Chapter 3301-73 Professional Conduct Educator Rules

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 ( H) of this rule 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, facsimile, or electronic mail. When filing by facsimile or electronic mail, the party shall provide the department an original document within seven days of the facsimile or electronic mail 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, facsimile, or electronic mail. Service is complete on the date of mailing, date of personal service, date of facsimile of the document, or date of the electronic mail 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;

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

(4) Method of service.

(H) 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.

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

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

3301-73-02 Delegation.

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

(B) The superintendent shall determine whether the results of an investigation warrant initiating an action for the state board to limit, suspend, revoke or deny licensure pursuant to section 3319.31 of the Revised Code. If the superintendent determines such an action is warranted, the superintendent shall notify the respondent of the superintendent's determination, as well as his/her rights under Chapter 119. of the Revised Code including his/her right to a hearing and to be represented by counsel.

(C) 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.

(D) The state board authorizes the superintendent, on its behalf, to enter into a consent agreement with a person against whom action is being taken under section 3319.15 , 3319.151 , 3319.31 and 3319.311 of the Revised Code.

(E) The state board authorizes the superintendent, on its behalf, to issue a letter of admonishment to persons against whom action is being taken under section 3319.15 , 3319.151 , 3319.31 and 3319.311 of the Revised Code.

(F) The state board authorizes the superintendent, on its behalf, to take any action necessary in order to further an investigation into any information received about a person that reasonably appears to be a basis for action under section 3319.15 , 3319.151 and 3319.31 of the Revised Code.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 05/23/2009

3301-73-03 Definitions.

(A) State board under this chapter means the Ohio state board of education .

(B) Superintendent under this chapter means the superintendent of public instruction or his/her designee as determined by the superintendent.

(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, STEM schools, college preparatory boarding schools, county boards of DD, chartered non-public schools, preschool programs or any other future school chartered by the department.

(E) Respondent under this chapter means an educator, as defined under paragraph (I) of this rule, 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) Disciplinary action under this chapter means a final disposition of an investigation by any professional licensing entity in this state or another jursidiction. This can include, but is not limited to, a letter of admonishment, consent agreement, suspension, revocation, permanent revocation, limitation, denial or permanent denial of a license, or the voluntary surrender or voluntary denial of a license.

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

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

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 ( H) of this rule .

(B) If the state board and the respondent enter into a consent agreement under division ( E) 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.

(C) 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.

(D) If the superintendent concludes that the results of the investigation warrant initiating an action under section 3319.31 of the Revised Code, except as provided in paragraph (E) of this rule, only the information listed in paragraphs (D)(1) to (D)(13) of this rule 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) Respondent's written request for an administrative hearing under Chapter 119.of the Revised Code;

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

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

(5) Any list of witnesses and documents, provided by the parties, that describes evidence or witnesses intended to be introduced in an administrative hearing ;

(6) 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. ;

(7) All other motions and any responses made in writing and filed by the parties;

(8) All other entries filed by the hearing officer;

(9) The administrative hearing transcript, except for portions of the transcript sealed by the hearing officer ;

(10) The superintendent's proposed resolution to be submitted to the state board;

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

(12) Objections to the hearing officer's report and recommendation, any motion to strike the objections to the hearing officer's report and recommendation, any response to the motion to strike, and the hearing officer's decision on the motion to strike;

(13) The state board's final resolution; and

(14) All other information obtained shall remain confidential and shall not be a public record under section 149.43 of the Revised Code.

(E) 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.

(F) 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.

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

(H) 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).

(I) 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.

(J) Any public record under section 149.43 of the Revised Code released pursuant to this rule shall be redacted to remove any confidential information as required by federal, state or local law.

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

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 10-28-04, 5/23/2009

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.

(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.

(D) Should the respondent fail to properly request a hearing in accordance with section 119.07 of the Revised Code, that respondent shall be deemed to have waived his or her right to participate in any and all proceedings in front of a hearing officer should an administrative hearing take place.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

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 ( H) of this rule 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, facsimile, or electronic mail. When filing by facsimile or electronic mail, the party shall provide the department an original document within seven days of the facsimile or electronic mail 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, facsimile, or electronic mail. Service is complete on the date of mailing, date of personal service, date of facsimile of the document, or date of the electronic mail 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;

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

(4) Method of service.

(H) 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.

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

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

3301-73-17 Certified records.

(A) A certified copy of any law enforcement record, court record, agency record, employment record, or other acknowledged document kept in the ordinary course of business 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.

(C) A certified copy of any prior disciplinary action by any licensing entity in this state or in another jursdiction is conclusive proof of the prior disciplinary action.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/2004

3301-73-08 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.

R.C. 119.032 review dates: 12/23/2013
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04 ; 5/23/09

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) Examine parties and witnesses;

(3) Direct parties and witnesses to testify;

(4) Make rulings on the admissibility of evidence;

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

(6) Hold pre-hearing conferences;

(7) 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;

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

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

(10) Decide whether a witness shall be permitted to testify by video, telephonic, or other electronic means;

(11) Rule on any challenges to a witness' competence, capacity or identity;

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

(13) Determine the order in which any hearing shall proceed

(E) The hearing officer shall rule on parties' motions with all possible speed.

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

(G) The authority of the hearing officer shall not include authority to do any of the following:

(1) Grant motions for dismissal of an action;

(2) Compromise or settle any action ; or

(3) Rule on questions of the constitutionality of federal, state or local laws or rules.

(H) 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.

(I) An administrative hearing shall not be a forum to re-adjudicate the original order of a professional licensing board to limit, suspend, revoke, or deny licensure.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

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 continue a hearing. If the parties agree to continue a hearing, the hearing officer shall grant a continuance of the hearing.

(C) The hearing officer may continue a hearing upon a written motion of any party. Unless the parties agree, 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 if the parties agree or if a party demonstrates that an extraordinary situation exists which could not have been anticipated and which would justify the granting of a continuance.

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

(E) If a continuance is granted, the hearing officer shall, without any unnecessary delay, establish a new hearing date and notify the parties, in writing, of the new hearing date.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04 , 5/23/2009

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.

(B) 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.

(C) All motions except for motions for continuance and those motions filed subsequent to the close of the administrative hearing record 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.

(D) All motions, together with supporting documentation, if any, shall be served by the moving party on the opposing party and the hearing officer.

(E) 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.

(F) Before ruling upon a written motion, the hearing officer shall consider all memoranda and supporting documents filed. The hearing officer shall make a ruling on a written motion within fourteen days after the response to a motion is due. Any requests to extend the time to file the ruling must be submitted in writing to the superintendent and shall include an explanation why such extension is necessary. Such request shall be decided by the superintendent or his/her designee. The hearing officer shall file the written ruling that includes a statement of the reasons for the ruling with the department. The department shall serve copies of the ruling on the parties and their counsel.

(G) 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.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
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) Upon being appointed to preside over an administrative hearing, the hearing officer may, in accordance with paragraph (D) of this rule, schedule a pre-hearing conference and direct participation by the parties in the pre-hearing conference.

(B) The hearing officer shall, in accordance with paragraph ( D) of this rule, upon motion of any party, schedule a pre-hearing conference.

(C) The hearing officer shall issue a journal entry setting the date and time for any pre-hearing conference.

(D) 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;

(6) Scheduling hearing dates and times;

(7) Establishing other scheduling orders; or

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

(E) Procedural orders may be issued by the hearing officer based upon information obtained at a pre-hearing conference. The hearing officer shall issue an entry journalizing any procedural orders.

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

(G) Pre-hearing conferences may be held in person or via video, telephonic, or other electronic means.

(H) All journal entries, issued pursuant to this rule, shall be filed with the department in accordance with rule 3301-73-06 .

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
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 and shall include contact information for the requesting party and/or the attorney for the requesting party. Signed subpoenas shall be mailed to the requesting party. 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. Subpoena requests for minors shall include the name of a parent, guardian, or custodian of the minor.

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 fourteen days in advance of the requested date of compliance and in accordance with rule 3301-73-06 of the Administrative Code. 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 seven days of request except for subpoena requests that fail to comply with rule 3301-73-06 or paragraphs (B) to (I) of rule 3301-73-13 of the Administrative Code. 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.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

3301-73-14 Depositions in lieu of testimony, prior testimony, and testimony by electronic means at a 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 may order that any information, in whatever form maintained, be produced so long as not privileged, at the same time and place of the deposition 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;

(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 to fully examine witnesses as if the testimony was live at hearing. The hearing officer has the discretion to be present at the deposition.

(C) A transcript shall be made of a deposition taken under this rule and shall be filed with the department. The cost of preparing a transcript of any testimony taken by deposition in lieu of live testimony at hearing shall be borne by the department. The cost of any video deposition shall be borne by the requestor.

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

(E) 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.

(F) 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 video, telephonic or other electronic means.

(1) Testimony by video, telephonic or other electronic means may be ordered if the parties agree or if it appears probable that:

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

(b) The testimony of the witness is material; and

(c) The testimony of the witness is necessary.

(2) Testimony of witnesses by video, telephonic or electronic means shall be admitted into the hearing record as if the witness testified live at hearing. The hearing officer may permit the use of electronic or photographic means for the presentation of other evidence at hearing.

(G) "Unavailable to attend an administrative hearing" includes, but is not limited to, the following situations:

(1) The witness is unavailable to be present or testify at the hearing because of then-existing infirmity, physical illness, or mental illness;

(2) The witness would be caused a hardship to attend the hearing; or

(3) A party has been unable to procure the witness' attendance at the hearing by service of process or other reasonable means.

(H) 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 party to take a deposition in lieu of live testimony or to testify by video, telephonic or electronic means.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
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 Stipulations by parties.

The parties , by stipulation, may agree on any or all facts or conclusions of law involved in proceedings before the hearing officer. The hearing officer may thereafter require development of any fact deemed necessary for just adjudication. The parties, by stipulation, may agree to the admission of exhibits into evidence at hearing. All stipulations agreed to by the parties shall be in writing or read into the administrative hearing record.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
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 who has been admitted to practice law in the state of Ohio. 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) Neither a presiding board member nor a presiding hearing officer shall be a competent witness in any administrative proceeding or subject to deposition in lieu of live testimony. A presiding board member is a board member who has a decisive role in the outcome of the matter in question. A presiding hearing officer is the hearing officer assigned to the matter in question. Evidence or testimony from other persons relating to the mental processes of a presiding board member or presiding hearing officer shall not be admissible in any adjudication proceeding.

(E) Unless the testimony of a non-presiding state board member or a non-presiding hearing officer is material to the factual allegations set forth in the notice of opportunity for hearing, neither a non-presiding state board member and hearing officer shall be a witness or subject to deposition in lieu of live testimony in any adjudication proceeding. A non-presiding board member is a sitting or former board member who does not have a decisive role in the outcome of the matter in question due to recusal, absence or other reason. A non-presiding hearing officer is a hearing officer not assigned to the matter in question.

(F) Any party may move for a separation of witnesses. Absent exceptional circumstances, the hearing officer shall order a separation of witnesses. A separation of witnesses shall not apply to the parties or the designated representative(s) of the parties. The hearing officer shall determine whether a separation of witnesses shall apply to expert witnesses.

(G) Each party, prior to or immediately upon the start of a hearing, shall inform the hearing officer of the identity of each potential witness for his/her case present in the hearing room. A witness who remains in the hearing room during testimony after a separation of witnesses is ordered shall be disqualified by the hearing officer from testifying in the hearing.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

3301-73-17 Certified records.

(A) A certified copy of any law enforcement record, court record, agency record, employment record, or other acknowledged document kept in the ordinary course of business 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.

(C) A certified copy of any prior disciplinary action by any licensing entity in this state or in another jursdiction is conclusive proof of the prior disciplinary action.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/2004

3301-73-27 Time limits and the computation of time.

(A) If a hearing should be requested under Chapter 119. of the Revised Code, the parties shall comply with the following time limits:

(1) All motions except for motions for continuance and those motions filed subsequent to the close of the administrative hearing record 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.

(2) The hearing officer may grant a continuance if requested less than seven days prior to the scheduled date of the hearing if the parties agree or if a party demonstrates that an extraordinary situation exists that could not have been anticipated and that would justify the granting of a continuance.

(3) Subpoena requests are to be filed with the department at least fourteen days in advance of the requested date of compliance and in accordance with rule 3301-73-06 of the Administrative Code. 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 seven days of request except for subpoena requests that fail to comply with rule 3301-73-06 or paragraphs (B) to (I) of rule 3301-73-13 of the Administrative Code.

(4) The hearing officer shall make a ruling on a written motion within fourteen days after the response to a motion is due.

(5) Within thirty 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.

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.

(6) Pursuant to section 119.09 of the Revised Code, a party may file written objections to the report and recommendation within ten 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. A party may file a motion to strike in response to the submission of objections. If a motion to strike is filed, the hearing officer shall make a recommendation to the state board on the motion to strike.

(7) Prior to the tenth day after receipt of the report and recommendation pursuant to section 119.09 of the Revised Code and upon written request, the superintendent may grant extensions of time within which to file objections. The extension shall not be for more than fourteen days.

(B) The board or its hearing officer may extend the time for filing or responding to motions and briefs.

Requests for extension of time shall be made in writing and filed as provided in rule 3301-73-06 of the Administrative Code prior to the expiration of any applicable time limit.

(C) In the computation of any time limit under Chapter 3301-73 of the Administrative Code, the date of occurrence of the event causing time to run is not counted. 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.

Effective: 03/27/2014
R.C. 119.032 review dates: 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311

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 control of the department.

(C) Transcripts of an administrative hearing shall be a public record under section 149.43 of the Revised Code and shall be redacted in accordance with paragraph (J) of rule 3301-73-04 .

(D) Any portion of a hearing transcript which contains information that is required to be kept confidential pursuant to federal, state, or local law shall be sealed by order of the hearing officer and made part of the hearing record. Confidential portions of hearing transcripts shall not be a public record under section 149.43 of the Revised Code.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
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 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.

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.

(B) The original written report shall be filed with the department. The department will serve the parties as provided under Chapter 119. of the Revised Code.

(C) Pursuant to section 119.09 of the Revised Code, a party may file written objections to the report and recommendation within ten 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. A party may file a motion to strike in response to the submission of objections. If a motion to strike is filed, the hearing officer shall make a recommendation to the state board on the motion to strike.

(D) Prior to the tenth day after receipt of the report and recommendation pursuant to section 119.09 of the Revised Code and upon written request, the superintendent may grant extensions of time within which to file objections. The extension shall not be for more than fourteen days.

(E) The state board shall consider the hearing officer's report and recommendation and any objections thereto at the next possible regularly scheduled meeting, if the state board's agenda permits, after the time for filing objections, a motion to strike, and a recommendation on the motion to strike has passed. The state board may decide to accept, reject, or modify the report and recommendation or remand the matter to the hearing officer. The state board shall memorialize the decision on the report and recommendation through a written resolution and/or order.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04 , 5/23/2009

3301-73-21 Conduct unbecoming; aggravating and mitigating factors.

(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 , or providing false, inaccurate, or incomplete information about criminal history or prior disciplinary actions by the state board or another professional licensing board or entity;

(5) Crimes or misconduct involving the school community, school funds, or school equipment/property, which may include, but are not limited to, unresolved findings for recovery by the state auditor;

(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, including sanctions and/or disciplinary action by another state educational entity or another professional licensing board or entity.

(B) If the state board finds that a person has engaged in conduct unbecoming as described in (A) of this section, then 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 and evidence of whether the educator is amenable to rehabilitation as defined by paragraph (E) of rule 3301-20-01 of the Administrative Code;

(8) Whether the applicant is eligible for licensure pursuant to 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 3319.311 of the Revised Code.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 10-28-04

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, criminal background check 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.

(c) A suspension can be stayed in whole or part.

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

(e) When an educator's license is suspended, the board may issue an order stating that the educator is not eligible to apply or reapply for any license with the department during the time period of the license suspension.

(2) 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 revoked license will not be reinstated.

(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, criminal background check 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) 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 license shll not be issued from an application that is denied.

(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, criminal background check 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. A permanent voluntary surrender or permanent voluntary denial must be submitted to the state board on the official form of the department. 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 license and 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;

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

(6) That the respondent authorizes the state board to adopt a resolution permanently revoking a license or permanently denying an application.

(C) If a respondent has completed due process under Chapter 119. of the Revised Code, the board may issue a letter of admonishment to a respondent without his/her agreement. Otherwise, upon agreement of a respondent, 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 respondent who agrees to accept the letter of admonishment shall do so in writing and his/her signature shall be acknowledged by two witnesses and/or notarized by a notary public.A copy of the letter of admonishment shall be placed in the department's file. When issued by agreement, the letter of admonishment must include the following information:

(1) That the respondent accepts the letter of admonishment being fully aware of his/her rights under Chapter 119. of the Revised Code;

(2) That the respondent has been given the opportunity to review the letter of admonishment and has done so with legal counsel, if applicable;

(3) That the respondent has had an opportunity to ask questions concerning the letter of admonishment, and that all questions asked have been answered;

(4) 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 the issuance of the letter of admonishment;

(5) That the respondent agrees not to proceed with any action to recover attorney's fees from the state board and the department; and

(6) A basis for the issuance of the letter of admonishment.

(D) A disciplinary action shall be considered final and shall not be subject to further review and/or modification upon the completion of one of the following:

(1) Issuance of a written order which automatically revokes or automatically denies a license, certificate, or permit;

(2) Execution of a consent agreement;

(3) Issuance and acceptance of a letter of admonishment; or

(4) Exhaustion of all appeal rights pursuant to Chapter 119. of the Revised Code.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

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/her 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 for the duration of the terms of the consent agreement;

(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 days for the duration of the consent agreement;

(17) That a copy of the consent agreement will be sent to his/her current and/or former employing school district, sponsoring 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 and shall be redacted in accordance with paragraph (J) of rule 3301-73-04 of the Administrative 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, delete, or modify terms as agreed upon by the parties to the consent agreement, and as appropriate to carry out the purpose of the consent agreement.

(C) The department may enter into an addendum to the original consent agreement to add, delete, or modify terms as agreed upon by the parties to the consent agreement, and as appropriate to carry out the purpose of the consent agreement.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 9/25/04, 5/23/2009

3301-73-24 Application after disciplinary action.

(A) If any prior disciplinary action by the state board was taken against a respondent that did not address the respondent's eligibility to apply or reapply for a future license 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 after a prior disciplinary action by the state board was taken against a respondent that did not address the respondent's eligibility to apply or reapply for a future license, 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.

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

(F) The superintendent and the hearing officer shall use the following factors, as applicable, to determine whether licensure after a prior disciplinary action by the state board was taken against a respondent that did not address the respondent's eligibility to apply or reapply for a future license is appropriate:

(1) Nature and seriousness of the crime or misconduct that was the basis for the state board's prior disciplinary action;

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

(3) Age of the respondent when the crime or misconduct was committed that was the basis for the state board's prior disciplinary action;

(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 that was the basis for the state board's disciplinary action;

(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.

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 10-28-04, 5/23/2009

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. In the case of a sealed or expunged conviction, the superintendent shall obtain any and all records, including official results of a criminal background check, 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 either official results of a criminal background check or 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 (ducation.ohio.gov [File Link Not Available]).

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

Effective: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 05/23/2009

3301-73-26 Action after appeal of conviction.

(A) Within thirty 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.

(B) 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.

(C) 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.

(D) 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.

(E) The written order issued pursuant to paragraph ( D) 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 (ducation.ohio.gov [File Link Not Available]) for a period of thirty 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.

(F) If after thirty 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 and initiate disciplinary proceedings as warranted. 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: 03/27/2014
R.C. 119.032 review dates: 01/07/2014 and 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311
Prior Effective Dates: 05/23/2009

3301-73-27 Time limits and the computation of time.

(A) If a hearing should be requested under Chapter 119. of the Revised Code, the parties shall comply with the following time limits:

(1) All motions except for motions for continuance and those motions filed subsequent to the close of the administrative hearing record 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.

(2) The hearing officer may grant a continuance if requested less than seven days prior to the scheduled date of the hearing if the parties agree or if a party demonstrates that an extraordinary situation exists that could not have been anticipated and that would justify the granting of a continuance.

(3) Subpoena requests are to be filed with the department at least fourteen days in advance of the requested date of compliance and in accordance with rule 3301-73-06 of the Administrative Code. 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 seven days of request except for subpoena requests that fail to comply with rule 3301-73-06 or paragraphs (B) to (I) of rule 3301-73-13 of the Administrative Code.

(4) The hearing officer shall make a ruling on a written motion within fourteen days after the response to a motion is due.

(5) Within thirty 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.

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.

(6) Pursuant to section 119.09 of the Revised Code, a party may file written objections to the report and recommendation within ten 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. A party may file a motion to strike in response to the submission of objections. If a motion to strike is filed, the hearing officer shall make a recommendation to the state board on the motion to strike.

(7) Prior to the tenth day after receipt of the report and recommendation pursuant to section 119.09 of the Revised Code and upon written request, the superintendent may grant extensions of time within which to file objections. The extension shall not be for more than fourteen days.

(B) The board or its hearing officer may extend the time for filing or responding to motions and briefs.

Requests for extension of time shall be made in writing and filed as provided in rule 3301-73-06 of the Administrative Code prior to the expiration of any applicable time limit.

(C) In the computation of any time limit under Chapter 3301-73 of the Administrative Code, the date of occurrence of the event causing time to run is not counted. 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.

Effective: 03/27/2014
R.C. 119.032 review dates: 12/23/2018
Promulgated Under: 119.03
Statutory Authority: 3301.07 , 3319.31 , 3319.311
Rule Amplifies: 3319.31 , 3319.311