Section R7-2-206. Certification Denial Appeals Process for Applica- tions for Certification that Do Not Involve Allegations of Immoral or Unprofessional Conduct

A.      The Certification Appeals Advisory Committee (“Committee” or “CAAC”) shall act in an advisory capacity to the State Board of Education (“Board”) and shall serve as the hearing body for the Board in regard to appeals of certification denials pursuant to A.R.S. § 15-534.01 that do not involve allegations of immoral or unprofessional conduct. Applications for certifi- cation that involve allegations of immoral or unprofessional conduct shall be reviewed by the Professional Practices Advi- sory Committee as established by R7-2-205.

B.       The Committee shall be appointed by the Board and shall con- sist of five members comprised of the following:

1.        One certificated elementary classroom teacher,

2.        One certificated secondary classroom teacher,

3.        One certificated administrator,

4.        One lay member, and

5.        One local Governing Board member.

C.      Terms of the members

1.        All regular terms shall be for two years except as set forth in subsection (D).

2.        A member may be reappointed with Board approval.

D.      The Board may remove any member from the Committee. All vacancies shall be filled in a timely fashion and those persons appointed to fill vacancies shall serve to complete the term of the person replaced.

E.       The Committee shall:

1.        Select from its members a Chairman and Vice-Chairman.

2.        A quorum shall be a majority of members of the Commit- tee. A quorum is necessary to conduct business. An affir- mative vote of the majority of the members present is needed to take action.

3.        Hold meetings once a month or as often as necessary to conduct hearings or other Committee business.

4.        Recommend the removal of any member who is absent from three consecutive meetings.

5.        Conduct appeals pursuant to A.R.S. Title 41, Chapter 6, Article 6 and this Section.

F.       Request for hearing. A person who has had an application for certification denied by the Board or the Department of Educa- tion pursuant to A.R.S. § 15-534.01(B) may file a written request for a hearing with the Board within 15 days after receiving the notice of denial. Intermediate Saturdays, Sun- days and legal holidays shall be included in the computation of the 15 days. If the final day of the 15 day deadline falls on a Saturday, Sunday or legal holiday, the next business day is the final day of the deadline.

G.      Notice of hearing

1.        If an applicant requests a hearing to appeal the denial of an application for certification, a notice of hearing shall be given at least 20 days prior to the date set for the hear- ing.

2.        The notice shall include:

a.         A statement of the time, place and nature of the hearing.

b.        A statement of the legal authority and jurisdiction under which the hearing is to be held.

c.         A reference to the particular sections of the statutes and rules involved.

d.        A short and plain statement of the matters asserted. If a party is unable to state the matters in detail at the time the notice is served, the initial notice may be

limited to a statement of the issues involved. There- after upon application a more definite and detailed statement shall be furnished.

3.        Opportunity shall be afforded all parties to respond and present evidence and argument on the issues involved.

4.        The Board may dispose of any certification appeal by decision or approved stipulation, agreed settlement, con- sent agreement or by default.

5.        A hearing before the hearing body or any part thereof shall be recorded manually or by a recording device and shall be transcribed on request of any party, unless other- wise provided by law. The cost of such transcript shall be paid by the party making the request, unless otherwise provided by law or unless assessment of the cost is waived by the Board.

6.        The hearing body may reschedule the hearing, maintain- ing due regard for the interests of justice and the orderly and prompt conduct of the proceedings.

7.        The record in an appeal of a certification denial shall include:

a.         All pleadings, motions and interlocutory rulings.

b.        Evidence received or considered.

c.         A statement of matters officially noticed.

d.        Objections and offers of proof and rulings thereon.

e.         Proposed findings of fact and conclusions of law and exceptions thereto.

f.         Any decision, opinion, recommendation or report of the hearing body.

g.        All staff memoranda, other than privileged commu- nications, or data submitted to the hearing body in connection with its consideration of the case.

8.        Findings of fact shall be based exclusively on the evi- dence and on matters officially noticed.

H.      Service of documents; change of address notice requirement

1.        Every notice or decision issued by the Board pertaining to the denial of an application for initial certification or renewal of a certificate shall be served by personal deliv- ery or certified mail, return receipt requested, to the appli- cant or certificated person’s last address of record with the Department of Education or by any other method that is reasonably calculated to give actual notice to the appli- cant or the certificated person.

2.        Each applicant or certificated person shall inform the Department of Education of any change of address within 30 days of the change of address.

I.        Hearing process

1.        Parties may participate in the hearing in person or through an attorney.

2.        Upon request of either party, the presiding officer may schedule a prehearing conference. The purpose of a pre- hearing conference shall be to narrow issues, attempt set- tlement, address evidentiary issues or for any other purpose deemed necessary by the presiding officer.

3.        A hearing may be conducted in an informal manner and without adherence to the rules of evidence required in judicial proceedings. Neither the manner of conducting the hearing nor the failure to adhere to the rules of evi- dence required in judicial proceedings shall be grounds for reversing any administrative decision or order provid- ing the evidence supporting such decision or order is sub- stantial, reliable, and probative. Irrelevant, immaterial or unduly repetitious evidence shall be excluded. Every per- son who is a party to such proceedings shall have the right to be represented by counsel, to submit evidence in open hearing and shall have the right of cross-examina- tion. Unless otherwise provided by law, hearings may be

held at any place determined by the Committee. At such hearing such applicant shall be the moving party and have the burden of proof.

4.        Copies of documentary evidence may be received in the discretion of the presiding officer. Upon request, the par- ties shall be given an opportunity to compare the copy with the original.

5.        Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the specialized knowl- edge of the hearing body. Parties shall be notified either before or during the hearing or by reference in prelimi- nary reports or otherwise of the material noticed includ- ing any staff memoranda or data and they shall be afforded an opportunity to contest the material so noticed. The hearing body’s experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence.

J.        Subpoenas

1.        The Department of Education may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence on its own volition or at the request of a party.

2.        A request for a hearing subpoena shall be in writing and served on each party at least seven days prior to the date set for hearing and shall state:

a.         The name of the contested case, the case number, and the time and place where the witness is expected to appear and testify;

b.        The name and address of the witness subpoenaed; and

c.         The documents, if any, sought to be provided.

3.        On application of a party or the agency and for use as evi- dence, the hearing body may permit a deposition to be taken, in the manner and upon the terms designated by the hearing body, of a witness who cannot be subpoenaed or is unable to attend the hearing.

4.        The individual to whom a subpoena is directed shall com- ply with its provisions unless, prior to the date set for appearance, the hearing body grants a written request to quash or modify the subpoena. The request shall state the reasons why it should be granted. The hearing body shall grant or deny such request by order.

5.        The party requesting the subpoena shall prepare it and cause it to be served upon the individual to whom it is directed in the same manner as provided for service of subpoenas in civil matters before the superior court. The return of service shall be filed with the hearing body.

K.      Conduct of hearing

1.        The presiding officer may conduct all or part of the hear- ing by telephone, television, or other electronic means, as long as each party has an opportunity to participate in the entire proceeding as it takes place.

2.        Except for those hearings which may involve presenta- tion of evidence protected by law as confidential, or which are otherwise closed pursuant to an express provi- sion of law, all hearings are open to public observation.

3.        Conduct at any hearing that is disruptive or shows con- tempt for the proceedings shall be grounds for exclusion from further participation or observation.

L.       Evidence

1.        All witnesses shall testify under oath or affirmation.

2.        The hearing body shall have the power to administer oaths and affirmations.

3.        All parties shall have the right to present such oral or doc- umentary evidence and to conduct such cross-examina-

tion as may be required for a full and fair disclosure of the facts.

4.        The hearing body shall receive evidence, rule upon offers of proof, and exclude evidence  the hearing  body has determined to be irrelevant, immaterial, or unduly repeti- tious.

5.        Unless otherwise ordered by the hearing body, documen- tary evidence shall be limited in size when folded to 8 1/2 by 11 inches. The submitting party shall identify docu- mentary exhibits by number or letter and party and fur- nish a copy of each exhibit to each party present. One additional copy shall be furnished to the hearing body unless the hearing body otherwise directs. When evi- dence offered by any party appears in a larger work, con- taining other information, the party shall plainly designate the portion offered. If the evidence offered is so voluminous as would unnecessarily encumber the record, the book, paper, or document shall not be received in evi- dence but may be marked for identification and, if prop- erly authenticated, the designated portion may be read into or photocopied for the record. All documentary evi- dence offered shall be subject to appropriate and timely objection.

M.     Stipulations. Parties to an appeal of a certification denial may stipulate, in writing, agreement upon any matter involved in the proceeding. If approved by the presiding officer, agree- ment on matters of procedure shall be binding upon the parties to the stipulation. The hearing body may require presentation of evidence for proof of stipulated facts for the hearing body’s consideration. No substantive matter agreed to by the parties shall be binding upon the Board unless incorporated into the decision of the Board.

N.      Recommendations

1.        A recommended decision shall be prepared for the Board by the CAAC.

2.        A recommended decision shall be delivered to the Board within 30 days after the close of the hearing unless the Board extends the period for good cause.

O.      Decisions and orders

1.        Any final decision or order adverse to a party shall be in writing or stated in the record.

2.        When the Board is the hearing body, the decision shall be rendered within 60 days following the final day of the hearing.

3.        Within 30 days after receipt of any recommended deci- sion from the CAAC, the Board shall render a decision to affirm, reverse, adopt, modify, supplement, amend or reject the recommendation and may remand the matter to the hearing body with instructions, or may convene itself as the hearing body.

P.       Rehearing and review of decisions

1.        After a hearing is held, a party in an appeal of a certifica- tion denial who is aggrieved by a decision rendered by the Board may file with the Board, not later than 30 days after such decision has been made, a written motion for rehearing specifying the particular grounds therefor. A motion for rehearing under this Section may be amended at any time before it is  ruled upon by the  Board.  A response may be filed within 15 days after service of such motion by any other party. The Board may require the fil- ing of written briefs on the issues raised in the motion or response and may provide for oral argument.

2.        A rehearing of a decision by the Board may be granted for any of the following causes materially affecting the moving party’s rights:

a.         Irregularity in the administrative proceedings of the hearing body, or abuse of discretion, whereby the moving party was deprived of a fair hearing.

b.        Misconduct of the hearing body or the prevailing party.

c.         Accident or surprise which could not have been pre- vented by ordinary prudence.

d.        Newly discovered material evidence which could not with reasonable diligence have been discovered and produced at the hearing.

e.         Excessive or insufficient penalties.

f.         Error in the admission or rejection of evidence or other errors of law occurring at the administrative hearing.

g.        That the decision is not justified by the evidence or is contrary to the law.

3.        The Board may affirm or modify the decision or grant a rehearing to all or any of the parties, on all or part of the issues, for any of the reasons set forth in subsection (B) herein. An order granting a rehearing shall specify with particularity the ground or grounds on which the rehear- ing is granted, and the rehearing shall cover only those matters so specified.

4.        After giving the parties or their counsel notice and an opportunity to be heard on the matter, the Board may grant a motion for rehearing for a reason not stated in the motion. The order granting such a rehearing shall specify the grounds therefor.

5.        Not later than 20 days after a decision is rendered, the Board may, on its own initiative, order a rehearing of its decision for any reasons for which it might have granted a rehearing on motion of a party. The order granting such a rehearing shall specify the grounds therefor.

6.        When a motion for rehearing is based upon affidavits they shall be served with the motion. An opposing party may, within 10 days after service of such motion, serve opposing affidavits and this period may be extended for an additional period not exceeding 20 days, by the Board for good cause shown or by written stipulation of the par- ties. Reply affidavits may be permitted.

7.        After a hearing has been held and a final administrative decision has been entered, a party is not required to file a motion for rehearing or review of the decision in order to exhaust the party’s administrative remedies.

8.        Any party in an appeal of a certification denial who is aggrieved by a decision rendered by the Board may file with the Board, not later than 20 days after such decision has been made, a written request for review of the deci- sion. If a review of the decision is granted, the Board may affirm or modify the previous decision.

Historical Note

Former Section R7-2-206 adopted effective December 4, 1978 (Supp. 78-6). Repealed effective February 24, 1982. See R7-2-205 adopted effective February 24, 1982 (Supp. 82-1). New Section R7-2-206 adopted effective August 9, 1989 (Supp. 89-3). Repealed effective March 18, 1994 (Supp. 94-1). New Section made by exempt rulemaking at 16 A.A.R. 156, effective December 7, 2009 (Supp. 09-

4).