DAR File No. 39589
This rule was published in the September 1, 2015, issue (Vol. 2015, No. 17) of the Utah State Bulletin.
Education, Administration
Rule R277-204
Utah Professional Practices Advisory Commission Criminal Background Review
Notice of Proposed Rule
(Amendment)
DAR File No.: 39589
Filed: 08/13/2015 01:46:54 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
This rule is amended to make technical and conforming changes.
Summary of the rule or change:
Technical and conforming changes are made to the rule.
State statutory or constitutional authorization for this rule:
- Section 53A-6-306
- Article X, Section 3
- Subsection 53A-1-401(3)
Anticipated cost or savings to:
the state budget:
The technical and conforming changes that are made to this rule will likely not result in a cost or savings to the state budget.
local governments:
The technical and conforming changes that are made to this rule will likely not result in a cost or savings to local government.
small businesses:
The technical and conforming changes that are made to this rule will likely not result in a cost or savings to small businesses.
persons other than small businesses, businesses, or local governmental entities:
The technical and conforming changes that are made to this 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:
The technical and conforming changes that are made to this 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:
- 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:
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.
R277-204. Utah Professional Practices Advisory Commission Criminal Background Review.
R277-204-1. 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
:
(a) to establish procedures for an applicant to proceed toward licensing ; or
(b) be denied to continue when an application or recommendation for licensing or renewal identifies offenses in the applicant's criminal background check.
[C.](3) The standards and procedures of the Utah Administrative
Procedures Act do not apply to this rule under the exemption of Subsection 63G-4-102(2)(d).
R277-204-2. Initial Submission and Evaluation of Information.
[A.](1) The Executive Secretary shall review all information
received as part of a criminal background review.
[B.](2) The Executive Secretary may request any of the following
information from an educator in determining how to process a
criminal background review:
([1]a) a letter of explanation for each reported offense that
details the circumstances, the final disposition, and any
explanation for the offense the applicant may want to provide
UPPAC, including any advocacy for approving licensing;
([2]b) official documentation regarding each offense, including
court records and police reports for each offense, or if both court
records and police reports are not available, a letter on official
police or court stationery from the appropriate court or police
department involved, explaining why the records are not available;
and
([3]c) any other information that the Executive Secretary
considers relevant under the circumstances in a criminal background
review.
[C]([1]3)
(a) The Executive Secretary may only process a criminal
background review after receipt of all letters of explanation and
documentation requested in good faith by the Executive
Secretary.
([2]b) The Executive Secretary shall provide timely notice if
the information provided by an applicant is incomplete.
[D.](4) If an applicant is under court supervision of any kind,
including parole, informal or formal probation, or plea in
abeyance, the Executive Secretary may not process the background
check review until the Executive Secretary receives proof that
court supervision has terminated.
[E.](5) It is the applicant's sole responsibility to provide
any requested material to the Executive Secretary.
[F.](6) The Executive Secretary shall process criminal
background reviews subject to the following criteria:
([1]a) the Executive Secretary may clear a criminal background
review without further action if the arrest, citation, or charge
resulted in a dismissal, unless the dismissal resulted from a plea
in abeyance agreement;
([2]b) the Executive Secretary shall forward a recommendation to
clear the following criminal background reviews directly to the
Board:
([a]i) singular offenses committed by an applicant, excluding
offenses identified in
Subsection [R277-204-2F(3)](6)(c), if the arrest occurred more than two years prior to
the date of submission to UPPAC for review;
([b]ii) more than two offenses committed by the applicant,
excluding offenses identified in
Subsection [R277-204-2F(3)](6)(c), if at least one arrest occurred more than five years
prior to the date of submission to UPPAC for review; or
([c]iii) more than two offenses committed by the applicant,
excluding offenses identified in
Subsection [R277-204-2F(3)](6)(c), if all arrests for the offenses occurred more than
10 years prior to the date of submission to UPPAC for review;
([3]c) the Executive Secretary shall forward the following
criminal background reviews to UPPAC, which shall make a
recommendation to the Board for final action:
([a]i) convictions or pleas in abeyance for any offense where
the offense date occurred less than two years prior to the date of
submission to UPPAC;
([b]ii) convictions or pleas in abeyance for multiple offenses
where all offenses occurred less than five years prior to the date
of submission to UPPAC;
([c]iii) convictions or pleas in abeyance for felonies;
([d]vi) arrests, convictions, or pleas in abeyance for
sex-related or lewdness offenses;
([e]v) convictions or pleas in abeyance for alcohol-related
offenses or drug-related offenses where the offense date was less
than five years prior to the date of submission to UPPAC;
([f]vi) convictions or pleas in abeyance involving children in
any way; and
([g]vii) convictions or pleas in abeyance involving any other
matter which the Executive Secretary determines, in his discretion,
warrants review by UPPAC and the Board; and
([4]d) If the criminal background review involves a conviction
for an offense requiring mandatory revocation under
Subsection 53A-6-501(5)(b) or meeting the definition of sex
offender under
Subsection 77-41-102(1[6]7), the Executive Secretary shall forward a recommendation
directly to the Board that clearance be denied.
[G.](7) The Executive Secretary shall use reasonable discretion
to interpret the information received from the Bureau of Criminal
Identification to comply with the provisions of this rule.
[H.](8) In Board review of recommendations of the Executive
Secretary and UPPAC for criminal background checks, the following
shall apply:
(a) the Board shall consider a criminal background review in accordance with the standards described in Section 53A-6-405;
([1]b) the Board may uphold any recommendation of the Executive
Secretary or UPPAC, which action shall be the final agency action
of USOE;
([2]c) the Board may substitute its own judgment in lieu of the
recommendation of the Executive Secretary or UPPAC, which action
shall be the final agency action of USOE; and
([3]d) if the Board chooses to substitute its own judgment in a
criminal background review, the Board shall adopt findings
articulating its reasoning.
[I.](9) If a criminal background review arises as a result of
conduct that was cleared in a prior criminal background review by
the Executive Secretary, UPPAC, or the Board, the prior action
shall be deemed final, and the Executive Secretary shall clear the
criminal background review.
[J.](10) If a criminal background review results in an
applicant's denial, the applicant may request to be heard, and
to have the matter reconsidered by the Board, consistent with the
requirements of S
ubsection 53A-15-1506(1)(c).
KEY: educator licenses , background reviews , background checks
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 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. For questions about the rulemaking process, please contact the Division of Administrative Rules.