

  (g) notice that UPPAC's recommendation is subject to approval by the Board and judicial review as may be allowed by law.

  (2) Findings of fact may not be based solely upon hearsay, and conclusions shall be based upon competent evidence.

  (3) Any of the consequences described in Subsection (1)(d) may be imposed in the form of a disciplinary action held in abeyance.

  (4)(a) If the respondent's penalty is held in abeyance, the respondent's penalty is stayed subject to the satisfactory completion of probationary conditions.

  (b) The decision to impose a consequence in the form of a disciplinary action held in abeyance shall provide for appropriate or presumed discipline if the respondent does not fully satisfy the probationary conditions.

  (5)(a) A hearing officer shall circulate a draft report to hearing panel members prior to the 20 day completion deadline of the hearing report.

  (b) Hearing panel members shall notify the hearing officer of any changes to the report:

  (i) as soon as possible after receiving the report; and

  (ii) prior to the 20 day completion deadline of the hearing report.

  (c) The hearing officer shall file the completed hearing report with the Executive Secretary, who shall review the report with UPPAC.

  (d) The Executive Secretary may participate in UPPAC's deliberation as a resource to UPPAC in explaining the hearing report and answering any procedural questions raised by UPPAC members.

  (e) The hearing officer may confer with the Executive Secretary or the panel members or both while preparing the hearing report.

  (f) The hearing officer may request the Executive Secretary to confer with the hearing officer and panel following the hearing.

  (g) The Executive Secretary may return a hearing report to a hearing officer if the report is incomplete, unclear, or unreadable, or missing essential components or information.

  (h) UPPAC shall vote to uphold the hearing officer's and panel's report if UPPAC finds that:

  (i) there are no significant procedural errors;

  (ii) the hearing officer's recommendations are based upon a preponderance of the evidence presented at the hearing; and

  (iii) that all issues explained in the hearing report are adequately addressed in the conclusions of the report.

  (i) After the UPPAC review, the Executive Secretary shall send a copy of the hearing report to:

  (i) the Board for further action;

  (ii) the respondent; and

  (iii) the UPPAC case file.

  (6)(a) If UPPAC adopts a hearing report that recommends an action, as defined in Subsection R277-210-2(1), either party may request review by the Superintendent within 15 days from the date the Executive Secretary sends a copy of the hearing report to the respondent.

  (b) The request for review shall consist of:

  (i) the name, position, and address of the appellant;

  (ii) the issue being appealed; and

  (iii) the signature of the appellant or the appellant's representative.

  (c) An appeal to the Superintendent is limited to a question of fairness or a violation of due process.

  (d) If the Superintendent finds that a procedural error has occurred that violates fairness or due process, the Superintendent shall:

  (i) refer the report back to UPPAC for reconsideration as to whether the findings, conclusions, or decisions are supported by a preponderance of the evidence; or

  (ii) direct the UPPAC Executive Secretary to take specific administrative action.

  (e) After UPPAC completes reconsideration, the Superintendent shall:

  (i) notify all parties; and

  (ii) refer the report to the Board, if necessary, for final disposition consistent with this rule.

  (7) If the Board does not approve a UPPAC hearing report, the Board may:

  (a) remand the case to UPPAC with direction to cure due process issues; or

  (b) direct the Executive Secretary to make other evidence available pursuant to Section R277-212-14 before issuing a final decision with official findings; or

  (c) issue findings based on the UPPAC hearing record and report:

  (i) specifying the reasons, including presumptions and the mitigating and aggravating circumstances the Board considered, why the Board disapproves of the hearing report;

  (ii) adopting the Board's decision on the matter; and

  (iii) directing the Executive Secretary to include the findings as an addendum to the hearing report, which findings constitute final Board action; or

  (d) take other appropriate action consistent with due process and R277-215.

  (8) Following Board adoption of a hearing report or the Board's decision under Subsection (7)(b), the Executive Secretary shall:

  (a) notify the educator;

  (b) notify the educator's employer;

  (c) update CACTUS to reflect the Board's action; and

  (d) report the action to the NASDTEC Educator Information Clearing house if the action results in:

  (i) a revocation;

  (ii) a suspension;

  (iii) probation; or

  (iv) a letter of reprimand.

  (9) The hearing report is a public document under Title 63G, Chapter 2, Government Records Access and Management Act after final action is taken in the case, but may be redacted if it is determined that the hearing report contains particular information, the dissemination of which is otherwise restricted under the law.

  (10) A respondent's failure to comply with the terms of a final disposition may result in additional discipline against the educator license.

  (11) If a hearing officer fails to satisfy the hearing officer's responsibilities under this rule, the Executive Secretary may:

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

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

  (c) take timely action to avoid disadvantaging either party; or

  (d) preclude the hearing officer from further employment by the Board for UPPAC purposes.

  (12) The Executive Secretary may waive the deadlines within this section if the Executive Secretary finds good cause.

  (13) All criteria of letters of warning and reprimand, probation, suspension, and revocation apply to the comparable sections of the final hearing report.