Ala. Admin. Code r. 290-3-2-.04

Current through Register Vol. 43, No. 1, October 31, 2024

Section 290-3-2-.04 - Revocation And Suspension Of Certificates And Unsuitability Determinations

(1) Authority of the Alabama State Superintendent of Education.

(a) The Alabama State Superintendent of Education shall have the authority under existing legal standards to:

1. Revoke, suspend, recall, non-renew, refuse to issue, or impose any other condition or requirement authorized by this Rule upon any certificate held by a person who has been proven guilty of immoral conduct or unbecoming or indecent behavior in Alabama or any other location in accordance with Code of Ala.1975, § 16-23-5.

2. Revoke, suspend, recall, non-renew, refuse to issue, or impose any other condition or requirement authorized by this Rule upon a certificate to an applicant whose certificate has been subject to adverse action by another state until after the adverse action is resolved in his or her favor, or reversed by that state.

3. Suspend or revoke an individual's certificate issued by the Alabama State Superintendent of Education when a certificate or license issued by another state is subject to adverse action. The suspension or revocation shall expire upon reinstatement of the certificate or license without other conditions by the other state.

4. Revoke, refuse to issue, suspend, recall, non-renew, or impose any other condition or requirement authorized by this Rule upon a certificate for just cause.

5. Revoke, refuse to issue, suspend, recall, non-renew, or impose any other condition or requirement authorized by this Rule, any certificate where there has been an alteration of the certificate by any certificate holder or by any other person or agency with intent to mislead or defraud. It shall be incumbent upon the certificate holder to establish evidence of the absence of intent to mislead or defraud.

6. Issue a public reprimand; place a certificate holder on probation; require a person to undergo drug testing, training in anger management, classroom management, or student assessment procedures; or require any other appropriate or remedial training as a condition of his or her certification or licensure.

7. Issue an emergency suspension of a certificate or license using the procedures established by the Alabama Administrative Procedure Act.

(b) This Rule shall apply to individuals holding a Substitute Teacher License, or any other certificate or license issued pursuant to Title 16 of the Code of Alabama.

(c) This Rule shall apply to individuals applying for admission to a State-approved teacher education program.

(d) The Alabama State Superintendent of Education shall determine whether the applicant satisfies the criteria for public employment pursuant to the Alabama Child Protection Act of 1999, as amended, and Code of Ala.1975, § 16-23-5, as applicable.

(e) The Alabama State Superintendent of Education's decision to revoke, recall, non-renew, non-issue, deny, accept a surrender of a certificate, or other similar action is a permanent decision concerning the individual's fitness to teach and suitability for public employment.

(2) Requirements of Local Superintendents of Education. Each local superintendent shall submit to the Alabama State Superintendent of Education within ten calendar days of the decision, the name and social security number of each employee holding an Alabama certificate or license who is terminated, or nonrenewed, resigns, or is placed on administrative leave for cause, and shall indicate the reason for such action. Superintendents shall provide personnel records and all investigative information immediately upon request by the Alabama Department of Education. Superintendents shall not be required to report teachers who are nonrenewed without cause. Failure to comply may result in disciplinary action against the employing local superintendent.

(3) Certification and Unsuitability Status Review Process.

(a) When information is received pursuant to a criminal background check conducted under the Child Protection Act of 1999, as amended, for an individual who has been convicted of or entered a plea of no contest to a felony or misdemeanor other than a minor traffic violation, or has a pending charge against him or her, a confidential review of the individual's suitability status shall be conducted to determine whether or not to recommend action.

(b) When information is received by any method other than directly pursuant to a criminal background check conducted under the Child Protection Act of 1999, as amended, for an individual who appears to have been guilty of immoral, unbecoming, or indecent behavior, a confidential review of the individual's fitness to hold a certificate or license shall be conducted to determine whether or not to recommend action.

(c) All reviews shall be thorough and concluded as expeditiously as possible. Information discovered in the course of the review not relevant to the question of certification or suitability for employment shall be disregarded. All documents shall be deemed investigatory documents and remain confidential during the course of the review.

(d) Until notice of a proposed action is attempted to be served upon an individual, the State Department of Education shall indicate in all databases accessible by third parties, including local education agencies, that an individual's valid certificate is valid. During this period, the State Department of Education shall state to third parties inquiring about the valid certificate holder's status, that the individual's certificate is valid. Nothing in this Rule shall be construed to impede the State Department of Education from investigating claims of misconduct, including contacting potential witnesses, to determine whether to initiate any action against the certificate holder or other potential respondent.

(e) Upon completion of the confidential review, a recommendation for action or no action shall be conveyed to the Alabama State Superintendent of Education and the process prescribed in Rule 290-3-2-.04(4) through (8) shall apply as appropriate.

(f) When an individual has been convicted of any crime covered by the Fincher Act, codified at § 16-23-5, Code of Ala.1975, the procedures in this Rule need not be followed; instead, immediate action may be taken pursuant to the provisions of that section.

(4) Hearing Procedures.

(a) Notice of Proposed Action or Unsuitability. A proposed action against an individual's certificate or license or notice of unsuitability shall be initiated by service of a written notice of the proposed action or unsuitability, and shall contain a statement of:

1. The nature of the hearing including the individual's rights to challenge the proposal pursuant to the Alabama Administrative Procedures Act;

2. The legal authority and jurisdiction under which the hearing is to be held;

3. Reference to the particular sections of statutes and Rules involved; and

4. The reasons for the proposed action. If the Alabama State Department of Education is unable to state the reasons in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application by the respondent, a more definite statement may be furnished.

(b) Service of Notice. The notice may be served by personal service or certified mail, return receipt requested.

(c) Request for Hearing. A respondent may request in writing a hearing to contest a proposed action.

1. The request shall be submitted to the Alabama State Superintendent of Education within 15 calendar days of the date of receipt of notice of the proposed action.

2. Failure to request a hearing within the above time frame shall constitute a waiver of the opportunity for a hearing and shall cause the matter to be submitted to the Alabama State Superintendent of Education for final action.

3. If a hearing is requested within the above time frame, the Alabama State Superintendent of Education may request the appointment of a hearing officer to conduct the hearing. If the respondent is a current public noncertified employee, the due process administrative hearing shall be conducted by an administrative law judge in accordance with the hearing procedures of the Alabama Administrative Procedures Act; and the administrative law judge shall hear the case, make findings of fact, and enter the final determination of suitability. Within a reasonable amount of time prior to the hearing, both parties shall exchange all documents to be introduced into evidence at the hearing. The service of materials exchanged by the parties, and of any filings with the administrative law judge, may be by electronic means, including e-mail. Any filing e-mailed to an administrative law judge shall be simultaneously e-mailed to the opposing party or his or her attorney. E-mailed documents should be in PDF format. When service on an opposing party or his or her attorney is not made by e-mail, any e-mailed filing shall be placed in the U.S. Mail to the opposing party or his or her attorney within one business day. The Alabama Rules of Civil Procedure shall be a guide to the conduct of discovery by the parties.

(d) Conduct of Hearing.

1. A hearing officer shall have the authority to:

(i) Establish a date, time and place for the hearing;

(ii) Maintain order;

(iii) Make a record of the proceedings;

(iv) Establish reasonable time limits for the conduct of the proceedings;

(v) Rule on the admissibility of evidence;

(vi) Hold a prehearing conference, if necessary, to clarify the matters in dispute; establish the order of presentation; allow and establish time limits for the exchange of exhibits and names of witnesses; and

(vii) Enter an order on any other matter which would affect the conduct of the hearing.

2. The hearing shall be open to the public, unless it is ordered to be closed by the hearing officer for good cause or by agreement of the parties.

3. A respondent may be represented by counsel at his/her own expense.

4. The hearing officer shall enter a protective order sealing any portion of the record and documents exchanged by the parties when that information contains personally identifiable information about one or more students, and when the public has no need for that information.

(e) Settlement. Informal dispositions may be made of any matter set for hearing by stipulation, agreed settlement, consent order or default or by another method agreed upon by the parties in writing.

(f) Pending final resolution of the hearing:

1. The Alabama State Superintendent of Education may take no further action regarding the suitability or fitness determination, except for an emergency suspension;

2. The suitability or fitness determination regarding the public certified employee, certified applicant for employment, or current public noncertified employee is stayed, except for an emergency suspension;

3. The requesting local employing board is prohibited from taking any adverse action against the individual that pertains solely to the pending procedures of the Alabama State Department of Education.

(g) Record of Proceedings.

1. The record of a hearing shall include:

(i) The notice of proposed action;

(ii) The request for a hearing;

(iii) All evidence received during the hearing;

(iv) A transcript of the proceedings;

(v) A statement of all matters officially noticed;

(vi) All questions and offers of proof, objections and rulings thereon;

(vii) The written recommendation of the hearing officer; and

(viii) The final order of the Alabama State Superintendent of Education (if the individual is certified or an applicant for certification); or

(ix) The final order by an administrative law judge (if the individual is a noncertified current employee).

2. Oral proceedings shall be recorded either by mechanized means or by a qualified shorthand reporter. Oral proceedings shall be transcribed at the request of any party with the expense of transcription charged to the requesting party. The record of oral proceedings shall be maintained by the Alabama State Department of Education for five years from the date of entry of the final order of the Alabama State Superintendent of Education.

(h) Rules of Evidence. The Alabama Rules of Evidence as provided in Code of Ala.1975, § 41-22-13 shall apply to all hearings conducted under these Rules. When necessary to ascertain facts not reasonably susceptible of proof under the Alabama Rules of Evidence, evidence not admissible thereunder may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.

(i) Final Order:

1. Upon completion of a hearing, the hearing officer shall prepare for and submit to the Alabama State Superintendent of Education a written recommendation with respect to the proposed action. The hearing officer may, if he or she disagrees with the proposed action, make any recommendation that he or she finds is warranted under this Rule and state law. The recommendation may be for a less severe sanction than the action that was proposed by the Department. The recommendation shall consist of a statement of facts found by the hearing officer and a recitation of the application of the facts found to the applicable statutes and regulations. The recommendation along with the record shall be submitted to the Alabama State Superintendent of Education within 30 days after the hearing is concluded. The 30-day period may be extended at the discretion of the hearing officer.

2. Based upon a review of the record of the hearing and the recommendation of the hearing officer, the Alabama State Superintendent of Education shall issue a final order within 30 days after the recommendation is received for individuals who are certified or who are applicants for certification.

(i) The 30-day period may be waived or extended with the consent of the parties.

(ii) The final order may accept, reject, or modify the recommendation of the hearing officer for individuals who are certified or licensed or who are applicants for certification or licensure.

(iii) The decision of the administrative law judge for cases involving noncertified current employees is final and not subject to appeal.

(j) Upon final resolution the results of the hearing and any accompanying findings or order are sent to both the individual and the local employing superintendent.

(5) Application for Rehearing. Any party may, within 15 days after entry of the final order, file an application for rehearing pursuant to the provisions of Code of Ala.1975, § 41-22-17.

(6) Summary Proceeding.

(a) If, after a reasonable and diligent effort, service of notice of a proposed action is not perfected, the Alabama State Superintendent of Education may make a summary disposition of the matters reflected in the notice of proposed action.

(b) The Alabama State Superintendent of Education may suspend a current teacher certificate/license, refuse to renew a teacher certificate/license, or refuse to issue a teacher certificate/license either indefinitely or until the expiration of the valid period of the teacher certificate/license, as the case may be, until such time as the whereabouts of the teacher becomes known. At such time, the Alabama State Superintendent of Education may serve the respondent with a notice of proposed action.

(7) Judicial Review. A teacher who has exhausted all administrative remedies available and who is aggrieved by a final order of the Alabama State Superintendent of Education may seek judicial review pursuant to the provisions of Code of Ala.1975, §§ 41-22-20 and 41-22-21.

(8) Report of Final Dispositions. Upon final order of the Alabama State Superintendent of Education to revoke, recall, suspend, refuse to issue a certificate or license, or imposing any other sanction authorized by this Rule or by settlement, the Alabama State Department of Education shall report the final disposition to the National Association of State Directors of Teacher Education and Certification (NASDTEC) Clearinghouse or its agent, in a manner consistent with the requirements of the NASDTEC compact.

Ala. Admin. Code r. 290-3-2-.04

Repealed and New Rule: Filed January 17, 1997; operative February 21, 1997; effective July 1, 1997. Amended: Filed June 14, 1999; effective July 19, 1999. Repealed and New Rule: Filed August 8, 2002; effective September 12, 2002. Repealed and New Rule: Filed December 12, 2002; effective January 16, 2003. Repealed and New Rule: Filed September 11, 2003; effective October 16, 2003. Repealed and New Rule: Filed August 4, 2008; effective September 8, 2008. Amended: Filed April 8, 2010; effective May 13, 2010. Repealed and New Rule: Filed December 10, 2010; effective January 14, 2011.

Adopted by Alabama Administrative Monthly Volume XXXIV, Issue No. 06, March 31, 2016, eff. 4/24/2016.

Author: Dr. Thomas R. Bice

Statutory Authority: Ala. Const. Amend. 284; Code of Ala. 1975, §§ 16-3-11, 16-23-1, 16-23-2.