department of education

Office of the Secretary

GENERAL NOTICE

Delaware Department Of Education Hearing Procedures and Rules

Ruling Making Authority

October 11, 2006

These Hearing Procedures and Rules ("Rules") shall govern the practice and procedure in hearings before the Secretary or his/her designee where a statute or regulation provides the right to a hearing before the Secretary to decide a specific controversy or dispute.¹ It should be noted that the Department is not subject to Subchapter III (Case Decisions) or Subchapter IV (Licenses) of the Administrative Procedures Act. See 29 Del.C. § 10161(b)

The Department of Education ("the Department") is authorized by several sections of the Education Code (Title 14 of the Delaware Code) to hold hearings related to the denial or revocation of licenses, certificates, Department approvals and regulation waiver requests.

2.1 These Rules shall be liberally construed to secure a just, economical, and reasonably expeditious determination of the issues presented in accordance with the Secretary's statutory responsibilities.

2.2 The Secretary or his/her designee may, for good cause, and to the extent consistent with law, waive any of these Rules, either upon application or upon its own motion.

2.3 The Secretary may designate a representative to act as a hearing officer for any hearing before the Secretary. Except as otherwise specifically provided, the duties imposed, and the authority provided to the Secretary by these Rules shall also extend to his/her designee.

2.4 Notwithstanding any part of these Rules to the contrary, the Secretary or his/her counsel, designee or hearing officer, may conduct pre-hearing conferences and teleconferences to clarify issues, confer interim relief, specify procedures and otherwise expedite the proceedings.

2.5 The Secretary may administer oaths, take testimony, hear proofs and receive exhibits into evidence at any hearing. Testimony at any hearing shall be under oath or affirmation.

2.6 Any party to a proceeding before the Secretary may be represented by counsel. An attorney representing a party in a proceeding before the Secretary shall notify the Secretary of the representation in writing as soon as practical. Attorneys who are not members of the Delaware Bar may be permitted to appear pro hac vice before the Secretary in accordance with Rule 72 of the Rules of the Delaware Supreme Court.

2.7 The Secretary may continue, adjourn or postpone proceedings for good cause at the request of a party or on his/her own initiative. Absent a showing of exceptional circumstances, requests for postponements of any matter scheduled to be heard by the Secretary shall be submitted to the Secretary at least three (3) business days before the date scheduled for the proceeding. The Secretary shall then decide whether to grant or deny the request for postponement. If a hearing officer has been appointed, the request for postponement shall be submitted to the hearing officer, who shall then decide whether to grant or deny the request.

2.8 A copy of any document filed with or submitted to the Secretary or his/her hearing officer shall be provided to all other parties in the proceeding, or to their legal counsel.

2.9 For purposes of these Rules, unless otherwise specified, "day" shall mean a calendar day. "Business day" shall mean weekdays Monday through Friday, except when those days fall on a legal holiday.

3.1 Petitions for Hearing

3.1.1 Unless otherwise provided by regulation or statute, a party may initiate a hearing on matters within the Secretary's jurisdiction by mailing or delivering a petition for hearing to the Secretary. The petition shall be in writing and shall be signed by the party making the request (or by the party's authorized representative). It shall set forth the grounds for the action in reasonable detail and shall identify the source of the Secretary's authority to decide the matter. Petitions may be delivered to the Secretary by facsimile but not by other electronic means.

3.1.1.1 Hearings on proposed waivers of a state rule or regulation shall the procedures set forth in 14 Del.C. § 122(g).

3.1.2 The petition for hearing must be postmarked or delivered to the Secretary within thirty (30) days of the petitioning party's receipt that official action has been taken by an authorized person, organization, board or agency, unless a different time period is specified in the statute or regulation establishing the right to a hearing.

3.1.3 A copy of the petition for hearing shall be sent to all other parties to the proceeding at the time it is mailed or delivered to the Secretary. A copy of any other paper or document filed with the Secretary or his/her hearing officer shall be provided to all other parties to the proceeding at the same time it is mailed or delivered to the Secretary or his/her hearing officer. If the party is represented by legal counsel, delivery to legal counsel is sufficient.

3.1.4 The Secretary or his/her hearing officer, in their discretion, may direct the person, organization, board or agency taking official action to file a written response to a Petition for hearing.

3.1.5 The Petitioner shall be deemed to have consented to a closed hearing unless the party notifies the Secretary or his/her designee in writing that a public hearing is requested. Such notice must be delivered to the Secretary within five (5) days of the receipt of the notice scheduling the hearing.

3.1.6 Parties shall keep the Secretary or his/her designee informed of their current addresses and telephone numbers during the pendency of any proceedings.

3.2 Hearing Procedures

3.2.1 A hearing shall be held within 90 days of the date of the petition for hearing, unless a different time period is specified in the statute or regulation establishing the right to a hearing or unless the hearing is continued, adjourned or postponed for good cause or unless the parties mutually agree in writing to a different time period.

3.2.2 Notice of the hearing shall be given 20 days before the day it is to be held, unless a different time period is specified in the statute or regulation establishing the right to a hearing or the parties mutually agree.

3.2.3 The hearing will proceed with the party with the burden of proof first presenting its evidence and case. The other party, if any, may then present its case. The party with the burden of proof will then have an opportunity to present rebuttal evidence.

3.2.4 Opening and closing arguments and post hearing submissions of briefs or legal memoranda will be permitted at the discretion of the Secretary or his/her hearing officer.

3.2.5 Any person who testifies as a witness shall also be subject to cross examination by the other parties to the proceeding. Any witness is also subject to examination by the Secretary or his/her hearing officer.

3.3. Evidence

3.3.1 Strict rules of evidence shall not apply. Evidence having probative value commonly accepted by reasonably prudent people in the conduct of their affairs may be admitted into evidence.

3.3.2 The Secretary or its hearing officer may exclude evidence and limit testimony as provided in Section 10125(b) of the Administrative Procedures Act.

3.3.2.1 The Secretary, or his or her designee, may exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence.

3.3.2.2 The Secretary, or his or her designee, may limit unduly repetitive proof, rebuttal and cross examination.

3.3.3 Objections to the admission of evidence shall be brief and shall state the grounds for the objection. Objections to the form of the question will not be considered.

3.3.4 Any document introduced into evidence at the hearing shall be marked by the Secretary or the hearing officer and shall be made a part of the record of the hearing. The party offering the document into evidence shall provide a copy of the document to each of the other parties unless otherwise directed.

3.3.5 Requests for subpoenas for witnesses or other sources of evidence shall be delivered to the Secretary in writing at least fifteen (15) days before the date of the hearing, unless additional time is allowed for good cause. The party requesting the subpoena is responsible for delivering it to the person to whom it is directed.

3.3.6 A written list of witnesses a party intends to call during a hearing shall be delivered to the Secretary or his/her designee and to all other parties at least five (5) days prior to a hearing. The Secretary or his/her hearing officer, in their discretion, may refuse to receive into evidence any testimony of a witness who has not been named on the witness list.

3.3.7 Witnesses may be sequestered at the discretion of the Secretary or his/her hearing officer upon request of any party.

3.4 Creation of a Record before the Secretary

3.4.1 Any party may request the presence of a stenographic reporter on notice to the Secretary at least ten (10) days prior to the date of the hearing. The requesting party shall be liable for the expense of the reporter and of any transcript the party requests.

3.4.2 If a stenographic reporter is not present at the hearing, the Secretary or his/her designee shall cause an electronic recording of the hearing to be made by tape recorder or other suitable device. Electronic recordings shall be destroyed unless a written request to preserve it is made to the Secretary within three months of the conclusion of the hearing.

3.5 Burden of Proof and Standard of Review

3.5.1 The burden of proof in license, certification, or certificate of approval, or regulation waiver denial actions is on the applicant to show by a preponderance of the evidence that he or she, or the organization or institution, meets the requirements of the applicable laws and regulations relating to the issuance of a license, certificate or Department approval, or regulation waiver.

3.5.2 Unless otherwise provided for in regulation or statute, the burden of proof in license, certification or Department approval revocation or disciplinary actions is on the person, organization, board or agency taking official action to establish by clear and convincing evidence that the licensee, certificate holder or approved individual, organization or institution has failed to comply with the applicable laws and regulations relating to the retention of a license, certificate or Department approval.

3.6 Secretary's Decision

3.6.1 When the Secretary has appointed a hearing officer, the hearing officer shall submit a proposed written decision for the consideration of the Secretary which shall include:

3.6.1.1 A brief summary of the evidence and recommended findings of fact based upon the evidence;

3.6.1.2 Recommended conclusions of law; and

3.6.2.3 Recommended decision.

3.6.2 When a proposed order is submitted to the Secretary, a copy shall be delivered to each of the parties who shall have 20 days to submit in writing to the Secretary and the other party any exceptions, comments and arguments respecting the proposed order. The parties may agree to shorten or waive the comment period, or to consent to the hearing officer's recommendation without additional information. When the parties consent to the hearing officer's recommendation, they shall so advise the Secretary.

3.6.3 The Secretary shall consider the entire record of the case and the hearing officer's proposed decision and written comments thereto, if any, in reaching his or her final decision. The Secretary's decision shall be incorporated in a final order, which shall be signed and mailed to the parties by certified mail.

3.6.3.1 The Secretary may, at his or her discretion, take additional evidence.

3.6.4 The Secretary's decision shall be final unless a right of appeal is provided by statute.

¹ These Rules expressly do not govern employment proceedings pursuant to 14 Del.C. §121(a)(4),(5) or (6).