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First Substitute H.B. 109

Representative Sheryl L. Allen proposes to substitute the following bill:


             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) (i) As used in Subsection (1)(a), "in loco parentis" means the power of professional
             76      school personnel to exercise the rights, duties, and responsibilities of a reasonable, responsible
             77      parent in dealing with students in school-related matters.
             78          (i) A licensed employee who violates a school policy or rule, a state or federal law, or a
             79      constitutional provision in dealing with students in school related matters is not entitled to the
             80      presumption that the employee was acting in loco parentis.
             81          (c) A parent of a student has standing to file a civil action against an employee who
             82      provides services to a school attended by the student.
             83          (2) Within 15 days of receiving a complaint under Subsection (1), a local school board
             84      may elect to refer the complaint to the State Board of Education.
             85          (3) If a complaint is referred to the board, no civil action may be brought in a court on
             86      matters relating to the complaint until the board has provided a hearing and issued its findings or
             87      until 90 days after the filing of the complaint with the local school board, whichever is sooner.


             88          Section 2. Section 53A-6-101 is repealed and reenacted to read:
             89     
CHAPTER 6. EDUCATOR LICENSING AND PROFESSIONAL PRACTICES ACT

             90     
Part 1. General Provisions

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 Section 53A-6-102 is repealed and reenacted to read: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


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


             150      available;
             151          (b) "Level 1 license," which is a license issued upon completion of an approved
             152      preparation program or an alternative preparation program, or pursuant to an agreement under the
             153      NASDTEC Interstate Contract, to candidates who have also met all ancillary requirements
             154      established by law or rule;
             155          (c) "Level 2 license," which is a license issued after satisfaction of all requirements for a
             156      Level 1 license as well as any additional requirements established by law or rule relating to
             157      professional preparation or experience; and
             158          (d) "Level 3 license," which is a license issued to an educator who holds a current Utah
             159      Level 2 license and has also received, in the educator's field of practice, National Board
             160      certification or a doctorate from an accredited institution.
             161          (10) "NASDTEC" means the National Association of State Directors of Teacher Education
             162      and Certification.
             163          (11) "NASDTEC Interstate Contract" means the contract implementing Title 53A, Chapter
             164      6, Part 2, Compact for Interstate Qualification of Educational Personnel, which is administered
             165      through NASDTEC.
             166          (12) "National Board certification" means a current certificate issued by the National
             167      Board for Professional Teaching Standards.
             168          (13) "Office" means the Utah State Office of Education.
             169          (14) "Rule" means an administrative rule adopted by the board under Title 63, Chapter
             170      46a, Utah Administrative Rulemaking Act.
             171          (15) "School" means a public or private entity which provides educational services to a
             172      minor child.
             173          (16) "UPPAC" means the Utah Professional Practices Advisory Commission.
             174          Section 5. Section 53A-6-104 is repealed and reenacted to read:
             175          53A-6-104. Board licensure.
             176          (1) (a) The board may issue licenses for educators.
             177          (b) A person employed in a position that requires licensure by the board shall hold the
             178      appropriate license.
             179          (2) (a) The board may by rule rank, endorse, or otherwise classify licenses and establish
             180      the criteria for obtaining and retaining licenses.


             181          (b) The board shall make rules requiring participation in professional development
             182      activities in order for educators to retain their licenses.
             183          (3) Unless suspended or revoked by the board, or surrendered by the educator, a license
             184      is valid for the following period:
             185          (a) a letter of authorization is valid for one year, or a shorter period as specified by the
             186      board, subject to renewal by the board for a total of not more than four years;
             187          (b) a level 1 license is valid for three years, subject to renewal by the board for a total of
             188      not more than six years;
             189          (c) a level 2 license is valid for five years, subject to renewal by the board; and
             190          (d) a level 3 license is valid for seven years, subject to renewal by the board.
             191          Section 6. Section 53A-6-105 is repealed and reenacted to read:
             192          53A-6-105. Licensing fees -- Credit to subfund -- Payment of expenses.
             193          (1) The board shall levy a fee for each new or reinstated license or endorsement in
             194      accordance with Section 63-38-3.2 .
             195          (2) Fee payments are credited to the Professional Practices Restricted Subfund in the
             196      Uniform School Fund.
             197          (3) The board shall pay the expenses of issuing licenses and of UPPAC operations, and
             198      the costs of collecting license fees from the restricted subfund.
             199          (4) The office shall submit an annual report to the Legislature's Public Education
             200      Appropriations Subcommittee informing the Legislature about the fund, fees assessed and
             201      collected, and expenditures from the fund.
             202          Section 7. Section 53A-6-106 is repealed and reenacted to read:
             203          53A-6-106. Qualifications of applicants for licenses -- Changes in qualifications.
             204          (1) The board shall establish by rule the scholarship, training, and experience required of
             205      license applicants.
             206          (2) (a) The board shall announce any increase in the requirements when made.
             207          (b) An increase in requirements shall become effective not less than one year from the date
             208      of the announcement.
             209          (3) The board may determine by examination or otherwise the qualifications of license
             210      applicants.
             211          Section 8. Section 53A-6-107 is repealed and reenacted to read:


             212          53A-6-107. Program approval.
             213          (1) The board shall establish by rule the standards which must be met by approved
             214      preparation programs and alternative preparation programs.
             215          (2) Standards adopted by the board for approved preparation programs and alternative
             216      preparation programs shall meet or exceed generally recognized national standards for preparation
             217      of educators, such as those developed by the Interstate New Teacher Assessment and Support
             218      Consortium, the National Board for Professional Teaching Standards, and the National Council
             219      for the Accreditation of Teacher Education.
             220          Section 9. Section 53A-6-108 is repealed and reenacted to read:
             221          53A-6-108. Prohibition on use of degrees or credit from unapproved institutions.
             222          (1) An individual may not use a postsecondary degree or credit awarded by a
             223      postsecondary institution or program to gain a license, employment, or any other benefit within
             224      the public school system unless the institution or program was, at the time the degree or credit was
             225      awarded:
             226          (a) approved for the granting of the degree or credit by the board; or
             227          (b) accredited by an accrediting organization recognized by the board.
             228          (2) The board may grant an exemption from Subsection (1) to an individual who shows
             229      good cause for the granting of the exemption.
             230          Section 10. Section 53A-6-109 is repealed and reenacted to read:
             231          53A-6-109. Substitute teachers.
             232          (1) A substitute teacher need not hold a license to teach, but school districts are
             233      encouraged to hire licensed personnel as substitutes when available.
             234          (2) A person must submit to a background check under Section 53A-3-410 prior to
             235      employment as a substitute teacher.
             236          (3) A teacher's position in the classroom may not be filled by unlicensed substitute teachers
             237      for more than a total of 20 days during any school year unless licensed personnel are not available.
             238          (4) A person who is ineligible to hold a license for any reason other than professional
             239      preparation may not serve as a substitute teacher.
             240          Section 11. Section 53A-6-301 is repealed and reenacted to read:
             241     
Part 3. Utah Professional Practices Advisory Commission

             242          53A-6-301. Utah Professional Practices Advisory Commission.


             243          The Utah Professional Practices Advisory Commission, UPPAC, is established to assist
             244      and advise the board in matters relating to the professional practices of educators.
             245          Section 12. Section 53A-6-302 is repealed and reenacted to read:
             246          53A-6-302. UPPAC members -- Executive secretary.
             247          (1) UPPAC shall consist of a nonvoting executive secretary and 11 voting members, nine
             248      of whom shall be licensed educators in good standing, and two of whom shall be members
             249      nominated by the education organization within the state that has the largest membership of
             250      parents of students and teachers.
             251          (2) Six of the voting members shall be persons whose primary responsibility is teaching.
             252          (3) (a) The state superintendent of public instruction shall appoint an employee of the
             253      office to serve as executive secretary.
             254          (b) Voting members are appointed by the superintendent as provided under Section
             255      53A-6-303 .
             256          (4) The office shall provide staff support for UPPAC activities.
             257          Section 13. Section 53A-6-303 is enacted to read:
             258          53A-6-303. Nominations -- Appointment of commission members -- Reappointments.
             259          (1) (a) The board shall adopt rules establishing procedures for nominating and appointing
             260      individuals to voting membership on UPPAC.
             261          (b) Nomination petitions must be filed with the state superintendent prior to June 16 of the
             262      year of appointment.
             263          (c) A nominee for appointment as a member of UPPAC as an educator must have been
             264      employed in the representative class in the Utah public school system or a private school
             265      accredited by the board during the three years immediately preceding the date of appointment.
             266          (2) The state superintendent of public instruction shall appoint the members of the
             267      commission.
             268          (3) Appointments begin July 1 and are for terms of three years and until a successor is
             269      appointed.
             270          (4) Terms of office are staggered so that approximately 1/3 of UPPAC members are
             271      appointed annually.
             272          (5) A member may not serve more than two terms.
             273          Section 14. Section 53A-6-304 is enacted to read:


             274          53A-6-304. Filling of vacancies.
             275          (1) A UPPAC vacancy occurs if a member resigns, fails to attend three or more meetings
             276      during a calendar year, or no longer meets the requirements for nomination and appointment.
             277          (2) If a vacancy occurs, the state superintendent shall appoint a successor to fill the
             278      unexpired term.
             279          (3) If the superintendent does not fill the vacancy within 60 days, the board shall make the
             280      appointment.
             281          (4) Nominations to fill vacancies are submitted to the superintendent in accordance with
             282      procedures established under rules of the board.
             283          Section 15. Section 53A-6-305 is enacted to read:
             284          53A-6-305. Meetings and expenses of UPPAC members.
             285          (1) UPPAC shall meet at least quarterly and at the call of the chair or of a majority of the
             286      members.
             287          (2) Members of UPPAC serve without compensation but are allowed reimbursement for
             288      actual and necessary expenses under the rules of the Division of Finance.
             289          (3) The board shall pay reimbursement to UPPAC members out of the Professional
             290      Practices Restricted Subfund in the Uniform School Fund.
             291          Section 16. Section 53A-6-306 is enacted to read:
             292          53A-6-306. Purpose, powers, and duties of UPPAC.
             293          (1) UPPAC shall:
             294          (a) adopt rules consistent with applicable law and board rules to carry out its
             295      responsibilities under this chapter;
             296          (b) make recommendations to the board and professional organizations of educators:
             297          (i) concerning standards of professional performance, competence, and ethical conduct for
             298      persons holding licenses issued by the board; and
             299          (ii) for the improvement of the education profession;
             300          (c) establish procedures for receiving and acting upon reports or allegations regarding
             301      immoral, unprofessional, or incompetent conduct, unfitness for duty, or other violations of
             302      standards of ethical conduct, performance, or professional competence;
             303          (d) investigate any allegation of sexual abuse of a student or a minor by an educator; and
             304          (e) establish the manner in which hearings are conducted and reported, and


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


             336      lapse in the face of a charge of having committed a sexual offense against a minor child.
             337          (4) In resolving a complaint UPPAC may:
             338          (a) dismiss the complaint;
             339          (b) issue a warning or reprimand;
             340          (c) issue an order of probation requiring an educator to comply with specific conditions
             341      in order to retain a license;
             342          (d) enter into a written agreement requiring an educator to comply with certain conditions;
             343          (e) recommend board action such as revocation or suspension of a license or restriction
             344      or prohibition of licensure; or
             345          (f) take other appropriate action.
             346          (5) UPPAC may not:
             347          (a) participate as a party in any dispute relating to negotiations between a school district
             348      and its educators;
             349          (b) take action against an educator without giving the individual an opportunity for a fair
             350      hearing to contest the allegations upon which the action would be based; or
             351          (c) take action against an educator unless it finds that the action or the failure of the
             352      educator to act impairs the educator's ability to perform the functions of the educator's position.
             353          Section 17. Section 53A-6-307 is enacted to read:
             354          53A-6-307. Powers of state board not abrogated.
             355          Nothing in this chapter limits or abrogates the power of the board to issue or revoke
             356      licenses, hold hearings, or otherwise carry out its functions.
             357          Section 18. Section 53A-6-401 is repealed and reenacted to read:
             358     
Part 4. Licensing and Background Checks

             359          53A-6-401. Background checks.
             360          (1) (a) A license applicant shall submit to a background check as a condition for licensing.
             361          (b) As used in this section, licensing includes reinstatement of a lapsed, suspended, or
             362      revoked license.
             363          (2) (a) The office shall establish a procedure for obtaining and evaluating relevant
             364      information concerning license applicants, including fingerprinting the applicant and submitting
             365      the prints to the Criminal Investigations and Technical Services Division of the Department of
             366      Public Safety for checking against applicable state, regional, and national criminal records files.


             367          (b) The Criminal Investigations and Technical Services Division shall release to the office
             368      all information received in response to the office's request.
             369          (3) An applicant shall have opportunity to respond to any information received by the
             370      office as a result of the background check.
             371          (4) In preparing recommendations concerning licensing for submission to the board, the
             372      office shall consider only the following matters obtained through fingerprint checks to the extent
             373      that they are relevant to the license sought by the applicant:
             374          (a) convictions;
             375          (b) any matters involving an alleged sexual offense;
             376          (c) any matters involving an alleged felony or class A misdemeanor drug offense;
             377          (d) any matters involving an alleged offense against the person under Title 76, Chapter 5;
             378          (e) any matters involving a felony;
             379          (f) any matters involving a class A misdemeanor property offense alleged to have occurred
             380      within the previous three years; and
             381          (g) any matters involving any other type of criminal offense, if more than one occurrence
             382      of the same type of offense is alleged to have taken place within the previous eight years.
             383          (5) If a recommendation is made for denial of licensure because of information obtained
             384      through a background check, the person shall receive written notice of the reasons for the
             385      recommendation and have an opportunity to respond in accordance with procedures set forth under
             386      board rules.
             387          (6) Information obtained under this section is confidential and may only be disclosed as
             388      provided in this part.
             389          (7) The applicant shall pay the costs of conducting the background check.
             390          (8) This section applies to matters occurring both before and after the effective date of this
             391      section.
             392          Section 19. Section 53A-6-402 is repealed and reenacted to read:
             393          53A-6-402. Evaluation information on current or prospective school employees --
             394      Notice to employee -- Exemption from liability.
             395          (1) (a) The office's administrator of teacher licensing may provide the appropriate
             396      administrator of a public or private school or of an agency outside the state which is responsible
             397      for licensing or certification of educators with any recommendation or other information possessed


             398      by the office which has significance in evaluating the employment or license of a current or
             399      prospective school employee, license holder, or applicant for licensing.
             400          (b) Information supplied under Subsection (1)(a) may include the complete record of a
             401      hearing or the investigative report for matters which:
             402          (i) the educator has had an opportunity to contest; and
             403          (ii) did not proceed to a hearing.
             404          (2) At the request of the office's administrator of teacher licensing, an administrator of a
             405      public school or school district shall, and an administrator of a private school may, provide any
             406      recommendation or other information possessed by the school or school district which has
             407      significance in evaluating the employment or licensure of a current or prospective school
             408      employee, license holder, or applicant for licensing.
             409          (3) If a decision is made to deny licensure, to not hire a prospective employee, or to take
             410      action against a current employee or educator based upon information provided under this section,
             411      the affected individual shall receive notice of the information and be given an opportunity to
             412      respond to the information.
             413          (4) A person who, in good faith, provides a recommendation or discloses or receives
             414      information under this section is exempt from civil and criminal liability relating to that
             415      recommendation, receipt, or disclosure.
             416          (5) For purposes of this section, "employee" includes a volunteer.
             417          Section 20. Section 53A-6-403 is enacted to read:
             418          53A-6-403. Office tie-in with the Criminal Investigations and Technical Services
             419      Division.
             420          (1) The office shall:
             421          (a) be an online terminal agency with the Department of Public Safety's Criminal
             422      Investigations and Technical Services Division under Section 53-10-108 ; and
             423          (b) provide relevant information concerning current or prospective employees or
             424      volunteers upon request to other school officials as provided in Section 53A-6-402 .
             425          (2) The cost of the online service shall be borne by the entity making the inquiry, using
             426      funds available to the entity, which may include funds authorized under Section 53A-6-401 .
             427          Section 21. Section 53A-6-404 is enacted to read:
             428          53A-6-404. Certification in other jurisdictions -- Impact on licensing in Utah.


             429          (1) An applicant for a license, renewal of a license, or reinstatement of a license shall
             430      provide the administrator of teacher licensing with an affidavit, stating under oath the current
             431      status of any certificate, license, or other authorization required for a professional position in
             432      education, which the applicant holds or has held in any other jurisdiction.
             433          (2) If the applicant's certificate, license, or authorization as an educator in any other
             434      jurisdiction is under investigation, has expired or been surrendered, suspended or revoked, or is
             435      currently not valid for any other reason, then the office may not grant the requested license,
             436      renewal, or reinstatement until it has received confirmation from the administrator of professional
             437      certification in that jurisdiction that the applicant would be eligible for certification or licensure
             438      in that jurisdiction.
             439          (3) The office may not withhold a license for the sole reason that the applicant would be
             440      ineligible for certification, licensure, or authorization in the jurisdiction referred to in Subsection
             441      (2) because of failure to meet current requirements in that jurisdiction relating to education, time
             442      in service, or residence.
             443          Section 22. Section 53A-6-405 is enacted to read:
             444          53A-6-405. Denial of license.
             445          (1) The board may refuse to issue a license to any person for good cause shown, including
             446      any person who, after having had a reasonable opportunity to contest the allegation, has been found
             447      pursuant to a criminal, civil, or administrative action to have exhibited behavior evidencing
             448      unfitness for duty, including behavior which would, had the person been an educator, have been
             449      considered to be immoral, unprofessional, or incompetent conduct, or a violation of standards of
             450      ethical conduct, performance, or professional competence.
             451          (2) (a) Upon receipt of findings and recommendations from UPPAC, including the
             452      findings and recommendations, if any, of a hearing requested under Subsection (4), the board may
             453      issue a permanent ban on licensure of any person who has committed a sexual offense against a
             454      minor child.
             455          (b) A permanent ban issued under this Subsection (2) is not subject to further review by
             456      UPPAC.
             457          (3) A person ineligible for licensure under Subsection (2) may not be employed or
             458      permitted to volunteer services in any position in a public or private school where the person
             459      would be in close proximity to minor children or be permitted or required to interact with a minor


             460      child.
             461          (4) (a) A person denied licensure or employment under this section may, within 30 days
             462      of receipt of the denial and notice of rights of appeal, request a hearing before UPPAC to review
             463      and respond to all evidence upon which the denial was based.
             464          (b) UPPAC shall prepare findings and recommendations for the board on any hearing held
             465      under Subsection (4)(a).
             466          Section 23. Section 53A-6-501 is enacted to read:
             467     
Part 5. Conduct of Educators

             468          53A-6-501. Disciplinary action against educator.
             469          (1) (a) The board shall take appropriate action against any person who is, or at the time of
             470      an alleged offense was, the holder of a license, and:
             471          (i) who, after having had a reasonable opportunity to contest the allegation, has been found
             472      pursuant to a criminal, civil, or administrative action to have exhibited behavior evidencing
             473      unfitness for duty, including immoral, unprofessional, or incompetent conduct, or other violation
             474      of standards of ethical conduct, performance, or professional competence; or
             475          (ii) who has been alleged to have exhibited such behavior or committed such a violation.
             476          (b) Prior to taking action based upon an allegation or the decision of an administrative
             477      body other than UPPAC, the board shall direct UPPAC to review the allegations and any related
             478      administrative action and provide findings and recommendations to the board.
             479          (c) No adverse recommendation may be made without giving the accused person an
             480      opportunity for a hearing.
             481          (d) The board's action may include:
             482          (i) revocation or suspension of a license;
             483          (ii) restriction or prohibition of recertification;
             484          (iii) a warning or reprimand;
             485          (iv) required participation in and satisfactory completion of a rehabilitation or remediation
             486      program; or
             487          (v) other action which the board finds to be appropriate after a review of the UPPAC
             488      findings and recommendations.
             489          (e) The license holder is responsible for the costs of rehabilitation or remediation required
             490      under this section.


             491          (2) Upon receipt of findings and recommendation from UPPAC, the board may
             492      permanently revoke the license of any person who has committed a sexual offense against a minor
             493      child or has exhibited other behavior which the board finds to be irremediable.
             494          Section 24. Section 53A-6-502 is enacted to read:
             495          53A-6-502. Mandatory reporting of physical or sexual abuse of students.
             496          (1) For purposes of this section, "educator" means, in addition to a person included under
             497      Subsection 53A-6-103 (7), a person, including a volunteer or temporary employee, who at the time
             498      of an alleged offense was performing a function in a private school for which a license would be
             499      required in a public school.
             500          (2) In addition to any duty to report suspected cases of child abuse or neglect under Section
             501      62A-4a-403 , an educator who has reasonable cause to believe that a student may have been
             502      physically or sexually abused by a school employee shall immediately report the belief and all
             503      other relevant information to the school principal, superintendent, or to the office.
             504          (3) A school administrator who has received a report under Subsection (2) or who
             505      otherwise has reasonable cause to believe that a student may have been physically or sexually
             506      abused by an educator shall immediately report that information to the office.
             507          (4) Failure to comply with Subsection (2) or (3) shall be considered unprofessional
             508      conduct.
             509          (5) A person who makes a report under this section in good faith shall be immune from
             510      civil or criminal liability that might otherwise arise by reason of that report.
             511          Section 25. Section 53A-6-601 is enacted to read:
             512     
Part 6. Complaints and Hearings

             513          53A-6-601. Definitions.
             514          As used in this part "hearing" means a proceeding held in accordance with generally
             515      accepted principles of due process and administrative law in which definite issues of fact or of law
             516      are tried before a hearing body, and in which proceeding evidence is presented and witnesses
             517      heard, and in which the party against whom the proceedings are held has a right to:
             518          (1) appear with or without counsel to present evidence, confront and cross-examine
             519      witnesses, or subpoena witnesses; and
             520          (2) obtain a decision based solely upon evidence presented to the hearing body in the
             521      presence of both parties or representatives of both parties, recognizing that presence is satisfied


             522      if a party has been given a reasonable opportunity to attend, even if the party fails to do so.
             523          Section 26. Section 53A-6-602 is enacted to read:
             524          53A-6-602. Designation of hearing officer or panel -- Review of findings.
             525          (1) UPPAC or a state or local school board charged with responsibility for conducting a
             526      hearing may conduct the hearing itself or appoint a hearing officer or panel to conduct the hearing
             527      and make recommendations concerning findings.
             528          (2) UPPAC or the school board shall review the record of the hearing and the
             529      recommendations, and may obtain and review, in the presence of the parties or their
             530      representatives, additional relevant information, prior to issuing official findings.
             531          (3) UPPAC shall provide a panel of its members to serve as fact finders in a hearing at
             532      the request of the educator who is the subject of the hearing.
             533          Section 27. Section 53A-6-603 is enacted to read:
             534          53A-6-603. Administering of oaths -- Issuance of subpoenas.
             535          (1) UPPAC or a state or local school board charged with responsibility for conducting an
             536      investigation or a hearing under this chapter may administer oaths and issue subpoenas in
             537      connection with the investigation or hearing.
             538          (2) If a hearing is before a hearing officer or panel, the hearing officer or panel may
             539      administer oaths, and the appointing body may issue subpoenas upon the request of the hearing
             540      officer or panel.
             541          (3) Subpoenas shall be enforced upon the petition of the issuing body by the district court
             542      in the jurisdiction where the subpoena was issued, in the same manner as subpoenas issued by the
             543      court.
             544          Section 28. Section 53A-6-604 is enacted to read:
             545          53A-6-604. Rules for conducting hearings -- Standard of proof.
             546          (1) The board, each local school board, and UPPAC shall each adopt rules for the conduct
             547      of hearings to ensure that requirements of due process are met.
             548          (2) An accused party shall be provided not less than 15 days before a hearing with:
             549          (a) notice of the hearing;
             550          (b) the law, rule, or policy alleged to have been violated;
             551          (c) sufficient information about the allegations and the evidence to be presented in support
             552      of the allegations to permit the accused party to prepare a meaningful defense; and


             553          (d) a copy of the rules under which the hearing will be conducted.
             554          (3) If an accused party fails to request a hearing within 30 days after written notice is sent
             555      to the party's address as shown on the records of the local board, for actions taken under the
             556      auspices of a local board, or on the records of the office, for actions taken under the auspices of
             557      UPPAC or the state board, then the accused party shall be considered to have waived the right to
             558      a hearing and the action may proceed without further delay.
             559          (4) Hearing fact finders shall use the preponderance of evidence standard in deciding all
             560      questions unless a higher standard is required by law.
             561          (5) (a) Unless otherwise provided in Title 53A, the decisions of state and local boards are
             562      final determinations under this section, appealable to the appropriate court for review.
             563          (b) The court shall review the findings and decision of the board and uphold the boards
             564      decision unless it determines the board's decision was arbitrary and capricious.
             565          Section 29. Section 53A-7-101 is repealed and reenacted to read:
             566     
CHAPTER 7. DISPUTE RESOLUTION

             567          53A-7-101. Mediation of contract negotiations.
             568          (1) The president of a professional local organization which represents a majority of the
             569      certificated employees of a school district or the chairman or president of a local school board may,
             570      after negotiating for 90 days, declare an impasse by written notification to the other party and to
             571      the State Board of Education.
             572          (2) The party declaring the impasse may request the state superintendent of public
             573      instruction to appoint a mediator for the purpose of helping to resolve the impasse if the parties
             574      to the dispute have not been able to agree on a third party mediator.
             575          (3) Within five working days after receipt of the written request, the state superintendent
             576      shall appoint a mediator who is mutually acceptable to the local school board and the professional
             577      organization representing a majority of the certificated employees.
             578          (4) The mediator shall meet with the parties, either jointly or separately, and attempt to
             579      settle the impasse.
             580          (5) The mediator may not, without the consent of both parties, make findings of fact or
             581      recommend terms for settlement.
             582          (6) Both parties shall equally share the costs of mediation.
             583          (7) Nothing in this section prevents the parties from adopting a written mediation


             584      procedure other than that provided in this section.
             585          (8) If the parties have a mediation procedure, they shall follow that procedure.
             586          Section 30. Section 53A-7-102 is repealed and reenacted to read:
             587          53A-7-102. Appointment of hearing officer -- Hearing process.
             588          (1) If a mediator appointed under Section 53A-7-101 is unable to effect settlement of the
             589      controversy within 15 working days after his appointment, either party to the mediation may by
             590      written notification to the other party and to the state superintendent of public instruction request
             591      that their dispute be submitted to a hearing officer who shall make findings of fact and recommend
             592      terms of settlement.
             593          (2) Within five working days after receipt of the request, the state superintendent of public
             594      instruction shall appoint a hearing officer who is mutually acceptable to the local school board and
             595      the professional organization representing a majority of the certificated employees.
             596          (3) The hearing officer may not, without consent of both parties, be the same person who
             597      served as mediator.
             598          (4) The hearing officer shall meet with the parties, either jointly or separately, may make
             599      inquiries and investigations, and may issue subpoenas for the production of persons or documents
             600      relevant to all issues in dispute.
             601          (5) The State Board of Education and departments, divisions, authorities, bureaus,
             602      agencies, and officers of the state, local school boards, and the professional organization shall
             603      furnish the hearing officer, on request, all relevant records, documents, and information in their
             604      possession.
             605          (6) If the final positions of the parties are not resolved before the hearing ends, the hearing
             606      officer shall prepare a written report containing the agreements of the parties with respect to all
             607      resolved negotiated contract issues and the positions that the hearing officer considers appropriate
             608      on all unresolved final positions of the parties.
             609          (7) The hearing officer shall submit the report to the parties privately within ten working
             610      days after the conclusion of the hearing or within the date established for the submission of
             611      posthearing briefs, but not later than 20 working days after the hearing officer's appointment.
             612          (8) Either the hearing officer, the professional organization, or the local board may make
             613      the report public if the dispute is not settled within ten working days after its receipt from the
             614      hearing officer.


             615          (9) (a) The state superintendent of public instruction may determine the majority status of
             616      any professional organization which requests assistance under this section.
             617          (b) The decision of the superintendent is final unless it is clearly inconsistent with the
             618      evidence.
             619          Section 31. Section 58-61-307 is amended to read:
             620           58-61-307. Exemptions from licensure.
             621          In addition to the exemptions from licensure in Section 58-1-307 , the following may
             622      engage in acts included within the definition of practice as a psychologist, subject to the stated
             623      circumstances and limitations, without being licensed under this chapter:
             624          (1) the following when practicing within the scope of the license held:
             625          (a) a physician and surgeon or osteopathic physician licensed under Chapter 67, Utah
             626      Medical Practice Act, or Chapter 68, Utah Osteopathic Medical Practice Act; and
             627          (b) a registered psychiatric mental health nurse specialist licensed under Chapter [68] 31b,
             628      Nurse Practice Act;
             629          (2) a recognized member of the clergy while functioning in his ministerial capacity as long
             630      as he does not represent himself as or use the title of psychologist;
             631          (3) an individual who is offering expert testimony in any proceeding before a court,
             632      administrative hearing, deposition upon the order of any court or other body having power to order
             633      the deposition, or proceedings before any master, referee, or alternative dispute resolution
             634      provider;
             635          (4) an individual engaged in performing hypnosis who is not licensed under Title 58,
             636      Occupations and Professions, in a profession which includes hypnosis in its scope of practice, and
             637      who:
             638          (a) (i) induces a hypnotic state in a client for the purpose of increasing motivation or
             639      altering lifestyles or habits, such as eating or smoking, through hypnosis;
             640          (ii) consults with a client to determine current motivation and behavior patterns;
             641          (iii) prepares the client to enter hypnotic states by explaining how hypnosis works and
             642      what the client will experience;
             643          (iv) tests clients to determine degrees of suggestibility;
             644          (v) applies hypnotic techniques based on interpretation of consultation results and analysis
             645      of client's motivation and behavior patterns; and


             646          (vi) trains clients in self-hypnosis conditioning;
             647          (b) may not:
             648          (i) engage in the practice of mental health therapy;
             649          (ii) represent himself using the title of a license classification in Subsection 58-60-102 (5);
             650      or
             651          (iii) use hypnosis with or treat a medical, psychological, or dental condition defined in
             652      generally recognized diagnostic and statistical manuals of medical, psychological, or dental
             653      disorders;
             654          (5) an individual's exemption from licensure under Subsection 58-1-307 (1)(b) or (c) while
             655      completing any supervised clinical training requirement for licensure as a psychologist extends not
             656      more than one year from the date the minimum requirement for training is completed, unless the
             657      individual presents satisfactory evidence to the division and the Psychologist Licensing Board that
             658      the individual is making reasonable progress toward passing the qualifying examination or is
             659      otherwise on a course reasonably expected to lead to licensure as a psychologist, but any
             660      exemption under this subsection may not exceed two years past the date the minimum supervised
             661      clinical training requirement has been completed;
             662          (6) an individual holding an earned doctoral degree in psychology who is employed by an
             663      accredited institution of higher education and who conducts research and teaches in that
             664      individual's professional field, but only if the individual does not engage in providing delivery or
             665      supervision of professional services regulated under this chapter to individuals or groups regardless
             666      of whether there is compensation for the services;
             667          (7) any individual who was employed as a psychologist by a state, county, or municipal
             668      agency or other political subdivision of the state prior to July 1, 1981, and who subsequently has
             669      maintained employment as a psychologist in the same state, county, or municipal agency or other
             670      political subdivision while engaged in the performance of his official duties for that agency or
             671      political subdivision; and
             672          (8) an individual certified as a school psychologist under Section [ 53A-6-101 ] 53A-6-104 :
             673          (a) may represent himself as and use the terms "school psychologist" or "certified school
             674      psychologist"; and
             675          (b) is restricted in his practice to employment within settings authorized by the State Board
             676      of Education; and


             677          (9) an individual providing advice or counsel to another individual in a setting of their
             678      association as friends or relatives and in a nonprofessional and noncommercial relationship, if
             679      there is no compensation paid for the advice or counsel.
             680          Section 32. Section 63-30-2 is amended to read:
             681           63-30-2. Definitions.
             682          As used in this chapter:
             683          (1) "Claim" means any claim or cause of action for money or damages against a
             684      governmental entity or against an employee.
             685          (2) (a) "Employee" includes a governmental entity's officers, employees, servants, trustees,
             686      commissioners, members of a governing body, members of a board, members of a commission,
             687      or members of an advisory body, officers and employees in accordance with Section 67-5b-104 ,
             688      student teachers certificated in accordance with Section [ 53A-6-101 ] 53A-6-104 , educational
             689      aides, students engaged in providing services to members of the public in the course of an
             690      approved medical, nursing, or other professional health care clinical training program, volunteers,
             691      and tutors, but does not include an independent contractor.
             692          (b) "Employee" includes all of the positions identified in Subsection (2)(a), whether or not
             693      the individual holding that position receives compensation.
             694          (3) "Governmental entity" means the state and its political subdivisions as defined in this
             695      chapter.
             696          (4) (a) "Governmental function" means any act, failure to act, operation, function, or
             697      undertaking of a governmental entity whether or not the act, failure to act, operation, function, or
             698      undertaking is characterized as governmental, proprietary, a core governmental function, unique
             699      to government, undertaken in a dual capacity, essential to or not essential to a government or
             700      governmental function, or could be performed by private enterprise or private persons.
             701          (b) A "governmental function" may be performed by any department, agency, employee,
             702      agent, or officer of a governmental entity.
             703          (5) "Injury" means death, injury to a person, damage to or loss of property, or any other
             704      injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a
             705      private person or his agent.
             706          (6) "Personal injury" means an injury of any kind other than property damage.
             707          (7) "Political subdivision" means any county, city, town, school district, public transit


             708      district, redevelopment agency, special improvement or taxing district, or other governmental
             709      subdivision or public corporation.
             710          (8) "Property damage" means injury to, or loss of, any right, title, estate, or interest in real
             711      or personal property.
             712          (9) "State" means the state of Utah, and includes any office, department, agency, authority,
             713      commission, board, institution, hospital, college, university, or other instrumentality of the state.
             714          Section 33. Repealer.
             715          This act repeals:
             716          Section 53A-7-103, Definitions.
             717          Section 53A-7-104, Professional Practices Advisory Commission -- Members --
             718      Executive secretary.
             719          Section 53A-7-105, Nominations -- Appointment of commission members --
             720      Reappointments.
             721          Section 53A-7-106, Qualifications of commission members.
             722          Section 53A-7-107, Filling of vacancies.
             723          Section 53A-7-108, Meetings of commission.
             724          Section 53A-7-109, Expenses of commission members.
             725          Section 53A-7-110, Powers and duties.
             726          Section 53A-7-111, Limitations on commission authority.
             727          Section 53A-7-112, Fees -- Credit to subfund -- Appropriation for expenses.
             728          Section 53A-7-113, Powers of state board not abrogated.
             729          Section 53A-7-201, Definitions.
             730          Section 53A-7-202, Professional competence or performance -- Administrative hearing
             731      by local school board -- Action on complaint.
             732          Section 53A-7-203, Designation of hearing officer or panel -- Review of findings.
             733          Section 53A-7-204, Administering of oaths -- Issuance of subpoenas.
             734          Section 34. Effective date.
             735          This act takes effect on July 1, 1999.


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