DAR File No. 40325
This rule was published in the May 1, 2016, issue (Vol. 2016, No. 9) of the Utah State Bulletin.
Education, Administration
Rule R277-200
Utah Professional Practices Advisory Commission (UPPAC), Definitions
Notice of Proposed Rule
(Repeal)
DAR File No.: 40325
Filed: 04/15/2016 06:04:40 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
Rule R277-200 is repealed based upon a court ruling which concluded that the Utah State Board of Education had not followed proper rulemaking procedures in its adoption. New Rule R277-210, following appropriate rulemaking procedure, is being filed simultaneously with the repeal of this rule. (DAR NOTE: The proposed new Rule R277-210 is under DAR No. 40334 in this issue, May 1, 2016, of the Bulletin.)
Summary of the rule or change:
Rule R277-200 is repealed in its entirety.
State statutory or constitutional authorization for this rule:
- Art X, Sec 3
- Section 53A-6-306
- Section 53A-1-401
Anticipated cost or savings to:
the state budget:
Rule R277-200 is repealed in its entirety, and the new Rule R277-210 is filed to take its place, which likely will not result in a cost or savings to the state budget.
local governments:
Rule R277-200 is repealed in its entirety, and the new Rule R277-210 is filed to take its place, which likely will not result in a cost or savings to local government.
small businesses:
Rule R277-200 is repealed in its entirety, and the new Rule R277-210 is filed to take its place, which likely will not result in a cost or savings to small businesses.
persons other than small businesses, businesses, or local governmental entities:
Rule R277-200 is repealed in its entirety, and the new Rule R277-210 is filed to take its place, which likely will not result in a cost or savings to persons other than small businesses, businesses, or local government entities.
Compliance costs for affected persons:
Rule R277-200 is repealed in its entirety, and the new Rule R277-210 is filed to take its place, which likely will not result in any compliance costs for affected persons.
Comments by the department head on the fiscal impact the rule may have on businesses:
To the best of my knowledge, there should be no fiscal impact on businesses resulting from repeal of this rule.
Sydnee Dickson, Interim 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:
05/31/2016
Interested persons may attend a public hearing regarding this rule:
- 05/12/2016 02:00 PM, Utah State Office of Education, 250 E 500 S, Salt Lake City, UT
This rule may become effective on:
06/07/2016
Authorized by:
Angela Stallings, Associate Superintendent, Policy and Communication
RULE TEXT
R277. Education, Administration.
[R277-200. Utah Professional Practices Advisory Commission
(UPPAC), Definitions.
R277-200-1. Authority and Purpose.
(1) This rule is authorized by:
(a) Utah Constitution Article X, Section 3, which vests
general control and supervision over public education in the
Board;
(b) Section 53A-6-306, which directs the Board to adopt
rules regarding UPPAC duties and procedures; and
(c) Subsection 53A-1-401(3), which allows the Board to
adopt rules in accordance with its responsibilities.
(2) The purpose of this rule is to establish definitions
for terms in UPPAC activities.
(3) The definitions contained in this rule apply to Rules
R277-200 through R277-207. Any calculation of time called for by
these rules shall be governed by Utah R. Civ. P. 6.
R277-200-2. Definitions.
(1)(a) "Action" means a disciplinary action
taken by the Board adversely affecting an educator's
license.
(b) "Action" does not include a disciplinary
letter.
(c) "Action" includes:
(i) a letter of reprimand;
(ii) probation;
(iii) suspension; and
(iv) revocation.
(2) "Administrative hearing" or
"hearing" has the same meaning as that term is defined
in Section 53A-6-601.
(3) "Alcohol related offense" means:
(a) driving under the influence;
(b) alcohol-related reckless driving or impaired
driving;
(c) intoxication;
(d) driving with an open container;
(e) unlawful sale or supply of alcohol;
(f) unlawful permitting of consumption of alcohol by
minors;
(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(3)(a) through (g).
(4) "Allegation of misconduct" means a written
report alleging that an educator:
(a) has engaged in unprofessional or criminal
conduct;
(b) is unfit for duty;
(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
(d) has committed some other violation of standards of
ethical conduct, performance, or professional competence as
provided in Rule R277-515.
(5) "Answer" means a written response to a
complaint filed by USOE alleging educator misconduct.
(6) "Applicant" means a person
seeking:
(a) a new license;
(b) reinstatement of an expired, surrendered, suspended,
or revoked license; or
(c) clearance of a criminal background review from USOE
at any stage of the licensing process.
(7) "Chair" means the Chair of UPPAC.
(8) "Complaint" means a written allegation or
charge against an educator filed by USOE against the
educator.
(9) "Complainant" means the Utah State Office
of Education.
(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.
(11)(a) "Conviction" means the final
disposition of a judicial action for a criminal offense, except
in cases of a dismissal on the merits.
(b) "Conviction" includes:
(i) a finding of guilty by a judge or jury;
(ii) a guilty or no contest plea;
(iii) a plea in abeyance; and
(iv) for purposes of this rule, a conviction that has
been expunged.
(12) "Criminal Background Review" means the
process by which the Executive Secretary, UPPAC, and the Board
review information pertinent to:
(a) a charge revealed by a criminal background
check;
(b) a charge revealed by a hit as a result of ongoing
monitoring; or
(c) an educator or applicant's
self-disclosure.
(13)(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.
(b) "Disciplinary letter" includes:
(i) a letter of admonishment;
(ii) a letter of warning; and
(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 section.
(14) "Drug" means controlled substance as
defined in Section 58-37-2.
(15) "Drug related offense" means any criminal
offense under:
(a) Title 58, Chapter 37;
(b) Title 58, Chapter 37a, Utah Drug Paraphernalia
Act;
(c) Title 58, Chapter 37b, Imitation Controlled
Substances Act;
(d) Title 58, Chapter 37c, Utah Controlled Substance
Precursor Act;
(e) Title 58, Chapter 37d, Clandestine Drug Lab Act;
and
(f) Title 58, Chapter 37e, Drug Dealer's Liability
Act. Sections 58-37 through 37e.
(16) "Educator Misconduct" means:
(a) unprofessional or criminal conduct;
(b) conduct that renders an educator unfit for duty;
or
(c) conduct that is a violation of standards of ethical
conduct, performance, or professional competence as provided in
Rule R277-515.
(17) "Executive Committee" means a subcommittee
of UPPAC consisting of the following members:
(a) Executive Secretary;
(b) Chair;
(c) Vice-Chair; and
(d) one member of UPPAC at large.
(18) "Executive Secretary" means an employee of
USOE who:
(a) is appointed by the State Superintendent of Public
Instruction to serve as the UPPAC Director; and
(b) serves as a non-voting member of UPPAC, consistent
with Section 53A-6-302.
(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.
(20) "Expedited Hearing Panel" means a panel of
the following three members:
(a) the Executive Secretary;
(b) a voting member of UPPAC; and
(c) a UPPAC prosecutor.
(21) "Final action" means an action by the
Board that concludes an investigation of an allegation of
misconduct against a licensed educator.
(22) "GRAMA" refers to the Government Records
Access and Management Act, Title 63G, Chapter 2, Government
Records Access and Management Act.
(23) "Hearing officer" means a licensed
attorney who:
(a) is experienced in matters relating to administrative
procedures;
(b) is appointed by the Executive Secretary to manage the
proceedings of a hearing;
(c) is not an acting member of UPPAC;
(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.
(24) "Hearing panel" means a panel of three or
more individuals designated to:
(a) hear evidence presented at a hearing;
(b) make a recommendation to UPPAC as to disposition;
and
(c) collaborate with the hearing officer in preparing a
hearing report.
(25) "Hearing report" means a report
that:
(a) is prepared by the hearing officer consistent with
the recommendations of the hearing panel at the conclusion of a
hearing; and
(b) includes:
(i) a recommended disposition;
(ii) detailed findings of fact and conclusions of law,
based upon the evidence presented in the hearing, relevant
precedent; and
(iii) applicable law and rule.
(26) "Informant" means a person who submits
information to UPPAC concerning the alleged misconduct of an
educator.
(27) "Investigator" means an employee of the
USOE, or independent investigator selected by the Board,
who:
(a) is assigned to investigate allegations of educator
misconduct under UPPAC supervision;
(b) offers recommendations of educator discipline to
UPPAC and the Board at the conclusion of the
investigation;
(c) provides an independent investigative report for
UPPAC and the Board; and
(d) may also be the prosecutor but does not have to
be.
(28) "Investigative report" means a written
report of an investigation into allegations of educator
misconduct, prepared by an Investigator that:
(a) includes a brief summary of the allegations, the
investigator's narrative, and a recommendation for UPPAC and
the Board;
(b) may include a rationale for the recommendation, and
mitigating and aggravating circumstances;
(c) is maintained in the UPPAC Case File; and
(d) is classified as protected under Subsection
63G-2-305(34).
(29) "LEA" or "local education
agency" for purposes of this rule includes the Utah Schools
for the Deaf and the Blind.
(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.
(31) "Letter of reprimand" is a letter sent by
the Board to an educator:
(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;
(b) that provides specific directives to the educator as
a condition for removal of the letter;
(c) appears as a notation on the educator's CACTUS
file; and
(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.
(32) "Letter of warning" is a letter sent by
the Board to an educator:
(a) for misconduct that was inappropriate or unethical;
and
(b) that does not warrant longer term or more serious
discipline.
(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.
(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.
(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.
(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.
(37) "Party" means a complainant or a
respondent.
(38) "Petitioner" means an individual
seeking:
(a) an educator license following a denial of a
license;
(b) reinstatement following a license suspension; or in
the event of compelling circumstances, reinstatement following a
license revocation.
(39) "Probation" is an action directed by the
Board that:
(a) involves monitoring or supervision for a designated
time period, usually accompanied by a disciplinary
letter;
(b) may require the educator to be subject to additional
monitoring by an identified person or entity;
(c) may require the educator to be asked to satisfy
certain conditions in order to have the probation
lifted;
(d) may be accompanied by a letter of reprimand, which
shall appear as a notation on the educator's CACTUS file;
and
(e) unless otherwise specified, lasts at least two years
and may be terminated through a formal petition to the Board by
the respondent.
(40) "Prosecutor" means an attorney
who:
(a) is designated by the Superintendent to represent the
complainant and present evidence in support of the complaint;
and
(b) may also be the investigator, but does not have to
be.
(41) "Revocation" means a permanent
invalidation of a Utah educator license consistent with Rule
R277-517.
(42) "Respondent" means an educator against
whom:
(a) a complaint is filed; or
(b) an investigation is undertaken.
(43) "Serve" or "service," as used to
refer to the provision of notice to a person, means:
(a) delivery of a written document or its contents to the
person or persons in question; and
(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.
(45) "Stipulated agreement" means an agreement
between a respondent and the Board:
(a) under which disciplinary action is taken against the
educator in lieu of a hearing;
(b) that may be negotiated between the parties and
becomes binding:
(i) when approved by the Board; and
(ii) at any time after an investigative letter has been
sent;
(c) is a public document under GRAMA unless it contains
specific information that requires redaction or separate
classification of the agreement.
(46)(a) "Suspension" means an invalidation of a
Utah educator license.
(b) "Suspension" may:
(i) include specific conditions that an educator must
satisfy; and
(ii) may identify a minimum time period that must elapse
before the educator may request a reinstatement hearing before
UPPAC.
(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.
(48) "UPPAC Background Check File" means a file
maintained securely by UPPAC on a criminal background review
that:
(a) contains information obtained from:
(i) BCI; and
(ii) letters, police reports, court documents, and other
materials as provided by an educator; and
(b) is classified as private under Subsection
63G-2-302(2).
(49) "UPPAC Case File" means a file:
(a) maintained securely by UPPAC on an investigation into
educator misconduct;
(b) opened following UPPAC's direction to investigate
alleged misconduct;
(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;
(d) that is classified as protected under Subsection
63G-2-305(10) until the investigation and any subsequent
proceedings before UPPAC and the Board are completed;
and
(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.
(50) "UPPAC Evidence File" means a
file:
(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;
(b) that contains correspondence between the Investigator
and the educator or the educator's counsel;
(c) that is classified as protected under Subsection
63G-2-305(10) until the investigation and any subsequent
proceedings before UPPAC and the Board are completed;
and
(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.
(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.
(52) "UPPAC Prosecutor File" means a
file:
(a) that is kept by the attorney assigned by UPPAC to
investigate and/or prosecute a case that contains:
(i) the attorney's notes prepared in the course of
investigation; and
(ii) other documents prepared by the attorney in
anticipation of an eventual hearing; and
(b) that is classified as protected pursuant to
Subsection 63G-2-305(18).
KEY: professional practices, definitions, educators
Date of Enactment or Last Substantive Amendment: October 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/2016/b20160501.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.
Text to be deleted is struck through and surrounded by brackets ([example]). Text to be added is underlined (example). Older browsers may not depict some or any of these attributes on the screen or when the document is printed.
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.