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H.B. 109

             1     

EDUCATOR LICENSING AND PROFESSIONAL

             2     
PRACTICES ACT

             3     
1999 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Sheryl L. Allen

             6      Richard M. Siddoway




             7      AN ACT RELATING TO PUBLIC EDUCATION; REFORMATTING AND RESTRUCTURING
             8      STATUTORY PROVISIONS ON LICENSING OF EDUCATORS; PROVIDING DEFINITIONS;
             9      PROVIDING PROFESSIONAL DEVELOPMENT PROVISIONS; ESTABLISHING CRITERIA
             10      FOR USING SUBSTITUTE TEACHERS; PROVIDING FOR A HEARING PROCESS
             11      REGARDING COMPLAINTS AGAINST EDUCATORS; PROVIDING A REPEALER; AND
             12      PROVIDING AN EFFECTIVE DATE.
             13      This act affects sections of Utah Code Annotated 1953 as follows:
             14      AMENDS:
             15          58-61-307, as last amended by Chapter 10, Laws of Utah 1997
             16          63-30-2, as last amended by Chapters 192 and 260, Laws of Utah 1994
             17      ENACTS:
             18          53A-3-420, Utah Code Annotated 1953
             19          53A-6-303, Utah Code Annotated 1953
             20          53A-6-304, Utah Code Annotated 1953
             21          53A-6-305, Utah Code Annotated 1953
             22          53A-6-306, Utah Code Annotated 1953
             23          53A-6-307, Utah Code Annotated 1953
             24          53A-6-403, Utah Code Annotated 1953
             25          53A-6-404, Utah Code Annotated 1953
             26          53A-6-405, Utah Code Annotated 1953
             27          53A-6-501, Utah Code Annotated 1953


             28          53A-6-502, Utah Code Annotated 1953
             29          53A-6-601, Utah Code Annotated 1953
             30          53A-6-602, Utah Code Annotated 1953
             31          53A-6-603, Utah Code Annotated 1953
             32          53A-6-604, Utah Code Annotated 1953
             33      REPEALS AND REENACTS:
             34          53A-6-101, as last amended by Chapter 78, Laws of Utah 1990
             35          53A-6-102, as enacted by Chapter 2, Laws of Utah 1988
             36          53A-6-103, as last amended by Chapters 263 and 280, Laws of Utah 1998
             37          53A-6-104, as last amended by Chapter 246, Laws of Utah 1992
             38          53A-6-105, as enacted by Chapter 2, Laws of Utah 1988
             39          53A-6-106, as last amended by Chapter 160, Laws of Utah 1996
             40          53A-6-107, as last amended by Chapter 263, Laws of Utah 1998
             41          53A-6-108, as enacted by Chapter 220, Laws of Utah 1995
             42          53A-6-109, as enacted by Chapter 95, Laws of Utah 1997
             43          53A-6-301, as last amended by Chapter 113, Laws of Utah 1993
             44          53A-6-302, as last amended by Chapter 260, Laws of Utah 1994
             45          53A-6-401, as enacted by Chapter 308, Laws of Utah 1993
             46          53A-6-402, as enacted by Chapter 308, Laws of Utah 1993
             47          53A-7-101, as enacted by Chapter 2, Laws of Utah 1988
             48          53A-7-102, as last amended by Chapter 247, Laws of Utah 1991
             49      REPEALS:
             50          53A-7-103, as last amended by Chapter 247, Laws of Utah 1991
             51          53A-7-104, as last amended by Chapter 247, Laws of Utah 1991
             52          53A-7-105, as last amended by Chapter 247, Laws of Utah 1991
             53          53A-7-106, as last amended by Chapter 247, Laws of Utah 1991
             54          53A-7-107, as last amended by Chapter 247, Laws of Utah 1991
             55          53A-7-108, as enacted by Chapter 2, Laws of Utah 1988
             56          53A-7-109, as last amended by Chapter 247, Laws of Utah 1991
             57          53A-7-110, as last amended by Chapter 46, Laws of Utah 1998
             58          53A-7-111, as last amended by Chapter 247, Laws of Utah 1991


             59          53A-7-112, as last amended by Chapter 247, Laws of Utah 1991
             60          53A-7-113, as enacted by Chapter 2, Laws of Utah 1988
             61          53A-7-201, as last amended by Chapter 247, Laws of Utah 1991
             62          53A-7-202, as last amended by Chapter 247, Laws of Utah 1991
             63          53A-7-203, as last amended by Chapter 247, Laws of Utah 1991
             64          53A-7-204, as last amended by Chapter 247, Laws of Utah 1991
             65      Be it enacted by the Legislature of the state of Utah:
             66          Section 1. Section 53A-3-420 is enacted to read:
             67          53A-3-420. Professional competence or performance -- Administrative hearing by
             68      local school board -- Action on complaint.
             69          (1) (a) No civil action by or on behalf of a student relating to the professional competence
             70      or performance of a licensed employee of a school district, or to the discipline of students by a
             71      licensed employee, application of in loco parentis, or a violation of ethical conduct by an employee
             72      of a school district, may be brought in a court until at least 60 days after the filing of a written
             73      complaint with the local board of education of the district, or until findings have been issued by
             74      the local board after a hearing on the complaint, whichever is sooner.
             75          (b) As used in Subsection (1)(a), "in loco parentis" means the power of professional school
             76      personnel to exercise the rights, duties, and responsibilities of a reasonable, responsible parent in
             77      dealing with students in school-related matters.
             78          (2) Within 15 days of receiving a complaint under Subsection (1), a local school board
             79      may elect to refer the complaint to the State Board of Education.
             80          (3) If a complaint is referred to the board, no civil action may be brought in a court on
             81      matters relating to the complaint until the board has provided a hearing and issued its findings or
             82      until 90 days after the filing of the complaint with the local school board, whichever is sooner.
             83          Section 2. Section 53A-6-101 is repealed and reenacted to read:
             84     
CHAPTER 6. EDUCATOR LICENSING AND PROFESSIONAL PRACTICES ACT

             85     
Part 1. General Provisions

             86          53A-6-101. Title.
             87          This chapter is known as the "Educator Licensing and Professional Practices Act."
             88          Section 3. Section 53A-6-102 is repealed and reenacted to read:
             89          53A-6-102. Declaration of education as a profession.


             90          (1) As noted by the United States Supreme Court, "today education is perhaps the most
             91      important function of state and local governments." The Legislature accepts that conclusion,
             92      recognizing that the future success of our state and nation depend in large part upon the existence
             93      of a responsible and educated citizenry.
             94          (2) In providing for the safe and effective performance of the function of educating Utah's
             95      children, the Legislature finds it to be of critical importance that education, including instruction,
             96      administrative, and supervisory services, be recognized as a profession, and that those licensed to
             97      serve as educators:
             98          (a) meet high standards both as to qualifications and fitness for service as educators before
             99      assuming their responsibilities in the schools;
             100          (b) maintain those standards while holding licenses; and
             101          (c) have access to a process for fair examination and review of allegations made against
             102      them and for the administration of appropriate sanctions against those found, in accordance with
             103      due process, to have failed to conduct themselves in a manner commensurate with their authority
             104      and responsibility to provide appropriate professional services to the children of the state.
             105          Section 4. Section 53A-6-103 is repealed and reenacted to read:
             106          53A-6-103. Definitions.
             107          As used in this chapter:
             108          (1) "Accredited institution" means an institution meeting the requirements of Section
             109      53A-6-107 .
             110          (2) "Alternative preparation program" means preparation for licensure in accordance with
             111      applicable law and rule through other than an approved preparation program.
             112          (3) "Ancillary requirement" means a requirement established by law or rule in addition to
             113      completion of an approved preparation program or alternative education program or establishment
             114      of eligibility under the NASDTEC Interstate Contract, and may include any of the following:
             115          (a) minimum grade point average;
             116          (b) standardized testing or assessment;
             117          (c) mentoring;
             118          (d) recency of professional preparation or experience;
             119          (e) graduation from an accredited institution; or
             120          (f) evidence relating to moral, ethical, physical, or mental fitness.


             121          (4) "Approved preparation program" means a program for preparation of educational
             122      personnel offered through an accredited institution in Utah or in a state which is a party to a
             123      contract with Utah under the NASDTEC Interstate Contract and which, at the time the program
             124      was completed by the applicant:
             125          (a) was approved by the governmental agency responsible for licensure of educators in the
             126      state in which the program was provided;
             127          (b) satisfied requirements for licensure in the state in which the program was provided;
             128          (c) required completion of a baccalaureate; and
             129          (d) included a supervised field experience.
             130          (5) "Board" means the Utah State Board of Education.
             131          (6) "Certificate" means a license issued by a governmental jurisdiction outside the state.
             132          (7) "Educator" means:
             133          (a) a person who holds a license;
             134          (b) a teacher, counselor, administrator, librarian, or other person required, under rules of
             135      the board, to hold a license; or
             136          (c) a person who is the subject of an allegation which has been received by the board or
             137      UPPAC and was, at the time noted in the allegation, a license holder or a person employed in a
             138      position requiring licensure.
             139          (8) "Endorsement" means a stipulation appended to a license setting forth the areas of
             140      practice to which the license applies.
             141          (9) "License" means an authorization issued by the board which permits the holder to serve
             142      in a professional capacity in the public schools. The four levels of licensure are:
             143          (a) "Letter of authorization," which is a temporary license issued to a person who has not
             144      completed requirements for a level 1, 2, or 3 license, such as a student teacher or a person hired
             145      to perform professional services on an emergency basis when fully qualified personnel are not
             146      available;
             147          (b) "Level 1 license," which is a license issued upon completion of an approved
             148      preparation program or an alternative preparation program, or pursuant to an agreement under the
             149      NASDTEC Interstate Contract, to candidates who have also met all ancillary requirements
             150      established by law or rule;
             151          (c) "Level 2 license," which is a license issued after satisfaction of all requirements for a


             152      Level 1 license as well as any additional requirements established by law or rule relating to
             153      professional preparation or experience; and
             154          (d) "Level 3 license," which is a license issued to an educator who holds a current Utah
             155      Level 2 license and has also received, in the educator's field of practice, National Board
             156      certification or a doctorate from an accredited institution.
             157          (10) "NASDTEC" means the National Association of State Directors of Teacher Education
             158      and Certification.
             159          (11) "NASDTEC Interstate Contract" means the contract implementing Title 53A, Chapter
             160      6, Part 2, Compact for Interstate Qualification of Educational Personnel, which is administered
             161      through NASDTEC.
             162          (12) "National Board certification" means a current certificate issued by the National
             163      Board for Professional Teaching Standards.
             164          (13) "Office" means the Utah State Office of Education.
             165          (14) "Rule" means an administrative rule adopted by the board under Title 63, Chapter
             166      46a, Utah Administrative Rulemaking Act.
             167          (15) "School" means a public or private entity which provides educational services to a
             168      minor child.
             169          (16) "UPPAC" means the Utah Professional Practices Advisory Commission.
             170          Section 5. Section 53A-6-104 is repealed and reenacted to read:
             171          53A-6-104. Board licensure.
             172          (1) (a) The board may issue licenses for educators.
             173          (b) A person employed in a position that requires licensure by the board shall hold the
             174      appropriate license.
             175          (2) (a) The board may by rule rank, endorse, or otherwise classify licenses and establish
             176      the criteria for obtaining and retaining licenses.
             177          (b) The board shall make rules requiring participation in professional development
             178      activities in order for educators to retain their licenses.
             179          (3) Unless suspended or revoked by the board, or surrendered by the educator, a license
             180      is valid for the following period:
             181          (a) a letter of authorization is valid for one year, or a shorter period as specified by the
             182      board, subject to renewal by the board for a total of not more than four years;


             183          (b) a level 1 license is valid for three years, subject to renewal by the board for a total of
             184      not more than six years;
             185          (c) a level 2 license is valid for five years, subject to renewal by the board; and
             186          (d) a level 3 license is valid for seven years, subject to renewal by the board.
             187          Section 6. Section 53A-6-105 is repealed and reenacted to read:
             188          53A-6-105. Licensing fees -- Credit to subfund -- Payment of expenses.
             189          (1) The board shall levy a fee for each new or reinstated license or endorsement in
             190      accordance with Section 63-38-3.2 .
             191          (2) Fee payments are credited to the Professional Practices Restricted Subfund in the
             192      Uniform School Fund.
             193          (3) The board shall pay the expenses of issuing licenses and of UPPAC operations, and
             194      the costs of collecting license fees from the restricted subfund.
             195          (4) The office shall submit an annual report to the Legislature's Public Education
             196      Appropriations Subcommittee informing the Legislature about the fund, fees assessed and
             197      collected, and expenditures from the fund.
             198          Section 7. Section 53A-6-106 is repealed and reenacted to read:
             199          53A-6-106. Qualifications of applicants for licenses -- Changes in qualifications.
             200          (1) The board shall establish by rule the scholarship, training, and experience required of
             201      license applicants.
             202          (2) (a) The board shall announce any increase in the requirements when made.
             203          (b) An increase in requirements shall become effective not less than one year from the date
             204      of the announcement.
             205          (3) The board may determine by examination or otherwise the qualifications of license
             206      applicants.
             207          Section 8. Section 53A-6-107 is repealed and reenacted to read:
             208          53A-6-107. Program approval.
             209          (1) The board shall establish by rule the standards which must be met by approved
             210      preparation programs and alternative preparation programs.
             211          (2) Standards adopted by the board for approved preparation programs and alternative
             212      preparation programs shall meet or exceed generally recognized national standards for preparation
             213      of educators, such as those developed by the Interstate New Teacher Assessment and Support


             214      Consortium, the National Board for Professional Teaching Standards, and the National Council
             215      for the Accreditation of Teacher Education.
             216          Section 9. Section 53A-6-108 is repealed and reenacted to read:
             217          53A-6-108. Prohibition on use of degrees or credit from unapproved institutions.
             218          (1) An individual may not use a postsecondary degree or credit awarded by a
             219      postsecondary institution or program to gain a license, employment, or any other benefit within
             220      the public school system unless the institution or program was, at the time the degree or credit was
             221      awarded:
             222          (a) approved for the granting of the degree or credit by the board; or
             223          (b) accredited by an accrediting organization recognized by the board.
             224          (2) The board may grant an exemption from Subsection (1) to an individual who shows
             225      good cause for the granting of the exemption.
             226          Section 10. Section 53A-6-109 is repealed and reenacted to read:
             227          53A-6-109. Substitute teachers.
             228          (1) A substitute teacher need not hold a license to teach, but school districts shall hire
             229      licensed personnel as substitutes when available.
             230          (2) A person must submit to a background check under Section 53A-3-410 prior to
             231      employment as a substitute teacher.
             232          (3) A teacher's position in the classroom may not be filled by unlicensed substitute teachers
             233      for more than a total of 20 days during any school year unless licensed personnel are not available.
             234          (4) A person who is ineligible to hold a license for any reason other than professional
             235      preparation may not serve as a substitute teacher.
             236          Section 11. Section 53A-6-301 is repealed and reenacted to read:
             237     
Part 3. Utah Professional Practices Advisory Commission

             238          53A-6-301. Utah Professional Practices Advisory Commission.
             239          The Utah Professional Practices Advisory Commission, UPPAC, is established to assist
             240      and advise the board in matters relating to the professional practices of educators.
             241          Section 12. Section 53A-6-302 is repealed and reenacted to read:
             242          53A-6-302. UPPAC members -- Executive secretary.
             243          (1) UPPAC shall consist of a nonvoting executive secretary and 11 voting members, nine
             244      of whom shall be licensed educators in good standing, and two of whom shall be members of the


             245      general public.
             246          (2) Five of the voting members shall be persons whose primary responsibility is teaching.
             247          (3) (a) The state superintendent of public instruction shall appoint an employee of the
             248      office to serve as executive secretary.
             249          (b) Voting members are appointed by the superintendent as provided under Section
             250      53A-6-303 .
             251          (4) The office shall provide staff support for UPPAC activities.
             252          Section 13. Section 53A-6-303 is enacted to read:
             253          53A-6-303. Nominations -- Appointment of commission members -- Reappointments.
             254          (1) (a) The board shall adopt rules establishing procedures for nominating and appointing
             255      individuals to voting membership on UPPAC.
             256          (b) Nomination petitions must be filed with the state superintendent prior to June 16 of the
             257      year of appointment.
             258          (c) A nominee for appointment as a member of UPPAC as an educator must have been
             259      employed in the representative class in the Utah public school system or a private school
             260      accredited by the board during the three years immediately preceding the date of appointment.
             261          (2) The state superintendent of public instruction shall appoint the members of the
             262      commission.
             263          (3) Appointments begin July 1 and are for terms of three years and until a successor is
             264      appointed.
             265          (4) Terms of office are staggered so that approximately 1/3 of UPPAC members are
             266      appointed annually.
             267          (5) A member may not serve more than two terms.
             268          Section 14. Section 53A-6-304 is enacted to read:
             269          53A-6-304. Filling of vacancies.
             270          (1) A UPPAC vacancy occurs if a member resigns, fails to attend three or more meetings
             271      during a calendar year, or no longer meets the requirements for nomination and appointment.
             272          (2) If a vacancy occurs, the state superintendent shall appoint a successor to fill the
             273      unexpired term.
             274          (3) If the superintendent does not fill the vacancy within 60 days, the board shall make the
             275      appointment.


             276          (4) Nominations to fill vacancies are submitted to the superintendent in accordance with
             277      procedures established under rules of the board.
             278          Section 15. Section 53A-6-305 is enacted to read:
             279          53A-6-305. Meetings and expenses of UPPAC members.
             280          (1) UPPAC shall meet at least quarterly and at the call of the chair or of a majority of the
             281      members.
             282          (2) Members of UPPAC serve without compensation but are allowed reimbursement for
             283      actual and necessary expenses under the rules of the Division of Finance.
             284          (3) The board shall pay reimbursement to UPPAC members out of the Professional
             285      Practices Restricted Subfund in the Uniform School Fund.
             286          Section 16. Section 53A-6-306 is enacted to read:
             287          53A-6-306. Purpose, powers, and duties of UPPAC.
             288          (1) UPPAC shall:
             289          (a) adopt rules consistent with applicable law and board rules to carry out its
             290      responsibilities under this chapter;
             291          (b) make recommendations to the board and professional organizations of educators:
             292          (i) concerning standards of professional performance, competence, and ethical conduct for
             293      persons holding licenses issued by the board; and
             294          (ii) for the improvement of the education profession;
             295          (c) establish procedures for receiving and acting upon reports or allegations regarding
             296      immoral, unprofessional, or incompetent conduct, unfitness for duty, or other violations of
             297      standards of ethical conduct, performance, or professional competence;
             298          (d) investigate any allegation of sexual abuse of a student or a minor by an educator; and
             299          (e) establish the manner in which hearings are conducted and reported, and
             300      recommendations are submitted to the board for its action.
             301          (2) (a) UPPAC may conduct or authorize investigations relating to any matter before
             302      UPPAC.
             303          (b) Those investigations shall be independent of and separate from any criminal
             304      investigation.
             305          (c) In conducting an investigation UPPAC or an investigator operating under UPPAC
             306      authorization may:


             307          (i) administer oaths and issue subpoenas which may be enforced through the state district
             308      courts;
             309          (ii) receive any evidence related to an alleged offense, including sealed or expunged
             310      records released to the board under Section 77-18-15 ; and
             311          (iii) where reasonable cause exists, initiate a criminal background check on a license
             312      holder.
             313          (d) (i) A license holder shall receive written notice if a fingerprint check is required as a
             314      part of the background check.
             315          (ii) Fingerprints of the individual shall be taken, and the Law Enforcement and Technical
             316      Services Division of the Department of Public Safety shall release the individual's full record, as
             317      shown on state, regional, and national records, to UPPAC.
             318          (iii) UPPAC shall pay the cost of the background check except as provided under Section
             319      53A-6-401 , and the moneys collected shall be credited to the Law Enforcement and Technical
             320      Services Division to offset its expenses.
             321          (3) UPPAC is entitled to a rebuttable evidentiary presumption that a person has committed
             322      a sexual offense against a minor child if the person has:
             323          (a) after having had a reasonable opportunity to contest the allegation, been found pursuant
             324      to a criminal, civil, or administrative action to have committed a sexual offense against a minor
             325      child;
             326          (b) pled guilty to a reduced charge in the face of a charge of having committed a sexual
             327      offense against a minor child, entered a plea of no contest, entered into a plea in abeyance resulting
             328      in subsequent dismissal of such a charge, or failed to defend himself against such a charge when
             329      given reasonable opportunity to do so; or
             330          (c) voluntarily surrendered a license or certificate or allowed a license or certificate to
             331      lapse in the face of a charge of having committed a sexual offense against a minor child.
             332          (4) In resolving a complaint UPPAC may:
             333          (a) dismiss the complaint;
             334          (b) issue a warning or reprimand;
             335          (c) issue an order of probation requiring an educator to comply with specific conditions
             336      in order to retain a license;
             337          (d) enter into a written agreement requiring an educator to comply with certain conditions;


             338          (e) recommend board action such as revocation or suspension of a license or restriction
             339      or prohibition of licensure; or
             340          (f) take other appropriate action.
             341          (5) UPPAC may not:
             342          (a) participate as a party in any dispute relating to negotiations between a school district
             343      and its educators; or
             344          (b) take action against an educator without giving the individual an opportunity for a fair
             345      hearing to contest the allegations upon which the action would be based.
             346          Section 17. Section 53A-6-307 is enacted to read:
             347          53A-6-307. Powers of state board not abrogated.
             348          Nothing in this chapter limits or abrogates the power of the board to issue or revoke
             349      licenses, hold hearings, or otherwise carry out its functions.
             350          Section 18. Section 53A-6-401 is repealed and reenacted to read:
             351     
Part 4. Licensing and Background Checks

             352          53A-6-401. Background checks.
             353          (1) (a) A license applicant shall submit to a background check as a condition for licensing.
             354          (b) As used in this section, licensing includes reinstatement of a lapsed, suspended, or
             355      revoked license.
             356          (2) (a) The office shall establish a procedure for obtaining and evaluating relevant
             357      information concerning license applicants, including fingerprinting the applicant and submitting
             358      the prints to the Criminal Investigations and Technical Services Division of the Department of
             359      Public Safety for checking against applicable state, regional, and national criminal records files.
             360          (b) The Criminal Investigations and Technical Services Division shall release to the office
             361      all information received in response to the office's request.
             362          (3) An applicant shall have opportunity to respond to any information received by the
             363      office as a result of the background check.
             364          (4) In preparing recommendations concerning licensing for submission to the board, the
             365      office shall consider only the following matters obtained through fingerprint checks to the extent
             366      that they are relevant to the license sought by the applicant:
             367          (a) convictions;
             368          (b) any matters involving an alleged sexual offense;


             369          (c) any matters involving an alleged felony or class A misdemeanor drug offense;
             370          (d) any matters involving an alleged offense against the person under Title 76, Chapter 5;
             371          (e) any matters involving a felony;
             372          (f) any matters involving a class A misdemeanor property offense alleged to have occurred
             373      within the previous three years; and
             374          (g) any matters involving any other type of criminal offense, if more than one occurrence
             375      of the same type of offense is alleged to have taken place within the previous eight years.
             376          (5) If a recommendation is made for denial of licensure because of information obtained
             377      through a background check, the person shall receive written notice of the reasons for the
             378      recommendation and have an opportunity to respond in accordance with procedures set forth under
             379      board rules.
             380          (6) Information obtained under this section is confidential and may only be disclosed as
             381      provided in this part.
             382          (7) The applicant shall pay the costs of conducting the background check.
             383          (8) This section applies to matters occurring both before and after the effective date of this
             384      section.
             385          Section 19. Section 53A-6-402 is repealed and reenacted to read:
             386          53A-6-402. Evaluation information on current or prospective school employees --
             387      Notice to employee -- Exemption from liability.
             388          (1) (a) The office's administrator of teacher licensing may provide the appropriate
             389      administrator of a public or private school or of an agency outside the state which is responsible
             390      for licensing or certification of educators with any recommendation or other information possessed
             391      by the office which has significance in evaluating the employment or license of a current or
             392      prospective school employee, license holder, or applicant for licensing.
             393          (b) Information supplied under Subsection (1)(a) may include the complete record of a
             394      hearing or the investigative report for matters which did not proceed to a hearing.
             395          (2) At the request of the office's administrator of teacher licensing, an administrator of a
             396      public school or school district shall, and an administrator of a private school may, provide any
             397      recommendation or other information possessed by the school or school district which has
             398      significance in evaluating the employment or licensure of a current or prospective school
             399      employee, license holder, or applicant for licensing.


             400          (3) If a decision is made to deny licensure, to not hire a prospective employee, or to take
             401      action against a current employee or educator based upon information provided under this section,
             402      the affected individual shall receive notice of the information and be given an opportunity to
             403      respond to the information.
             404          (4) A person who, in good faith, provides a recommendation or discloses or receives
             405      information under this section is exempt from civil and criminal liability relating to that
             406      recommendation, receipt, or disclosure.
             407          (5) For purposes of this section, "employee" includes a volunteer.
             408          Section 20. Section 53A-6-403 is enacted to read:
             409          53A-6-403. Office tie-in with the Criminal Investigations and Technical Services
             410      Division.
             411          (1) The office shall:
             412          (a) be an online terminal agency with the Department of Public Safety's Criminal
             413      Investigations and Technical Services Division under Section 53-10-108 ; and
             414          (b) provide relevant information concerning current or prospective employees or
             415      volunteers upon request to other school officials as provided in Section 53A-6-402 .
             416          (2) The cost of the online service shall be borne by the entity making the inquiry, using
             417      funds available to the entity, which may include funds authorized under Section 53A-6-401 .
             418          Section 21. Section 53A-6-404 is enacted to read:
             419          53A-6-404. Certification in other jurisdictions -- Impact on licensing in Utah.
             420          (1) An applicant for a license, renewal of a license, or reinstatement of a license shall
             421      provide the administrator of teacher licensing with an affidavit, stating under oath the current
             422      status of any certificate, license, or other authorization required for a professional position in
             423      education, which the applicant holds or has held in any other jurisdiction.
             424          (2) If the applicant's certificate, license, or authorization as an educator in any other
             425      jurisdiction is under investigation, has expired or been surrendered, suspended or revoked, or is
             426      currently not valid for any other reason, then the office may not grant the requested license,
             427      renewal, or reinstatement until it has received confirmation from the administrator of professional
             428      certification in that jurisdiction that the applicant would be eligible for certification or licensure
             429      in that jurisdiction.
             430          (3) The office may not withhold a license for the sole reason that the applicant would be


             431      ineligible for certification, licensure, or authorization in the jurisdiction referred to in Subsection
             432      (2) because of failure to meet current requirements in that jurisdiction relating to education, time
             433      in service, or residence.
             434          Section 22. Section 53A-6-405 is enacted to read:
             435          53A-6-405. Denial of license.
             436          (1) The board may refuse to issue a license to any person for good cause shown, including
             437      any person who, after having had a reasonable opportunity to contest the allegation, has been found
             438      pursuant to a criminal, civil, or administrative action to have exhibited behavior evidencing
             439      unfitness for duty, including behavior which would, had the person been an educator, have been
             440      considered to be immoral, unprofessional, or incompetent conduct, or a violation of standards of
             441      ethical conduct, performance, or professional competence.
             442          (2) (a) Upon receipt of findings and recommendations from UPPAC, including the
             443      findings and recommendations, if any, of a hearing requested under Subsection (4), the board may
             444      issue a permanent ban on licensure of any person who has committed a sexual offense against a
             445      minor child.
             446          (b) A permanent ban issued under this Subsection (2) is not subject to further review by
             447      UPPAC.
             448          (3) A person ineligible for licensure under Subsection (2) may not be employed or
             449      permitted to volunteer services in any position in a public or private school where the person
             450      would be in close proximity to minor children or be permitted or required to interact with a minor
             451      child.
             452          (4) (a) A person denied licensure or employment under this section may, within 30 days
             453      of receipt of the denial and notice of rights of appeal, request a hearing before UPPAC to review
             454      and respond to all evidence upon which the denial was based.
             455          (b) UPPAC shall prepare findings and recommendations for the board on any hearing held
             456      under Subsection (4)(a).
             457          Section 23. Section 53A-6-501 is enacted to read:
             458     
Part 5. Conduct of Educators

             459          53A-6-501. Disciplinary action against educator.
             460          (1) (a) The board shall take appropriate action against any person who is, or at the time of
             461      an alleged offense was, the holder of a license, and:


             462          (i) who, after having had a reasonable opportunity to contest the allegation, has been found
             463      pursuant to a criminal, civil, or administrative action to have exhibited behavior evidencing
             464      unfitness for duty, including immoral, unprofessional, or incompetent conduct, or other violation
             465      of standards of ethical conduct, performance, or professional competence; or
             466          (ii) who has been alleged to have exhibited such behavior or committed such a violation.
             467          (b) Prior to taking action based upon an allegation or the decision of an administrative
             468      body other than UPPAC, the board shall direct UPPAC to review the allegations and any related
             469      administrative action and provide findings and recommendations to the board.
             470          (c) No adverse recommendation may be made without giving the accused person an
             471      opportunity for a hearing.
             472          (d) The board's action may include:
             473          (i) revocation or suspension of a license;
             474          (ii) restriction or prohibition of recertification;
             475          (iii) a warning or reprimand;
             476          (iv) required participation in and satisfactory completion of a rehabilitation or remediation
             477      program; or
             478          (v) other action which the board finds to be appropriate after a review of the UPPAC
             479      findings and recommendations.
             480          (e) The license holder is responsible for the costs of rehabilitation or remediation required
             481      under this section.
             482          (2) Upon receipt of findings and recommendation from UPPAC, the board may
             483      permanently revoke the license of any person who has committed a sexual offense against a minor
             484      child or has exhibited other behavior which the board finds to be irremediable.
             485          Section 24. Section 53A-6-502 is enacted to read:
             486          53A-6-502. Mandatory reporting of physical or sexual abuse of students.
             487          (1) For purposes of this section, "educator" means, in addition to a person included under
             488      Subsection 53A-6-103 (7), a person, including a volunteer or temporary employee, who at the time
             489      of an alleged offense was performing a function in a private school for which a license would be
             490      required in a public school.
             491          (2) In addition to any duty to report suspected cases of child abuse or neglect under Section
             492      62A-4a-403 , an educator who has reasonable cause to believe that a student may have been


             493      physically or sexually abused by a school employee shall immediately report the belief and all
             494      other relevant information to the school principal, superintendent, or to the office.
             495          (3) A school administrator who has received a report under Subsection (2) or who
             496      otherwise has reasonable cause to believe that a student may have been physically or sexually
             497      abused by an educator shall immediately report that information to the office.
             498          (4) Failure to comply with Subsection (2) or (3) shall be considered unprofessional
             499      conduct.
             500          (5) A person who makes a report under this section in good faith shall be immune from
             501      civil or criminal liability that might otherwise arise by reason of that report.
             502          Section 25. Section 53A-6-601 is enacted to read:
             503     
Part 6. Complaints and Hearings

             504          53A-6-601. Definitions.
             505          As used in this part "hearing" means a proceeding held in accordance with generally
             506      accepted principles of due process and administrative law in which definite issues of fact or of law
             507      are tried before a hearing body, and in which proceeding evidence is presented and witnesses
             508      heard, and in which the party against whom the proceedings are held has a right to:
             509          (1) appear with or without counsel to present evidence, confront and cross-examine
             510      witnesses, or subpoena witnesses; and
             511          (2) obtain a decision based solely upon evidence presented to the hearing body in the
             512      presence of both parties or representatives of both parties, recognizing that presence is satisfied
             513      if a party has been given a reasonable opportunity to attend, even if the party fails to do so.
             514          Section 26. Section 53A-6-602 is enacted to read:
             515          53A-6-602. Designation of hearing officer or panel -- Review of findings.
             516          (1) UPPAC or a state or local school board charged with responsibility for conducting a
             517      hearing may conduct the hearing itself or appoint a hearing officer or panel to conduct the hearing
             518      and make recommendations concerning findings.
             519          (2) UPPAC or the school board shall review the record of the hearing and the
             520      recommendations, and may obtain and review, in the presence of the parties or their
             521      representatives, additional relevant information, prior to issuing official findings.
             522          Section 27. Section 53A-6-603 is enacted to read:
             523          53A-6-603. Administering of oaths -- Issuance of subpoenas.


             524          (1) UPPAC or a state or local school board charged with responsibility for conducting an
             525      investigation or a hearing under this chapter may administer oaths and issue subpoenas in
             526      connection with the investigation or hearing.
             527          (2) If a hearing is before a hearing officer or panel, the hearing officer or panel may
             528      administer oaths, and the appointing body may issue subpoenas upon the request of the hearing
             529      officer or panel.
             530          (3) Subpoenas shall be enforced upon the petition of the issuing body by the district court
             531      in the jurisdiction where the subpoena was issued, in the same manner as subpoenas issued by the
             532      court.
             533          Section 28. Section 53A-6-604 is enacted to read:
             534          53A-6-604. Rules for conducting hearings -- Standard of proof.
             535          (1) The board, each local school board, and UPPAC shall each adopt rules for the conduct
             536      of hearings to ensure that requirements of due process are met.
             537          (2) An accused party shall be provided not less than 15 days before a hearing with:
             538          (a) notice of the hearing;
             539          (b) the law, rule, or policy alleged to have been violated;
             540          (c) sufficient information about the allegations and the evidence to be presented in support
             541      of the allegations to permit the accused party to prepare a meaningful defense; and
             542          (d) a copy of the rules under which the hearing will be conducted.
             543          (3) If an accused party fails to request a hearing within 30 days after written notice is sent
             544      to the party's address as shown on the records of the local board, for actions taken under the
             545      auspices of a local board, or on the records of the office, for actions taken under the auspices of
             546      UPPAC or the state board, then the accused party shall be considered to have waived the right to
             547      a hearing and the action may proceed without further delay.
             548          (4) Hearing fact finders shall use the preponderance of evidence standard in deciding all
             549      questions unless a higher standard is required by law.
             550          Section 29. Section 53A-7-101 is repealed and reenacted to read:
             551     
CHAPTER 7. DISPUTE RESOLUTION

             552          53A-7-101. Mediation of contract negotiations.
             553          (1) The president of a professional local organization which represents a majority of the
             554      certificated employees of a school district or the chairman or president of a local school board may,


             555      after negotiating for 90 days, declare an impasse by written notification to the other party and to
             556      the State Board of Education.
             557          (2) The party declaring the impasse may request the state superintendent of public
             558      instruction to appoint a mediator for the purpose of helping to resolve the impasse if the parties
             559      to the dispute have not been able to agree on a third party mediator.
             560          (3) Within five working days after receipt of the written request, the state superintendent
             561      shall appoint a mediator who is mutually acceptable to the local school board and the professional
             562      organization representing a majority of the certificated employees.
             563          (4) The mediator shall meet with the parties, either jointly or separately, and attempt to
             564      settle the impasse.
             565          (5) The mediator may not, without the consent of both parties, make findings of fact or
             566      recommend terms for settlement.
             567          (6) Both parties shall equally share the costs of mediation.
             568          (7) Nothing in this section prevents the parties from adopting a written mediation
             569      procedure other than that provided in this section.
             570          (8) If the parties have a mediation procedure, they shall follow that procedure.
             571          Section 30. Section 53A-7-102 is repealed and reenacted to read:
             572          53A-7-102. Appointment of hearing officer -- Hearing process.
             573          (1) If a mediator appointed under Section 53A-7-101 is unable to effect settlement of the
             574      controversy within 15 working days after his appointment, either party to the mediation may by
             575      written notification to the other party and to the state superintendent of public instruction request
             576      that their dispute be submitted to a hearing officer who shall make findings of fact and recommend
             577      terms of settlement.
             578          (2) Within five working days after receipt of the request, the state superintendent of public
             579      instruction shall appoint a hearing officer who is mutually acceptable to the local school board and
             580      the professional organization representing a majority of the certificated employees.
             581          (3) The hearing officer may not, without consent of both parties, be the same person who
             582      served as mediator.
             583          (4) The hearing officer shall meet with the parties, either jointly or separately, may make
             584      inquiries and investigations, and may issue subpoenas for the production of persons or documents
             585      relevant to all issues in dispute.


             586          (5) The State Board of Education and departments, divisions, authorities, bureaus,
             587      agencies, and officers of the state, local school boards, and the professional organization shall
             588      furnish the hearing officer, on request, all relevant records, documents, and information in their
             589      possession.
             590          (6) If the final positions of the parties are not resolved before the hearing ends, the hearing
             591      officer shall prepare a written report containing the agreements of the parties with respect to all
             592      resolved negotiated contract issues and the positions that the hearing officer considers appropriate
             593      on all unresolved final positions of the parties.
             594          (7) The hearing officer shall submit the report to the parties privately within ten working
             595      days after the conclusion of the hearing or within the date established for the submission of
             596      posthearing briefs, but not later than 20 working days after the hearing officer's appointment.
             597          (8) Either the hearing officer, the professional organization, or the local board may make
             598      the report public if the dispute is not settled within ten working days after its receipt from the
             599      hearing officer.
             600          (9) (a) The state superintendent of public instruction may determine the majority status of
             601      any professional organization which requests assistance under this section.
             602          (b) The decision of the superintendent is final unless it is clearly inconsistent with the
             603      evidence.
             604          Section 31. Section 58-61-307 is amended to read:
             605           58-61-307. Exemptions from licensure.
             606          In addition to the exemptions from licensure in Section 58-1-307 , the following may
             607      engage in acts included within the definition of practice as a psychologist, subject to the stated
             608      circumstances and limitations, without being licensed under this chapter:
             609          (1) the following when practicing within the scope of the license held:
             610          (a) a physician and surgeon or osteopathic physician licensed under Chapter 67, Utah
             611      Medical Practice Act, or Chapter 68, Utah Osteopathic Medical Practice Act; and
             612          (b) a registered psychiatric mental health nurse specialist licensed under Chapter [68] 31b,
             613      Nurse Practice Act;
             614          (2) a recognized member of the clergy while functioning in his ministerial capacity as long
             615      as he does not represent himself as or use the title of psychologist;
             616          (3) an individual who is offering expert testimony in any proceeding before a court,


             617      administrative hearing, deposition upon the order of any court or other body having power to order
             618      the deposition, or proceedings before any master, referee, or alternative dispute resolution
             619      provider;
             620          (4) an individual engaged in performing hypnosis who is not licensed under Title 58,
             621      Occupations and Professions, in a profession which includes hypnosis in its scope of practice, and
             622      who:
             623          (a) (i) induces a hypnotic state in a client for the purpose of increasing motivation or
             624      altering lifestyles or habits, such as eating or smoking, through hypnosis;
             625          (ii) consults with a client to determine current motivation and behavior patterns;
             626          (iii) prepares the client to enter hypnotic states by explaining how hypnosis works and
             627      what the client will experience;
             628          (iv) tests clients to determine degrees of suggestibility;
             629          (v) applies hypnotic techniques based on interpretation of consultation results and analysis
             630      of client's motivation and behavior patterns; and
             631          (vi) trains clients in self-hypnosis conditioning;
             632          (b) may not:
             633          (i) engage in the practice of mental health therapy;
             634          (ii) represent himself using the title of a license classification in Subsection 58-60-102 (5);
             635      or
             636          (iii) use hypnosis with or treat a medical, psychological, or dental condition defined in
             637      generally recognized diagnostic and statistical manuals of medical, psychological, or dental
             638      disorders;
             639          (5) an individual's exemption from licensure under Subsection 58-1-307 (1)(b) or (c) while
             640      completing any supervised clinical training requirement for licensure as a psychologist extends not
             641      more than one year from the date the minimum requirement for training is completed, unless the
             642      individual presents satisfactory evidence to the division and the Psychologist Licensing Board that
             643      the individual is making reasonable progress toward passing the qualifying examination or is
             644      otherwise on a course reasonably expected to lead to licensure as a psychologist, but any
             645      exemption under this subsection may not exceed two years past the date the minimum supervised
             646      clinical training requirement has been completed;
             647          (6) an individual holding an earned doctoral degree in psychology who is employed by an


             648      accredited institution of higher education and who conducts research and teaches in that
             649      individual's professional field, but only if the individual does not engage in providing delivery or
             650      supervision of professional services regulated under this chapter to individuals or groups regardless
             651      of whether there is compensation for the services;
             652          (7) any individual who was employed as a psychologist by a state, county, or municipal
             653      agency or other political subdivision of the state prior to July 1, 1981, and who subsequently has
             654      maintained employment as a psychologist in the same state, county, or municipal agency or other
             655      political subdivision while engaged in the performance of his official duties for that agency or
             656      political subdivision; and
             657          (8) an individual certified as a school psychologist under Section [ 53A-6-101 ] 53A-6-104 :
             658          (a) may represent himself as and use the terms "school psychologist" or "certified school
             659      psychologist"; and
             660          (b) is restricted in his practice to employment within settings authorized by the State Board
             661      of Education; and
             662          (9) an individual providing advice or counsel to another individual in a setting of their
             663      association as friends or relatives and in a nonprofessional and noncommercial relationship, if
             664      there is no compensation paid for the advice or counsel.
             665          Section 32. Section 63-30-2 is amended to read:
             666           63-30-2. Definitions.
             667          As used in this chapter:
             668          (1) "Claim" means any claim or cause of action for money or damages against a
             669      governmental entity or against an employee.
             670          (2) (a) "Employee" includes a governmental entity's officers, employees, servants, trustees,
             671      commissioners, members of a governing body, members of a board, members of a commission,
             672      or members of an advisory body, officers and employees in accordance with Section 67-5b-104 ,
             673      student teachers certificated in accordance with Section [ 53A-6-101 ] 53A-6-104 , educational
             674      aides, students engaged in providing services to members of the public in the course of an
             675      approved medical, nursing, or other professional health care clinical training program, volunteers,
             676      and tutors, but does not include an independent contractor.
             677          (b) "Employee" includes all of the positions identified in Subsection (2)(a), whether or not
             678      the individual holding that position receives compensation.


             679          (3) "Governmental entity" means the state and its political subdivisions as defined in this
             680      chapter.
             681          (4) (a) "Governmental function" means any act, failure to act, operation, function, or
             682      undertaking of a governmental entity whether or not the act, failure to act, operation, function, or
             683      undertaking is characterized as governmental, proprietary, a core governmental function, unique
             684      to government, undertaken in a dual capacity, essential to or not essential to a government or
             685      governmental function, or could be performed by private enterprise or private persons.
             686          (b) A "governmental function" may be performed by any department, agency, employee,
             687      agent, or officer of a governmental entity.
             688          (5) "Injury" means death, injury to a person, damage to or loss of property, or any other
             689      injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a
             690      private person or his agent.
             691          (6) "Personal injury" means an injury of any kind other than property damage.
             692          (7) "Political subdivision" means any county, city, town, school district, public transit
             693      district, redevelopment agency, special improvement or taxing district, or other governmental
             694      subdivision or public corporation.
             695          (8) "Property damage" means injury to, or loss of, any right, title, estate, or interest in real
             696      or personal property.
             697          (9) "State" means the state of Utah, and includes any office, department, agency, authority,
             698      commission, board, institution, hospital, college, university, or other instrumentality of the state.
             699          Section 33. Repealer.
             700          This act repeals:
             701          Section 53A-7-103, Definitions.
             702          Section 53A-7-104, Professional Practices Advisory Commission -- Members --
             703      Executive secretary.
             704          Section 53A-7-105, Nominations -- Appointment of commission members --
             705      Reappointments.
             706          Section 53A-7-106, Qualifications of commission members.
             707          Section 53A-7-107, Filling of vacancies.
             708          Section 53A-7-108, Meetings of commission.
             709          Section 53A-7-109, Expenses of commission members.


             710          Section 53A-7-110, Powers and duties.
             711          Section 53A-7-111, Limitations on commission authority.
             712          Section 53A-7-112, Fees -- Credit to subfund -- Appropriation for expenses.
             713          Section 53A-7-113, Powers of state board not abrogated.
             714          Section 53A-7-201, Definitions.
             715          Section 53A-7-202, Professional competence or performance -- Administrative hearing
             716      by local school board -- Action on complaint.
             717          Section 53A-7-203, Designation of hearing officer or panel -- Review of findings.
             718          Section 53A-7-204, Administering of oaths -- Issuance of subpoenas.
             719          Section 34. Effective date.
             720          This act takes effect on July 1, 1999, except that Section 53A-6-109 takes effect on July
             721      1, 2000.




Legislative Review Note
    as of 1-22-99 9:17 AM


A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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