Education, Administration

Rule R277-102

Adjudicative Proceedings

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 35534
Filed: 12/14/2011 02:39:13 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Following a thorough review and discussion of this rule, it was determined that this rule should be repealed and reenacted. The reenacted rule simplifies the process and specifies how adjudicative proceedings are conducted under the Utah State Board of Education (Board).

Summary of the rule or change:

Changes to the rule are as follows: Section R277-102-3 is simplified in the reenacted rule and a specific licensing/privilege with competing applicants issue is removed; Section R277-102-5 in the reenacted rule is simplified and establishes different timelines for Board action; Sections R277-102-6, R277-102-7, R277-102-8, R277-102-9, and R277-102-10 are combined in the reenacted rule to simplify the processes; default language in Section R277-102-7 of the reenacted rule is simplified; and a new Section R277-102-8 is added to the reenacted rule that provides for a recommendation from an adjudicative proceeding be provided to the Board.

State statutory or constitutional authorization for this rule:

• 53A-1-401(3)
• Section 63G-4-203

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget. This rule and changes are procedural and do not have any costs or savings associated with it.

local governments:

There are no anticipated costs or savings to local government. This rule and changes apply specifically to adjudicative proceedings involving the Utah State Board of Education.

small businesses:

There are no anticipated costs or savings to small businesses. This rule and changes apply to adjudicative proceedings involving the Utah State Board of Education and do not affect businesses.

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

There are no anticipated costs or savings to persons other than small businesses, businesses, or local government entities. The changes to this rule simplify the process for adjudicative proceedings involving the Utah State Board of Education resulting in a more streamlined process for individuals.

Compliance costs for affected persons:

There are no compliance costs for affected persons. This rule and the change are procedural and do not have any compliance costs associated with it.

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

I have reviewed this rule and I see no fiscal impact on businesses.

Larry K. Shumway, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Carol Lear at the above address, by phone at 801-538-7835, 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:

01/31/2012

This rule may become effective on:

02/07/2012

Authorized by:

Carol Lear, Director, School Law and Legislation

R277. Education, Administration.

[ R277-102. Adjudicative Proceedings.

R277-102-1. Definitions.

A. "Board" means the Utah State Board of Education, the State Board for Vocational Education, or a member of its staff authorized to administer a program or carry out duties under its jurisdiction.

B. "Presiding officer" means, in addition to the definition of 63G-4-103(h)(i), the Chair of the Board or any person designated to serve as the presiding officer.

C. "State Superintendent" means the State Superintendent of Public Instruction.

 

R277-102-2. Authority and Purpose.

A. This rule is authorized by Section 53A-1-401(3) which allows the Board to adopt rules in accordance with its responsibilities, and Section 63G-4-203 which directs agencies to make rules regarding adjudicative proceedings following the general designation of Board hearings as informal.

B. The purpose of this rule is to specify how adjudicative proceedings are conducted before the Board. All procedures shall be consistent with Title 63G, Chapter 4.

 

R277-102-3. Commencement of Adjudicative Proceedings.

A.(1) Any party to an initial determination made by the Board may initiate an adjudicative proceeding under the Administrative Procedures Act and this rule by filing a request for Board action on a form, Request for Board Action, provided by the Board, or by submitting in writing the information required on the form.

(2) the Board may initiate an adjudicative proceeding by filing a Notice of Board Action.

B. If the purpose of an adjudicative proceeding is to award a license or other privilege as to which there are multiple competing applicants, the Board may conduct, after written notice of such is given to all parties and without making an initial determination on the matter, a single adjudicative proceeding to determine the award of that license or privilege.

C. Each Notice of Board Action and Request for Board Action filed is assigned a number consisting of the year in which the notice or request is filed and another number showing its numerical position among the hearings filed during the year.

 

R277-102-4. Designation of Adjudicative Proceedings as Formal or Informal.

All proceedings conducted before the Board are initially designated as informal. The presiding officer designated for the proceeding may convert an informal proceeding to a formal proceeding and vice versa under Section 63G-4-202(3).

 

R277-102-5 Procedures for Informal Adjudicative Proceedings.

A. No answer or other pleading is required of a respondent in an informal adjudicative proceeding. The respondent may file with the presiding officer a written response containing the information required by Section 63G-4-204.

B. The Board shall only hold a hearing on the matter if a party to the matter requests a hearing within ten days of the date on which:

(1) the Request for Board Action is filed if the party requesting the hearing filed the request; or

(2) the Notice of Board Action or a Notice of Request for Board Action is mailed to the parties of record.

Prior to holding a hearing, the Board shall give all parties at least ten days notice of the hearing date, time, and place.

C. Intervention is prohibited unless required by a federal or state statute applicable to the matter.

D. Informal adjudicative proceedings may be handled by conference, correspondence, electronic means, or other methods which satisfy the requirements of Section 63G-4-202(1).

E. The Board shall maintain a record of all aspects of informal adjudicative proceedings.

F. The presiding officer shall issue a written order within 120 days of the Request for Board Action or Notice of Board Action.

 

R277-102-6. Procedures for Formal Adjudicative Proceedings -- Responsive Pleadings.

A. The response shall be filed either on a form, Responsive Pleading, provided by the Board or in a manner that provides for the information required by Section 63G-4-204.

B. The presiding officer may permit or require pleadings in addition to the Notice of Board Action, the Request for Board Action, and the response, if the presiding officer finds such will provide for the fair and efficient conduct of the adjudicative proceeding.

 

R277-102-7. Procedures for Formal Adjudicative Proceedings -- Discovery, Subpoenas, Motions, and Prehearing Conferences.

A.(1) The presiding officer may, upon written notice to all parties of record, hold a prehearing conference for the purpose of:

(a) formulating or simplifying the issues;

(b) obtaining admissions of fact and of documents which will avoid unnecessary proof;

(c) arranging for the exchange of proposed exhibits or prepared expert testimony and procedure at the hearing;

(d) agreeing to other matters that may expedite the orderly conduct of the proceedings or the settlement; or

(e) obtaining a settlement of the matter.

(2) agreements reached during a prehearing conference are recorded in an appropriate order unless the parties enter into a written stipulation on the matter or agree to a statement made on the record by the Board.

B. The presiding officer may permit or require parties to file motions, other pleadings, affidavits, briefs, or other materials relevant to the action in order to provide for the fair and efficient conduct of the adjudicative proceeding.

 

R277-102-8. Procedures for Formal Adjudicative Proceedings -- Hearings Procedure.

Prior to holding a hearing, the Board shall give all parties at least ten days notice of the hearing date, time, and place.

 

R277-102-9. Procedures for Formal Adjudicative Proceedings -- Intervention.

A. The request for intervention shall be filed on a form, Request for Intervention, provided by the Board, or

B. A request may be made by submitting in writing the information in accordance with Section 63G-4-204.

 

R277-102-10. Procedures for Formal Adjudicative Proceedings -- Orders.

The presiding officer shall issue an order on the matter within 120 days after the date on which the Request for Board Action or the Notice of Board Action is filed.

 

R277-102-11. Default.

A party to an informal adjudicative proceeding is deemed to have failed to participate if that party does not:

(1) attend, either in person or by representation, any hearing, conference, or other meeting on the matter which the party has requested or which the party has been requested to attend;

(2) respond within the specified time, when requested, to any correspondence or communication made in connection with the matter by the presiding officer or the Board.

 

R277-102-12. Board Review.

A. Any party to, or any person initiating, an adjudicative proceeding may seek review of a Board order by petitioning the State Superintendent for review. The request for review shall be filed on a form, Request for Review provided by the Board, or by submitting in writing the information required by Section 63G-4-201(3). The State Superintendent appoints a qualified person to be the review officer. The review officer may take steps necessary to provide for the fair and efficient conduct of the review. This may include permitting or requiring the filing of briefs or other papers or the conduct of oral argument. Responses permitted under Section 63G-4-301(2) are filed with the review officer. An order on review is issued by the review officer within a reasonable time after the filing of any response, other filings, or oral argument, or if none, after the filing of the request for review.

B. Enforcement of the order issued after an adjudicative proceeding is stayed during the pendency or review.

 

R277-102-13. Board Reconsideration.

A party requesting a stay of its order or temporary remedy during the pendency of judicial review shall petition the State Superintendent for such. The State Superintendent shall, within a reasonable time, issue an order either granting or denying the stay. The order shall state the reasons for the grant or denial.

 

R277-102-15. Declaratory Orders.

A. A request for a declaratory order shall be filed on a form, Request for a Declaratory Order, provided by the Board or by submitting the information required by Section 63G-4-201. If it appears to the Board upon the filing of the request that the matters requested in the petition are not within its jurisdiction or adjudicative powers, the Board need not take further action on the matter. It shall notify the petitioner of the reasons why the request is denied and of the procedures to obtain review and reconsideration of the Board decision. If it appears to the Board upon the filing of the request that the matters requested in the petition are within its jurisdiction or adjudicative power, the Board shall appoint a presiding officer for the matter.

B. The presiding officer has the discretion to issue an order making any provision of Sections 63G-4-202 through 63G-4-302 apply to the proceeding to issue the declaratory order. The presiding officer shall conduct the proceeding in a fair and efficient manner.

C. The Board shall not issue a declaratory order in the following instances:

(1) issuance of an order is not under circumstances in which both the public interest and the interests of the parties are protected;

(2) the critical facts are not clear and may be altered by subsequent events;

(3) the party making the request is unable to show real risk will be confronted if the intended course of conduct is taken;

(4) the request is trivial, irrelevant, or immaterial.

D. Parties which meet the requirements of Section 63G-4-208 may intervene in a declaratory action upon filing a petition to intervene within ten days of the filing of the request for declaratory action. Section 63G-4-208 and Section 9 of this rule govern intervention in proceedings to issue declaratory orders.

E. Each Request for a Declaratory Order shall be numbered in accordance, and as part of, the number system described in Subsection 4(D) of this rule.

 

R277-102-16. Representation.

Any party may be represented by counsel at any time in any proceeding before the Board.]

R277-102. Adjudicative Proceedings.

R277-102-1. Definitions.

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

B. "Default" means the failure of a party to an administrative proceeding to meet the requirements or timelines of the proceeding.

C. "Presiding officer" means, in addition to the definition of 63G-4-103(h)(i), the Chair of the Board or any person designated to serve as the presiding officer.

D. "State Superintendent" means the State Superintendent of Public Instruction.

E. "USOE" means the Utah State Office of Education.

 

R277-102-2. Authority and Purpose.

A. This rule is authorized by Utah Constitution Article X, Section 3 which vests the general control and supervision of public education in the Board, Section 53A-1-401(3) which allows the Board to adopt rules in accordance with its responsibilities, and Section 63G-4-203 which directs agencies to make rules regarding adjudicative proceedings following the general designation of Board hearings as informal.

B. The purpose of this rule is to specify how adjudicative proceedings are conducted before the Board. All procedures shall be consistent with Title 63G, Chapter 4. This rule does not govern Board actions under Sections 63G-4-101(2)(a),(d),(g),(j),(l), and (p).

 

R277-102-3. Commencement of Adjudicative Proceedings.

A. Any party to an initial determination made by the Board may initiate an adjudicative proceeding under the Administrative Procedures Act and this rule by filing a request for Board action on a form, Request for Board Action, provided by the Board, or by submitting in writing the information required on the form.

B. Each Notice of Board Action and Request for Board Action filed is assigned a number consisting of the year in which the notice or request is filed and another number showing its numerical position among the hearings filed during the year.

 

R277-102-4. Designation of Adjudicative Proceedings as Formal or Informal.

All proceedings conducted before the Board are initially designated as informal. The presiding officer designated for the proceeding may convert an informal proceeding to a formal proceeding and vice versa under Section 63G-4-202(3).

 

R277-102-5. Procedures for Informal Adjudicative Proceedings.

A. The Board may hold a hearing if a request for a hearing is received by the Board within 20 business days of Board action.

B. The Board shall make appropriate arrangements for the hearing including:

(1) determining the date of the hearing;

(2) designating a Board member, USOE employee or another individual as a hearing officer;

(3) designating the hearing location and other necessary information; or

(4) establishing timelines consistent with Section 63G-4-301.

C. The Board may delegate the hearing arrangements and procedures to a hearing officer.

D. The Board may, on a case by case basis, determine if an informal hearing may be held electronically.

E. The Board shall maintain a record of all aspects of an informal adjudicative proceeding.

F. The Board shall issue a decision no later than 120 days from the receipt of the Request for Agency Action and following the conclusion of an informal proceeding.

 

R277-102-6. Procedures for Formal Adjudicative Proceedings.

A. The Board may designate an adjudicative proceeding as formal following a Request for Board Action.

B. If the Board designates a proceeding as formal, the Board may add any of the following procedures, as appropriate, to the hearing procedures designated in R277-102-5:

(1) responsive pleadings;

(2) discovery for parties;

(3) the right to subpoena witnesses;

(4) intervention by third parties;

(5) an electronic recording of the complete proceeding; and

(6) a written final decision consistent with Section 63G-4-208(1).

C. For both informal and formal adjudicative proceedings, the Board-designated presiding officer or hearing officer shall have considerable discretion in managing and making procedural and evidentiary decisions throughout the hearing process.

 

R277-102-7. Default.

A. A presiding officer or hearing officer designated for a formal or informal hearing may recommend a default to the Board consistent with deadlines set by the presiding officer and the provisions of Section 63G-4-209.

B. A defaulted party may seek to have a default set aside consistent with Section 63G-4-209(3) and timelines set by the presiding officer.

 

R277-102-8. Recommendation to Board.

A. A written hearing report, including findings of fact and conclusions of law, and presiding officer decision shall be submitted to the Board as a recommendation.

B. The Board's final decision following acceptance of written findings is the final administrative decision on the issue, subject to a Request for Reconsideration under Section 63G-4-302.

 

KEY: administrative procedures, rules and procedures

Date of Enactment or Last Substantive Amendment: [1988]2012

Notice of Continuation: February 13, 2009

Authorizing, and Implemented or Interpreted Law: 63G-4-101 through 63G-4-302; 63G-4-405; 63G-4-503; 53A-1-401(3); Art X Sec 3