Rule R686-104. Utah Professional Practices Advisory Commission Denial of License Due to Background Check Offenses.

As in effect on August 1, 2009

Table of Contents

• R686-104-1. Definitions.
• R686-104-2. Authority and Purpose.
• R686-104-3. Initial Submission and Evaluation of Information.
• R686-104-4. Appeal.
• R686-104-5. Appeal Procedure.
• KEY
• Date of Enactment or Last Substantive Amendment
• Notice of Continuation
• Authorizing, Implemented, or Interpreted Law

R686-104-1. Definitions.

A. "Applicant" means an individual seeking a clearance of a criminal background check pursuant to approval for an educational license at any stage of the licensing process from the USOE.

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

C. "Commission" means the Utah Professional Practices Advisory Commission as defined and authorized under Section 53A-6-301 et seq.

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

E. "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, or UPPAC.

F. "License" means an authorization issued by the Board which permits the holder to serve in a professional capacity in a unit of the public education system or an accredited private school.

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

R686-104-2. Authority and Purpose.

A. This rule is authorized by Section 53A-6-306(1) which directs the Commission to adopt rules to carry out its responsibilities under the law and Section 53A-6-107 which directs the Board to carry out its responsibilities.

B. The purpose of this rule is to establish procedures for an applicant to proceed toward licensing when an application or recommendation for licensing identifies offenses in the applicant's criminal background check. The standards and procedures of the Utah Administrative Procedures Act do not apply to this rule under the exemption of Section 63G-4-102(2)(d).

R686-104-3. Initial Submission and Evaluation of Information.

A. Upon receipt of information as the result of a fingerprint check of all applicable state, regional, and national criminal records files pursuant to Section 53A-6-401, the Executive Secretary shall make a determination to approve the applicant's request for criminal background check clearance based on time passed since offense, violent nature of the offense (student safety), involvement or non-involvement of students or minors in the offense, or refer the application to the Commission for a decision and request further information and explanation from the applicant. The Executive Secretary may require the applicant to provide additional information, including:

(1) a letter of explanation for each offense reported to the Commission that details the circumstances, the final disposition, and any explanation for the offense the applicant may want to provide the Commission, including any advocacy for approving licensing.

(2) 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.

B. The Commission shall only consider an applicant's licensing request after receipt of all letters of explanation and documentation requested in good faith by the Executive Secretary.

C. If an applicant is under court supervision of any kind, including parole, informal or formal probation or plea in abeyance, there is a presumption that the individual shall not be approved for licensing until the supervision is successfully terminated.

D. It is the applicant's sole responsibility to provide the requested material to the Commission.

E. Upon receipt of any requested documentation, including the applicant's written letters of explanation and advocacy, the Commission shall either approve the applicant's request for criminal background check clearance; deny the applicant's licensing request; or seek further information, personally from the applicant or other sources, at the first possible meeting of the Commission.

R686-104-4. Appeal.

A. Should the Commission deny an applicant's licensing request, the Commission shall inform the applicant in writing that the application for licensing has been denied and notify the applicant of the right to appeal that decision under this Rule.

B. The applicant shall have 30 days from notice provided under R686-104-3A to make formal written request for an appeal.

C. An applicant's request to appeal the denial of clearance shall follow the application criteria and format contained in R686-100-19(A)(1) and shall include:

(1) name and address of the individual requesting review;

(2) action being requested;

(3) the grounds for the appeal, which are limited to:

(a) a mistake of identity;

(b) a mistake of fact regarding the information relied upon by the Commission in making its decision;

(c) information that could not, with reasonable diligence, have been discovered and produced by the applicant previously and provided previously to the Commission; or

(d) compelling circumstances that in the judgment of the Commission Executive Committee warrant an appeal.

(4) signature of person requesting review.

D. The Commission Executive Secretary shall make a determination regarding the grounds for appeal in a timely manner, inform the applicant in writing of the decision, and, if necessary, schedule an appeal hearing at the earliest possible date, consistent with the standard Commission meetings.

R686-104-5. Appeal Procedure.

A. An applicant shall have the right to be represented by an attorney at an appeal hearing under this Rule. The Commission shall be represented by a person appointed by the Investigations Unit of the USOE.

B. The burden of proof at an appeal hearing shall be on the applicant to show that the actions of the Commission in denying the applicant's licensing request were based on the grounds enumerated in R686-104-3C.

C. The hearing shall be heard before a panel (3 members) of the Commission or the Commission, chosen under the same procedures and having the same duties as delineated in R686-100-6.

D. The Commission Executive Secretary or Commissioner Chair shall conduct the hearing and act as hearing officer. The hearing officer's duties shall be the same duties as delineated in R686-100-6(A).

E. At the sole discretion of the hearing officer, the hearing shall be conducted under R686-100-7 through 14, as applicable. All procedural matters shall be at the sole discretion of the Executive Secretary who has the right to limit witnesses and evidence presented by the applicant in support of the appeal.

F. Within 20 days after the hearing, the Executive Secretary or Commission Chair shall issue a written report containing:

(1) detailed findings of fact related to the factual basis for the appeal;

(2) the decision and rationale of the hearing panel concerning the applicant's clearance of criminal background check request; and

(3) any time-line or conditions set by the panel for a reapplication for clearance by the applicant.

G. The decision of the hearing panel is final.

KEY

educator license, appeals

Date of Enactment or Last Substantive Amendment

October 16, 2002

Notice of Continuation

October 5, 2007

Authorizing, Implemented, or Interpreted Law

53A-6-306(1); 53A-6-107