Representative Ken Ivory proposes the following substitute bill:


1     
EDUCATION LICENSING AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Ken Ivory

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to licensing in the public education system.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends provisions related to licensing:
13               •     ineligibility;
14               •     disciplinary action; and
15               •     hearings;
16          ▸     requires the Utah Professional Practices Advisory Committee to follow certain
17     standards when making a recommendation to the State Board of Education
18     regarding disciplinary action;
19          ▸     gives rulemaking authority; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:

26     AMENDS:
27          53A-6-306, as last amended by Laws of Utah 2015, Chapter 389 and repealed and
28     reenacted by Laws of Utah 2015, Chapter 311 and last amended by Coordination
29     Clause, Laws of Utah 2015, Chapter 311
30          53A-6-405, as repealed and reenacted by Laws of Utah 2015, Chapter 311
31          53A-6-501, as repealed and reenacted by Laws of Utah 2015, Chapter 311
32          53A-6-602, as enacted by Laws of Utah 1999, Chapter 108
33          53A-6-604, as last amended by Laws of Utah 2015, Chapter 311
34     ENACTS:
35          53A-6-308, Utah Code Annotated 1953
36          53A-6-309, Utah Code Annotated 1953
37     

38     Be it enacted by the Legislature of the state of Utah:
39          Section 1. Section 53A-6-306 is amended to read:
40          53A-6-306. UPPAC duties and procedures.
41          (1) The board may direct UPPAC to review a complaint about an educator and
42     recommend that the board:
43          (a) dismiss the complaint; or
44          (b) investigate the complaint in accordance with this section.
45          (2) (a) The board may direct UPPAC to:
46          (i) in accordance with this section, investigate a complaint's allegation or decision; or
47          (ii) hold a hearing.
48          (b) UPPAC may initiate a hearing as part of an investigation.
49          (c) Upon completion of an investigation or hearing, UPPAC shall:
50          (i) provide findings to the board; and
51          (ii) in accordance with Section 53A-6-308, make a recommendation for board action.
52          (d) UPPAC may not make a recommendation described in Subsection (2)(c)(ii) to
53     adversely affect an educator's license unless UPPAC gives the educator an opportunity for a
54     hearing.
55          (3) (a) The board may:
56          (i) select an independent investigator to conduct a UPPAC investigation with UPPAC

57     oversight; or
58          (ii) authorize UPPAC to select and oversee an independent investigator to conduct an
59     investigation.
60          (b) In conducting an investigation, UPPAC or an independent investigator shall
61     conduct the investigation independent of and separate from a related criminal investigation.
62          (c) In conducting an investigation, UPPAC or an independent investigator may:
63          (i) in accordance with Section 53A-6-603 administer oaths and issue subpoenas; or
64          (ii) receive evidence related to an alleged offense, including sealed or expunged
65     records released to the board under Section 77-40-109.
66          (d) If UPPAC finds that reasonable cause exists during an investigation, UPPAC may
67     recommend that the board initiate a background check on an educator as described in Section
68     53A-15-1504.
69          [(e) UPPAC has a rebuttable presumption that an educator committed a sexual offense
70     against a minor child if the educator voluntarily surrendered a license or certificate or allowed a
71     license or certificate to lapse in the face of a charge of having committed a sexual offense
72     against a minor child.]
73          (4) The board may direct UPPAC to:
74          (a) recommend to the board procedures for:
75          (i) receiving and processing complaints;
76          (ii) investigating a complaint's allegation or decision;
77          (iii) conducting hearings; or
78          (iv) reporting findings and making recommendations to the board for board action;
79          (b) recommend to the board or a professional organization of educators:
80          (i) standards of professional performance, competence, and ethical conduct for
81     educators; or
82          (ii) suggestions for improvement of the education profession; or
83          (c) fulfill other duties the board finds appropriate.
84          (5) UPPAC may not participate as a party in a dispute relating to negotiations between:
85          (a) a school district and the school district's educators; or
86          (b) a charter school and the charter school's educators.
87          (6) The board shall make rules establishing UPPAC duties and procedures.

88          Section 2. Section 53A-6-308 is enacted to read:
89          53A-6-308. UPPAC disciplinary recommendations -- Rulemaking.
90          (1) UPPAC shall make a recommendation described in Section 53A-6-306 or
91     53A-6-501 in accordance with this section and Section 53A-6-309.
92          (2) UPPAC shall recommend that the board revoke an educator's license if UPPAC
93     finds that the educator's misconduct is described in Subsection 53A-6-501(5)(b).
94          (3) Subject to Section 53A-6-309, UPPAC shall recommend that the board revoke an
95     educator's license if UPPAC finds that the educator:
96          (a) was convicted of engaging in, admitted to engaging in, or, pursuant to an
97     evidentiary hearing, engaged in, on or off school property, viewing real or simulated child
98     pornography;
99          (b) was convicted at least three times of one or more of the following, if three of the
100     convictions occurred within three years before the day after the day on which the educator was
101     most recently convicted of one of the following:
102          (i) a drug-related offense;
103          (ii) an alcohol-related offense;
104          (iii) a violent offense; or
105          (iv) a sexual offense;
106          (c) is a sex offender, as defined in Section 77-41-102; or
107          (d) intentionally provided alcohol or illegal drugs to an individual who, at the time,
108     was younger than 21 years old.
109          (4) (a) Subject to Section 53A-6-309, UPPAC shall recommend that the board suspend
110     an educator's license for at least 10 years if UPPAC finds that the educator was convicted of a
111     felony that is not subject to Subsection (3) or described in Subsection 53A-6-501(5)(b).
112          (b) The board shall make rules that allow an educator an opportunity to request that the
113     board reconsider a suspension that occurs as a result of a recommendation required by
114     Subsection (4)(a) if the educator's felony conviction is:
115          (i) expunged; or
116          (ii) reduced to a misdemeanor as described in Section 76-3-402.
117          (5) Subject to Section 53A-6-309, UPPAC shall recommend that the board suspend an
118     educator's license for at least three years if UPPAC finds that the educator:

119          (a) engaged in a sexually suggestive boundary violation that is not sexually explicit
120     conduct as defined in Section 76-5b-103;
121          (b) was convicted of child abuse, if the conviction resulted in a class A misdemeanor;
122          (c) has a conviction that caused the educator to be placed under court supervision for at
123     least three years; or
124          (d) was convicted of theft or a crime related to misappropriation of public funds.
125          (6) Subject to Section 53A-6-309, UPPAC shall recommend that the board suspend an
126     educator's license for at least one year but less than three years if UPPAC finds that the
127     educator:
128          (a) willfully or knowingly created, viewed, or gained access to sexually inappropriate
129     material on school property or using school equipment;
130          (b) was convicted of a violent misdemeanor offense in the three years before the day on
131     which UPPAC learns of the conviction;
132          (c) was convicted of using physical force on an individual who, at the time of the
133     offense, was younger than 18 years old, if the conviction is a class B or class C misdemeanor;
134          (d) engaged in repeated incidents or at least one egregious incident of excessive
135     physical force or discipline to a student or an individual who, at the time of the incident, was
136     younger than 18 years old, and the incident or incidents:
137          (i) did not result in a conviction; and
138          (ii) are not permitted under Section 53A-11-802;
139          (e) threatened a student physically, verbally, or electronically;
140          (f) engaged in a pattern of inappropriately fraternizing with a student, if the pattern did
141     not include a boundary violation described in Subsection (5)(a);
142          (g) engaged in multiple incidents or a pattern of theft or misappropriation of public
143     funds that did not result in a criminal conviction;
144          (h) attended a school or school-related activity as an assigned educator to the activity,
145     while the educator possessed, used, or was under the influence of alcohol or illegal drugs;
146          (i) was convicted at least twice of one or more drug-related or alcohol-related offenses
147     in the three years before the day on which UPPAC learns of the convictions;
148          (j) engaged in a single egregious incident or a pattern of:
149          (i) harassment;

150          (ii) bullying; or
151          (iii) threatening a co-worker or community member;
152          (k) knowingly or deliberately falsified or misrepresented information on an
153     education-related document;
154          (l) knowingly or deliberately taught, counseled, or assisted a student in a way that
155     undermined or disregarded the lawful, express directives of a parent;
156          (m) failed to appropriately report suspected child abuse or sexual abuse; or
157          (n) engaged in sexually explicit conduct on school property.
158          (7) Subject to Section 53A-6-309, UPPAC shall recommend that the board suspend an
159     educator's license for less than one year if UPPAC finds that the educator engaged in three or
160     more incidents of inappropriate conduct, if the incidents would otherwise warrant lesser
161     discipline.
162          (8) The board may make rules that require UPPAC to recommend more serious
163     discipline than the discipline UPPAC is required to recommend under this section.
164          Section 3. Section 53A-6-309 is enacted to read:
165          53A-6-309. UPPAC disciplinary aggravating and mitigating factors.
166          (1) When making a recommendation to the board in accordance with Section
167     53A-6-308, UPPAC may recommend more serious discipline due to an aggravating factor,
168     including if an educator:
169          (a) engaged in prior misconduct of any nature, including misconduct that:
170          (i) directly involved a student;
171          (ii) involved a particularly vulnerable student;
172          (iii) resulted in physical or psychological harm to a student;
173          (iv) continued after an investigation by the educator's employer or UPPAC;
174          (v) had a significant impact on the educator's school or community;
175          (vi) was witnessed by a student; or
176          (vii) resulted in a criminal conviction;
177          (b) presents a serious threat to a student;
178          (c) violated multiple standards of professional conduct;
179          (d) holds an attitude that does not reflect responsibility for the educator's misconduct or
180     the consequences of the educator's misconduct;

181          (e) held a position of heightened authority at the time of the misconduct; or
182          (f) was not honest or cooperative in the course of a UPPAC investigation.
183          (2) When making a recommendation to the board in accordance with Section
184     53A-6-308, UPPAC may recommend less serious discipline due to a mitigating factor,
185     including if the educator:
186          (a) acted as a result of strong provocation;
187          (b) is young and new to the education profession;
188          (c) holds an attitude that reflects recognition of the nature and consequences of the
189     educator's misconduct and demonstrates a reasonable expectation that the educator will not
190     repeat the misconduct;
191          (d) is amenable to supervision and training;
192          (e) has little or no previous disciplinary history;
193          (f) has not engaged in another incident of misconduct for an extended period of time
194     since the original misconduct;
195          (g) was a less-active participant in a larger offense;
196          (h) was directed explicitly or implicitly by a supervisor or individual in authority over
197     the educator to participate in the misconduct, or received subsequent approval of the educator's
198     misconduct by a supervisor or individual in authority over the educator;
199          (i) has voluntarily sought treatment or made restitution for the misconduct; or
200          (j) lacked training or policy, if the training or policy may have prevented the educator's
201     misconduct.
202          (3) (a) UPPAC may consider an aggravating or mitigating factor that is not described
203     in Subsection (1) or (2) if UPPAC finds that the factor warrants a recommendation of more or
204     less serious discipline than required by Section 53A-6-308.
205          (b) UPPAC may determine the weight to give to each aggravating or mitigating factor.
206          Section 4. Section 53A-6-405 is amended to read:
207          53A-6-405. Ineligibility for educator license.
208          (1) The board may refuse to issue a license to a license applicant if the board finds
209     good cause for the refusal, including behavior of the applicant:
210          (a) found pursuant to a criminal, civil, or administrative matter after reasonable
211     opportunity for the applicant to contest the allegation; and

212          (b) considered, as behavior of an educator, to be:
213          (i) immoral, unprofessional, or incompetent behavior; or
214          (ii) a violation of standards of ethical conduct, performance, or professional
215     competence.
216          (2) The board may not issue, renew, or reinstate an educator license if the license
217     applicant or educator:
218          (a) was convicted of a felony of a sexual nature;
219          (b) pled guilty to a felony of a sexual nature;
220          (c) entered a plea of no contest to a felony of a sexual nature;
221          (d) entered a plea in abeyance to a felony of a sexual nature;
222          (e) was convicted of a sexual offense under Title 76, Chapter 5, Part 4, Sexual
223     Offenses, against a minor child;
224          (f) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
225     [student who is a] minor;
226          (g) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
227     student who is:
228          (i) not a minor; and
229          (ii) enrolled in a school where the license applicant or educator is or was employed; or
230          (h) admits to the board or UPPAC that the license applicant or educator committed
231     conduct that amounts to:
232          (i) a felony of a sexual nature; or
233          (ii) a sexual offense or sexually explicit conduct described in Subsection (2)(e), (f), or
234     (g).
235          (3) If an individual is ineligible for licensure under Subsection (1) or (2), a public
236     school may not:
237          (a) employ the person in the public school; or
238          (b) allow the person to volunteer in the public school.
239          (4) (a) If the board denies licensure under this section, the board shall immediately
240     notify the applicant of:
241          (i) the denial; and
242          (ii) the applicant's right to request a hearing before UPPAC.

243          (b) Upon receipt of a notice described in Subsection (4)(a), an applicant may, within 30
244     days after the day on which the applicant received the notice, request a hearing before UPPAC
245     for the applicant to review and respond to all evidence upon which the board based the denial.
246          (c) If the board receives a request for a hearing described in Subsection (4)(b), the
247     board shall direct UPPAC to hold a hearing.
248          Section 5. Section 53A-6-501 is amended to read:
249          53A-6-501. Board disciplinary action against an educator.
250          (1) (a) The board shall direct UPPAC to investigate an allegation, administrative
251     decision, or judicial decision that evidences an educator is unfit for duty because the educator
252     exhibited behavior that:
253          (i) is immoral, unprofessional, or incompetent; or
254          (ii) violates standards of ethical conduct, performance, or professional competence.
255          (b) If the board determines an allegation or decision described in Subsection (1)(a)
256     does not evidence an educator's unfitness for duty, the board may dismiss the allegation or
257     decision without an investigation or hearing.
258          (2) The board shall direct UPPAC to investigate and allow an educator to respond in a
259     UPPAC hearing if the board receives an allegation that the educator:
260          (a) was charged with a felony of a sexual nature;
261          (b) was convicted of a felony of a sexual nature;
262          (c) pled guilty to a felony of a sexual nature;
263          (d) entered a plea of no contest to a felony of a sexual nature;
264          (e) entered a plea in abeyance to a felony of a sexual nature;
265          (f) was convicted of a sexual offense under Title 76, Chapter 5, Part 4, Sexual
266     Offenses, against a minor child;
267          (g) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
268     [student who is a] minor; or
269          (h) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
270     student who is:
271          (i) not a minor; and
272          (ii) enrolled in a school where the educator is or was employed.
273          (3) Upon notice that an educator allegedly violated Section 53A-6-502, the board shall

274     direct UPPAC to:
275          (a) investigate the alleged violation; and
276          (b) hold a hearing to allow the educator to respond to the allegation.
277          (4) Upon completion of an investigation or hearing described in this section, UPPAC
278     shall:
279          (a) provide findings to the board; and
280          (b) in accordance with Section 53A-6-308, make a recommendation for board action.
281          (5) (a) Except as provided in Subsection (5)(b), upon review of UPPAC's findings and
282     recommendation, the board may:
283          (i) revoke the educator's license;
284          (ii) suspend the educator's license;
285          (iii) restrict or prohibit the educator from renewing the educator's license;
286          (iv) warn or reprimand the educator;
287          (v) enter into a written agreement with the educator that requires the educator to
288     comply with certain conditions;
289          (vi) direct UPPAC to further investigate or gather information; or
290          (vii) take other action the board finds to be appropriate for and consistent with the
291     educator's behavior.
292          (b) Upon review of UPPAC's findings and recommendation, the board shall revoke the
293     license of an educator who:
294          (i) was convicted of a felony of a sexual nature;
295          (ii) pled guilty to a felony of a sexual nature;
296          (iii) entered a plea of no contest to a felony of a sexual nature;
297          (iv) entered a plea in abeyance to a felony of a sexual nature;
298          (v) was convicted of a sexual offense under Title 76, Chapter 5, Part 4, Sexual
299     Offenses, against a minor child;
300          (vi) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
301     [student who is a] minor;
302          (vii) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
303     student who is:
304          (A) not a minor; and

305          (B) enrolled in a school where the educator is or was employed; or
306          (viii) admits to the board or UPPAC that the applicant committed conduct that amounts
307     to:
308          (A) a felony of a sexual nature; or
309          (B) a sexual offense or sexually explicit conduct described in Subsection (5)(b)(v), (vi),
310     or (vii).
311          (c) The board may not reinstate a revoked license.
312          (d) Before the board takes adverse action against an educator under this section, the
313     board shall ensure that the educator had an opportunity for a UPPAC hearing.
314          (e) Except as provided in Subsection (5)(b), the board has discretion to take
315     disciplinary action against an educator's license and is not required to follow a recommendation
316     from UPPAC.
317          (6) The board shall make rules to administer this section, including rules to regulate
318     action taken by the board under Subsection (5)(a)(vii).
319          Section 6. Section 53A-6-602 is amended to read:
320          53A-6-602. Designation of hearing officer or panel -- Review -- Official findings.
321          (1) UPPAC or a state or local school board charged with responsibility for conducting
322     a hearing may conduct the hearing itself or appoint a hearing officer or panel to conduct the
323     hearing and make recommendations concerning findings.
324          (2) (a) UPPAC or the school board shall review the record of the hearing and the
325     recommendations[, and may obtain and review, in the presence of the parties or their
326     representatives, additional relevant information, prior to issuing official findings].
327          (b) Before issuing official findings, the board, a local school board, or UPPAC, upon
328     reviewing the record of a hearing under Subsection (2)(a), may request or obtain additional
329     relevant information if the board, the local school board, or UPPAC affords the parties:
330          (i) an opportunity to be present when the board, the local school board, or UPPAC
331     reviews the information; and
332          (ii) a reasonable opportunity, that, unless upon request of a party the board grants
333     additional time, is less than 30 days after the day on which the board, the local school board, or
334     UPPAC reviews the information under Subsection (2)(b)(i), to respond to the information.
335          (c) The board, a local school board, or UPPAC may deliberate privately before issuing

336     official findings.
337          (3) UPPAC shall provide a panel of its members to serve as fact finders in a hearing at
338     the request of the educator who is the subject of the hearing.
339          Section 7. Section 53A-6-604 is amended to read:
340          53A-6-604. Rules for conducting hearings -- Standard of proof.
341          (1) The board and each local school board shall adopt rules for the conduct of hearings
342     to ensure that requirements of due process are met.
343          (2) An accused party shall be provided not less than 15 days before a hearing with:
344          (a) notice of the hearing;
345          (b) the law, rule, or policy alleged to have been violated;
346          (c) sufficient information about the allegations and the evidence to be presented in
347     support of the allegations to permit the accused party to prepare a meaningful defense; and
348          (d) [a copy of] (i) an Internet address where the accused party can access the rules
349     under which the hearing will be conducted[.]; or
350          (ii) at the request of the accused party, a copy of the rules under which the hearing will
351     be conducted.
352          (3) If an accused party fails to request a hearing within 30 days after written notice is
353     sent to the party's address as shown on the records of the local board, for actions taken under
354     the auspices of a local board, or on the records of the board, for actions taken under the
355     auspices of the board, then the accused party shall be considered to have waived the right to a
356     hearing and the action may proceed without further delay.
357          (4) Hearing fact finders shall use the preponderance of evidence standard in deciding
358     all questions unless a higher standard is required by law.
359          (5) Unless otherwise provided in this title, the decisions of state and local boards are
360     final determinations under this section, appealable to the appropriate court for review.
361          (6) The board shall make rules to protect the rights of the following during a hearing:
362          (a) a victim who is younger than 18 years old; and
363          (b) a victim who receives special education services from an LEA under the
364     Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.