DEPARTMENT OF EDUCATION

Professional Standards Board

FINAL

REGULATORY IMPLEMENTING ORDER

1514 Revocation, Limitation, or Suspension of Licenses

I. SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED

Pursuant to 14 Del.C. Sections 1203 and 1205(b), the Delaware Department of Education ("Department"), in consultation and cooperation with the Professional Standards Board, is amending 14 DE Admin. Code 1514 Revocation, Limitation, or Suspension of Licenses. The regulation sets forth rules of practice and procedure used by the Professional Standards Board and is being amended under the provision of 29 Del.C. §10113(b)(2). In addition, the regulation is being amended to be consistent with 14 Del.C. Ch. 12 under the provision of 29 Del.C. §10113(b)(5). The amendments do not otherwise alter the substance of the regulation.

The amendments are exempt from the requirement of public notice and comment and are adopted informally in accordance with 29 Del.C. §§10113(b)(2) and (b)(5).

II. FINDINGS OF FACT

The Department finds that the regulation sets forth rules of practice and procedure used by the Professional Standards Board. The Department further finds that the regulation is being amended to be consistent with 14 Del.C. Ch. 12 and that the amendments do not otherwise alter the substance of the regulation. Accordingly, the Department finds that it is appropriate to amend 14 DE Admin. Code 1514 Revocation, Limitation, or Suspension of Licenses.

Ill. DECISION TO AMEND THE REGULATION

For the foregoing reasons, the Department concludes that it is appropriate to amend 14 DE Admin. Code 1514 Revocation, Limitation, or Suspension of Licenses. Therefore, pursuant to 14 Del.C. §§1203 and 1205(b), 14 DE Admin. Code 1514 Revocation, Limitation, or Suspension of Licenses, attached hereto as Exhibit "A," is hereby amended.

IV. TEXT AND CITATION

The text of 14 DE Admin. Code 1514 Revocation, Limitation, or Suspension of Licenses adopted hereby shall be in the form attached hereto as Exhibit "A" and said regulation shall be cited as 14 DE Admin. Code 1514 Limitation, Suspension, and Revocation of Licenses, Certificates, and Permits in the Administrative Code of Regulations for the Department.

V. EFFECTIVE DATE OF ORDER

The effective date of this Order shall be ten days from the date this Order is published in the Register of Regulations.

IT IS SO ORDERED the 15th day of November, 2018

Department of Education

Susan S. Bunting, Ed.D., Secretary of Education

1514 Revocation, Limitation, or Suspension of Licenses Limitation, Suspension, and Revocation of Licenses, Certificates, and Permits

This regulation shall apply to the revocation, limitation, or suspension of an Initial License, Continuing License or Advanced License issued pursuant to 14 Del.C. Ch. 12; or a Limited Standard, Standard or Professional Status Certificate issued prior to August 31, 2003 for educators, pursuant to 14 Del.C. §1218. This regulation shall apply to limiting, suspending, and revoking licenses and certificates for educators pursuant to 14 Del.C. §1218 and permits for paraprofessionals pursuant to 14 Del.C. §1205(b).

The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise:

"Advanced License" means a license issued as part of the three-tiered licensure system set forth in 14 Del.C. §1213 and §1214.

"Continuing License" means a license issued as part of the three-tiered license system set forth in 14 Del.C. §1211 and §1212.

"Department" means the Delaware Department of Education.

"Educator" means a person licensed and certified by the State under 14 Del.C. Ch. 12, to engage in the practice of instruction, administration or other related professional support services in Delaware public schools, including charter schools, pursuant to rules and regulations promulgated by the Standards Board and approved by the State Board. For purposes of 14 Del.C. Ch. 12, the term 'educator' does not include substitute teachers.

"Immorality" means conduct which is inconsistent with the rules and principles of morality expected of an educator or paraeducator and may reasonably be found to impair an educator's or paraeducator’s effectiveness by reason of his or her unfitness or otherwise.

"Initial License" means a license issued as part of the three-tiered licensure system set forth in 14 Del.C. §1210.

"License Holder" or "Licensee" means any individual who holds an Initial License, Continuing License or Advanced License, and until a Continuing License is issued, a Limited Standard, Standard, or Professional Status Certificate.

"Nolo Contendere" means a plea by the a defendant in a criminal prosecution that that, without admitting guilt guilt, subjects him or her to conviction but does not preclude him or her from denying the truth of the charges in a collateral proceeding.

"Nollo Nolle Prosequi" means an entry on the record of a legal action denoting that the prosecutor or plaintiff will proceed no further in his or her action or suit either as a whole or as to some count or as to one or more of several defendants.

"Permit" means a document issued by the Department that verifies an individual's qualifications and training to serve as a Title I, Instructional, or Service Paraeducator.

"Secretary" means the Secretary of the Delaware Department of Education.

"Standards Board" means the Professional Standards Board established pursuant to 14 Del.C. §12051201.

"State" means the State of Delaware.

3.1 Discretionary Revocations

The Secretary may revoke an Initial, Continuing or Advanced License that has been issued, for the following causes if the license holder:

3.1.1 Obtained or attempted to obtain or renew a license or certificate by fraudulent means or through misrepresentation of material facts; or

3.1.2 Falsified official school records, documents, statistics or reports; or

3.1.3 Knowingly violated any of the provisions of the Student Testing Program set forth in 14 Del.C. §172; or

3.1.4 Plead guilty or nolo contendere with respect to, or is convicted of, any crime against a child constituting a misdemeanor, except for Unlawful Sexual Conduct in the Third Degree; or

3.1.5 Plead guilty or nolo contendere with respect to, or is convicted of, possession of a controlled substance or a counterfeit controlled substance classified as such in 16 Del.C. Ch. 47, Schedule I, II, III, IV, or V; or

3.1.6 Was terminated or dismissed for immorality, incompetence, misconduct in office, willful neglect of duty, disloyalty or misconduct involving any cause for suspension or revocation of a license; or

3.1.7 Resigned or retired pending dismissal for immorality, provided that clear and convincing evidence establishes the underlying misconduct occurred; or

3.1.8 Had a license or certificate revoked or voluntarily surrendered in another jurisdiction for cause which would be grounds for revocation; or

3.1.9 Failed to comply with any of the mandatory notice provisions of this regulation.

3.1.10 Failed to comply with any of the statutory or regulatory requirements for maintaining a license.

3.2 Mandatory Revocations

The Secretary shall revoke a license if the license holder:

3.2.1 Pleads guilty or nolo contendere with respect to, or is convicted of:

3.2.1.1 Any crime constituting the manufacture, delivery, possession with intent to manufacture or deliver a controlled substance or a counterfeit controlled substance classified as such in of 16 Del.C. Ch. 47, Schedule I, II, III, IV or V; or

3.2.1.2 Any crime constituting a violent felony as defined in 11 Del.C. §4201(c); or

3.2.1.3 Any crime against a child constituting a felony, or Unlawful Sexual Contact in the Third Degree; or

3.2.1.4 Any crime constituting a felony sexual offense; or

3.2.1.5 Any crime constituting a felony offense against public administration involving bribery, improper influence or abuse of office; or

3.2.2 Is terminated or dismissed for a sexual offense against a child; or

3.2.3 Resigns or retires after official notice of allegations of a sexual offense against a child, provided that clear and convincing evidence establishes the underlying misconduct occurred.

3.1 The Secretary, or the Standards Board after a hearing, may limit, suspend, or revoke an Initial License, a Continuing License, an Advanced License, a Standard Certificate, or a Permit for any of the following causes:

3.1.1 Obtaining or attempting to obtain a license, certificate, or permit by fraudulent means or through misrepresentation of material facts;

3.1.2 Falsifying official school records, documents, statistics, or reports;

3.1.3 Knowingly violating any of the provisions of the state assessment system set forth in 14 Del.C. §172;

3.1.4 Pleading guilty or Nolo Contendere with respect to, or is convicted of, any crime against a child constituting a misdemeanor, except for unlawful sexual contact in the third degree in violation of 11 Del.C. §767;

3.1.5 Pleading guilty or Nolo Contendere with respect to, or is convicted of, possession of a controlled substance or a counterfeit controlled substance classified as such in Schedule I, II, III, IV, or V of 16 Del.C. Ch. 47;

3.1.6 Immorality, incompetence, misconduct in office, wilful neglect of duty, disloyalty, or misconduct involving any cause for suspension or revocation of a license or permit;

3.1.7 Having a license, certificate, or permit suspended, revoked, or voluntarily surrendered in another jurisdiction for cause which would be grounds for suspension or revocation;

3.1.8 Failing to comply with any of the mandatory notice provisions set forth in 14 Del.C. §1218(g); or

3.1.9 Failing to comply with any of the statutory or regulatory requirements for maintaining a license, certificate, or permit.

3.2 The Secretary, or the Board after a hearing, shall revoke an Initial License, a Continuing License, an Advanced License, a Standard Certificate, or a Permit for the following causes:

3.2.1 Pleading guilty or Nolo Contendere with respect to, or is convicted of, any of the following:

3.2.1.1 Any crime constituting the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance or counterfeit controlled substance as classified in Schedule I, II, II, IV, or V of 16 Del.C. Ch. 47;

3.2.1.2 Any crime constituting a violent felony as defined in 11 Del.C. 4201(c);

3.2.1.3 Any crime against a child constituting a felony, or unlawful sexual contact in the third degree in violation of in violation of 11 Del.C. §767;

3.2.1.4 Any crime constituting a felony sexual offense;

3.2.1.5 Any crime constituting a felony offense against public administration involving bribery, improper influence, or abuse of office; or

3.2.2 Committing a sexual offense against a child.

4.1 The Secretary may limit an Initial, Continuing or Advanced License that has been issued, for any of the grounds for revocation.

4.2 If any of the causes listed in Sections 3, 4, 5, or 6 Section 3.0 are determined, the Secretary or the Standards Board after a hearing, may put limitations on a license, certificate or permit that may include but are not limited to:

4.2.14.1.1 Restrictions on the ages of students with whom the license, certificate, or permit holder may work; or

4.2.24.1.2 Additional supervision requirements; or

4.2.34.1.3 Education, counseling or psychiatric examination requirements.

5.1 The Secretary may suspend an Initial, Continuing or Advanced License that has been issued, for any of the grounds for revocation.

5.2 A license, certificate or permit may be suspended for a period of time not to exceed five (5) years.

5.2.15.1.1 The license, certificate or permit may be reinstated by the Secretary, upon written request, with verification that all requirements for license renewal have been satisfied the license or permit holder has satisfied all of the requirements for license or permit renewal in effect at the time of the request.

5.2.25.1.2 If the license or permit expired during the period of suspension, the holder of the former license or permit may reapply for the same tier license or type of permit that was suspended but shall meet the license or permit requirements that are in effect at the time of the application for the license.

6.1 The Secretary may automatically suspend any license or permit without a prior hearing if the license or permit holder is arrested or indicted by a Grand Jury grand jury for a violent felony as defined in 11 Del.C. §4201(c) or for any crime against a child constituting a felony. A suspension under this subsection is effective on the date of the arrest or Grand Jury indictment. The suspension is effective on the date of the license or permit holder’s arrest or indictment.

6.2 Temporary Order

6.2.1 For a suspension under this subsection, the The Secretary shall issue a written temporary order of suspension to the license or permit holder at his or her last known address.

6.2.1.1 The chief school officer or head of school, on behalf of the local board of education or charter school board of directors, shall report to the Secretary the name and last known address of any license holder employed by the district or charter school who it knows to have been arrested or indicted by a Grand Jury for a violent felony as defined in 11 Del.C. §4201(c). The order of suspension shall remain in effect until the Secretary or the Standards Board, after a hearing, issues a final order.

6.2.1.2 An order of suspension under this Section shall remain in effect until the final order of the Secretary or the Standards Board becomes effective.

6.3 Expedited Hearing

6.3.1 A license or permit holder whose license has been suspended pursuant to this Section may request an expedited hearing before the Standards Board within 20 calendar days from the date the notice of the Secretary's decision to temporarily suspend the license holder's license or permit was mailed. The request shall be sent mailed by certified mail to the Standards Board's Executive Director.

6.3.2 In the event that the license or permit holder requests an expedited hearing, the Standards Board shall convene a hearing within 90 calendar days of the receipt of such a request.

6.3.3 The order of suspension is temporary pending resolution of the criminal charges. Therefore, an expedited hearing under this subsection shall be limited to whether the license or permit holder had been arrested or indicted for a violent felony or for any crime against a child constituting a felony.

6.4 Revocation after Conviction

6.4.1 If the license or permit holder pleads guilty or nolo contendere Nolo Contendere with respect to, or is convicted of, a violent felony as defined in 11 Del.C. §4201(c) or any crime against a child constituting a felony, the Secretary shall proceed with revocation.

6.5 Resolution of Charges without Conviction

6.5.1 If the license or permit holder is found not guilty of the underlying criminal charges, a nollo prosequi Nolle Prosequi is entered on the record by the State, or the charges are otherwise dismissed by the Court, the license or permit holder may file a written request for license or permit reinstatement, including documentation of the final status of the judicial proceeding, and their his or her license or permit shall be reinstated if still valid.

6.5.2 If the license or permit expired during the period of suspension, the holder of the former license or permit may reapply for the same tier license or type of permit that was suspended, suspended but shall meet the license or permit requirements that are in effect at the time of the application for license.

6.5.3 The Secretary may however, continue to pursue revocation under any alternative ground including but not limited to termination of employment for immorality, incompetence, misconduct in office, willful neglect of duty, disloyalty, or misconduct; or resignation or retirement pending dismissal for immorality under the standards provided herein limit, suspend, or revoke the license or permit for any of the following causes set forth in Section 3.0 of this regulation.

The Secretary may take any action under this regulation on the basis of substantially comparable conduct occurring in a jurisdiction outside this State or occurring before a person applies for or receives any license.

8.1 License Holder

8.1.1 Any license holder who has pled guilty or nolo contendere to, or has been convicted of, a crime in a court of law which would constitute grounds for revocation, limitation or suspension of license under this regulation or has been arrested or indicted by a Grand Jury for a violent felony as defined in 11 Del.C. §4201(c), shall notify the Secretary of such action in writing within twenty (20) calendar days of such conviction, arrest or indictment, whether or not a sentence has been imposed. Failure to do so shall be grounds on which the Secretary may revoke, limit or suspend the holder's license.

8.1.2 Any license holder who has surrendered an educator license or any professional license or certificate or who has had such a license or certificate revoked, limited or suspended in any jurisdiction or by any agency shall notify the Secretary of such action in writing within thirty (30) calendar days of such action. Failure to do so shall be grounds on which the Secretary may revoke, limit or suspend the holder's license.

8.2 Chief School Officer, Head of School, Local Board or Charter School Board of Directors Responsibilities

8.2.1 The chief school officer or head of school, on behalf of the local board of education or charter school board of directors, shall report to the Secretary the name and last known address of any license holder who is dismissed, resigns, retires or is otherwise separated from employment with that district or charter school after having received notice of misconduct that constitutes grounds for revocation or suspension this regulation.

8.2.1.1 Such report shall be made within fifteen (15) calendar days of the dismissal, resignation, retirement or other separation from employment and is required notwithstanding any termination agreement to the contrary that the local board of education or charter school board of directors may enter into with the license holder.

8.2.1.2 The reasons for the license holder's dismissal, resignation, retirement or other separation from employment with the district or charter school shall also be provided along with all evidence that was reviewed by or is in the possession of the district or charter school relating to the dismissal, resignation, retirement or other separation from employment.

8.2.1.3 The Department shall give written notice to any license holder of any notification received under this subsection to the license holder's last known address. Such notification shall be made with fifteen (15) calendar days of receipt of the district or charter school's report to the Department of misconduct under this Section.

8.2.1.4 The obligation to report also applies when a chief school officer or head of school acquires relevant information after a license holder's dismissal, resignation, retirement or other separation from employment.

8.2.2 The chief school officer or head of school, on behalf of the local board of education or charter school board of directors, shall report to the Secretary the name and last known address of any license holder employed by the district or charter school who it knows to have been arrested or indicted by a Grand Jury for a violent felony as defined in 11 Del.C. §4201(c).

8.2.3 All information obtained from the chief school officer or head of school shall be confidential and shall not be considered public records under Delaware's Freedom of Information Act.

8.2.4 Failure to make the mandatory reports shall be grounds on which the Secretary may limit, suspend or revoke the chief school officer's or head of school's license.

8.3 Notice of Action

The Secretary shall not take action against a person under Sections 3, 4 or 5 without providing the person with written notice of the charges and with an opportunity for a full and fair hearing before the Standards Board.

8.3.1 Notice shall be sent to the person's last known address.

8.3.2 The license holder shall have thirty (30) calendar days from the date the notice of the charges was mailed to make a written request for a hearing.

8.3.3 If no written request for a hearing is received by the Standards Board within thirty (30) calendar days of receipt of notification, the license holder's license shall be deemed to be revoked, limited or suspended and the holder shall be so notified.

8.3.4 Notice of the revocation, limitation, suspension or reinstatement of a license shall be made by the Secretary, or his or her designee, to all chief state school officers of the other states and territories of the United States.

8.4 All communications between a license holder and the Department or Standards Board provided for in this Section shall be by certified mail, with a return receipt requested.

9.1 The Secretary may investigate any information received about a person that reasonably appears to be the basis for action under this regulation.

9.1.1 The Secretary shall not investigate anonymous complaints.

9.1.2 The Department shall give written notice within a reasonable period of time to a license holder of any investigation initiated hereunder to the license holder's last known address.

9.1.3 All information obtained during an investigation is confidential and shall not be considered public records under Delaware's Freedom of Information Act.

9.1.4 The Secretary shall review the results of each investigation conducted pursuant to this regulation and shall determine whether the results warrant initiating action under this regulation.

10.1 Subject to the limitation contained herein, an individual whose license has been revoked under Section 3.1 Discretionary Revocation of this regulation may petition the Secretary for reinstatement of the license no sooner than five (5) years from the date of revocation. The individual shall submit to the Secretary a written petition showing credible evidence, by affidavit or otherwise, of the factors set forth in subsection 10.1.1.

10.1.1 The Secretary shall consider all of the following criteria in evaluating a petition for reinstatement and shall only grant such a petition if it is in the best interest of the public schools of the State of Delaware:

10.1.1.1 The nature and circumstances of the individual's original misconduct;

10.1.1.2 The individual's subsequent conduct and rehabilitation;

10.1.1.3 The individual's present character; and

10.1.1.4 The individual's present qualifications and competence to engage in the practice of instruction, administration or other related professional support services.

10.1.2 A former license holder is entitled to a full and fair hearing before the Standards Board to challenge a denial of reinstatement pursuant to this subsection.

10.2 A license revoked under Section 3.2 Mandatory Revocations or suspended under Section 6.0 of this regulation may not be reinstated under this subsection.

10.2.1 A license suspended under Section 6.0 may only be reinstated pursuant to that section.

10.2.2 A license revoked under Section 3.2 Mandatory Revocation may only be reinstated under Section 10.3.

10.3 If a decision of license revocation, limitation or suspension is solely based on the conviction of a crime enumerated within this regulation, and if the plea or conviction is overturned and there is no subsequent proceeding leading to a plea or conviction, the individual whose license is revoked, limited or suspended may file a written request for reinstatement, including documentation of the final status of the judicial proceeding, and the license shall be reinstated.

10.3.1 The Secretary may continue to pursue revocation under an alternative basis.

11.1 In any hearing before the Standards Board to challenge action taken under this regulation, the Standards Board shall have the power to administer oaths, order the taking of depositions, issue subpoenas and compel attendance of witnesses and the production of books, accounts, papers, records, documents and testimony.

7.1 The Secretary shall not take action to limit, suspend, or revoke a license, certificate, or permit under Section 3.0 without providing the person with written notice of the charges and an opportunity for a full and fair hearing before the Standards Board.

7.1.1 The notice shall be personally delivered or sent by certified mail to the person's last known address.

11.27.2 Unless otherwise provided for in this Section, the The burden of proof in a license, certificate, or permit disciplinary action shall be on the agency taking official action Department to establish by preponderance of the evidence that the license, certificate, or permit holder has engaged in misconduct as defined by Sections 3, 4 and 5 or otherwise has failed to comply with the applicable laws and regulations relating to the retention of the license provided in Section 3.0.

11.3 Whenever the basis for an action described within this regulation is a guilty plea, a plea of nolo contendere with respect to, or a conviction of a crime, a copy of the record of the plea, nolo contendere or conviction certified by the Clerk of the Court entering the plea, nolo contendere or conviction shall be conclusive evidence thereof.

11.4 After a hearing, the Standards Board may take any action and impose any limitation or suspension that could have been taken by the Secretary.

11.57.3 Hearings shall be conducted in accordance with the Standard Board's Hearing Procedures and Rules 14 DE Admin. Code 1515 Hearing Procedures and Rules.

The Secretary may enter into a written consent agreement with a person against whom action is being taken under this regulation.

All Standard Certificates issued to the license holder shall also be revoked upon the revocation of the license.