DAR File No. 40327
This rule was published in the May 1, 2016, issue (Vol. 2016, No. 9) of the Utah State Bulletin.
Education, Administration
Rule R277-202
UPPAC Hearing Procedures and Reports
Notice of Proposed Rule
(Repeal)
DAR File No.: 40327
Filed: 04/15/2016 06:05:29 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
Rule R277-202 is repealed based upon a court ruling which concluded that the Utah State Board of Education had not followed proper rulemaking procedures in its adoption.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 R277-212, following appropriate rulemaking procedure, is being filed simultaneously with the repeal of this rule. (DAR NOTE: The proposed new Rule R277-212 is under DAR No. 40336 in this issue, May 1, 2016, of the Bulletin.)
Summary of the rule or change:
Rule R277-202 is repealed in its entirety.
State statutory or constitutional authorization for this rule:
- Section 53A-1-401
- Art X, Sec 3
- Section 53A-6-306
Anticipated cost or savings to:
the state budget:
Rule R277-202 is repealed in its entirety, and the new Rule R277-212 is filed to take its place, which likely will not result in a cost or savings to the state budget.
local governments:
Rule R277-202 is repealed in its entirety, and the new Rule R277-212 is filed to take its place, which likely will not result in a cost or savings to local government.
small businesses:
Rule R277-202 is repealed in its entirety, and the new Rule R277-212 is filed to take its place, which likely will not result in a cost or savings to small businesses.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Rule R277-202 is repealed in its entirety, and the new Rule R277-212 is filed to take its place, which likely will not result in a cost or savings to persons other than small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Rule R277-202 is repealed in its entirety, and the new Rule R277-212 is filed to take its place, which likely will not result in any compliance costs for affected persons.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 angie.stallings@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:
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.
[R277-202. UPPAC Hearing Procedures and Reports.
R277-202-1. 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 procedures
regarding UPPAC hearings and hearing reports.
(3) The standards and procedures of Title 63G, Chapter 4,
Administrative Procedures Act do not apply to this rule under the
exemption of Subsection 63G-4-102(2)(d).
R277-202-2. Scheduling a Hearing.
(1)(a) Following receipt of an answer by respondent
requesting a hearing:
(i) UPPAC shall select panel members;
(ii) the Executive Secretary shall appoint a hearing
officer from among a list of hearing officers identified by the
state procurement process and approved by UPPAC; and
(iii) UPPAC shall schedule the date, time, and place for
the hearing.
(b) The Executive Secretary shall schedule a hearing for
a date that is not less than 25 days nor more than 180 days from
the date the Executive Secretary receives the answer.
(c) The required scheduling periods may be waived by
mutual written consent of the parties or by the Executive
Secretary for good cause shown.
(2)(a) Any party may request a change of hearing date by
submitting a request in writing that shall:
(i) include a statement of the reasons for the request;
and
(ii) be submitted to the Executive Secretary at least
five days prior to the scheduled date of the hearing.
(b) The Executive Secretary shall determine whether the
reason stated in the request is sufficient to warrant a
change.
(c) If the Executive Secretary finds that the reason for
the request for a change of hearing date is sufficient, the
Executive Secretary shall promptly notify all parties of the new
time, date, and place for the hearing.
(d) If the Executive Secretary does not find the reason
for the request for a change of hearing date to be sufficient,
the Executive Secretary shall immediately notify the parties that
the request has been denied.
(e) The Executive Secretary and the parties may waive the
time period required for requesting a change of hearing date for
good cause shown.
(3) An educator is entitled to a hearing on any matter in
which an action is recommended, as defined in Subsection
R277-200-2(1).
(4) An educator is not entitled to a hearing on a matter
in which a disciplinary letter is recommended, as defined in
Subsection R277-200-2(14).
R277-202-3. Appointment and Duties of the Hearing Officer
and Hearing Panel.
(1)(a) The Executive Secretary shall appoint a hearing
officer to chair the hearing panel and conduct the
hearing.
(b) The Executive Secretary shall select a hearing
officer on a random basis from a list of available contracted
hearing officers, subject to availability and conflict of
interest.
(c) The Executive Secretary shall provide such
information about the case as necessary to determine whether the
hearing officer has a conflict of interest and shall disqualify
any hearing officer that cannot serve under the Utah Rules of
Professional Conduct.
(d) A hearing officer:
(i) may require the parties to submit a brief and a list
of witnesses prior to the hearing;
(ii) presides at the hearing and regulates the course of
the proceeding;
(iii) administers an oath to a witness as follows:
"Do you swear or affirm that the testimony you will give is
the truth?";
(iv) may take testimony, rule on a question of evidence,
and ask a question of a witness to clarify a specific issue;
and
(v) prepares and submits a hearing report to the
Executive Secretary at the conclusion of the proceedings in
consultation with panel members and the timelines of this
rule.
(2)(a) UPPAC shall select three or more individuals to
serve as members of the hearing panel.
(b) As directed by UPPAC, any licensed educator may serve
as a panel member, if needed.
(c) The majority of panel members shall be current UPPAC
members.
(d) UPPAC shall select panel members on a rotating basis
to the extent practicable.
(e) UPPAC shall accommodate each prospective panel member
based on the availability of the panel member.
(f) If the respondent is a teacher, at least one panel
member shall be a teacher.
(g) If the respondent is a non-teacher licensed educator,
at least one panel member shall be a non-teacher licensed
educator.
(h) The requirements of Subsection(2) may be waived only
upon the stipulation of both UPPAC and the respondent.
(3)(a) A UPPAC panel member shall:
(i) assist a hearing officer by providing information
concerning professional standards and practices of educators in
the respondent's particular field of practice and in the
situations alleged;
(ii) ask a question of a witness to clarify a specific
issue;
(iii) review all evidence and briefs, if any, presented
at the hearing;
(iv) make a recommendation to UPPAC as to the suggested
disposition of a complaint; and
(v) assist the hearing officer in preparing the hearing
report.
(b) A panel member may only consider the evidence
approved for admission by the hearing officer.
(c) The Executive Secretary may make an emergency
substitution of a panel member for cause with the consent of the
parties.
(d) The agreement to substitute a panel member shall be
in writing.
(e) Parties may agree to a two-member UPPAC panel in an
emergency situation.
(f) If the parties do not agree to a substitution or to
having a two-member panel, the Executive Secretary shall
reschedule the hearing.
(4)(a) A party may request that the Executive Secretary
disqualify a hearing officer by submitting a written request for
disqualification to the Executive Secretary.
(b) A party shall submit a request to disqualify a
hearing officer to the Executive Secretary at least 15 days
before a scheduled hearing.
(c) The Executive Secretary shall review a request
described in Subsection(4) and supporting evidence to determine
whether the reasons for the request are substantial and
sufficient.
(d) If the Executive Secretary determines that the
hearing officer should be disqualified, the Executive Secretary
shall appoint a new hearing officer and, if necessary, reschedule
the hearing.
(e) A hearing officer may recuse himself or herself from
a hearing if, in the hearing officer's opinion, the hearing
officer's participation would violate any of the Utah Rules
of Professional Conduct consistent with the Supreme Court Rules
of Professional Practice.
(f) If the Executive Secretary denies a request to
disqualify a hearing officer, the Executive Secretary shall
notify the party within ten days prior to the date of the
hearing.
(g) The requesting party may submit a written appeal of
the Executive Secretary's denial to the Superintendent no
later than five days prior to the hearing date.
(h) If the Superintendent finds that the appeal is
justified, the Superintendent shall direct the Executive
Secretary to appoint a new hearing officer and, if necessary,
reschedule the hearing.
(i) The decision of the Superintendent described in
Subsection(4)(h) is final.
(j) If a party fails to file an appeal within the time
requirements of Subsection (4)(g), the appeal shall be deemed
denied.
(k) If the Executive Secretary fails to meet the time
requirements described in Subsection(4), the request or appeal is
approved.
(5)(a) A UPPAC member shall recuse himself or herself as
a panel member due to any known financial or personal interest,
prior relationship, personal and independent knowledge of the
persons or issues in the case, or other association that the
panel member believes would compromise the panel member's
ability to make an impartial decision.
(b) A party may request that a UPPAC panel member be
disqualified by submitting a written request to the
following:
(i) the hearing officer; or
(ii) to the Executive Secretary if there is no hearing
officer.
(c) A party shall submit a request described in
Subsection(5)(b) no less than 15 days before a scheduled
hearing.
(d) The hearing officer, or the Executive Secretary, if
there is no hearing officer, shall:
(i) review a request described in Subsection(5)(b) and
supporting evidence to determine whether the reasons for the
request are substantial and compelling enough to disqualify the
panel member; and
(ii) if the reasons for the request described in
Subsection(5)(b) are substantial and compelling, disqualify the
panel member.
(e) If the panel member's disqualification leaves the
hearing panel with fewer than three UPPAC panel members:
(i) UPPAC shall appoint a replacement; and
(ii) the Executive Secretary shall, if necessary,
reschedule the hearing.
(f) If a request described in Subsection(5)(b) is denied,
the hearing officer or the Executive Secretary if there is no
hearing officer, shall notify the party requesting the panel
member's disqualification no less than ten days prior to the
date of the hearing.
(g) The requesting party may file a written appeal of a
denial described in Subsection(5)(f) with the Superintendent no
later than five days prior to the hearing date.
(h) If the Superintendent finds that an appeal described
in Subsection(5)(g) is justified, the Superintendent shall direct
the hearing officer or the Executive Secretary if there is no
hearing officer, to replace the panel member.
(i) If a panel member's disqualification leaves the
hearing panel with fewer than three UPPAC panel members, UPPAC
shall agree upon a replacement and the Executive Secretary shall,
if necessary, reschedule the hearing.
(j) The decision of the Superintendent described in
Subsection(5)(h) is final.
(k) If a party fails to file an appeal within the time
requirements of Subsection (5)(g), the appeal shall be deemed
denied.
(l) If the hearing officer, or the Executive Secretary if
there is no hearing officer, fails to meet the time requirements
described in this Subsection(5), the request or appeal is
approved.
(6) The Executive Secretary may, at the time the
Executive Secretary selects a hearing officer or panel member,
select an alternative hearing officer or panel member following
the process for selecting those individuals.
(7) The Executive Secretary may substitute a panel member
with an alternative panel member if the Executive Secretary
notifies the parties of the substitution.
R277-202-4. Preliminary Instructions to Parties to a
Hearing.
(1) No later than 25 days before the date of a hearing,
the Executive Secretary shall provide the parties with the
following information:
(a) date, time, and location of the hearing;
(b) names and LEA affiliations of each panel member, and
the name of the hearing officer; and
(c) instructions for accessing these rules.
(2) No later than 20 days before the date of the hearing,
the respondent and the complainant shall provide the following to
the other party and to the hearing officer:
(a) a brief, if requested by the hearing officer
containing:
(i) any procedural and evidentiary motions along with the
party's position regarding the allegations; and
(ii) relevant laws, rules, and precedent;
(b) the name of the person who will represent the party
at the hearing;
(c) a list of witnesses expected to be called, including
a summary of the testimony that each witness is expected to
present;
(d) a summary of documentary evidence that the party
intends to submit; and
(e) following receipt of the other party's witness
list, a list of anticipated rebuttal witnesses and evidence no
later than ten days prior to the hearing.
(3)(a) Except as provided in Subsection(3)(b), a party
may not present a witness or evidence at the hearing if the
witness or evidence has not been disclosed to the other party as
required in Subsection(2).
(b) A party may present a witness or evidence at the
hearing even if the witness or hearing has not been disclosed to
the other party if:
(i) the parties stipulate to the presentation of the
witness or evidence at the hearing; or
(ii) the hearing officer makes a determination of good
cause to allow the witness or evidence.
(4) If a party fails to comply in good faith with a
directive of the hearing officer, including time requirements,
the hearing officer may prohibit introduction of the testimony or
evidence or take other steps reasonably appropriate under the
circumstances.
(5) A party shall provide materials to the hearing
officer, panel members, and UPPAC as directed by the hearing
officer.
R277-202-5. Hearing Parties' Representation.
(1) A USOE prosecutor shall represent the
complainant.
(2) A respondent may represent himself or herself or be
represented, at the respondent's own cost, by another
person.
(3) The informant has no right to:
(a) individual representation at the hearing; or
(b) to be present or heard at the hearing unless called
as a witness.
(4) A respondent shall notify the Executive Secretary in
a timely manner and in writing if the respondent chooses to be
represented by anyone other than the respondent.
R277-202-6. Discovery Prior to a Hearing.
(1) Discovery is permitted to the extent necessary to
obtain relevant information necessary to support claims or
defenses, as determined by the hearing officer.
(2) Unduly burdensome legalistic discovery may not be
used to delay a hearing.
(3) A hearing officer may limit discovery:
(a) at the discretion of the hearing officer; or
(b) upon a motion by either party.
(4) A hearing officer rules on all discovery requests and
motions.
(5) The Executive Secretary shall issue a subpoena or
other order to secure the attendance of a witness pursuant to
Subsection 53A-6-306(3)(c)(i) if:
(a) requested by either party; and
(b) notice of intent to call the witness has been timely
provided as required by Section R277-202-4.
(6) The Executive Secretary shall issue a subpoena to
produce evidence if timely requested by either party.
(7)(a) A party may not present an expert witness report
or expert witness testimony at a hearing unless the requirements
of Section R277-202-10 have been met.
(b) A respondent may not subpoena the UPPAC prosecutor or
investigator as an expert witness.
R277-202-7. Burden and Standard of Proof for UPPAC
Proceedings.
(1) In matters other than those involving applicants for
licensing, and excepting the presumptions under Subsection
R277-202-11(10), the Board shall have the burden of proving that
an action against the license is appropriate.
(2) An applicant for licensing has the burden of proving
that licensing is appropriate.
(3) The standard of proof in all UPPAC hearings is a
preponderance of the evidence.
(4) The Utah Rules of Evidence are not applicable to
UPPAC proceedings.
(5) The criteria to decide an evidentiary question
are:
(a) reasonable reliability of the offered
evidence;
(b) fairness to both parties; and
(c) usefulness to UPPAC in reaching a decision.
(6) The hearing officer has the sole responsibility to
determine the application of the hearing rules and the
admissibility of evidence.
R277-202-8. Deportment.
(1) Parties, their representatives, witnesses, and other
persons present during a hearing shall conduct themselves in an
appropriate manner during a hearing, giving due respect to
members of the hearing panel and complying with the instructions
of the hearing officer.
(2) A hearing officer may exclude a person from the
hearing room who fails to conduct himself or herself in an
appropriate manner and may, in response to extreme instances of
noncompliance, disallow the person's testimony.
(3) Parties, attorneys for parties, or other participants
in the professional practices investigation and hearing process
may not harass, intimidate, or pressure witnesses or other
hearing participants, nor may they direct others to harass,
intimidate, or pressure witnesses or participants.
R277-202-9. Hearing Record.
(1) A hearing shall be recorded at UPPAC's expense,
and the recording shall become part of the UPPAC case file,
unless otherwise agreed upon by all parties.
(2) An individual party may, at the party's own
expense, make a recording or transcript of the proceedings if the
party provides notice to the Executive Secretary.
(3) If an exhibit is admitted as evidence, the record
shall reflect the contents of the exhibit.
(4) All evidence and statements presented at a hearing
shall become part of the UPPAC case file and may not be removed
except by direction of the hearing officer or by order of the
Board.
(5) A party may review a UPPAC case file upon request of
the party if the review of the UPPAC case file is
performed:
(a) under supervision of the Executive Secretary;
and
(b) at the USOE.
R277-202-10. Expert Witnesses in UPPAC Proceedings.
(1) A hearing officer may allow testimony by an expert
witness.
(2) A party may call an expert witness at the party's
own expense.
(3) A party shall provide a hearing officer and the
opposing party with the following information at least 15 days
prior to the hearing date:
(a) notice of intent of a party to call an expert
witness;
(b) the identity and qualifications of an expert
witness;
(c) the purpose for which the expert witness is to be
called; and
(d) any prepared expert witness report.
(4) Defects in the qualifications of an expert witness,
once a minimum threshold of expertise is established, go to the
weight to be given the testimony and not to its
admissibility.
(5) An expert witness who is a member of the
complainant's staff or staff of an LEA may testify and have
the testimony considered as part of the record in the same manner
as the testimony of any other expert.
R277-202-11. Evidence and Participation in UPPAC
Proceedings.
(1) A hearing officer may not exclude evidence solely
because the evidence is hearsay.
(2) Each party has a right to call witnesses, present
evidence, argue, respond, cross-examine witnesses who testify in
person at the hearing, and submit rebuttal evidence.
(3) Testimony presented at the hearing shall be given
under oath if the testimony is offered as evidence to be
considered in reaching a decision on the merits.
(4) If a case involves allegations of child abuse or of a
sexual offense against a minor, either party, a member of the
hearing panel, or the hearing officer, may request that a minor
be allowed to testify outside of the respondent's
presence.
(5) If the hearing officer determines that a minor would
suffer undue emotional or mental harm, or that the minor's
testimony in the presence of the respondent would be unreliable,
the minor's testimony may be admitted as described in this
section.
(6) An oral statement of a victim or witness younger than
18 years of age that is recorded prior to the filing of a
complaint is admissible as evidence in a hearing regarding the
offense if:
(a) no attorney for either party is in the minor's
presence when the statement is recorded;
(b) the recording is visual and aural and is
recorded;
(c) the recording equipment is capable of making an
accurate recording;
(d) the operator of the equipment is competent;
(e) the recording is accurate and has not been altered;
and
(f) each voice in the recording is identified.
(7) The testimony of a witness or victim younger than 18
years of age may be taken in a room other than the hearing room,
and may be transmitted by closed circuit equipment to another
room where it can be viewed by the respondent if:
(a) only the hearing panel members, attorneys for each
party, persons necessary to operate equipment, and a person
approved by the hearing officer whose presence contributes to the
welfare and emotional well-being of the minor may be with the
minor during the testimony;
(b) the respondent is not present during the minor's
testimony;
(c) the hearing officer ensures that the minor cannot
hear or see the respondent;
(d) the respondent is permitted to observe and hear, but
not communicate with the minor; and
(e) only hearing panel members, the hearing officer, and
the attorneys question the minor.
(8) If the hearing officer determines that the testimony
of a minor may be taken consistent with Subsections(4) through
(7) the minor may not be required to testify in any proceeding
where the recorded testimony is used.
(9) On the hearing officer's own motion or upon
objection by a party, the hearing officer:
(a) may exclude evidence that the hearing officer
determines to be irrelevant, immaterial, or unduly
repetitious;
(b) shall exclude evidence that is privileged under law
applicable to administrative proceedings in the state unless
waived;
(c) may receive documentary evidence in the form of a
copy or excerpt if the copy or excerpt contains all pertinent
portions of the original document;
(d) may take official notice of any facts that could be
judicially noticed under judicial or administrative laws of the
state, or from the record of other proceedings before the
agency.
(10)(a) A rebuttable evidentiary presumption exists that
a person has committed a sexual offense against a minor if the
person has:
(i) been found, pursuant to a criminal, civil, or
administrative action to have committed a sexual offense against
a minor;
(ii) failed to defend himself or herself against the
charge when given a reasonable opportunity to do so; or
(iii) voluntarily surrendered a license or allowed a
license to lapse in the face of a charge of having committed a
sexual offense against a minor.
(b) A rebuttable evidentiary presumption exists that a
person is unfit to serve as an educator if the person has been
found pursuant to a criminal, civil, or administrative action to
have exhibited behavior evidencing unfitness for duty, including
immoral, unprofessional, or incompetent conduct, or other
violation of standards of ethical conduct, performance, or
professional competence.
(c) Evidence of behavior described in Subsection(10)(b)
may include:
(i) conviction of a felony;
(ii) a felony charge and subsequent conviction for a
lesser related charge pursuant to a plea bargain or plea in
abeyance;
(iii) an investigation of an educator's license,
certificate, or authorization in another state; or
(iv) the expiration, surrender, suspension, revocation,
or invalidation of an educator's license for any
reason.
R277-202-12. Hearing Report.
(1) Within 20 days after the hearing, or within 20 days
after the deadline imposed for the filing of any post-hearing
materials as permitted by the hearing officer, the hearing
officer shall sign and issue a hearing report consistent with the
recommendations of the panel that includes:
(a) detailed findings of fact and conclusions of law
based upon the evidence of record or on facts officially
noted;
(b) a statement of relevant precedent, if
available;
(c) a statement of applicable law and rule;
(d) a recommended disposition of UPPAC panel members that
shall be one or an appropriate combination of the
following:
(i) dismissal of the complaint;
(ii) letter of admonishment;
(iii) letter of warning;
(iv) letter of reprimand;
(v) probation, to include the following terms and
conditions:
(A) it is the respondent's responsibility to petition
UPPAC for removal of probation and letter of reprimand from the
respondent's CACTUS file;
(B) a probationary time period or specifically designated
indefinite time period;
(C) conditions that can be monitored;
(D) if recommended by the panel, a person or entity to
monitor a respondent's probation;
(E) a statement providing for costs of probation, if
appropriate; and
(F) whether or not the respondent may work in any
capacity in public education during the probationary
period;
(vi) disciplinary action held in abeyance;
(vii) suspension, to include the following terms and
conditions:
(A) a recommended minimum time period after which an
educator may request a reinstatement hearing under Rule R277-203;
and
(B) any recommended conditions precedent to requesting a
reinstatement hearing under Section R277-203-2; or
(viii) revocation; and
(e) notice that UPPAC's recommendation is subject to
approval by the Board and judicial review as may be allowed by
law.
(2) Findings of fact may not be based solely upon
hearsay, and conclusions shall be based upon competent
evidence.
(3) Any of the consequences described in Subsection(1)(d)
may be imposed in the form of a disciplinary action held in
abeyance.
(4)(a) If the respondent's penalty is held in
abeyance, the respondent's penalty is stayed subject to the
satisfactory completion of probationary conditions.
(b) The decision to impose a consequence in the form of a
disciplinary action held in abeyance shall provide for
appropriate or presumed discipline if the respondent does not
fully satisfy the probationary conditions.
(5)(a) A hearing officer shall circulate a draft report
to hearing panel members prior to the 20 day completion deadline
of the hearing report.
(b) Hearing panel members shall notify the hearing
officer of any changes to the report:
(i) as soon as possible after receiving the report;
and
(ii) prior to the 20 day completion deadline of the
hearing report.
(c) The hearing officer shall file the completed hearing
report with the Executive Secretary, who shall review the report
with UPPAC.
(d) The Executive Secretary may participate in
UPPAC's deliberation as a resource to UPPAC in explaining the
hearing report and answering any procedural questions raised by
UPPAC members.
(e) The hearing officer may confer with the Executive
Secretary or the panel members or both while preparing the
hearing report.
(f) The hearing officer may request the Executive
Secretary to confer with the hearing officer and panel following
the hearing.
(g) The Executive Secretary may return a hearing report
to a hearing officer if the report is incomplete, unclear, or
unreadable, or missing essential components or
information.
(h) UPPAC shall vote to uphold the hearing officer's
and panel's report if UPPAC finds that:
(i) there are no significant procedural errors;
(ii) the hearing officer's recommendations are based
upon a reasonable interpretation of the evidence presented at the
hearing; and
(iii) that all issues explained in the hearing report are
adequately addressed in the conclusions of the report.
(i) After the UPPAC review, the Executive Secretary shall
send a copy of the hearing report to:
(i) the Board for further action;
(ii) the respondent; and
(iii) the UPPAC case file.
(6)(a) If UPPAC adopts a hearing report that recommends
an action, as defined in Subsection R277-200-2(l), either party
may request review by the Superintendent within 15 days from the
date the Executive Secretary sends a copy of the hearing report
to the respondent.
(b) The request for review shall consist of:
(i) the name, position, and address of the
appellant;
(ii) the issue being appealed; and
(iii) the signature of the appellant or the
appellant's representative.
(c) An appeal to the Superintendent is limited to a
question of fairness or a violation of due process.
(d) If the Superintendent finds that a procedural error
has occurred that violates fairness or due process, the
Superintendent shall:
(i) refer the report back to UPPAC for reconsideration as
to whether the findings, conclusions, or decisions are supported
by a preponderance of the evidence; or
(ii) direct the UPPAC Executive Secretary to take
specific administrative action.
(e) After UPPAC completes reconsideration, the
Superintendent shall:
(i) notify all parties; and
(ii) refer the report to the Board, if necessary, for
final disposition consistent with this rule.
(7)(a) Prior to Board consideration of a hearing report,
UPPAC shall:
(i) make the UPPAC case file available to the Board for
confidential review; and
(ii) make other evidence available for review as directed
by the Board.
(b) It is presumed that the Board will approve a UPPAC
hearing report if:
(i) the UPPAC hearing process comports with due process
and is free from a procedural error;
(ii) the hearing report is based upon a reasonable
interpretation of the evidence;
(iii) the hearing report's recommendations constitute
a reasonable resolution to the UPPAC investigation; and
(iv) the hearing report provides adequate guidance to the
educator concerning any conditions prior to:
(A) reinstatement;
(B) termination of probation; or
(C) removal of a letter of reprimand from
CACTUS.
(c) If the Board determines that any of the criteria in
Subsection (1) are absent from a hearing report, or that
exceptional circumstances exist, the Board shall:
(i) remand the case to UPPAC to cure any issues with due
process; or
(ii)(A) issue findings specifying the defects in the
hearing report and adopting the Board's agreed upon
disposition of the matter; and
(B) direct the Executive Secretary to include the
findings as an addendum to the hearing report, which findings
constitute final Board action.
(d) Following Board adoption of a hearing report or
alternative findings, the Executive Secretary shall:
(i) notify the educator;
(ii) notify the educator's employer;
(iii) update CACTUS to reflect the Board's action;
and
(iv) report the action to the NASDTEC Educator
Information Clearing house if the action results in:
(A) a revocation; or
(B) a suspension.
(8) The hearing report is a public document under Title
63G, Chapter 2, Government Records Access and Management Act
after final action is taken in the case, but may be redacted if
it is determined that the hearing report contains particular
information, the dissemination of which is otherwise restricted
under the law.
(9) A respondent's failure to comply with the terms
of a final disposition may result in additional discipline
against the educator license.
(10) If a hearing officer fails to satisfy the hearing
officer's responsibilities under this rule, the Executive
Secretary may:
(a) notify the Utah State Bar of the failure;
(b) reduce the hearing officer's compensation
consistent with the failure;
(c) take timely action to avoid disadvantaging either
party; or
(d) preclude the hearing officer from further employment
by the Board for UPPAC purposes.
(11) The Executive Secretary may waive the deadlines
within this section if the Executive Secretary finds good
cause.
(12) All criteria of letters of warning and reprimand,
probation, suspension, and revocation apply to the comparable
sections of the final hearing report.
R277-202-13. Default.
(1)(a) The Executive Secretary may prepare an order of
default if:
(i) the respondent fails to attend or participate in a
properly scheduled hearing after receiving proper notice;
or
(ii) the hearing officer recommends default as a sanction
as a result of misconduct by the respondent or the
respondent's representative during the course of the hearing
process.
(b) The hearing officer may determine that the respondent
has failed to attend a properly scheduled hearing if the
respondent has not appeared within 30 minutes of the appointed
time for the hearing to begin, unless the respondent shows good
cause for failing to appear in a timely manner.
(2) The recommendation of default may be executed by the
Executive Secretary following all applicable time periods,
without further action by UPPAC.
(3) An order of default may result in a recommendation to
the Board for revocation or for a suspension of no less than five
years.
(4) An order of default shall result in a recommendation
to the Board for a revocation if the alleged misconduct is
conduct identified in Subsection 53A-6-501(5)(b).
R277-202-14. Rights of Victims at Hearings.
(1) If the allegations that gave rise to the underlying
allegations involve abuse of a sexual or physical nature, UPPAC
shall make reasonable efforts to:
(a) advise the alleged victim that a hearing has been
scheduled; and
(b) notify the alleged victim of the date, time, and
location of the hearing.
(2) An alleged victim entitled to notification of a
hearing is permitted, but is not required, to attend the
hearing.
KEY: hearings, reports, 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 angie.stallings@schools.utah.gov. For questions about the rulemaking process, please contact the Division of Administrative Rules.