Chapter 3301-73 Professional Conduct Educator Rules

3301-73-01 Applicability of rules.

If any provision of the rules in Chapter 3301-73 of the Administrative Code is held invalid or if the application of any provision of the rules in Chapter 3301-73 of the Administrative Code to any person or circumstance is held invalid, the invalidity does not affect any other provision of the rules in this chapter, or the application of any other provision of the rules in Chapter 3301-73 of the Administrative Code, that can be given effect without the invalid provision or application, and, to this end, the provisions of the rules in this chapter are hereby declared severable. The promulgation of the rules in this chapter shall not limit the state board's or superintendent's authority to establish policies and procedures to carry out the duties assigned under Title XXXIII of the Revised Code, rule 3301-20-01 of the Administrative Code, and Chapter 3301-73 of the Administrative Code.

Effective: 05/23/2009
R.C. 119.032 review dates: 03/04/2009 and 03/04/2014
Promulgated Under: 119.03
Statutory Authority: 3301.07, 3319.31, 3319.311
Rule Amplifies: 3319.31, 3319.311
Prior Effective Dates: 9/25/04

3301-73-02 Delegation.

(A) The state board authorizes the superintendent, on its behalf, to initiate proceedings under Chapter 119. of the Revised Code warranting an action pursuant to section 3319.31 of the Revised Code, including, but not limited to, automatic revocation or denial of a respondent's license.

(B) The superintendent's authority under section 3319.31 of the Revised Code extends to notifying the person that an investigation has been completed and, based upon that investigation, determining whether the results warrant initiating an action for the state board to limit, suspend, revoke or deny licensure pursuant to section 3319.31 of the Revised Code.

(C) The superintendent shall notify the respondent of his/her rights under Chapter 119. of the Revised Code including his/her right to a hearing and to be represented by counsel.

(D) The state board authorizes the superintendent, on its behalf, to issue a written order revoking or denying issuance of licensure and reinstating licensure under division (C) of section 3319.31 of the Revised Code.

3301-73-03 Definitions.

(A) State board under this chapter means the Ohio state board of education as defined under section 3301.01 of the Revised Code.

(B) Superintendent under this chapter means the superintendent of public instruction or his/her designee as provided by section 3301.13 of the Revised Code.

(C) Department under this chapter means the Ohio department of education as defined in section 3301.13 of the Revised Code.

(D) District under this chapter means all school districts as described under section 3311.01 of the Revised Code, educational service centers, community schools, county MR/DD's or chartered non-public schools.

(E) Respondent under this chapter means an educator subject to action under section 3319.31 of the Revised Code.

(F) Parties under this chapter means the Ohio department of education and the respondent as defined under paragraph (E) of this rule.

(G) License under this chapter means the same as the term license as defined in division

(A) of section 3319.31 of the Revised Code.

(H) Final action under this chapter means a final disposition to an investigation including, but not limited to, a letter of admonishment, consent agreement, suspension, revocation, limitation, or denial of a license.

(I) Disciplinary action under this chapter is limited to a final disposition of an investigation including a letter of admonishment, consent agreement, suspension, revocation, limitation, or denial of a license.

(J) Educator under this chapter means any person holding any license, certificate, or permit issued by the department or any person applying for any license, certificate, or permit issued by the department.

3301-73-04 Confidentiality of investigative records.

(A) All information obtained during an investigation is confidential and is not a public record under section 149.43 of the Revised Code except as provided in paragraphs (B) to (K) of rule 3301-73-04 of the Administrative Code.

(B) If the superintendent concludes that the results of the investigation do not warrant initiating an action under section 3319.31 of the Revised Code, all information obtained to arrive at that conclusion shall not be considered a public record under section 149.43 of the Revised Code.

(C) If the state board and the respondent enter into a consent agreement under division (D) of section 3319.311 of the Revised Code and rule 3301-73-23 of the Administrative Code, the consent agreement is a public record under rule 3301-73-23 of the Administrative Code. All other information obtained, including all offers of settlement, proposals of adjustment, and proposed stipulations not agreed to shall not be a public record under section 149.43 of the Revised Code.

(D) If the superintendent issues a letter of admonishment under rule 3301-73-22 of the Administrative Code, the letter of admonishment and any response thereto is a public record under rule 3301-73-22 of the Administrative Code. All other information obtained during the investigation shall remain confidential and not a public record.

(E) If the superintendent concludes that the results of the investigation warrant initiating an action under section 3319.31 of the Revised Code, except any action taken by the superintendent to automatically revoke or deny a license under division (C) of section 3319.31 of the Revised Code, only the following information shall be a public record under section 149.43 of the Revised Code:

(1) The notice of opportunity for an administrative hearing under Chapter 119. of the Revised Code;

(2) Any request filed by a party for a continuance of an administrative hearing and the subsequent judgment entry filed by the hearing officer;

(3) Exhibits offered into evidence in an administrative hearing on behalf of the parties unless the exhibits are admitted by the hearing officer under seal;

(4) Upon written request of either party or the hearing officer, the parties shall provide a list of witnesses and documents intended to be introduced as exhibits in an administrative hearing at least fourteen days prior to the final scheduled date of the administrative hearing;

(5) Any documents used by the department to fulfill its statutory obligation under sections 119.01 to 119.13 of the Revised Code to schedule the hearing. This date may not be considered the final scheduled hearing date; and

(6) The administrative hearing transcript, except for portions of the transcript sealed by the hearing officer. All other information obtained shall remain confidential and shall not be a public record under section 149.43 of the Revised Code.

(F) If the superintendent concludes that the results of the investigation warrant initiating an action under division (C) of section 3319.31 of the Revised Code to automatically revoke or deny a license, only the following three documents shall be a public record under section 149.43 of the Revised Code:

(1) The written order issued by the superintendent to revoke or deny the license;

(2) The certified court records of the conviction, which is the basis for the revocation or denial of the license; and

(3) Any notice of appeal related to the conviction, which is the basis for the revocation or denial of the license.

(G) The following information shall be considered a public record only when presented to the state board:

(1) The superintendent's proposed resolution;

(2) The report and recommendation of the hearing officer;

(3) Objections to the hearing officer's report and recommendation; and

(4) The state board's final resolution.

(H) The department may disclose information that is not a public record when ordered to do so by a court order and/or a subpoena issued only by a court with a pending legal action before it that is evidenced by an official docket number issued by the court and/or a local, state or federal agency with statutory subpoena authority.

(1) If the department determines that disclosure pursuant to a subpoena would be a violation of privilege, statute, or rule, the department may apply to either the issuing agency or the court for a protective order. While the application for protective order is pending, the department shall not disclose the subpoenaed information.

(2) The department is precluded from issuing a subpoena to itself for records that are confidential under section 3319.311 of the Revised Code.

(I) All disciplinary actions taken by the state board of education shall be public record, and shall be maintained with the department's official records.

(J) All disciplinary actions taken by the state board shall be reported to national databases that list educator disciplinary actions including, but not limited to, the national association of state directors of teacher education and certification (www.nasdtec.org).

(K) Information received by the state board of education or superintendent pursuant to an investigation is confidential and not subject to discovery in any civil action.

3301-73-05 Notice for opportunity for hearing; failure to request.

(A) The superintendent shall determine if the results of an investigation warrant initiating an action to limit, suspend, revoke or deny a license.

(B) If the results of an investigation warrant initiating an action, the superintendent shall give notice of an opportunity for a hearing in accordance with sections 119.01 to 119.13 of the Revised Code. Nothing in this provision shall prohibit the superintendent from amending the notice for the proposed action. A notice of an opportunity for a hearing shall be a public record under section 149.43 of the Revised Code.

(C) The notice shall also inform the respondent that if he/she fails within thirty calendar days to request a hearing in accordance with section 119.07 of the Revised Code, or fails to appear at a scheduled hearing, the state board may suspend, limit, deny or revoke, as applicable, any licenses held or applied for without holding an administrative hearing.

3301-73-06 Filing.

(A) A certificate of service shall not be required for a filing of a request for hearing under section 119.07 of the Revised Code. A hearing request is filed when it is received and time stamped by the department.

(B) Paragraphs (C) to (K) of rule 3301-73-06 of the Administrative Code apply after a request for an administrative hearing is received by the department.

(C) A document is "filed" when it is received and time stamped by the department during normal business hours. The burden of ensuring that the document(s) is properly and timely filed is borne by the party filing the document(s).

(D) An original of any document required to be filed shall be filed with the department and service on the parties shall occur simultaneously. A party may file a document with the department in person, by mail, or by facsimile. When filing by facsimile, the party shall provide the department an original document within five business days of the facsimile filing.

(E) All documents shall contain the name, address, and telephone number of the party submitting it and shall be appropriately captioned to indicate the name of the party on whose behalf the document is filed.

(F) Any document required to be served by a party may be served in person, by mail or by facsimile. Service is complete on the date of mailing, date of personal service, or date of facsimile of the document.

(G) Any signed statement is an acceptable certificate of service so long as it contains all of the following information:

(1) Date of service;

(2) Address where service was made; and

(3) Name of the party or authority that was served.

(H) In computing any period of time prescribed by these rules, the day of the act from which the designated period of time begins to run shall not be included. The last day of the period is included in the computation of the time limit. If the last day of a period is not a regular business day, the time period runs through the end of the next regularly scheduled business day.

(I) Requests for an extension of time shall be made in writing to the department prior to the expiration of any applicable time limit.

(J) If a document(s) is not filed in accordance with this rule, the state board or hearing officer may, at his/her discretion, accept the document upon establishment of proof of good faith.

(K) This rule does not apply when a respondent is perfecting an appeal under section 119.12 of the Revised Code.

3301-73-07 Intervention.

Petitions to intervene on behalf of any party shall not be permitted.

R.C. 119.032 review dates: 03/04/2009 and 03/04/2014

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3319.31, 3319.311

Rule Amplifies: 3319.31, 3319.311

Prior Effective Dates: 9/25/04

3301-73-08 Notice of date, time and place of hearings.

(A) Notice specifying the date, time and place set for hearing shall be served as provided under sections 119.01 to 119.13 of the Revised Code. A continuance of a scheduled hearing date shall be filed in accordance with rule 3301-73-10 of the Administrative Code.

(B) All hearings shall be held in Columbus, Ohio, unless the superintendent or hearing officer determines that it is in the best interest of the public or the parties that the hearing be held in a different location. This provision does not limit the hearing officer's discretion to allow the receipt of evidence in a place other than Columbus, Ohio.

3301-73-09 Authority and duties of hearing officers.

(A) Administrative hearings shall be conducted before a hearing officer pursuant to section 3319.311 and Chapter 119. of the Revised Code.

(B) All hearings shall be open to the public, but, upon motion by either party or at the hearing officer's discretion, the hearing officer may close the hearing to the extent necessary to protect compelling interests and rights or to comply with statutory requirements. In the event the hearing officer closes the hearing, the hearing officer shall state the reasons therefore in the public record.

(C) The hearing officer shall conduct hearings in such a manner as to prevent unnecessary delay, maintain order, and ensure the development of a clear and adequate record.

(D) The authority of the hearing officer shall include, but not be limited to:

(1) Administer oaths and affirmations;

(2) Request the superintendent to issue subpoenas to require the attendance of witnesses at hearings and depositions in lieu of live testimony at hearing and to require the production of evidence for hearings and depositions;

(3) Examine parties and witnesses;

(4) Direct parties and witnesses to testify;

(5) Make rulings on the admissibility of evidence;

(6) Make rulings on procedural motions, whether such motions are oral or written;

(7) Hold pre-hearing and status conferences;

(8) Request briefs before, during or following the hearing, as well as suggested findings, orders, and conclusions of law within such time limits as the hearing officer may determine;

(9) Prepare entries, findings, orders, or reports and recommendations;

(10) Request preparation of entries, findings, or orders;

(11) Take such other actions as may be necessary to accomplish the purposes of paragraph (C) of this rule; and

(12) Determine the order in which any hearing shall proceed.

(E) The hearing officer shall have such other powers, duties, and authority as are granted by statutes or rules.

(F) The authority of the hearing officer shall not include authority to do either of the following:

(1) Grant motions for dismissal of an action; or

(2) Compromise or settle any action.

(G) All rulings by a hearing officer on evidence and motions, including motions for recusal, and on any other procedural matters shall be subject to review by the state board upon presentation of the proposed findings of fact and conclusions of law of the hearing officer. When such rulings warrant, the matter may be remanded to the hearing officer for further proceedings or clarification.

3301-73-10 Continuance of a hearing.

(A) The department may continue a hearing on its own motion as provided by the rules in this chapter and Chapter 119. of the Revised Code.

(B) The parties may agree to a continuance for a period of not more than thirty calendar days. Such continuance shall be memorialized by the hearing officer. The hearing officer may grant a continuance of more than thirty calendar days if a showing of reasonable cause and proper diligence is presented.

(C) All motions for a continuance and any supporting documentation shall be filed with the department and served on both the hearing officer and opposing party.

(D) The hearing officer may continue a hearing upon a written motion of any party. Hearings shall not be continued upon motion by a party unless a showing of reasonable cause and proper diligence is presented. Before granting any continuance, the hearing officer shall consider the showing of reasonable cause and proper diligence along with the potential harm that may result from the granting of the motion. The hearing officer may grant a continuance if requested less than five business days prior to the scheduled date of the hearing only if it is demonstrated that an extraordinary situation exists which could not have been anticipated and which would justify the granting of a continuance.

(E) If a continuance is granted, the hearing officer shall immediately establish a new hearing date and notify the parties, in writing, of the new hearing date.

3301-73-11 Motions.

(A) All motions, except as otherwise provided under this chapter or Chapter 119. of the Revised Code, unless made upon the record at the hearing, shall be made in writing.

A written motion shall state with particularity the relief or order sought, shall be accompanied by a memorandum setting forth the grounds therefore, and shall be filed in compliance with rule 3301-73-06 of the Administrative Code. A proposed entry may accompany any motion. All motions except for motions for continuance and those motions filed subsequent to the close of the hearing shall be made no later than fourteen days before the date of hearing unless express exception is granted by the hearing officer or by this chapter.

(B) All motions, together with supporting documentation, if any, shall be served on the opposing party.

(C) Within ten days from the date of service of a written pre-hearing motion, or such other time as is fixed by the hearing officer, a response to that motion may be filed.

No reply responses shall be permitted.

(D) Before ruling upon a written motion, the hearing officer shall consider all memoranda and supporting documents filed. The hearing officer shall enter a written ruling and shall serve copies of the ruling on the parties and their counsel. The ruling on all oral motions made at hearing shall be included in the record except where the hearing officer elects to take the motion under advisement and issue a written ruling at a later time. The hearing officer shall include in each written ruling on a motion a statement of the reasons for the ruling.

R.C. 119.032 review dates: 03/04/2009 and 03/04/2014

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3319.31, 3319.311

Rule Amplifies: 3319.31, 3319.311

Prior Effective Dates: 9/25/2004

3301-73-12 Pre-hearing conferences; status conferences.

(A) The hearing officer shall, in accordance with paragraph (B) of this rule, upon request of any party, schedule a pre-hearing conference. Such conference may be initiated by the hearing officer, or upon motion of either party.

(B) Pre-hearing conferences may be held for the following purposes:

(1) Identification of issues;

(2) Obtaining stipulations and admissions;

(3) Agreements limiting the number of witnesses;

(4) Discussion of documents, exhibits, and witness lists;

(5) Estimating the time necessary for hearing; or

(6) Discussion of any other matters the hearing officer deems appropriate.

(D) The proceedings at a pre-hearing conference shall be informal, but the hearing officer may prepare, or order prepared, a pre-hearing conference report encompassing the agreements reached and decisions made at the pre-hearing conference, including any admissions, stipulations, or proposals agreed to.

(E) All offers of settlement, proposals of adjustment, and proposed stipulations not agreed to shall be privileged, shall not constitute admissions, and shall not be admissible in evidence against the respondent making the offer or proposal and shall not be a public record under section 149.43 of the Revised Code.

R.C. 119.032 review dates: 03/04/2009 and 03/04/2014

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3319.31, 3319.311

Rule Amplifies: 3319.31, 3319.311

Prior Effective Dates: 9/25/2004

3301-73-13 Subpoenas.

(A) Paragraphs (B) to (I) of rule 3301-73-13 of the Administrative Code apply only for purposes of an administrative hearing conducted pursuant to Chapter 119. of the Revised Code.

(B) Except as provided in paragraph (I) of this rule, upon written request of any party, the superintendent shall issue subpoenas to compel the attendance and testimony of witnesses and production of information, in whatever form maintained, or tangible objects which may be or may lead to relevant evidence. Each subpoena shall indicate on whose behalf the witness is required to testify. Copies of such subpoenas shall be mailed to the representatives of record. Each party shall be responsible for service of subpoenas requested.

(C) Subpoena requests shall specify the name and address of the person to be served and the date, time and location at which they are to appear at the administrative hearing.

If the subpoena includes a duces tecum request, the specific documents or tangible objects to be produced at the administrative hearing shall be listed in the request.

(D) Subpoena requests are to be filed with the department at least ten business days in advance of the requested date of compliance. In the event that the number of subpoenas requested appears to be unreasonable, the hearing officer may therefore require a showing of necessity, and, in the absence of such showing, may limit the number of subpoenas. Absent such a limitation, subpoenas shall be issued within ten business days of request. Failure to issue subpoenas within this time may constitute sufficient grounds for the granting of a continuance.

(E) The hearing officer may request on his/her own authority or at the request of a party the superintendent to issue subpoenas for purposes of the hearing to compel the attendance and testimony of witnesses and production of information, in whatever form maintained, or tangible objects which may be or may lead to relevant evidence.

(F) Upon motion and for good cause, the hearing officer may order any subpoena be quashed.

(G) Witnesses may not be subpoenaed to pre-hearing conferences as detailed in rule 3301-73-12 of the Administrative Code.

(H) Respondents do not have the right to request the superintendent to issue subpoenas during an investigation conducted under section 3319.311 of the Revised Code.

(I) Respondents do not have the right to request the superintendent to issue subpoenas for the department's records that are confidential under section 3319.311 of the Revised Code.

3301-73-14 Depositions in lieu of testimony at hearing and transcripts of prior testimony for submission at hearing.

(A) Upon written motion of any party, and upon service of that motion to the opposing party, the hearing officer may order that the testimony of a witness be taken by deposition in lieu of live testimony under such conditions and terms as the hearing officer shall set, and that any information, in whatever form maintained, not privileged, or tangible objects be produced at the same time and place if it appears probable that:

(1) The witness will be unavailable to attend the administrative hearing;

(2) The testimony of the witness is material;

(3) The testimony of the witness is necessary;

(4) In the case of an expert witness, a showing of the unavailability of the expert shall not be necessary for the hearing officer's consideration of the motion of a representative to take a deposition in lieu of live testimony.

(B) The parties shall agree to the time and place for taking the deposition in lieu of live testimony. Depositions shall be conducted in the same county in which the hearing is conducted unless otherwise agreed to by the parties. If the parties are unable to agree, the hearing officer shall set the time and place of the deposition. At a deposition taken pursuant to this rule, parties shall have the right, as at hearing, to fully examine witnesses. The hearing officer has the discretion to be present at the deposition.

(C) A deposition taken under this rule shall be offered into evidence at hearing by the party requesting the deposition, in lieu of the witness' live testimony at hearing.

(D) Any deposition or transcript of prior testimony of a witness may be used for the purpose of refreshing the recollection, contradicting the testimony or impeaching the credibility of that witness. If only a part of a deposition of prior testimony is offered into evidence by a party, the opposing party may offer any other part. A transcript of testimony and exhibits from a prior court or administrative proceeding may be introduced for any purpose if that prior proceeding forms the basis for the allegations in the current case. Upon offering part of a transcript or exhibit from a prior proceeding, the offering party may be required by the opposing party to present any other part of the offered item which should in fairness be considered contemporaneously with it.

R.C. 119.032 review dates: 03/04/2009 and 03/04/2014

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3319.31, 3319.311

Rule Amplifies: 3319.31, 3319.311

Prior Effective Dates: 9/25/2004

3301-73-15 Stipulation of facts.

The parties may, by stipulation, agree on any or all facts involved in proceedings before the hearing officer. The hearing officer may thereafter require development of any fact deemed necessary for just adjudication.

R.C. 119.032 review dates: 03/04/2009 and 03/04/2014

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3319.31, 3319.311

Rule Amplifies: 3319.31, 3319.311

Prior Effective Dates: 9/25/2004

3301-73-16 Witnesses.

(A) All witnesses at any administrative hearing or during any deposition in lieu of live testimony at hearing shall testify under oath or affirmation.

(B) A witness may be accompanied and advised by legal counsel. Participation by counsel for a witness other than the respondent is limited to protection of that witness' rights, and counsel for a witness may neither examine nor cross-examine any witnesses.

(C) Should a witness refuse to answer a question ruled proper at a hearing or disobey a subpoena, the state board may institute contempt proceedings pursuant to section 119.09 of the Revised Code.

(D) The presiding hearing officer, because of his/her duties, shall not be a witness nor subject to deposition in any administrative proceeding.

(E) Unless the testimony of a state board member or a hearing officer is material to the factual allegations set forth in the notice of opportunity for hearing, state board members and hearing officers shall not be witnesses nor subject to deposition in lieu of live testimony in any adjudication proceeding. If the hearing officer or a state board member intends to serve as a witness, he/she shall recuse himself/herself from presiding over, deliberating on, or ruling on the matter. Evidence from other persons relating to the mental processes of the presiding hearing officer or state board members shall not be admissible.

(F) Any party may move for a separation of witnesses.

(G) Each party shall inform the hearing officer of the identity of each potential witness for his/her case present in the hearing room. Failure to so identify potential witnesses may be grounds for their later disqualification as witnesses.

3301-73-17 Certified records.

(A) A certified copy of any law enforcement record shall be self authenticating.

(B) A certified copy of a plea of guilty to or a judicial finding of guilt to any crime is conclusive proof of the commission of all of the elements of the crime.

R.C. 119.032 review dates: 03/04/2009 and 03/04/2014

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3319.31, 3319.311

Rule Amplifies: 3319.31, 3319.311

Prior Effective Dates: 9/25/2004

3301-73-18 Evidence.

(A) The Ohio rules of evidence may be taken into consideration by the hearing officer in determining the admissibility of evidence, but shall not be controlling.

R.C. 119.032 review dates: 03/04/2009 and 03/04/2014

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3319.31, 3319.311

Rule Amplifies: 3319.31, 3319.311

Prior Effective Dates: 9/25/2004

3301-73-19 Transcripts.

(A) The respondent may obtain duplicate transcripts of the stenographic record taken of a hearing directly from the court reporter at the requestor's expense.

(B) Original transcripts shall not be removed from the department.

R.C. 119.032 review dates: 03/04/2009 and 03/04/2014

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3319.31, 3319.311

Rule Amplifies: 3319.31, 3319.311

Prior Effective Dates: 9/25/2004

3301-73-20 Reports and recommendations.

(A) Within thirty calendar days following both the close of the record of an administrative hearing conducted pursuant to Chapter 119. and section 3319.311 of the Revised Code and of receiving the transcript from the hearing, the hearing officer shall submit a written report setting forth a summary of proceedings, proposed findings of fact and conclusions of law, and a recommendation of the action to be taken by the state board. The hearing record shall not be considered closed until such time as the record is complete, as determined by the hearing officer.

(B) Any requests by the hearing officer to extend the time to file the report must be submitted in writing to the superintendent prior to the thirtieth day and shall include an explanation why such extension is necessary. Such request shall be decided by the superintendent or his/her designee.

(C) The original written report shall be submitted to the department. The department will serve the parties as provided under Chapter 119. of the Revised Code.

(D) The respondent or department may file written objections to the report and recommendation within ten business days of receipt of the hearing officer's report and recommendation. Filing of objections shall be in compliance with rule 3301-73-06 of the Administrative Code. Only those objections filed in a timely manner shall be considered by the state board.

(E) Upon written request, the superintendent may grant extensions of time within which to file objections. The extension shall not be for more than seven business days.

(F) The state board shall consider the hearing officer's report and recommendation and any objections thereto at the next possible regularly scheduled meeting after the time for filing objections has passed. The state board may act upon the report and recommendation or remand the matter to the hearing officer.

3301-73-21 Factors for the state board to consider under division (B)(1) of section 3319.31 of the revised Code.

(A) The state board of education shall consider, but not be limited to, the following factors when evaluating conduct unbecoming under division (B)(1) of section 3319.31 of the Revised Code:

(1) Crimes or misconduct involving minors;

(2) Crimes or misconduct involving school children;

(3) Crimes or misconduct involving academic fraud;

(4) Making, or causing to make, any false or misleading statement, or concealing a material fact in a matter pertaining to facts concerning qualifications for professional practice and other educational matters;

(5) Crimes or misconduct involving the school community, school funds, or school equipment/property;

(6) A plea of guilty to, or finding of guilt, of a conviction, granting of treatment in lieu of conviction, or a pre-trial diversion program to any offense in violation of federal, state, or local laws and/or statutes regarding criminal activity;

(7) A violation of the terms and conditions of a consent agreement; and

(8) Any other crimes or misconduct that negatively reflect upon the teaching profession.

(B) The state board may take the following mitigating and aggravating factors, as applicable and appropriate, into consideration when determining a final action under division (B)(1) of section 3319.31 of the Revised Code:

(1) The nature and seriousness of the crime or misconduct;

(2) The extent of the person's past criminal activity or misconduct;

(3) The age of the person when the crime or misconduct was committed;

(4) The amount of time that has elapsed since the person's last criminal activity or misconduct;

(5) The conduct and work activity of the person before and after the criminal activity or misconduct;

(6) Whether the educator has completed the terms of his/her probation or deferred adjudication;

(7) Evidence of rehabilitation as defined by paragraph (E) of rule 3301-20-01 of the Administrative Code;

(8) Whether the educator is amenable to rehabilitation as defined by paragraph (E) of rule 3301-20-01 of the Administrative Code;

(9) Whether the person fully disclosed the crime or misconduct to the state board or the employing school district;

(10) Whether licensure will negatively impact the health, safety, or welfare of the school community and/or statewide education community;

(11) Whether the educator has previously been disciplined by the state board of education or any other licensing entity, including, but not limited to, out-of-state licensing entities;

(12) Whether the school district or educational entity imposed any penalties, sanctions, or other conditions addressing the educator's professional conduct;

(13) Whether the educator has been employed in any capacity within a school district or educational entity after having a license, certificate, or permit revoked; and

(14) Any other relevant factor.

(C) The lack of a criminal charge, indictment, prosecution or conviction shall not preclude the state board from investigating and, if appropriate, initiating an action against a person.

(D) The state board shall not be precluded from considering the factors listed in paragraph (A) of this rule when the offense is enumerated in division (B)(2) of section 3319.31 of the Revised Code or division (E) of section 3319.31 1 of the Revised Code.

3301-73-22 Suspension, revocation, permanent revocation and admonishment.

(A) The state board, in accordance with Chapter 119. and section 3319.311 of the Revised Code, may suspend, revoke or deny a license as specified in paragraph (A) of this rule.

(1) Suspension of a license shall be for a specified period of time, not to exceed five years.

(a) At the conclusion of the specified period, upon demonstration of compliance with any educational requirements and other conditions in the state board's order or consent agreement, the license shall be reactivated.

(b) A suspended license shall be subject to expiration.

(d) A stayed suspension shall be considered a suspension for all licensure reporting requirements.

(2) Revocation of a license is a permanent action. After revoking a license, the state board shall impose one of the conditions described in paragraphs (A)(2)(a) and (A)(2)(b) of this rule.

(a) The state board may establish a minimum period of time before an applicant can apply for a new license. At the conclusion of the specified period, and upon demonstration of compliance with any educational requirements, the terms of the state board's order, and the criteria set forth in rule 3301-73-24 of the Administrative Code, the state board may issue a new license to the applicant.

(b) The state board may order that the respondent whose license has been revoked shall be permanently ineligible to apply for any license issued by the state board and that the respondent shall no longer be permitted to hold any position in any school district in the state that requires a license issued by the state board.

(3) Denial of an application for a license is a final action. After denying an application, the state board shall impose one of the conditions described in paragraphs (A)(3)(a) and (A)(3)(b) of this rule.

(a) The state board may establish a minimum period of time before an applicant can apply for a license. At the conclusion of the specified period, and upon demonstration of compliance with any educational requirements, the state board's order, and the criteria set forth in rule 3301-73-24 of the Administrative Code, the state board may issue a license to the applicant.

(b) The state board may order that the respondent whose license has been denied shall be permanently ineligible to apply for any license issued by the state board and that the respondent shall not be permitted to hold any position in any school district in the state that requires a license issued by the state board.

(B) The state board may accept the permanent voluntary surrender or the permanent voluntary denial of a license under division (F) of section 3319.311 of the Revised Code. A respondent who permanently voluntarily surrenders a license or agrees to the permanent voluntary denial of a license under division (F) of section 3319.311 of the Revised Code shall agree, in writing, and his/her signature shall be acknowledged by two witnesses and/or notarized by a notary public. The document must include the following information:

(1) That the respondent waives all rights under Chapter 119. of the Revised Code including, but not limited to, the right of being formally notified of the state board's intent to take action, the right to a hearing, the right to counsel, the right to present evidence and witnesses, the right to cross examine witnesses and the right to appeal an order of the state board;

(2) That the respondent voluntarily, knowingly and intelligently surrenders all rights to hold a position which requires a license issued by the state board;

(3) That the respondent shall no longer be permitted to hold any position that requires a license issued by the state board in any school district in the state;

(4) That the respondent shall be ineligible for and shall not apply for any license issued by the state board; and

(5) A basis for the permanent voluntary surrender or denial of the license.

(C) The superintendent, on behalf of the state board, may issue a letter of admonishment to persons who have engaged in a violation of section 3319.31 of the Revised Code. A copy of the letter of admonishment shall be placed in the department's file. The license holder may respond in writing to the letter of admonishment within thirty calendar days of receipt and have that response placed in the department's file. A letter of admonishment and a response thereto shall be considered a public record under section 149.43 of the Revised Code. The issuance of a letter of admonishment shall be considered a final action.

3301-73-23 Consent agreements.

(A) A respondent who enters into a consent agreement under division (E) of section 3319.311 of the Revised Code with the state board shall agree to and acknowledge the following twenty stipulations:

(1) That the respondent voluntarily enters into the consent agreement being fully aware of his rights under Chapter 119. of the Revised Code, including the right to representation by counsel and the right to a formal adjudicative hearing;

(2) That the respondent waives his rights under Chapter 119. of the Revised Code;

(3) That the state board is empowered to revoke, limit, suspend, or deny, as applicable, any licenses held or applied for if, at any time, the holder is convicted of a crime in any jurisdiction, granted treatment in lieu or pre-trial diversion in any jurisdiction, or found to be immoral, incompetent, negligent or guilty of other conduct unbecoming of his/her position;

(4) That the consent agreement shall not in any way or manner limit or affect the authority of the state board of education to initiate disciplinary proceedings against the respondent based on any act, conduct, or admission of the respondent justifying disciplinary action, which occurred before or after the date of the consent agreement, and is not directly related to the specific facts as set forth in the consent agreement;

(5) That the disciplinary action in the consent agreement covers all licenses held by him/her which may not be specifically listed in the consent agreement or applications currently under review;

(6) That the respondent agrees to report any license limitation or suspension to his/her employing school district, or any other employing agency, which requires licensure through the state board;

(7) That the respondent shall not engage in any unbecoming conduct, as determined by the department, subsequent to the signing of the consent agreement;

(8) That failure to abide by the terms and conditions of a consent agreement shall be deemed a violation of the consent agreement and constitute unbecoming conduct under division (B)(1) of section 3313.31 of the Revised Code and rule 3301-73-21 of the Administrative Code;

(9) That the state board reserves the right to pursue formal action if it learns that the respondent has violated any of the terms and conditions of the consent agreement, regardless of the point in time such information becomes known;

(10) That except for the enforcement of the consent agreement, the respondent shall release the state board and the department, its members, employees, agents, officers, and representatives, jointly and severally, from any liability arising from this matter;

(11) That the respondent shall not proceed with any action to recover attorney's fees from the state board and the department, its members, employees, agents, officers, and representatives jointly and severally;

(12) That the consent agreement contains the entire agreement and understanding between the state board and him/her and supersedes and replaces all prior negotiations, proposed agreements, and agreements written or oral;

(13) That the consent agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the personal representatives, heirs, successors, assignees, and transferees of the parties;

(14) That the respondent has had an opportunity to ask questions concerning the terms of the consent agreement and that all questions asked have been answered;

(15) That the respondent shall inform the department, in writing, within thirty days of any change in address or telephone number;

(16) That if the respondent is indicted, convicted, or pleads guilty or no contest to any offense other than a minor misdemeanor or a traffic offense, or is accepted into a diversion or treatment in lieu of conviction program, he/she shall notify the department within fourteen calendar days;

(17) That a copy of the consent agreement will be sent to his/her current and/or former employing school district or other educational entity and that it shall be his/her responsibility to provide a copy of the consent agreement to any new, potential educational employer before hire for the duration of the terms of the consent agreement;

(18) That the consent agreement shall be considered a public record as defined in section 149.43 of the Revised Code;

(19) That the terms and conditions of the consent agreement may be reported to appropriate organizations, data banks and governmental agencies; and

(20) That any violations of a consent agreement that lead to additional disciplinary action shall be reported by the respondent to any potential employing school district, educational entity, and any current employing school district or educational entity.

(B) The department may add or delete terms as appropriate to carry out the purpose of the consent agreement.

3301-73-24 Application after disciplinary action.

(A) If any prior disciplinary action by any professional licensing entity has been taken against a respondent in this state or any jurisdiction, and the respondent subsequently requests to be licensed by the state board, the respondent shall provide evidence that licensure by the state board is appropriate based on factors listed in paragraph (F) of this rule, and show that there has been a change in circumstances since the prior disciplinary action..

(B) To determine if licensure is appropriate, the superintendent may conduct an investigation and weigh the evidence submitted against the legitimate need of the state board to protect the integrity of the profession, ensure the safety and welfare of students, and the school community.

(C) The superintendent shall determine if the results of an investigation warrant initiating an action to deny a license.

(D) If the results of an investigation warrant initiating a denial of a license, the superintendent shall give notice of an opportunity for a hearing in accordance with sections 119.01 to 119.13 of the Revised Code; however, nothing in this provision shall prohibit the superintendent from amending the notice for the proposed action. A notice of an opportunity for a hearing shall be a public record under section 149.43 of the Revised Code.

(E) An administrative hearing shall not be a forum to re-adjudicate the original order to limit, revoke, or deny licensure.

(F) The superintendent and the hearing officer shall use the following factors, as applicable, to determine whether licensure is appropriate:

(1) Nature and seriousness of the crime or misconduct;

(2) Extent of the respondent's past criminal activity or misconduct;

(3) Age of the respondent when the crime or misconduct was committed;

(4) Amount of time that has elapsed since the respondent's last criminal activity or misconduct;

(5) Conduct and work activity of the respondent before and after the alleged criminal activity or misconduct;

(6) Whether the respondent has completed the terms of his probation or deferred adjudication, if applicable;

(7) Evidence of rehabilitation;

(8) Whether the respondent fully disclosed the crime or misconduct to the state board or the employing school district;

(9) Whether licensure will negatively impact the health, safety, and welfare of the school community and/or statewide education community; and/or

(10) Any other relevant factor.

3301-73-25 Automatic revocation or denial.

(A) The superintendent shall revoke a license or deny issuance or renewal of a license upon learning of a plea of guilty to, a finding of guilty by a jury or court of, or a conviction of any of the offenses listed in divisions (C) or (F) of section 3319.31 of the Revised Code.

(B) The superintendent shall obtain certified court records to verify a plea of guilty to, a finding of guilty by a jury or court of, or a conviction of any of the offenses listed in divisions (C) or (F) of section 3319.31 of the Revised Code.

(C) Upon receiving certified court records and verifying a plea of guilty to, a finding of guilty by a jury or court of, or a conviction of any of the offenses listed in divisions (C) or (F) of section 3319.31 of the Revised Code, the superintendent shall issue a written order revoking the license or denying issuance or renewal of the license. The revocation or denial of the license shall be effective immediately, and the respondent has no right to appeal the superintendent's written order pursuant to division (C) of section 3319.31 of the Revised Code.

(1) The written order shall contain the following information:

(a) That the revocation or denial of the license shall be effective immediately upon the date of the written order;

(b) Notification to the respondent of the plea of guilty to, finding of guilt by a jury or court of, or conviction that is the basis for the written order;

(c) That the respondent has no right to appeal the superintendent's written order under Chapter 119. of the Revised Code pursuant to division (C) of section 3319.31 of the Revised Code;

(d) That the respondent shall no longer be permitted to hold any position that requires a license issued by the state board in any school district in the state;

(e) That the respondent shall be ineligible for and shall not apply for any license issued by the state board; and

(f) That the revocation or denial of the license shall remain in effect during the pendency of an appeal by the respondent of the plea of guilty, finding of guilt, or conviction that is the basis for the written order.

(2) The written order shall be sent by registered mail to the respondent.

(a) If the written order is returned because the respondent failed to claim or refused delivery of the written order, the superintendent shall send the written order by first class mail to the respondent at the respondent's last known address, and shall obtain a certificate of mailing. Service by first class mail is complete when the certificate of mailing is obtained, unless the notice is returned showing failure of delivery.

(b) If the written order sent by registered or first class mail is returned for failure of delivery, the superintendent shall make personal delivery of the notice by an employee, agent of the agency, or agent hired by the agency, or shall cause a summary of the substantive provisions of the written order to be published in the educator conduct database and the educator's electronic credential history, which can be accessed through the department's website (www.ode.state.oh.us).

(3) The written order shall be sent by first class mail to the respondent's attorney and any potential, former, current, or reporting school district.

Effective: 05/23/2009
R.C. 119.032 review dates: 03/04/2014
Promulgated Under: 119.03
Statutory Authority: 3301.07, 3319.31, 3319.311
Rule Amplifies: 3319.31, 3319.311

3301-73-26 Action after appeal of conviction.

Within thirty calendar days of receiving notice, either from the clerk of court or by a petition from the respondent, that the plea of guilty, finding of guilt or conviction that is the basis for the action taken under division (B)(2) of section 3319.31 of the Revised Code, division (C) of section 3319.31 of the Revised Code, or division (F) of section 3319.31 of the Revised Code has been overturned on appeal, the superintendent shall make a determination as to whether the respondent committed the act in question in the prior criminal action against the respondent that is the basis for the revocation or denial, and, depending upon the determination, may continue the revocation or denial, may reinstate the respondent's license, with or without limits, or may grant the respondent a new license with or without limits.

(A) The notice or petition must include certified court records verifying that the plea of guilty, finding of guilt or conviction that is the basis for the action taken under division (B)(2) of section 3319.31 of the Revised Code, division (C) of section 3319.31 of the Revised Code or division (F) of section 3319.31 of the Revised Code has been overturned on appeal.

(B) If the superintendent determines that the revocation or denial shall continue or that the respondent's license shall be reinstated with limitations or granted with limitations, the superintendent shall give notice of an opportunity for a hearing in accordance with sections 119.01 to 119.13 of the Revised Code. Nothing in this provision shall prohibit the superintendent from amending the notice for the proposed action. A notice of an opportunity for a hearing shall be public record under section 149.43 of the Revised Code, and shall inform the respondent that if he/she fails within thirty days to request a hearing in accordance with section 119.07 of the Revised Code, or fails to appear at a scheduled hearing, the state board of education shall uphold the revocation or denial without holding an administrative hearing.

(C) If the superintendent determines that the respondent's license shall be reinstated or granted without limitations, the superintendent shall notify the respondent and any former, current, or reporting school district through a written order. The reinstatement or granting of the license shall be effective immediately upon the date of the written order, but is not necessarily an adjudication on the merits of the case.

(D) The written order issued pursuant to paragraph (C) of this rule shall be sent by registered mail to the respondent.

(1) If the written order is returned because the respondent failed to claim or refused delivery of the written order, the superintendent shall send the written order by first class mail to the respondent at the respondent's last known address, and shall obtain a certificate of mailing. Service by first class mail is complete when the certificate of mailing is obtained, unless the notice is returned showing failure of delivery.

(2) If the written order sent by registered or first class mail is returned for failure of delivery, the superintendent shall make personal delivery of the notice by an employee, agent of the agency, or agent hired by the agency, or shall cause a summary of the substantive provisions of the written order to be published in the educator conduct database and the educator's electronic credential history, which can be accessed through the department's website (www.ode.state.oh.us) for a period of thirty calendar days. After the thirty calendar days have expired, the superintendent shall remove the initial written order revoking or denying the respondent's license and the subsequent written order granting or reinstating the respondent's license from the educator database. The written orders shall be maintained with the department's official records.

(E) If after thirty calendar days, the superintendent cannot make a determination as to whether the respondent committed the act in question in the prior criminal action against the respondent, the superintendent shall reinstate or grant the respondent's license, and reserves the right to continue the investigation. The reinstatement or granting of the respondent's license is not an adjudication on the merits of the case; however, if the superintendent determines the results of the investigation warrant the initiation of an action to limit, suspend, revoke or deny a license, the superintendent shall give notice of an opportunity for a hearing in accordance with sections 119.01 to 119.13 of the Revised Code, and comply with the provisions governing notices for opportunity for hearing as listed in rule 3301-73-05 of the Administrative Code.

Effective: 05/23/2009
R.C. 119.032 review dates: 03/04/2014
Promulgated Under: 119.03
Statutory Authority: 3301.07, 3319.31, 3319.311
Rule Amplifies: 3319.31, 3319.311