DAR File No. 39585
This rule was published in the September 1, 2015, issue (Vol. 2015, No. 17) of the Utah State Bulletin.
Education, Administration
Rule R277-200
Utah Professional Practices Advisory Commission (UPPAC), Definitions
Notice of Proposed Rule
(Amendment)
DAR File No.: 39585
Filed: 08/13/2015 01:39:19 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
This rule is amended to provide add a new definition, remove definitions provided for in another definitions rule, and to make technical and conforming changes throughout the rule.
Summary of the rule or change:
A new definition is added to the rule, some definitions are removed as appropriate, and conforming and technical changes are provided throughout the rule.
State statutory or constitutional authorization for this rule:
- Subsection 53A-1-401(3)
- Article X, Section 3
- Section 53A-6-306
Anticipated cost or savings to:
the state budget:
Adding and removing definitions and making conforming and technical changes throughout the rule will likely not result in a cost or savings to the state budget.
local governments:
Adding and removing definitions and making conforming and technical changes throughout the rule will likely not result in a cost or savings to local government.
small businesses:
Adding and removing definitions and making conforming and technical changes throughout the rule will likely not result in a cost or savings to small businesses.
persons other than small businesses, businesses, or local governmental entities:
Adding and removing definitions and making conforming and technical changes throughout the rule will likely not result in a cost or savings to persons other than small businesses, businesses, or local government entities.
Compliance costs for affected persons:
Adding and removing definitions and making conforming and technical changes throughout the rule will likely not result in any compliance costs for affected persons.
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:
EducationAdministration
250 E 500 S
SALT LAKE CITY, UT 84111-3272
Direct questions regarding this rule to:
- Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at [email protected]
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:
10/01/2015
This rule may become effective on:
10/08/2015
Authorized by:
Benjamin Rasmussen, UPPAC Director and Special Counsel
RULE TEXT
R277. Education, Administration.
R277-200. Utah Professional Practices Advisory Commission (UPPAC), Definitions.
R277-200-1. Authority and Purpose.
[A.](1) This rule is authorized [under]by:
(a) Utah Constitution Article X, Section 3
, which vests general control and supervision over public
education in the Board[,];
(b) [by ]Section 53A-6-306
, which directs the Board to adopt rules regarding UPPAC
duties and procedures[,]; and
(c) [by ]S
ubsection 53A-1-401(3)
, which allows the Board to adopt rules in accordance with
its responsibilities.
[B.](2) The purpose of this rule is to establish definitions for
terms in UPPAC activities.
[C.](3) The definitions contained in this rule apply to [r]Rules R277-200 through R277-20[6]7. Any calculation of time called for by these rules shall
be governed by Utah R. Civ. P. 6.
R277-200-2. Definitions.
[A](1)
(a) "Action" means a disciplinary action taken by
the Board adversely affecting an educator's license.
([2]b) "Action" does not include a disciplinary
letter.
([3]c) "Action" includes:
([a]i) a letter of reprimand;
([b]ii) probation;
([c]iii) suspension; and
([d]iv) revocation.
[B.](2) "Administrative hearing" or
"hearing" has the same meaning as that term is defined in
Section 53A-6-601.
[C.](3) "Alcohol related offense" means:
([1]a) driving under the influence;
([2]b) alcohol-related reckless driving or impaired driving;
([3]c) intoxication;
([4]d) driving with an open container;
([5]e) unlawful sale or supply of alcohol;
([6]f) unlawful permitting of consumption of alcohol by
minors;
([7]g) driving in violation of an alcohol or interlock
restriction; and
(8) any offense under the laws of another
state that is substantially equivalent to the offenses described in
Subsections [R277-200-2C(1) through (7)](3)(a) through (g).
[D.](4) "Allegation of misconduct" means a written
report alleging that an educator:
([1]a) has engaged in unprofessional or criminal conduct;
([2]b) is unfit for duty;
([3]c) has lost the educator's license in another state due
to revocation or suspension, or through voluntary surrender or
lapse of a license in the face of a claim of misconduct; or
([4]d) has committed some other violation of standards of
ethical conduct, performance, or professional competence as
provided in
Rule R277-515.
[E.](5) "Answer" means a written response to a
complaint filed by USOE alleging educator misconduct.
[F.](6) "Applicant" means a person seeking:
([1]a) a new license;
([2]b) reinstatement of an expired, surrendered, suspended, or
revoked license; or
([3]c) clearance of a criminal background review from USOE at
any stage of the licensing process.
[G. "Board" means the Utah State Board of
Education.
] [H.](7) "Chair" means the Chair of UPPAC.
[I.](8) "Complaint" means a written allegation or
charge against an educator filed by USOE against the educator.
[J.](9) "Complainant" means the Utah State Office of
Education.
[K.](10) "Comprehensive Administration of Credentials for
Teachers in Utah Schools (CACTUS)" means the electronic file
developed by the USOE and maintained on all licensed Utah
educators.
[L](1
1)
(a) "Conviction" means the final disposition of a
judicial action for a criminal offense, except in cases of a
dismissal on the merits.
([2]b) "Conviction" includes:
([a]i) a finding of guilty by a judge or jury;
([b]ii) a guilty or no contest plea;
([c]iii) a plea in abeyance; and
([d]iv) for purposes of this rule, a conviction that has been
expunged.
[M.](12) "Criminal Background Review" means the
process by which the Executive Secretary, UPPAC, and the Board
review information pertinent to:
([1]a) a charge revealed by a criminal background check;
([2]b) a charge revealed by a hit as a result of ongoing
monitoring; or
([3]c) an educator or applicant's self-disclosure.
[N](1
3)
(a) "Disciplinary letter" means a letter issued to
a respondent by the Board as a result of an investigation into an
allegation of educator misconduct.
([2]b) "Disciplinary letter" includes:
([1]i) a letter of admonishment;
([2]ii) a letter of warning; and
([3]iii) any other action that the Board takes to discipline an
educator for educator misconduct that does not rise to the level of
an action as defined in this [R277-200-2]section.
[O.](14) "Drug" means controlled substance as defined
in Section 58-37-2.
[P.](15) "Drug related offense" means any criminal
offense under:
([1]a) Title 58, Chapter 37;
([2]b) Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
([3]c) Title 58, Chapter 37b, Imitation Controlled Substances
Act;
([4]d) Title 58, Chapter 37c, Utah Controlled Substance
Precursor Act;
([5]e) Title 58, Chapter 37d, Clandestine Drug Lab Act; and
([6]f) Title 58, Chapter 37e, Drug Dealer's Liability
Act.
Sections 58-37 through 37e.
[Q. "Educator" means a person:
(1) who currently holds a license;
(2) who held a license at the time of an alleged
offense;
(3) is a person who is student teaching in anticipation
of seeking a license;
(4) is an applicant for a license;
(5) is a licensure candidate through the Alternate Route
to Licensure, "ARL," program; or
(6) who has applied to the Alternate Route to Licensure,
"ARL" program.
] [R.](16) "Educator Misconduct" means:
([1]a) unprofessional or criminal conduct;
([2]b) conduct that renders an educator unfit for duty; or
([3]c) conduct that is a violation of standards of ethical
conduct, performance, or professional competence as provided in
Rule R277-515.
[S.](17) "Executive Committee" means a subcommittee of
UPPAC consisting of the following members:
([1]a) Executive Secretary;
([2]b) Chair;
([3]c) Vice-Chair; and
([4]d) one member of UPPAC at large.
[T.](18) "Executive Secretary" means an employee of
USOE who:
([1]a) is appointed by the State Superintendent of Public
Instruction to serve as the UPPAC Director; and
([2]b) serves as a non-voting member of UPPAC, consistent with
Section 53A-6-302.
[U.](19) "Expedited Hearing" means an informal hearing
aimed at determining an Educator's fitness to remain in the
classroom held as soon as possible following an arrest, citation,
or charge for a criminal offense requiring mandatory self-reporting
under
Section R277-516-3.
[V.](20) "Expedited Hearing Panel" means a panel of
the following three members:
([1]a) the Executive Secretary;
([2]b) a voting member of UPPAC; and
([3]c) a UPPAC prosecutor.
[W.](21) "Final action" means an action by the Board
that concludes an investigation of an allegation of misconduct
against a licensed educator.
[X.](22) "GRAMA" refers to the Government Records
Access and Management Act, Title 63G, Chapter 2, Government Records
Access and Management Act.
[Y.](23) "Hearing officer" means a licensed attorney
who:
([1]a) is experienced in matters relating to administrative
procedures;
([2]b) is appointed by the Executive Secretary to manage the
proceedings of a hearing;
([3]c) is not an acting member of UPPAC;
([4]d) has authority, subject to the limitations of these rules,
to regulate the course of the hearing and dispose of procedural
requests; and
(5) does not have a vote as to the recommended disposition of a case.
[Z.](24) "Hearing panel" means a panel of three or
more individuals designated to:
([1]a) hear evidence presented at a hearing;
([2]b) make a recommendation to UPPAC as to disposition; and
([3]c) collaborate with the hearing officer in preparing a
hearing report.
[AA.](25) "Hearing report" means a report that:
([1]a) is prepared by the hearing officer consistent with the
recommendations of the hearing panel at the conclusion of a
hearing; and
([2]b)includes:
([a]i) a recommended disposition;
([b]ii) detailed findings of fact and conclusions of law, based
upon the evidence presented in the hearing, relevant precedent;
and
([c]iii) applicable law and rule.
[BB.](26) "Informant" means a person who submits
information to UPPAC concerning the alleged misconduct of an
educator.
[CC.](27) "Investigator" means an employee of the USOE,
or independent investigator selected by the Board, who:
([1]a) is assigned to investigate allegations of educator
misconduct under UPPAC supervision;
([2]b) offers recommendations of educator discipline to UPPAC
and the Board at the conclusion of the investigation;
([3]c) provides an independent investigative report for UPPAC
and the Board; and
([4]d) may also be the prosecutor but does not have to be.
[DD.](28) "Investigative report" means a written report
of an investigation into allegations of educator misconduct,
prepared by an Investigator that:
([1]a) includes a brief summary of the allegations, the
investigator's narrative, and a recommendation for UPPAC and
the Board;
([2]b) may include a rationale for the recommendation, and
mitigating and aggravating circumstances;
([3]c) is maintained in the UPPAC Case File; and
([4]d) is classified as protected under Subsection 63G-2-305(34).
[EE.](29) "LEA" or "local education agency" [means a school district, charter school or, ]for
purposes of this rule[,]
includes the Utah Schools for the Deaf and the Blind.
[FF.](30) "Letter of admonishment" is a letter sent by
the Board to an educator cautioning the educator to avoid or take
specific actions in the future.
[GG.](31) "Letter of reprimand" is a letter sent by the
Board to an educator:
([1]a) for misconduct that was longer term or more seriously
unethical or inappropriate than conduct warranting a letter of
warning, but not warranting more serious discipline;
([2]b) that provides specific directives to the educator as a
condition for removal of the letter;
([3]c) appears as a notation on the educator's CACTUS file;
and
([4]d) that an educator can request to be removed from the
educator's CACTUS file after two years, or after such other
time period as the Board may prescribe in the letter of
reprimand.
[HH.](32) "Letter of warning" is a letter sent by the
Board to an educator:
([1]a) for misconduct that was inappropriate or unethical;
and
([2]b) that does not warrant longer term or more serious
discipline.
[II.](33) "License" means a teaching or administrative
credential, including an endorsement, which is issued by the Board
to signify authorization for the person holding the license to
provide professional services in Utah's public schools.
[JJ.](34) "Licensed educator" means an individual
issued a teaching or administrative credential, including an
endorsement, issued by the Board to signify authorization for the
individual holding the license to provide professional services in
Utah's public schools.
[KK.](35) "National Association of State Directors of
Teacher Education and Certification (NASDTEC) Educator Information
Clearinghouse" means a database maintained by NASDTEC for the
members of NASDTEC regarding persons whose licenses have been
suspended or revoked.
[LL.](36) "Notification of Alleged Educator Misconduct"
means the official UPPAC form that may be accessed on UPPAC's
internet website, and may be submitted by any person, school, or
LEA that alleges educator misconduct.
[MM.](37) "Party" means a complainant or a
respondent.
[NN.](38) "Petitioner" means an individual seeking:
([1]a) an educator license following a denial of a license;
([2]b) reinstatement following a license suspension; or in the
event of compelling circumstances, reinstatement following a
license revocation.
[OO.](39) "Probation" is an action directed by the
Board that:
([1]a) involves monitoring or supervision for a designated time
period, usually accompanied by a disciplinary letter;
([2]b) may require the educator to be subject to additional
monitoring by an identified person or entity;
([3]c) may require the educator to be asked to satisfy certain
conditions in order to have the probation lifted;
([4]d) may be accompanied by a letter of reprimand, which shall
appear as a notation on the educator's CACTUS file; and
([5]e) unless otherwise specified, lasts at least two years and
may be terminated through a formal petition to the Board by the
respondent.
[PP.](40) "Prosecutor" means an attorney who:
([1]a) is designated by the Superintendent to represent the
complainant and present evidence in support of the complaint;
and
([2]b) may also be the investigator, but does not have to
be.
[QQ.](41) "Revocation" means a permanent invalidation
of a Utah educator license consistent with
Rule R277-517.
[RR.](42) "Respondent" means an educator against
whom:
([1]a) a complaint is filed; or
([2]b) an investigation is undertaken.
[SS.](43) "Serve" or "service," as used to
refer to the provision of notice to a person, means:
([1]a) delivery of a written document or its contents to the
person or persons in question; and
([2]b) delivery that may be made in person, by mail, by
electronic correspondence, or by any other means reasonably
calculated, under all of the circumstances, to notify an interested
person or persons to the extent reasonably practical or practicable
of the information contained in the document.
(44) "Sexually explicit conduct" means the same as that term is defined in Section 76-5b-103.
[TT.](45) "Stipulated agreement" means an agreement
between a respondent and the Board:
([1]a) under which disciplinary action is taken against the
educator in lieu of a hearing;
([2]b) that may be negotiated between the parties and becomes
binding:
([a]i) when approved by the Board; and
([b]ii) at any time after an investigative letter has been
sent;
([3]c) is a public document under GRAMA unless it contains
specific information that requires redaction or separate
classification of the agreement.
[UU. "Superintendent" means the State
Superintendent of Public Instruction or the Superintendent's
designee.
] [VV]([1]46)(a) "Suspension" means an invalidation of a Utah
educator license.
([2]b) "Suspension" may:
([a]i) include specific conditions that an educator must
satisfy; and
([b]ii) may identify a minimum time period that must elapse
before the educator may request a reinstatement hearing before
UPPAC.
[WW.](47) "Utah Professional Practices Advisory Commission
" or "[(]UPPAC[)]" means an advisory commission established
to assist and advise the Board in matters relating to the
professional practices of educators, established in Section
53A-6-301.
[XX.](48) "UPPAC Background Check File" means a file
maintained securely by UPPAC on a criminal background review
that:
([1]a) contains information obtained from:
([a]i) BCI; and
([b]ii) letters, police reports, court documents, and other
materials as provided by an educator; and
([2]b) is classified as private under S
ubsection 63G-2-302(2).
[YY.](49) "UPPAC Case File" means a file:
([1]a) maintained securely by UPPAC on an investigation into
educator misconduct;
([2]b) opened following UPPAC's direction to investigate
alleged misconduct;
([3]c) that contains the original notification of misconduct
with supporting documentation, correspondence with the Executive
Secretary, the investigative report, the stipulated agreement, the
hearing report, and the final disposition of the case;
([4]d) that is classified as protected under S
ubsection 63G-2-305(10) until the investigation and any
subsequent proceedings before UPPAC and the Board are completed;
and
([5]e) that after a case proceeding is closed, is considered
public under GRAMA, unless specific documents contained therein
contain non-public information or have been otherwise classified as
non-public under GRAMA, in which case the file may be redacted or
partially or fully restricted.
[ZZ.](50) "UPPAC Evidence File" means a file:
([1]a) maintained by the attorney assigned by UPPAC to
investigate a case containing materials, written or otherwise,
obtained by the UPPAC investigator during the course of the
attorney's investigation;
([2]b) that contains correspondence between the Investigator and
the educator or the educator's counsel;
([3]c) that is classified as protected under S
ubsection 63G-2-305(10) until the investigation and any
subsequent proceedings before UPPAC and the Board are completed;
and
([4]d) that is considered public under GRAMA after case
proceedings are closed, unless specific documents contained therein
contain non-public information or have been otherwise classified as
non-public under GRAMA.
[AAA.](51) "UPPAC investigative letter" means a letter
sent by UPPAC to an educator notifying the educator that an
allegation of misconduct has been received against him and that
UPPAC or the Board has directed that an investigation of the
educator's alleged actions take place.
[BBB.](52) "UPPAC Prosecutor File" means a file:
([1]a) that is kept by the attorney assigned by UPPAC to
investigate and/or prosecute a case that contains:
([a]i) the attorney's notes prepared in the course of
investigation; and
([b]ii) other documents prepared by the attorney in anticipation
of an eventual hearing; and
([2]b) that is classified as protected pursuant to S
ubsection 63G-2-305(18).
[CCC. "USOE" means the Utah State Office of
Education.
]
KEY: professional practices, definitions, educators
Date of Enactment or Last Substantive Amendment: [
July 8,
]2015
Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-6-306; 53A-1-401(3)
Additional Information
More information about a Notice of Proposed Rule is available online.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2015/b20150901.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at [email protected]. For questions about the rulemaking process, please contact the Division of Administrative Rules.