22 PA Code § 233.13. Disciplinary proceedings.
(a) Complaints.
(1) Interested party complaints. Under section 9(a) of the act (24 P. S. § 12-1259(a)), a proceeding to discipline a professional educator is initiated by the filing of a complaint with the Department by an interested party within 1 year from the date of the occurrence of any alleged action specified under section 5(a)(11) of the act (24 P. S. § 12-1255(a)(11)), or from the date of its discovery. If the alleged action is of a continuing nature, the date of its occurrence is the last date on which the practice occurred.
(2) School entity complaints. Under section 9(b) of the act, commissioned officers in school entities shall report promptly to the Department each instance:
(i) When the school entity has dismissed a certified employe for cause.
(ii) When the commissioned officer is aware that one of the officer's school entity's present certificated employes has been formally charged or convicted of a crime of moral turpitude or some other offense requiring mandatory suspension or revocation of certification under the act.
(3) Form of complaints. Under section 9(c) of the act, the Department is required by regulation to prescribe standards for the filing of complaints. A complaint shall:
(i) Be in a form prescribed by the Department.
(ii) Specify the nature and character of the charges.
(iii) Be verified under oath by the complaining party or an authorized agent of the complaining party.
(4) Commissioner complaints. Under section 9(d) of the act, neither the Commission nor its individual members may file a complaint or initiate a disciplinary proceeding on their own motion, except that if in the performance of Commission business, the Commission, or any of its individual members, uncover evidence that would appear to require discipline, the Commission may transmit this evidence to the Department where the evidence will be treated as a complaint in accordance with the act.
(5) Preliminary review by the Department. Under section 9(e) of the act, the Department will assemble information relevant to the complaint. The Department will then conduct a preliminary review of the allegations and record. If the Department believes that disciplinary action may be appropriate, or that further investigation is called for, it will forward the record and its recommendations to the chief counsel of the Department.
(6) Department chief counsel determination of substance. Upon receipt of a complaint by the chief counsel of the Department, counsel is required by section 9(f) of the act to promptly determine whether the complaint alleges facts which, if true, are sufficient to require discipline.
(i) Dismissal of complaint. If the facts alleged are not sufficient, the Department will dismiss the complaint and provide written notice of the dismissal to the complaining party and to the affected professional educator under section 9(f)(1) of the act.
(ii) Department investigation. If the facts alleged are deemed sufficient by the Department, it is required under section 9(f)(2) of the act to notify the affected professional educator and the complaining party in writing of the sufficiency of the complaint. Except as provided in the act, in the case of a complaint initiated by a governing board, the Department will conduct a preliminary investigation to determine whether there is probable cause to believe that grounds for discipline exist. Under section 9(f)(2) of the act, the Department will be provided, upon request, documents it may reasonably require in pursuit of its investigation. The Department's request will be made in writing to the professional educator or the professional's employer, or both, and a copy will be filed with the Commission.
(iii) Transmittal to school governing board. If the Department determines that probable cause does not exist, section 9(f)(3) of the act requires the Department to issue a written notice to the affected professional educator, the complaining party and the employer, if the employer was notified of the complaint. If a finding of probable cause is made, section 9(f)(3) of the act requires the Department to notify the affected professional educator and the complaining party and to transmit the complaint and its preliminary findings to the local school governing board of the school entity in which the affected professional educator is or was last serving, unless the local school board is the complaining party and has provided the report described in section 11 of the act (24 P.S. § 12-1261). If the local school board is the complaining party and has already conducted hearings of record according to the procedures established by law or by a collective bargaining agreement for adjudication of complaints against professional educators, and if the local board has provided a transcript of the hearing to the Department together with the adjudication resulting from the hearing, and has also transmitted the report described in section 11 of the act, then section 9(f)(3) of the act requires no preliminary investigation, and the hearing procedures described in sections 12 and 13 of the act (24 P. S. § § 12-1262 and 12-1263) are required to be initiated within 30 days of the receipt of the complaint. Both parties will be notified of the transmission of the complaint under section 9(f)(3) of the act.
(b) Confidentiality.
(1) Information. Under section 10 of the act (24 P. S. § 12-1260), information relating to complaints, or proceedings relating to or resulting from complaints, will remain confidential unless discipline, other than a private reprimand, is ordered. If proceedings, after all appeals, result in discipline, other than private reprimand, section 10 of the act provides that the discipline and all records pertaining thereto will become public. Section 10 of the act prohibits all ex parte communication on a pending matter regarding discipline. Section 10 of the act permits disclosure of information previously made public as a result of action by a school entity to dismiss a certified employe for cause or as a result of a certified employe having been formally charged with or convicted of a crime of moral turpitude or another offense requiring mandatory suspension or revocation of a certificate.
(2) Compliance. Members, staff and employes of the Commission, the Department, local school entities and participants in disciplinary proceedings shall comply with the confidentiality requirements of section 10 of the act. Correspondence between and among the Commissioners and staff persons containing confidential material will be marked as personal and confidential, and precaution will be taken to avoid unauthorized disclosure.
(c) Proceedings before local school board.
(1) Local board decision to act locally. Upon receipt of a complaint from the Department, under section 11(a) of the act (24 P. S. § 12-1261(a)), a local school board shall investigate and determine within 90 days whether the complaint will be submitted to the procedures established by law or by collective bargaining agreement for adjudication of complaints against professional educators, and shall report this determination to the Department.
(2) Local board report to the Department on local action. When the proceedings before the local school board are completed, the board is required by section 11(b) of the act to report to the Department its findings and a summary of the evidence, and action taken, and the board may make a definite recommendation concerning discipline. The school board is required to notify the affected professional educator of this recommendation.
(d) Department action upon school board recommendations. Upon receipt of a copy of the findings, summary of evidence and recommendations of the school board, section 12 of the act requires the Department to dismiss the charges, to determine that appropriate and sufficient punishment has been imposed by the local school board or to initiate hearing procedures.
(e) Hearing.
(1) Hearing notification.
(i) Written notice. Upon determination to initiate hearing procedures, section 13(a) of the act requires the Department, within 30 days, to send a written notice to the affected professional educator and to the governing board of the school entity in which the professional educator is or was last employed. The notice will be treated by the Commission as an order to show cause under 1 Pa. Code § 35.14 (relating to orders to show cause). The notice should contain a statement of the particulars of the charges against the professional educator, the right of the professional educator to respond and to request a hearing within 30 days after receipt of the notice of charges, and the right of the governing body of the school entity in which the professional educator is or was last employed to intervene under section 13(c)(4) of the act and 1 Pa. Code § 35.28 (relating to eligibility to intervene).
(ii) Docket number and notice. After the Department files a copy of the notice of charges with the Commission, the Commission will immediately establish a docket number and provide notice thereof to the Department, the professional educator and the governing board of the school entity by which the affected professional educator is or was last employed. Unless the Department has already done so, the Commission will provide to the governing board a copy of the notice of charges and will inform the governing board of its opportunity to file a petition to intervene under section 13(c)(4) of the act and 1 Pa. Code § 35.28.
(iii) Failure to respond.
(A) If the professional educator fails to timely respond to the notice of charges, the educator is deemed in default under 1 Pa. Code § 35.37 (relating to answers to orders to show cause), and the Commission may, upon motion of any party, deem admitted the relevant facts stated in the notice of charges and proceed to consideration of discipline based upon the admitted facts and exhibits, if any, to the notice of charges.
(B) The Commission will not in these cases appoint a hearing officer or hold a hearing unless the Commission determines that the appointment of a hearing officer is necessary for the Commission to decide the matter. In these cases, the Commission will determine the scope of the hearing officer's authority.
(C) The Executive Director will provide notice to the parties of the meeting at which the Commission intends to consider the matter, and any party may address the Commission as provided by section 18(a) of the act (24 P.S. § 12-1268(a)).
(iv) Right to an evidentiary hearing.
(A) If the professional educator timely responds in writing to the notice of charges by specifically admitting or denying the allegations of the notice of charges, setting forth the facts upon which the educator relies, and stating concisely the matters of law relied upon in compliance with 1 Pa. Code § 35.37, the Commission will appoint a hearing officer to conduct proceedings in accordance with the act, 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure) and other rules which the Commission might prescribe.
(B) If the professional educator timely responds in writing to the notice of charges but expressly waives the right to an evidentiary hearing under section 13(c)(3) of the act (24 P. S. § 12-1263(c)(3)), or fails to comply with 1 Pa. Code § 35.37, the Commission may appoint a hearing officer to conduct the proceedings as the Commission or its legal counsel might direct or, upon motion of a participant, the Commission may proceed directly to consider the matter of discipline based upon the notice of charges, the response to the notice of charges and other documents as might be part of the formal record. Under section 18(a) of the act (24 P. S. § 12-1268(a)), participants may be heard by the Commission in person, in writing, or through a designated representative, and the Executive Director of the Commission will provide notice to the parties of the meeting at which the Commission intends to consider the matter.
(C) Clauses (A) and (B) do not prohibit or limit the filing by a participant of a motion, petition or application directed to the Commission or an appointed hearing officer consistent with the act and 1 Pa. Code Part II.
(2) Expedited hearing.
(i) Department request for expedited hearing. Notwithstanding another provision of the act, if the Department determines that immediate discipline is necessary to protect the health, safety or welfare of students or other persons in the schools of this Commonwealth, section 13(b) of the act requires the Department to request that the Commission modify the procedures in sections 9-18 of the act (24 P. S. § § 12-1259-12-1268) and schedule an expedited hearing under section 13(c) of the act.
(ii) Written petition. A written request by the Department that the Commission modify the procedures in sections 9-18 of the act will be treated by the Commission as a petition under 1 Pa. Code § § 35.17 and 35.18 (relating to petitions generally; and petitions for issuance, amendment, waiver or deletion of regulations). Under 1 Pa. Code § 35.35 (relating to answers to complaints and petitions), an answer to the petition shall be filed with the Commission within 20 days after service of the petition, or at another time as directed by the Commission.
(3) Petitions or motions requiring action prior to the appointment of a hearing officer.
(i) The legal counsel to the Commission has the authority to decide upon an application, petition or motion requiring action prior to the appointment of a hearing officer, except that legal counsel may not enter an order which would constitute a final determination of the proceedings. The legal counsel may refer an application, petition or motion to the Commission for ultimate determination.
(ii) An order issued by legal counsel may be reviewed by the Commission upon the filing of a petition of appeal under 1 Pa. Code § 35.20 (relating to appeals from actions of the staff), but neither orders issued by legal counsel nor the proceedings will be stayed pending review unless expressly ordered by the Chairperson or the legal counsel for the Commission.
(4) Hearing procedures. Hearings will be held in accordance with the act and 1 Pa. Code Part II, as follows:
(i) Hearing officer appointed. Upon the filing of a notice of charges and response thereto requiring the service of a hearing officer, the Commission will appoint a hearing officer from a list of impartial third parties qualified to conduct hearings as provided by section 13(c)(1) of the act. The list will have been previously agreed upon jointly by the Governor's General Counsel and at least two-thirds of the Commission, and will have at least ten names which will be chosen on a rotating basis.
(ii) Burden of proof. Under section 13(c)(2) of the act, the burden of proof is on the Department, which acts as prosecutor, to establish that grounds for discipline exist. If the professional educator waives the opportunity for a hearing, the factual allegations of the notice of charges are deemed admitted and will be accepted as true by the hearing officer and the Commission.
(iii) Right to counsel. Under section 13(c)(3) of the act, a professional educator against whom a charge is made has the right to be represented by counsel and to present evidence and argument under 1 Pa. Code Part II and other rules of procedure promulgated by the Commission.
(iv) Local board may intervene. Under section 13(c)(4) of the act, the governing board of the school entity in which an affected professional educator is or was last employed may intervene, for cause shown, in accordance with 1 Pa. Code § § 35.27-35.31 (relating to intervention).
(v) Closed and open hearings. Under section 13(c)(5) of the act, hearings will be closed, unless an affected professional educator requests that a hearing be open. If the hearing is open, the hearing officer may close any portion of the hearing for good cause shown. If the hearing is closed, only the Department, Commission members and staff, the affected professional educator and the educator's representatives, and material witnesses are permitted to attend. Students attending school in the district which employs the professional educator are not permitted to attend any hearing except as witnesses subpoenaed to testify with respect to the charges made.
(vi) Department recommendation. Under section 13(c)(6) of the act, the Department may recommend to the hearing officer and Commission appropriate discipline.
(vii) Hearing officer's decision. Within 30 days after the conclusion of the hearing, including briefing and oral argument, if any, the hearing officer will issue a decision concerning whether discipline should be imposed under section 13(c)(7) of the act. A decision will include proposed findings of fact and conclusions of law, and will specify the discipline proposed.
(f) Exceptions to decisions by hearing officers.
(1) Educator or Department exceptions to decision. Under section 14(a) of the act, the decision of the hearing officer will become final unless excepted to by a party within 30 days after the filing and service of the recommended decision. If no exceptions are timely filed, the Commission will consider the decision and recommendation of the hearing officer and issue an order implementing the hearing officer's decision. The Commission cannot alter the hearing officer's decision without the filing of timely exceptions.
(2) Commission action on exceptions. Under section 14(b) of the act, the Commission will promptly consider exceptions to the hearing officer's decision. The Commission, by a majority vote of its full membership, will accept, modify or reject the hearing officer's decision, except that, in the case of discipline of an administrator, exceptions will be reviewed by a special panel of at least five members of the Commission selected by the Chairperson. The special panel will not include teachers.
(3) Forty-five day requirement for action.
(i) After receiving the decision of the hearing officer, the written exceptions thereto and the written response to exceptions, the Commission will set the matter for oral argument before the Commission. The Executive Director will provide notice to the parties of the meeting at which the Commission intends to consider the matter, and any party may address the Commission as provided in section 18(a) of the act.
(ii) Section 14(c) of the act directs the Commission to issue a written opinion and order affirming, reversing or modifying the hearing officer's decision and imposing discipline, if any, within 45 days after receiving the decision from the hearing officer and the exceptions thereto, including oral argument on the exceptions.
(g) Appeal.
(1) Educator or Department appeal. Under section 15(a) of the act (24 P. S. § 12-1265(a)), an order of the Commission regarding discipline of a professional educator may be appealed only by the Department or the professional educator as an adjudication by a State agency in the manner provided by law.
(2) Appeal stays discipline. Under section 15(b) of the act, an appeal filed under section 15(a) of the act operates as a stay of the discipline until the determination of the appeal, except when the Commission's decision to discipline is accompanied by a finding that immediate discipline is necessary to protect the health, safety or welfare of students or other persons in the schools of the Commonwealth.
(3) Record expunged if decision favorable. If the final decision is in favor of the professional educator, section 15(c) of the act requires that the charges pertaining to the matter be expunged from any personal or professional file of the professional educator maintained by the Department or the local school entity, or both.
(h) Crimes or misdemeanors involving moral turpitude or as a drug addict.
(1) Treatment as order to show cause.
(i) Whenever a notice of charges containing a certified copy of an indictment or verdict, judgment or sentence for a crime or misdemeanor involving moral turpitude or as a drug addict is filed with the Commission, the Commission will treat the filing as an order to the professional educator to show cause why the educator's professional certificates should not be immediately suspended or revoked.
(ii) The Commission will immediately establish a docket number and provide notice thereof to the professional educator, the Department and the governing board by which the professional educator is or was last employed.
(2) Denial of conditions requiring suspension or revocation. If the affected professional educator timely responds in writing within 30 days after service upon him of the notice of charges or order to show cause denying the existence of the conditions requiring suspension or revocation of certificates under section 5(a)(11) of the act (24 P. S. § 12-1255(a)(11)), the hearing procedures of sections 13-15 of the act (24 P. S. § § 12-1263-12-1265) and 1 Pa. Code Part II and other rules and procedures the Commission might promulgate will apply, and a hearing officer will be appointed.
(3) Failure to respond.
(i) If the affected professional educator fails to timely respond to the filing of a certified copy of an indictment, verdict, judgment or sentence for a crime or misdemeanor involving moral turpitude or as a drug addict, the Commission will proceed to direct the Department to suspend or revoke the certificate as might be required by section 5(a)(11) of the act.
(ii) The Commission will not in these cases appoint a hearing officer unless the Commission determines that an appointment is necessary for the Commission to decide the matter. The Executive Director will provide notice to the parties of the meeting at which the Commission intends to consider the matter, and any party may address the Commission as provided in section 18(a) of the act (24 P. S. § 12-1268(a)).
Source
The provisions of this § 233.13 amended August 7, 1992, effective August 8, 1992, 22 Pa.B. 4100; amended September 24, 1993, effective September 25, 1993, 23 Pa.B. 4545.