ࡱ> WYV9 KIbjbj GlnhnhA7:::::NNN8$lN,,,%''''''$X`K:K::,,`R:,:,%%,@ |^YFv0.:(KKX : 05-071 STATE BOARD OF EDUCATION Chapter 119: ADJUDICATORY PROCEEDINGS ON CERTIFICATION ISSUES SUMMARY: This rule describes the procedures for the conduct of formal adjudicatory hearings pertaining to applications for the issuance or renewal of any certificate or endorsement which has been tentatively denied by the Commissioner. 1. INTRODUCTION 1.1 Definitions As used in this rule, all terms have the same meaning as those same terms in the fb88 Administrative Procedure Act, 5 MRSA Chapter 375. Other terms are defined as follows: Adjudicatory proceeding - An administrative proceeding before the Department of Education in which the legal rights, duties, or privileges of specifically named persons are required by constitutional right, by provision of law or by rule to be determined. Commissioner - The Commissioner of Education or a designee. Department - The Department of Education. Party - The specifically named applicant whose legal rights, duties or privileges are being determined in an adjudicatory proceeding and any other person(s) allowed to intervene. 1.2 Scope of Rule This rule shall govern administrative proceedings in which an applicant who has been tentatively denied the issuance, renewal or extension of a certificate authorized under 20-A MRSA Chapter 502 (certification of educational personnel) appeals that tentative denial to the Commissioner. 1.3 Existing Certificate in Effect Pending Final Determination Except as otherwise provided by law, when an applicant has made timely and sufficient application for renewal of a certificate, the existing certificate shall not expire until the application has been finally determined by the Commissioner. 2. NOTICE OF HEARING 2.1 Notice of opportunity for Hearing The Department shall notify, in writing, any person whose application for the issuance, renewal or extension of a certificate authorized by 20-A MRSA Chapter 502 has been tentatively denied by the Commissioner. The notice shall state the reasons for the tentative denial and give notice of opportunity for an adjudicatory hearing as set forth in section 2.4. The notice shall inform the applicant of the right to contest the tentative denial by filing a petition for adjudicatory proceeding under section 3.1 within 30 days of the date of the notice. The notice shall further inform the applicant that if a petition for adjudicatory proceeding is not timely filed, the tentative denial shall automatically become final upon expiration of the filing deadline. 2.2 Notice of Hearing Upon receiving a petition for adjudicatory proceeding under section 3.1, the Department shall provide written notice to the applicant, the superintendent of the employing school unit and the local support system. Such written notice shall be provided at least 15 days prior to hearing. 2.3 Notice to Public In any proceeding deemed by the Commissioner to involve the determination of issues of substantial public interest, notice of hearing shall be sent to the public as required by 5 MRSA 8053-9052. 2.4 Contents of Notice To the extent applicable, notices of opportunity for hearing and notices of hearing shall contain the following information: (a) A statement of the legal authority and jurisdiction under which the proceeding is being conducted, (b) A reference to the particular statutory and rule provisions involved, (c) A short and plain statement of the nature and purpose of the proceeding and of the issues to be determined, (d) A statement of the time and place of the hearing, or the time within which a hearing may be requested, (e) A statement of the manner and time within which evidence and argument may be submitted to the Department for consideration, whether or not a hearing has been set, and (f) When a hearing has been set, a statement of the manner and time within which applications for intervention may be filed. 3. INITIATION OF PROCEEDINGS 3.1 Petition for Adjudicatory Proceeding Any person whose application for the issuance, renewal or extension of a certificate authorized by 20-A MRSA Chapter 502 has been tentatively denied by the Commissioner may initiate an adjudicatory proceeding by filing a written petition with the Department within 30 days of the date of the notice of opportunity for hearing. 3.2 Format The petition shall state clearly and concisely the facts which are grounds for contesting the tentative denial and which establish the applicant's claim of entitlement to a certificate. 4. HEARING OFFICER 4.1 Appointment; Role Upon the filing of a petition for adjudicatory proceeding the Commissioner shall appoint a hearing officer to conduct a hearing and to prepare proposed findings of fact and conclusions of law. If appointed from within the Department, the hearing officer shall be from a sub-team unit of the Department which is completely separate from any person involved in the certification or investigatory process. The hearing officer may be appointed from outside the Department and may also be a person who serves on special contract to the Department for that function. 4.2 Ex Parte Communications The hearing officer shall not communicate directly or indirectly in connection with any issue of fact, law or procedure, with any party or other persons legally interested in the outcome of the proceeding, except upon notice and opportunity for all parties to participate. This section shall not prohibit the hearing officer from having the aid or advice of agency staff, counsel or consultants retained by the Department who have not participated and will not participate in the proceeding in an advocate or adversarial capacity. 4.3 Duties of the Hearing Officer The hearing officer shall: a) Administer oaths or affirmations to all witnesses who testify, b) Receive, exclude or limit the admissibility of evidence, c) Ensure an orderly presentation of the evidence, d) Ensure that all parties have a full opportunity to present their claims, e) Regulate the course of the hearing, set the time and place for continuation of hearings, and fix the time for filing of evidence, briefs, and other written submissions. 4.4 Other Powers of the Hearing Officer The hearing officer may: a) Limit attendance at the hearing to the extent allowed by law, b) Change the date, time, or place of the hearing on his/her own motion or at the request of any party upon due notice to the parties, c) Request the parties to provide a statement of the issues and to limit the issues for the purpose of the hearing; d) Regulate the presentation of evidence and the participation of the parties for the purpose of ensuring an adequate, comprehensive record of the proceedings. 5. REPRESENTATION 5.1 Representation The applicant may appear in his/her own behalf or may be represented by counsel or other designated representative. 6. INTERVENTION 6.1 Intervention and Public Participation a) On timely application, the hearing officer shall allow any person who shows that he/she is or may be substantially and directly affected by the proceeding to intervene as a party in the proceeding. The employing school unit and the local support system shall be allowed to intervene upon application of the school board. On timely application, the hearing officer may in his/her discretion permit any other person to intervene and participate as a full or limited party to the proceeding. This subsection shall not be construed to limit public participation in the proceeding in any other capacity. 6.2 Intervention Procedure Application for intervention in Department adjudicatory proceedings shall be filed at least seven days in advance of a scheduled hearing, except for good cause shown. Rulings by the hearing officer shall be subject to the provisions of 5 MRSA 9054. 7. SUBPOENAS 7.1 Procedure Any party may request the issuance of subpoenas to compel the attendance and testimony of one or more witnesses and the production of any evidence relating to any issue of fact in the proceeding. The issuance, modification and vacating of subpoenas shall be governed by 5 MRSA 9060. 7.2 Requests Parties shall submit requests for the issuance of subpoenas to the hearing officer at least 10 days prior to a scheduled hearing, except for good cause shown. The hearing officer shall promptly forward such requests to the Attorney General for approval. 7.3 Fees Witnesses subpoenaed for Department hearings shall be paid the same fees for attendance and travel as in civil cases before the courts of the state. Fees shall be paid by the party requesting the subpoena when the request is submitted. Proper and timely service of a subpoena shall be the responsibility of the party who requested it. 8. HEARING PROCEDURE 8.1 De Novo Hearing; Burden of Proof The adjudicatory proceeding shall be a de novo proceeding at which the applicant has the burden of proof. The hearing officer shall attach no presumptions or particular weight to prior decisions or recommendations in the matter. 8.2 Scheduling The opportunity for hearing shall be afforded without undue delay. Upon receipt of a petition for adjudicatory hearing, the Commissioner shall appoint a hearing officer who shall establish a hearing date. 8.3 Pre-hearing Conference The hearing officer may, upon his/her own initiative or upon the application of any party, call upon the parties to appear for a pre-hearing conference to consider the simplification, clarification or elimination of issues, the development of stipulations and admissions, the identification and possible limitation of the number of witnesses, the admissibility of evidence and such other matters as may aid in the disposition of the adjudicatory proceeding. Scheduling of a pre-hearing conference shall be solely within the discretion of the hearing officer. 8.4 Location An adjudicatory proceeding shall be held in Augusta or in or near the applicant's employing school unit, except that those adjudicatory proceedings arising from a disagreement between the support system and the superintendent over renewal of a Provisional Teacher certificate shall be held in the employing school unit. 8.5 Disposition Without Full Hearing Subject to the approval of the Commissioner, the hearing officer may make informal disposition of any proceeding by stipulation, agreed settlement or consent agreement. The hearing officer may also limit the issues to be heard in the proceeding or may vary any procedure prescribed in this rule or in the fb88 Administrative Procedure Act if the parties agree to such limitation or variation or if no prejudice to any party will result. 8.6 Evidence a) The hearing officer need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The hearing officer may exclude irrelevant or unduly repetitious evidence. b) All witnesses shall be sworn. c) No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown. 8.7 Official Notice a) The hearing officer may take official notice of any facts of which judicial notice could be taken, and in addition may take official notice of general, technical or scientific matters within his/her specialized knowledge and of statutes, regulations and nonconfidential agency records. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed. b) Facts officially noticed shall be included and indicated as such in the record. c) Notwithstanding the foregoing, the hearing officer may utilize his/her experience, technical competence and specialized knowledge in the evaluation of the evidence presented. 8.8 Order of Proceedings The hearing officer shall set the order of proceedings. 8.9 Time and Place of Filings Papers required or permitted to be filed under this rule must be filed at the Department or such other place as the hearing officer shall designate within the time limits for such filing as are set by the Commissioner or the hearing officer. 8.10 Conclusion of Hearing; Reopening of Record Upon conclusion of the hearing, no other evidence or testimony shall be permitted unless the record is held open by the hearing officer for the receipt of additional material specifically designated. The hearing officer may reopen the record for further proceedings at any time prior to decision upon provision of appropriate notice to parties and other interested persons. 9. DECISIONS 9.1 Circulation of Recommended Decision Upon conclusion of the hearing the hearing officer shall prepare a recommended decision consisting of written findings of fact and conclusions of law. He/she shall send copies of this document to the Commissioner and to the parties. The hearing officer shall fix a time within which parties may file responses or exceptions, and shall forward all responses or exceptions timely filed to the Commissioner for consideration. 9.2 Final Decisions Every decision made at the conclusion of a proceeding subject to this rule shall be made by the Commissioner in writing and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision. A copy of the decision shall be delivered or promptly mailed to each party to the proceeding or his representative of record. Written notice of the party's rights to review of the decision by the courts, and of the action required and the time within which such action must be taken in order to exercise the right of review, shall be given to each party with the decision. 10. RECORD 10.1 Contents of Record a) In proceedings subject to this rule, the hearing officer shall make a record consisting of: (1) All papers filed and evidence received or considered; (2) A statement of facts officially noticed; (3) Offers of proof, objections and rulings thereon; (4) Proposed findings of fact and conclusions of law proposed by the hearing officer, plus any responses or exceptions timely filed, and (5) The final decision of the Commissioner. 10.2 Hearings The hearing officer shall record all hearings in a form susceptible to transcription. Portions of the record as required and specified in section 10.1 may be included in the recording. 10.3 Record; copies The Department shall make a copy of the record, including any recordings, available at its principal place of operation for inspection by any person during normal business hours and shall make copies of the record, copies of recordings or transcriptions of recordings available to any person at actual cost. 10.4 Decision on the Record All material, including records, reports, and documents in the possession of the Department, of which the Commissioner desires to avail himself/herself as evidence in making a decision, shall be offered and made a part of the record and no other factual information or evidence shall be considered in rendering a decision. 11. HEARING OFFICER EMPLOYED BY OTHER STATE AGENCY 11.1 Generally In the event that the Commissioner arranges with another state agency for the services of hearing officers employed by that agency, and such agency has in effect hearing rules adopted according to law, that agency's hearing rules shall apply to certification hearings subject to this chapter in place of the provisions of this chapter. The provisions of any memorandum of understanding executed by the respective commissioners or their designees shall also apply to any certification hearings conducted by hearing officers employed by the other agency for the Department of Education. 11.2 Surviving Provisions Notwithstanding section 11.1, the following provisions of this chapter shall nonetheless apply in any certification appeals: section 123, section 2.1, section 2.4 insofar as it related to notice of opportunity for hearing, section 3.1, section 4.1, section 8.1, and section 8.4. STATUTORY AUTHORITY: 20-A MRSA 13011(4); 5 MRSA 8051 EFFECTIVE DATE: July 1, 1988 AMENDED: February 6, 1990 April 27, 1996 EFFECTIVE DATE (ELECTRONIC CONVERSION): May 19, 1996 AMENDED: September 4, 1997 - Section 4.1; non-substantive corrections to Sections 2.3 and 4.4.     05-071 Chapter 119 page page 1  !_`a M N ^ _ p q  ! "  $ % c d  F G Z [  | } %&<=ST45bch]CJOJQJ^JaJhCCJOJQJ^JaJZ !_`aM N ^ _ p q ! 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