R277. Education, Administration. R Utah Professional Practices Advisory Commission (UPPAC), Rules

Transcription

1 1 R277. Education, Administration. 2 R Utah Professional Practices Advisory Commission (UPPAC), Rules 3 of Procedure: Notification to Educators, Complaints and Final Disciplinary 4 Actions. 5 R Authority and Purpose. 6 (1) This rule is authorized by: 7 (a) Utah Constitution Article X, Section 3, which vests general control and 8 supervision over public education in the Board; 9 (b) Section 53A-6-306, which directs the Board to adopt rules regarding 10 UPPAC duties and procedures; and (c) S[ubs]ection 53A-1-401[(3)], which allows the Board to [adopt rules in accordance with its responsibilities]make rules to execute the Board s duties and 13 responsibilities under the Utah Constitution and state law. 14 (2) The purpose of this rule is to provide procedures regarding: 15 (a) notifications of alleged educator misconduct; 16 (b) review of notifications by UPPAC; and 17 (c) complaints, proposed stipulated agreements, approved stipulated 18 agreements, and defaults. 19 (3) Except as provided in Subsection(4), Title 63G, Chapter 4, Administrative 20 Procedures Act does not apply to this rule under the exemption of Subsection 21 63G-4-102(2)(d). 22 (4) UPPAC may invoke and use sections or provisions of Title 63G, Chapter 23 4, Administrative Procedures Act as necessary to adjudicate an issue. 24 R Initiating Proceedings Against Educators. 25 (1) The Executive Secretary may refer a case to UPPAC to make a 26 determination if an investigation should be opened regarding an educator: 27 (a) upon receiving a notification of alleged educator misconduct; or 28 (b) upon the Executive Secretary's own initiative. 29 (2) An informant shall submit an allegation to the Executive Secretary in 30 writing, including the following: 31 (a) the informant s: 1

2 32 (i) name; 33 (ii) position, such as administrator, teacher, parent, or student; 34 (iii) telephone number; 35 (iv) address; and 36 (v) contact information; 37 (b) information of the educator against whom the allegation is made: 38 (i) name; 39 (ii) position, such as administrator, teacher, candidate; and 40 (iii) if known, the address and telephone number; 41 (c) the facts on which the allegation is based and supporting information; and 42 (d) signature of the informant and date. 43 (3) If an informant submits a written allegation of misconduct as provided in 44 this rule, the informant may be notified of a final action taken by the Board regarding 45 the allegation. 46 (4)(a) Proceedings initiated upon the Executive Secretary's own initiative may 47 be based on information received through a telephone call, letter, newspaper article, 48 media information, notice from another state, or by other means. 49 (b) The Executive Secretary may also recommend an investigation based on 50 an anonymous allegation, notwithstanding the provisions of this rule, if the allegation 51 bears sufficient indicia of reliability. 52 (5) The Executive Secretary shall maintain [A]all written allegations, 53 subsequent dismissals, actions, or disciplinary letters related to a case against an 54 educator shall be maintained permanently in the UPPAC case file. 55 R Review of Notification of Alleged Educator Misconduct. 56 (1)(a) [On reviewing the]upon receipt of a notification of alleged educator 57 misconduct, the Executive Secretary[, the Executive Committee, or both,] shall 58 recommend one of the following to UPPAC: 59 (i) dismiss the matter if UPPAC determines that alleged misconduct does not 60 involve an issue that UPPAC should address; or 61 (ii) initiate an investigation if UPPAC determines that the alleged misconduct 62 involves an issue that may be appropriately addressed by UPPAC and the Board. 2

3 63 (b) If the Executive Secretary[ or Executive Committee] recommends UPPAC 64 initiate an investigation: 65 (i) UPPAC shall initiate an investigation; and 66 (ii) the Executive Secretary shall direct a UPPAC investigator to gather 67 evidence relating to the allegations. 68 (2)(a) Prior to a UPPAC investigator's initiation of an investigation, the 69 Executive Secretary shall send a letter to the following with information that UPPAC 70 has initiated an investigation: 71 (i) the educator to be investigated; 72 (ii) the LEA that employs the educator; and 73 (iii) the LEA where the alleged activity occurred. 74 (b) A letter described in Subsection(2)(a) shall inform the educator and the 75 LEA that an investigation shall take place and is not evidence of unprofessional 76 conduct. 77 (c) UPPAC shall place a flag on the educator's CACTUS file after sending the 78 notices as provided in this rule. 79 (3)(a) The investigator shall review relevant documentation and interview 80 individuals who may have knowledge of the allegations. 81 (b) The investigator shall prepare an investigative report of the findings of the 82 investigation and a recommendation for appropriate action or disciplinary letter. 83 (c) If the investigator discovers additional evidence of unprofessional conduct 84 that could have been included in the original notification of alleged educator 85 misconduct, the investigator may include the additional evidence of misconduct in the 86 investigative report. 87 (d) The investigator shall submit the investigative report to the Executive 88 Secretary. 89 (e) The Executive Secretary shall review the investigative report described in 90 Subsection(3)(d) with UPPAC. 91 (f) The investigative report described in Subsection(3)(d) shall become part 92 of the UPPAC case file. 93 (4) UPPAC shall review the investigative report and take one of the following 94 actions: 3

4 95 (a) UPPAC determines no further action should be taken, UPPAC may 96 recommend that the Board dismiss the case; or 97 (b) UPPAC may make an initial recommendation of appropriate action or 98 disciplinary letter. 99 (5) After receiving an initial recommendation from UPPAC for action, the 100 Executive Secretary shall direct a UPPAC [prosecutor]attorney to: 101 (a) prepare and serve a complaint; or 102 (b) negotiate and prepare a proposed stipulated agreement. 103 (6)(a) A proposed stipulated agreement shall conform to the requirements set 104 forth in Section R (b) An educator may stipulate to any recommended disposition for an action. 106 (7) The Executive Secretary shall forward any proposed stipulated agreement 107 to the Board for approval. 108 R Expedited Hearings. 109 (1) In a case involving the report of an arrest, citation, or charge of a licensed 110 educator, which requires self-reporting by the educator under Section R , 111 the Executive Secretary, with the consent of the educator, may schedule the matter 112 for an expedited hearing in lieu of initially referring the matter to UPPAC. 113 (2)(a) The Executive Secretary shall hold an expedited hearing within 30 days 114 of a report of an arrest, citation, or charge, unless otherwise agreed upon by both 115 parties. 116 (b) The Executive Secretary or the Executive Secretary s designee shall 117 conduct an expedited hearing with the following additional invited participants: 118 (i) the educator; 119 (ii) the educator's attorney or representative; 120 (iii) a UPPAC [prosecutor]attorney; 121 (iv) a voting member of UPPAC; and 122 (v) a representative of the educator's LEA. 123 (3) The panel may consider the following matters at an expedited hearing: 124 (a) an educator's oral or written explanation of the events; 125 (b) a police report; 4

5 126 (c) a court docket or transcript; 127 (d) an LEA s investigative report or employment file; and 128 (e) additional information offered by the educator if the panel deems it 129 probative of the issues at the expedited hearing. 130 (4) After reviewing the evidence described in Subsection (3), the expedited 131 hearing panel shall make written findings and a recommendation to UPPAC to do 132 one of the following: 133 (a) close the case; 134 (b) close the case upon completion of court requirements; 135 (c) recommend issuance of a disciplinary letter to the Board; 136 (d) open a full investigation; or 137 (e) recommend action by the Board, subject to an educator's due process 138 rights under these rules. 139 (5) An expedited hearing may be recorded, but the testimony from the 140 expedited hearing is inadmissible during a future UPPAC action related to the 141 allegation. 142 (6) If the Board fails to adopt the recommendation of an expedited hearing 143 panel, UPPAC shall open a full investigation. 144 R Complaints. 145 (1) If UPPAC determines that an allegation is sufficiently supported by 146 evidence discovered in the investigation,[ UPPAC, through] the Executive Secretary[, 147 may]shall direct the [prosecutor]uppac attorney to serve a complaint upon the 148 educator being investigated. 149 (2) At a minimum, a complaint shall include: 150 (a) a statement of legal authority and jurisdiction under which the action is 151 being taken; 152 (b) a statement of the facts and allegations upon which the complaint is 153 based; 154 (c) other information that the investigator believes is necessary to enable the 155 respondent to understand and address the allegations; 156 (d) a statement of the potential consequences if an allegation is found to be 5

6 157 true or substantially true; 158 (e) a statement that the respondent shall answer the complaint and request 159 a hearing, if desired, within 30 days of the date the complaint is mailed to the 160 respondent; 161 (f) a statement that the respondent is required to file a written answer 162 described in Subsection(2)(e) with the Executive Secretary; 163 (g) a statement advising the respondent that if the respondent fails to respond 164 within 30 days, a default judgment for revocation or a suspension of the educator s 165 license may occur for a term of five years or more; 166 (h) a statement that, if a hearing is requested, the hearing will be scheduled 167 no less than 25 days, nor more than 180 days, after receipt of the respondent's 168 answer, unless a different date is agreed to by both parties in writing; and (i) [a statement that the hearing is governed by these rules, with an internet address where the rules may be accessed]a copy of the applicable hearing rules as 171 required by Subsection 53A-6-604(2). 172 (3) On the Executive Secretary s own motion, the Executive Secretary, or the 173 Executive Secretary s designee, with notice to the parties, may reschedule a hearing 174 date. 175 (4)(a) A respondent may file an answer to a complaint by filing a written 176 response signed by the respondent or the respondent s representative with the 177 Executive Secretary within 30 days after the complaint is mailed. 178 (b) The answer may include a request for a hearing, and shall include: 179 (i) the file number of the complaint; 180 (ii) the names of the parties; 181 (iii) a statement of the relief that the respondent seeks; and 182 (iv) if not requesting a hearing, a statement of the reasons that the relief 183 requested should be granted. 184 (5)(a) As soon as reasonably practicable after receiving an answer, or no 185 more than 30 days after receipt of an answer at the USOE, the Executive Secretary 186 shall schedule a hearing, if requested by either party, as provided in Rule R (b) If the parties can reach an agreement prior to the hearing consistent with 188 the terms of UPPAC's initial recommendation, the [prosecutor]uppac attorney may 6

7 189 negotiate a proposed stipulated agreement with the respondent. 190 (c) A proposed stipulated agreement described in Subsection(5)(b) shall be 191 submitted to the Board for the Board s final approval. 192 (6)(a) If a respondent does not respond to the complaint within 30 days, the 193 Executive Secretary may initiate default proceedings in accordance with the 194 procedures set forth in Section R (b) Except as provided in Subsection R (3), if the Executive 196 Secretary enters an order of default, the Executive Secretary shall make a 197 recommendation to the Board for a revocation or a suspension of the educator=s 198 license for five years before the educator may request a reinstatement hearing. 199 (c) If a default results in a suspension, a default may include conditions that 200 an educator shall satisfy before the educator may qualify for a reinstatement hearing. 201 (d) An order of default shall result in a recommendation to the Board for a 202 revocation if the alleged misconduct is conduct identified in Subsection A-6-501(5)(b). 204 R Proposed Stipulated Agreements. 205 (1) At any time after UPPAC has made an initial recommendation, a 206 respondent may accept UPPAC's initial recommendation, rather than request a 207 hearing, by entering into a proposed stipulated agreement. 208 (2) By entering into a proposed stipulated agreement, a respondent waives 209 the respondent s right to a hearing to contest the recommended disposition, 210 contingent on final approval by the Board. 211 (3) At a minimum, the Executive Secretary shall include the following in a 212 stipulated agreement[ shall include] : 213 (a) a summary of the facts, the allegations, and the evidence relied upon by 214 UPPAC in its recommendation; 215 (b) a statement that the respondent admits the facts recited in the stipulated 216 agreement as true for purposes of the Board administrative action; 217 (c) a statement that the respondent: 218 (i) waives the respondent s right to a hearing to contest the allegations that 219 gave rise to the investigation; and 7

8 220 (ii) agrees to limitations on the respondent s license or surrenders the 221 respondent s license rather than contest the allegations; 222 (d) a statement that the respondent agrees to the terms of the proposed 223 stipulated agreement and other provisions applicable to the case, such as 224 remediation, counseling, restitution, rehabilitation, and other conditions, if any, under 225 which the respondent may request a reinstatement hearing or a removal of the letter 226 of reprimand or termination of probation; 227 (e) if for suspension or revocation of a license, a statement that the 228 respondent: 229 (i) may not seek or provide professional services in a public school in the 230 state; 231 (ii) may not seek to obtain or use an educator license in the state; or 232 (iii) may not work or volunteer in a public K-12 setting in any capacity without 233 express authorization from the UPPAC Executive Secretary, unless or until the 234 respondent: 235 (A) first obtains a valid educator license or authorization from the Board to 236 obtain such a license; or 237 (B) satisfies other provisions provided in the proposed stipulated agreement; 238 (f) a statement that the action and the proposed stipulated agreement shall 239 be reported to other states through the NASDTEC Educator Information 240 Clearinghouse and any attempt to present to any other state a valid Utah license 241 shall result in further licensing action in Utah; 242 (g) a statement that respondent waives the respondent s right to contest the 243 facts stated in the proposed stipulated agreement at a subsequent reinstatement 244 hearing, if any; 245 (h) a statement that all records related to the proposed stipulated agreement 246 shall remain permanently in the UPPAC case file;[ and] 247 (i) a statement reflecting the proposed stipulated agreement's classification 248 under Title 63G, Chapter 2, Government Records Access and Management Act[.]; 249 ([4]j) a statement that a violation of the terms of an approved stipulated 250 agreement may result in additional disciplinary action and may affect the 251 reinstatement process[.]; and 8

9 (k) a statement that the educator understands that the Board is not bound by UPPAC s recommendation or the negotiated proposed stipulated agreement unless the Board approves the proposed stipulated agreement. 255 ([5]4)(a) [A]The Executive Secretary shall forward a proposed stipulated 256 agreement[ shall be forwarded] to the Board for approval ii and (b) [Prior to consideration of a stipulated agreement, UPPAC shall: (i) make the UPPAC case file available to the Board for confidential review; (ii) make other evidence available for review as directed by the Board. (c) There is a presumption that the Board shall approve a stipulated agreement if the Board finds that: case. (i) a stipulated agreement is based on adequate evidence; and (ii) the terms of a stipulated agreement present a reasonable resolution of the (d) The Board may take other action as provided in this rule if it finds that: (i) a stipulated agreement is based on insufficient evidence; (ii) the terms of a stipulated agreement present an unreasonable resolution of the case consistent with: (A) R ; and (B) due process; or (iii) exceptional circumstances exist which warrant an alternative resolution. (e)(i) If the Board finds that a stipulated agreement is based on insufficient evidence, the Board may ]If the Board does not approve a proposed stipulated agreement, the Board may: 276 (i) [reject a stipulated agreement and ] direct UPPAC to hold a hearing if the 277 Board provides direction, in the form of a motion, as to what issues need to be addressed by UPPAC[.]; [(ii) The Executive Secretary shall notify the parties of the decision and the proceedings shall continue from the point under these procedures at which the stipulated agreement was negotiated, as if the stipulated agreement had not been submitted.] ([f]ii) [If the Board finds that the terms of a stipulated agreement present an 9

10 unreasonable resolution of a case, it may, by motion, ]provide alternative terms, by motion, to the Executive Secretary, that would be satisfactory to the Board[.]; or matter. (iii) direct the Executive Secretary to issue a disciplinary letter or dismiss the ([g]5) If[ accepted by] the respondent accepts a stipulated agreement with a 289 modified disposition proposed by the Board, the stipulated agreement, as modified, 290 is a final Board administrative action without further Board consideration. 291 ([h]6) If the terms approved by the Board are rejected by the respondent, the 292 proceedings shall continue from the point under these procedures at which the 293 agreement was negotiated, as if the stipulated agreement had not been submitted (7) If the Board directs UPPAC to hold a hearing under Subsection (4)(b)(i), the Executive Secretary shall: (a) notify the parties of the decision; (b) direct a UPPAC attorney to issue a complaint; and (c) direct the proceedings as if the proposed stipulated agreement had not been submitted. 300 ([i]8) If the Board approves a proposed stipulated agreement, the approval is 301 a final Board administrative action, effective upon signature by all parties, and the 302 Executive Secretary shall: 303 ([i]a) notify the parties of the decision; 304 ([ii]b) update CACTUS to reflect the action; 305 ([iii]c) report the action to the NASDTEC Educator Information Clearinghouse 306 if the agreement results in: 307 ([A]i) a revocation; or 308 ([b]ii) a suspension; and 309 ([iv]d) direct the appropriate penalties to begin [(6) If, after negotiating a stipulated agreement, a respondent fails to sign or respond to a proffered stipulated agreement within 30 days after the stipulated agreement is mailed, the Executive Secretary shall direct the prosecutor to prepare findings in default consistent with Section R ] 314 R Default Procedures. 10

11 (1) If a respondent does not respond to a complaint [or execute a negotiated stipulated agreement ]within 30 days from the date the complaint or approved 317 stipulated agreement is served, the Executive Secretary may issue an order of 318 default against the respondent consistent with the following: 319 (a) the[ prosecutor]executive Secretary shall prepare and serve on the 320 respondent an order of default including: 321 (i) a statement of the grounds for default; and 322 (ii) a recommended disposition if the respondent fails to file a response to a 323 complaint[ or respond to a proffered stipulated agreement] ; 324 (b) ten days following service of the order of default, [the prosecutor]a UPPAC 325 attorney shall attempt to contact respondent by telephone or electronically; 326 (c) UPPAC shall maintain documentation of attempts toward written, 327 telephonic, or electronic contact; 328 (d) the respondent has 20 days following service of the order of default to 329 respond to UPPAC; and 330 (e) if UPPAC receives a response from respondent to a default order before 331 the end of the 20 day default period, UPPAC shall allow respondent a final ten day 332 period to respond to a complaint[ or stipulated agreement]. 333 (2) Except as provided in Subsection (3), if an order of default is issued, the 334 Executive Secretary may make a recommendation to the Board for revocation or for 335 a suspension of the educator s license for no less than five years. 336 (3) If an order of default is issued, the Executive Secretary shall make a 337 recommendation to the Board for a revocation of the educator s license if the alleged 338 misconduct is conduct identified in Subsection 53A-6-501(5)(b). 339 R Disciplinary Letters and Dismissal. 340 (1) If UPPAC recommends issuance of a disciplinary letter or dismissal, the 341 Executive Secretary shall forward the case to the Board for review. 342 [(2) Prior to Board consideration of a disciplinary letter or dismissal, UPPAC 343 shall: 344 (a)] make the UPPAC case file available to the Board for confidential review; 345 and 11

12 (b) make other evidence available for review as directed by the Board. (3) There is a presumption that the Board shall approve a UPPAC disciplinary letter or dismissal recommendation if the Board finds that: case.] (a) the UPPAC recommendation is based on adequate evidence; and (b) the UPPAC recommendation constitutes a reasonable resolution of the ([4]2) If the Board [finds that the UPPAC recommendation is based on insufficient evidence or ]presents an unreasonable resolution of the case or exceptional circumstances exist that warrant an alternative resolution, then]does not approve a recommendation for a disciplinary letter or dismissal described in 356 Subsection (1), the Board may: 357 (a) remand the case to UPPAC for a hearing with direction from the Board, in 358 the form of a motion, as to what issues need to be addressed by UPPAC; 359 (b) remand the case to UPPAC with recommendations for negotiation of a 360 stipulated agreement; 361 (c) direct the Executive Secretary to issue a different level of disciplinary letter; 362 or 363 (d) dismiss the matter. 364 ([5]3) If the Board approves a disciplinary letter, the Executive Secretary shall: 365 (a) prepare the disciplinary letter and mail it to the educator; 366 (b) place a copy of the disciplinary letter in the UPPAC case file; and 367 (c) update CACTUS to reflect that the investigation is closed. 368 KEY: teacher licensing, conduct, hearings 369 Date of Enactment or Last Substantive Amendment: Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-6-306; 53A