DAR File No. 39389

Professional Practices Advisory Commission, Administration

Rule R686-100

Utah Professional Practices Advisory Commission (UPPAC), Rules of Procedure: Notification to Educators, Complaints and Final Disciplinary Actions

Notice of Proposed Rule

(Repeal)

DAR File No.: 39389
Filed: 05/15/2015 09:12:42 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

H.B. 345, Education Abuse Policy, 2015 General Session, changed rulemaking authority from UPPAC to the Utah State Board of Education (Board). This rule is repealed in response to the legislation.

Summary of the rule or change:

Rule R686-100 is repealed in its entirety.

State statutory or constitutional authorization for this rule:

• Subsection 53A-6-306(1)(a)

Anticipated cost or savings to:

the state budget:

It is anticipated that there is likely no cost or savings to the state budget. Rule R686-100 is repealed and will be replaced with a new Board rule under Title R277. (DAR NOTE: The proposed new rules are Rule R277-200 under DAR No. 39382, Rule R277-201 under DAR No. 39383, Rule R277-202 under DAR No. 39384, Rule R277-203 under DAR No. 39385, Rule R277-204 under DAR No. 39386, Rule R277-205 under DAR No. 39387, and Rule R277-206 under DAR No. 39388 in this issue, June 1, 2015, of the Bulletin.)

local governments:

It is anticipated that there is likely no cost or savings to local government. Rule R686-100 is repealed and will be replaced with a new Board rule under Title R277.

small businesses:

It is anticipated that there is likely no cost or savings to small businesses. Rule R686-100 is repealed and will be replaced with a new Board rule under Title R277.

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

It is anticipated that there is likely no cost or savings to persons other than small businesses, businesses, or local government entities. Rule R686-100 is repealed and will be replaced with a new Board rule under Title R277.

Compliance costs for affected persons:

There is likely no compliance costs for affected persons. Rule R686-100 is repealed and will be replaced with a new Board rule under Title R277.

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

I have reviewed this rule and 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:

Professional Practices Advisory Commission
Administration
250 E 500 S
SALT LAKE CITY, UT 84111

Direct questions regarding this rule to:

• Benjamin Rasmussen at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at benjamin.rasmussen@schools.utah.gov

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:

07/01/2015

This rule may become effective on:

07/08/2015

Authorized by:

Angela Stallings, Associate Superintendent, Policy and Communication

[R686. Professional Practices Advisory Commission, Administration.

R686-100. Utah Professional Practices Advisory Commission (UPPAC), Rules of Procedure: Notification to Educators, Complaints and Final Disciplinary Actions.

R686-100-1. Definitions.

A. "Action" as used in 53A-6-306 and as applied in this rule means a disciplinary action taken by UPPAC or the Board adversely affecting an educator's license, and which, pursuant to 53A-6-306, may not be taken without giving the educator an opportunity for a fair hearing to contest the allegations upon which the action would be based. Actions include:

(1) probation

(2) suspension

(3) revocation.

B. "Allegation of misconduct" means a written or oral report alleging that an educator has engaged in unprofessional or criminal conduct; is unfit for duty; has lost his 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 has committed some other violation of standards of ethical conduct, performance, or professional competence as provided in R277-515.

C. "Applicant for a license" means a person seeking a new license or seeking reinstatement of an expired, surrendered, suspended, or revoked license.

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

E. "Chair" means the Chair of UPPAC.

F. "Complaint" means a written allegation or charge against an educator filed by USOE against the educator.

G. "Complainant" means the Utah State Office of Education.

H. "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. The file includes information such as:

(1) personal contact information;

(2) education background;

(3) professional endorsements;

(4) employment history; and

(5) a record of disciplinary action taken against the educator's license.

I. "Days": in calculating any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included; the last day of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Saturdays, Sundays and legal holidays shall not be included in calculating the period of time if the period prescribed or allowed is less than seven days, but shall be included in calculating periods of seven or more days.

J. "Disciplinary letter " means a letter issued to respondent by UPPAC as a result of an investigation into allegations of educator misconduct. Disciplinary letters include:

(1) letters of admonishment;

(2) letters of warning;

(3) letters of reprimand; and

(4) any other action that UPPAC or the Board takes to discipline an educator for educator misconduct that does not rise to the level of an action as defined in 686-100-1A.

K. "Educator" means a person who currently holds a license, held a license at the time of an alleged offense, is an applicant for a license, or is a person in training to obtain a license.

L. "Educator Misconduct" means unprofessional or criminal conduct; conduct that renders the educator unfit for duty; or conduct that is a violation of standards of ethical conduct, performance, or professional competence as provided in R277-515.

M. "Educator paper licensing file" means the file maintained securely by UPPAC on an educator. The file is opened following UPPAC's direction to investigate alleged misconduct. The file contains the original notification of misconduct, subsequent correspondence, the investigative report, and the final disposition of the case.

N. "Executive Committee" means a subcommittee of UPPAC consisting of the Executive Secretary, Chair, Vice-Chair, and one member of UPPAC at large. All Executive Committee members, excluding the Executive Secretary, shall be selected by UPPAC. Substitutes may be appointed from within UPPAC by the Executive Secretary as needed.

O. "Executive Secretary" means an employee of the Utah State Office of Education who is appointed by the State Superintendent of Public Instruction to serve as the executive officer, and a non-voting member, of UPPAC.

P. "Final action" means any action by UPPAC or the Board which concludes an investigation of an allegation of misconduct against a licensed educator.

Q. "Hearing" means an administrative proceeding held pursuant to Section 53A-6-601, is a formal adjudication in which allegations made in a complaint are examined before a hearing officer and UPPAC hearing panel, where each party has the opportunity to present witnesses and evidence relevant to the complaint and respond to witnesses or evidence presented by the other party. At the conclusion of a hearing, the hearing officer, after consulting with members of the UPPAC hearing panel, prepares a hearing report and submits it to the Executive Secretary.

R. "Informant" means a person who submits information to UPPAC concerning alleged misconduct of an educator.

S. "Investigator" means an employee of the USOE who is assigned by UPPAC to investigate allegations of educator misconduct and to offer recommendations of educator discipline to UPPAC at the conclusion of the investigation. The investigator works independently of the Executive Secretary and provides an investigative report for UPPAC. The investigator may also be the prosecutor but does not have to be. The investigator may be called on by the prosecutor, if not the same person, to testify at a hearing about the investigator's findings during the course of an investigation.

T. "Investigative report" means a written report of an investigation into allegations of educator misconduct, prepared by a UPPAC investigator. The report includes a brief summary of the allegations, a recommendation for UPPAC, and a summary of witness interviews conducted during the course of the investigation. The investigative report may include a rationale for the recommendation, and mitigating and aggravating circumstances, but does not have to. The investigative report is maintained in the educator's licensing file.

U. "Jurisdiction" means the legal authority to hear and rule on a complaint.

V. "LEA" means a local education agency, including local school boards/public school districts, charter schools, and, for purposes of this rule, the Utah Schools for the Deaf and the Blind.

W. "License" means a teaching or administrative credential, including endorsements, which is issued by a state to signify authorization for the person holding the license to provide professional services in the state's public schools.

X. "National Association of State Directors of Teacher Education and Certification (NASDTEC) Educator Information Clearinghouse" means a database maintained by NASDTEC for its members regarding persons whose licenses have been suspended or revoked.

Y. "Notification of Alleged Educator Misconduct" means the official UPPAC form that can be accessed on UPPAC's internet website, and can be submitted by any person, school, or district that alleges educator misconduct.

Z. "Party" means the complainant or the respondent.

AA. "Prosecutor" means the attorney designated by the USOE to represent the complainant and present evidence in support of the complaint. The prosecutor may also be the investigator, but does not have to be.

BB. "Recommended disposition" means a recommendation provided by a UPPAC investigator for resolution of an allegation.

CC. "Revocation" means a permanent invalidation of a Utah educator license consistent with R277-517.

DD. "Respondent" means the party against whom a complaint is filed or an investigation is undertaken.

EE. "Serve" or "service," as used to refer to the provision of notice to a person, means delivery of a written document or its contents to the person or persons in question. Delivery may be made in person, by mail, electronic correspondence, or by other means reasonably calculated, under all of the circumstances, to notify the interested person or persons to the extent reasonably practical or practicable of the information contained in the document.

FF. "Stipulated agreement" means an agreement between a respondent/educator and the USOE/Board or between a respondent/educator and UPPAC under which disciplinary action against an educator's license status shall be taken, in lieu of a hearing. At any time after an investigative letter has been sent, a stipulated agreement may be negotiated between the parties and becomes binding when approved by the Board, if necessary, or UPPAC if Board approval is not necessary.

GG. "Suspension" means an invalidation of a Utah educator license. A suspension may include specific conditions that an educator shall satisfy and may identify a minimum time period that shall elapse before the educator can request a reinstatement hearing before UPPAC.

HH. "Utah Professional Practices Advisory Commission (UPPAC)" means an advisory commission established to assist and advise the Board in matters relating to the professional practices of educators, as established under Section 53A-6-301.

II. "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 UPPAC has directed that an investigation of the educator's alleged actions take place.

JJ. "UPPAC disciplinary letters or action" means letters sent or action taken by UPPAC informing the educator of licensing disciplinary action not rising to the level of license suspension. Disciplinary letters and action include the following:

(1) Letter of admonishment is a letter sent by UPPAC to the educator cautioning the educator to avoid or take specific actions in the future;

(2) Letter of warning is a letter sent by UPPAC to an educator for misconduct that was inappropriate or unethical that does not warrant longer term or more serious discipline;

(3) Letter of reprimand is a letter sent by UPPAC to an educator 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; a letter of reprimand may provide specific directives to the educator as a condition for removal of the letter, and shall appear as a notation on the educator's CACTUS file;

(4) Probation is an action directed by UPPAC that involves some monitoring or supervision for an indefinite or designated time period usually accompanied by a disciplinary letter. In this time period, the educator may be subject to additional monitoring by an identified person or entity and the educator may be asked to satisfy certain conditions in order to have the probation lifted. This discipline usually, but not always, is accompanied by a letter of warning or a letter of reprimand and shall appear as a notation on the educator's CACTUS file. Unless otherwise specified, the probationary period is at least two years and must be terminated through a formal petition by respondent.

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

LL. "USOE administrative action" means an administrative investigation into allegations of educator misconduct, opened under the authority of 53A-3-306.

 

R686-100-2. Authority and Purpose.

A. This rule is authorized by Section 53A-6-306(1)(a) directing UPPAC to adopt rules to carry out its responsibilities under the law.

B. The purpose of this rule is to provide procedures regarding:

(1) notification of alleged educator misconduct;

(2) review of notification by UPPAC; and

(3) complaints, stipulated agreement and defaults.

The provisions of the Utah Administrative Procedures Act do not apply to this rule under the exemption of Section 63G-4-102(2)(d). UPPAC may invoke and use sections or provisions of the Utah Administrative Procedures Act as found in Section 63G-4 as necessary to adjudicate an issue.

 

R686-100-3. Initiating Proceedings Against Educators.

A. The Executive Secretary may initiate proceedings against an educator upon receiving a notification of alleged educator misconduct or upon the Executive Secretary's own initiative.

(1) An informant may be asked to submit information in writing, including the following:

(a) name, position (such as administrator, teacher, parent, student), telephone number, address, and contact information of the informant;

(b) name, position (such as administrator, teacher, candidate), and if known, the address and telephone number of the educator against whom the allegations are made;

(c) the facts on which the allegations are based and supporting information;

(d) signature of the informant and date.

(2) If an informant submits a written allegation of misconduct as provided in Section R686-100-3A(1), the informant may be told of final actions taken by UPPAC or the Board regarding the allegations.

(3) Proceedings initiated upon the Executive Secretary's own initiative are based on information received through telephone calls, letters, newspaper articles, media information, notices from other states or other means; UPPAC shall not investigate anonymous allegations.

B. All notifications of alleged educator misconduct shall be directed to UPPAC for initial review.

C. All written allegations, subsequent dismissals, or action or disciplinary letter of a case against an educator shall be maintained permanently in UPPAC's paper licensing files.

 

R686-100-4. Review of Notification of Alleged Educator Misconduct.

A. Initial Review: On reviewing the notification of alleged educator misconduct, the Executive Secretary or the Executive Committee or both shall recommend one of the following to UPPAC:

(1) Dismiss: If UPPAC determines that UPPAC lacks jurisdiction or that the request for agency action does not state a cause of action that UPPAC should address, UPPAC shall dismiss the request.

(2) Initiate an investigation: If UPPAC determines that UPPAC has jurisdiction and that the notification states a cause of action which may be appropriately addressed by UPPAC or the Board, the Executive Secretary shall direct a UPPAC investigator to gather evidence relating to the allegations.

(a) Prior to a UPPAC investigator's initiation of any investigation, the Executive Secretary shall send a letter to the educator to be investigated, to the LEA of current employment, and to the LEA where the alleged activity occurred, with information that an investigation has been initiated. The letter shall inform the educator and the LEA(s) that an investigation shall take place and is not evidence of unprofessional conduct. UPPAC may also notify an LEA that formerly employed the educator or the LEA that currently employs the educator or both, as appropriate.

(b) The investigator shall review relevant documentation and interview individuals who may have knowledge of the allegations.

(c) The investigator shall prepare an investigative report of the findings of the investigation and a recommendation for appropriate action or disciplinary letter.

(d) If the investigator discovers additional evidence of unprofessional conduct which could have been included in the original notification of alleged educator misconduct, it may be included in the investigative report.

(e) The report shall be submitted to the Executive Secretary, who shall review the report with UPPAC.

(f) The investigative report shall become part of the permanent case file.

B. Secondary Review: UPPAC shall review the investigative report and, based on the recommendation by the investigator, shall direct one of the following:

(1) Dismiss: If UPPAC determines no further action should be taken, it shall dismiss the case as provided in Section R686-100-4A(1), above; or

(2) Prepare and serve complaint: If the investigator determines that allegations are sufficiently supported by evidence discovered in the investigation, UPPAC, through the Executive Secretary, shall direct the prosecutor to prepare and serve a complaint and a copy of these rules upon the respondent pursuant to R686-100-5; or

(3) Approve a Stipulated Agreement: At any time after UPPAC has directed that a case be investigated, an educator may accept the recommendation of the UPPAC investigator, rather than request a hearing, by entering into a stipulated agreement.

(a) The stipulated agreement shall conform to the requirements set forth in R686-100-6.

(b) Pursuant to 686-100-6B, an educator may stipulate to any recommended disposition for an action as defined in R686-100-1A.

(4) Upon receipt of an investigative report, including a stipulated agreement, or a hearing report as defined in R686-101, UPPAC may direct the Executive Secretary to carry out the recommendation or recommend suspension or revocation to the Board for consideration.

(5) If so directed by UPPAC, documentation of the disciplinary letter or action shall be sent to the respondent's employing LEA or to an LEA where the respondent finds employment.

(6) UPPAC may direct an additional investigation or other action as appropriate.

 

R686-100-5. Complaints.

A. Filing a complaint: If UPPAC determines that the allegations are sufficiently supported by evidence discovered in the investigation, UPPAC, through the Executive Secretary, may direct the prosecutor to serve a complaint upon the educator being investigated, along with a copy of these rules.

B. Elements of a complaint: At a minimum, the complaint shall include:

(1) a statement of legal authority and jurisdiction under which the action is being taken;

(2) a statement of the facts and allegations upon which the complaint is based;

(3) other information which the investigator believes to be necessary to enable respondent to understand and address the allegations;

(4) a statement of the potential consequences should the allegations be found to be true or substantially true;

(5) a statement that the respondent shall answer the complaint, request a hearing, or discuss a stipulated agreement, within 30 days of the date the complaint was mailed to the respondent, by filing a written answer addressed to the Executive Secretary, at the mailing address for the Office. The statement shall advise the respondent that if he fails to respond in 30 days, a default judgment for a suspension term of not less than five years shall be entered;

(6) a statement that, if a hearing is requested, the hearing shall be scheduled not less than 25 days, nor more than 180 days, after receipt of the respondent's answer, unless a different date is agreed to by both parties in writing. On his own motion, the Executive Secretary, or designee with notice to the parties, may reschedule a hearing date.

C. Answer to the complaint: An answer to the complaint shall be made by filing a written response signed by the respondent or his representative with the Executive Secretary within 30 days after the complaint was mailed. The answer shall include a request for a hearing or a stipulated agreement, and shall include:

(1) the file number of the complaint;

(2) the names of the parties;

(3) a statement of the relief that the respondent seeks, which may include a request for a hearing or a stipulated agreement; and

(4) if not requesting a hearing or a stipulated agreement, a statement of the reasons that the relief requested should be granted.

D. Response to answer. As soon as reasonably practicable after receiving the answer, or no more than 30 days after receipt of the answer at the USOE, the Executive Secretary shall do one of the following:

(1) Dismiss the complaint: If the Executive Secretary and the Executive Committee determines upon review of respondent's answer that there are insufficient grounds to proceed with the complaint, the Executive Committee shall recommend to UPPAC that the complaint be dismissed. If UPPAC votes to uphold the dismissal, the informant and the respondent shall each be served with notice of the dismissal. If UPPAC does not uphold the dismissal, the complaint shall proceed in accordance with the rules set forth in R686-100.

(2) Schedule a hearing: If the respondent requests a hearing, UPPAC shall direct the Executive Secretary to schedule a hearing as provided in R686-101.

(3) Direct investigator to negotiate a stipulated agreement: If the respondent requests a stipulated agreement, the Executive Secretary shall direct the investigator to negotiate a stipulated agreement with respondent.

E. Default: If respondent does not respond to the complaint within 30 days, the Executive Secretary may issue a default in accordance with the procedures set forth in R686-100-7.

(1) Except as provided in R686-100-5E(2), a default judgment shall result in a recommendation to the Board for a suspension of five years before the educator may request a reinstatement hearing; a default may include conditions that an educator shall satisfy to have any possibility for a reinstatement hearing.

(2) A default judgment shall result in a recommendation to the Board for a revocation if the alleged misconduct is conduct identified in Section 53A-6-501(2).

 

R686-100-6. Stipulated Agreements.

A. Pursuant to R686-100-4B(3),at any time after UPPAC has directed that a case be investigated, a respondent may accept the recommendation of the UPPAC investigator, rather than request a hearing, by entering into a stipulated agreement.

B. By entering into a stipulated agreement, a respondent waives his right to a hearing to contest the recommended disposition. A respondent has a right to a hearing for any action as defined in R686-100-1A that adversely affects the respondent's license, including:

(1) revocations;

(2) suspensions; and

(3) probations.

C. A respondent may request a hearing to contest a recommended disposition for a letter of reprimand or deny respondent a hearing, but UPPAC has discretion to grant a hearing or deny respondent a hearing because letters of reprimand do not adversely affect an educator's license.

D. A respondent shall not have a right to a hearing for recommended dispositions that are lesser disciplinary actions, such as letters of warning and letters of admonishment.

E. Elements of a stipulated agreement: At minimum, a stipulated agreement shall include:

(1) a summary of the facts, the allegations, the evidence relied upon by UPPAC in its recommendation, and a summary of the respondent's response, if any;

(2) a statement that the respondent accepts the facts recited in the stipulated agreement as true for purposes of the USOE administrative action;

(3) a statement that the respondent waives his right to a hearing to contest the allegations that gave rise to the investigation, and agrees to limitations on his license or surrenders his license rather than contest the allegations;

(4) a statement that the respondent agrees to the terms of the stipulated agreement and other provisions applicable to the case, such as remediation, counseling, restitution, rehabilitation, and conditions, if any, under which the respondent may request a reinstatement hearing or a removal of the letter of reprimand or termination of probation;

(5) if for suspension, a statement that the respondent:

(a) shall not seek or provide professional services in a public school in Utah; or

(b) otherwise seek to obtain or use a license in Utah; or

(c) work or volunteer in a public K-12 setting in any capacity without express authorization from UPPAC Executive Secretary, unless or until the respondent:

(i) first obtains a valid educator license or authorization from the Board to obtain such a license; or

(ii) satisfies other provisions provided in the stipulated agreement.

(6) a statement that the action and the stipulated agreement shall be reported to other states through the NASDTEC Educator Information Clearinghouse and any attempt to present to any other state a valid Utah license shall result in further licensing action in Utah;

(7) a statement that respondent waives any right to contest the facts stated in the stipulated agreement at a subsequent reinstatement hearing, if any;

(8) a statement that all records related to the stipulated agreement shall remain permanently in the educator's licensing file at the USOE.

F. Violations of the terms of a valid stipulated agreement may result in an additional disciplinary action.

G. The stipulated agreement shall be forwarded to UPPAC for consideration.

(1) If UPPAC rejects the stipulated agreement, the respondent shall be informed of the decision, which shall be final, and the proceedings shall continue from the point under these procedures at which the agreement was negotiated, as if the agreement had not been submitted.

(2) If UPPAC accepts a stipulated agreement for probation or a letter of reprimand, this is a final USOE administrative action, and UPPAC Executive Secretary shall notify the parties of the decision and shall direct the letter of reprimand to be sent or probation to begin.

(3) If UPPAC accepts a stipulated agreement for suspension or revocation of an educator's license, the agreement shall be forwarded to the Board for consideration.

(4) If the Board rejects the agreement, the Executive Secretary shall notify the parties of the decision and the proceedings shall continue from the point under these procedures at which the agreement was negotiated, as if the agreement had not been submitted.

E. If, after negotiating a stipulated agreement, a respondent fails to sign or respond to a proffered agreement within 30 days after the agreement is mailed, UPPAC or the Executive Secretary shall direct the prosecutor to prepare findings in default consistent with Section R686-100-7.

F. The terms and conditions of a stipulated agreement are protected under Section 63G-2-304(9) and (24), unless waived by the educator. The disposition (such as suspension for a minimum of two years, revocation, probation) of the stipulated agreement is public information, upon request consistent with Section 63G-2-204.

 

R686-100-7. Default Procedures.

A. If a respondent does not respond to a complaint or a stipulated agreement within 30 days from the date the complaint or stipulated agreement was served, the Executive Secretary may issue an order of default against respondent consistent with the following:

(1) The prosecutor shall prepare and serve on respondent an order of default including a statement of the grounds for default, and a recommended disposition if respondent fails to file a response to a complaint or respond to a proffered stipulated agreement.

(2) Ten (10) days following service of the order of default, the prosecutor shall attempt to contact respondent by telephone or electronically. UPPAC shall maintain documentation of attempts toward written, telephonic or electronic contact.

(3) Respondent has 20 days following service of the order of default to respond to UPPAC. If UPPAC receives a response from respondent to a default order before the end of the 20 day default period, UPPAC shall allow respondent a final 10 day period to respond to a complaint or stipulated agreement.

C. Except as provided in R686-100-7D, a default judgment may result in a recommendation to the Board for revocation or for a suspension of no less than five years.

D. A default judgment shall result in a recommendation to the Board for a revocation if the alleged misconduct is conduct identified in 53A-6-501(2).

 

KEY: teacher licensing, conduct, hearings

Date of Enactment or Last Substantive Amendment: May 8, 2015

Notice of Continuation: February 1, 2013

Authorizing, and Implemented or Interpreted Law: 53A-6-306(1)(a) ]