Second Review of Proposed Procedural Guidelines for Conducting Licensure Hearings

1. Second Review of Proposed Procedural Guidelines for Conducting Licensure Hearings Virginia Board of Education July 25, 2018 Susan B. Williams, Esq. Office of the Attorney General

2. Statutory Authority • The Board of Education is responsible by law for promulgating regulations that prescribe the requirements for the licensure of teachers and other school personnel required to hold a license, including requirements for the denial, suspension, cancellation, revocation, and reinstatement of such licenses. • Section 22.1-298.1 of the Code of Virginia

3. Decision Points • Does the Board of Education want to require the clear and convincing standard of proof or the preponderance of the evidence standard? • Black’s Law Dictionary (citations omitted): • Clear and convincing proof - “That proof which results in reasonable certainty of the truth of the ultimate fact in controversy. Proof which requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. Clear and convincing proof will be shown where the truth of the facts asserted is highly probable.” • Preponderance of evidence - “As standard of proof in civil cases, is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not… It is that degree of proof which is more probable than not.”

4. Decision Points • Does the Board of Education want the Superintendent’s Investigative Panel to make written findings of fact and conclusions of law? • If so, what role does the Board want the Panel’s findings of fact and conclusions of law to play in the Board’s hearing on the same matter? • Does the Board want to provide a hearing “de novo” and hear the matter anew as if it had not previously been heard by the Panel? • Or, does the Board want to use the Panel’s findings of fact to establish the parameters for the matters that are relevant and material to the Board’s review?

5. Decision Points • Does the Board of Education want the Superintendent of Public Instruction to be present for the Board’s deliberations in cases initiated at the local school board level (in which the Board acts on the local school division superintendent’s petition for revocation)? • The Superintendent is not present for the Panel’s deliberations, and the proposed guidelines would not change that practice. • With regard to the Superintendent’s presence in the Board’s deliberations, revisions to the guidelines this month differentiate between petitions initiated on motion of the Board and those initiated by a local school board.

6. Decision Points • Does the Board of Education want a staff person from VDOE’s Division of Teacher Education and Licensure to be present for the Panel’s deliberations? • If not, who will be responsible for drafting the Panel’s findings of fact, conclusions of law and recommendation (if that option is adopted by the Board) or summarizing the proceedings and drafting the Panel’s findings and recommendation (if the status quo is maintained)? • Does the Board of Education want a staff person from VDOE’s Division of Teacher Education and Licensure to be present for the Board’s deliberations? • If not, who will be responsible for drafting the Board’s order and the communication to the license holder? • Does the Board of Education want to give license holders the option of having a public hearing as is provided under current law for dismissal hearings at the local school board level (which are sometimes combined with license revocation proceedings)?

7. Decision Points • How far ahead of time do Board of Education members want to receive the exhibits, documents and other evidence that is to be used or referenced at the hearing? • At this time, the materials are mailed two weeks in advance of the hearing. • Does the Board of Education want to accept new exhibits and documents from the license holder on the day of the hearing?

8. Clarifications • The Board’s current (as well as pending) regulations do not provide for consent decrees. • Current law and regulations do not provide for reprimands, warning letters, or any other intermediate sanction. Instead, the Board’s options are no action, denial, revocation, suspension, or reinstatement. • The Board of Education is not required to hold a formal hearing on a petition for revocation because the Board’s basic laws do not require one. • See EDF v. Va. State Water Control Bd., 12 Va. App. 456, 464 (1991) (holding that “[t]he right to a formal hearing is governed by the VAPA and the basic law” and that “formal hearings are not mandatory under Code § 9-6.14:12,”). Former Code § 9-6.14:12 is now Va. Code § 2.2-4020. • See also Haley v. Virginia Real Estate Appraiser Board, 06 Vap UNP 0014064 (2006) (holding that “… where the basic laws do not provide for a formal hearing, the law does not mandate one.” • Va. Code § 2.2-4020 provides that [t]he agency shall afford opportunity for the formal taking of evidence upon relevant fact issues in any case in which the basic laws provide expressly for decisions upon or after hearing and may do so in any case to the extent that informal procedures under § 2.2-4019 have not been had or have failed to dispose of a case by consent.

9. Clarifications • In Goldberg v. Kelly (1970), the U.S. Supreme Court specified the minimum requirements of constitutional due process which must attend administrative proceedings: • timely and adequate notice • the right to confront adverse witnesses and present one’s own evidence • the right to assistance of retained counsel; and • an impartial decision-maker. • The Board has considerable latitude within the parameters of constitutional due process to establish guidelines for conducting licensure hearings. In other words, there is more than “one way” – thus, several decision points will be presented for your consideration and to inform the final version of the guidelines.

10. Clarifications • The Board of Education’s grounds for license revocation are broader than the standard applicable to professions and occupations regulated under Title 54.1 of the Code of Virginia. • Va. Code § 54.1-100 provides that “[t]he right of every person to engage in any lawful profession, trade, or occupation of his choice is clearly protected by both the Constitution of the United States and the Constitution of the Commonwealth of Virginia. The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when (i) it is clearly found that such abridgment is necessary for the protection or preservation of the health, safety, and welfare of the public and (ii) any such abridgment is no greater than necessary to protect or preserve the public health, safety, and welfare.” Emphasis added.

11. Clarifications 8VAC20-22-690 provides • A license issued by the Board of Education may be revoked for the following reasons: • Obtaining or attempting to obtain such license by fraudulent means or through misrepresentation of material facts; • Falsification of school records, documents, statistics, or reports; • Conviction of any felony; • Conviction of any misdemeanor involving moral turpitude; • Conduct with direct and detrimental effect on the health, welfare, discipline, or morale of students; • Misapplication of or failure to account for school funds or other school properties with which the licensee has been entrusted; • Acts related to secure mandatory tests as specified in § 22.1-292.1 of the Code of Virginia; • Knowingly and willfully with the intent to compromise the outcome of an athletic competition procures, sells, or administers anabolic steroids or causes such drugs to be procured, sold, or administered to a student who is a member of a school athletic team, or fails to report the use of such drugs by a student to the school principal and division superintendent as required by § 22.1-279.3:1 of the Code of Virginia. Any person whose administrative or teaching license is suspended or revoked by the board pursuant to this section shall be ineligible for three school years for employment in the public schools of the Commonwealth; or • Other just cause in the best interest of the public schools of the Commonwealth of Virginia.

12. Clarifications • Neither the U.S. Supreme Court nor the Supreme Court of Virginia has ruled on the standard of proof required in order to revoke a professional license through an administrative hearing process when the standard is not set forth in statute. • Other jurisdictions, including the U.S. Court of Appeals for the Second Circuit, have held that the preponderance standard is constitutionally adequate in licensure revocation proceedings and found “a physician’s interest in his license to be less compelling than those interests that the Supreme Court has determined require clear and convincing proof before the state can effect a deprivation” because “if a physician loses his license, he remains free to pursue other employment and otherwise participate in life’s activities.” See Tsirelman v. Daines, 794 F.3d 310 (2015). • Some (state) courts have held that due process requires proof by clear and convincing evidence in licensure revocation proceedings. • The Virginia State Bar and the Virginia Department of Health Professions require proof by clear and convincing evidence in license revocation proceedings. • By statute, the standard of proof is preponderance of the evidence to determine a founded case of child abuse and neglect, but the Commission on Youth is currently reviewing the standard and the additional element of “gross negligence or willful misconduct” that is applicable in complaints against school personnel.

13. Clarifications • For civil cases, it is well settled that, if the statute is silent, the burden of proof is a preponderance of the evidence. • The U.S. Supreme Court has required clear and convincing proof in civil commitment proceedings and deportation proceedings. • The Board of Education may establish a higher standard of proof (i.e., clear and convincing) than the minimum required to satisfy constitutional due process (i.e., preponderance).

14. Clarifications • The Superintendent of Public Instruction is not the petitioner in license revocation actions that originate at the local school division level. • Instead, the Board of Education acts on the local school division superintendent’s petition for revocation. • The Superintendent of Public Instruction is the petitioner only in revocations on the motion of the Board of Education. • Pursuant to Va. Code § 22.1-23, the Superintendent of Public Instruction serves as the Secretary of the Board of Education.

15. Clarifications • The Investigative Panel makes its recommendation to the Superintendent of Public Instruction. • The Superintendent of Public Instruction makes his recommendation to the Board; he does not make a decision on behalf of the Board. • On occasion, the Superintendent’s recommendation to the Board of Education differs from the Panel’s recommendation to the Superintendent. In such cases, the Board considers both recommendations. • Under the proposed guidelines, with one exception, only Panel members and Board members are permitted to ask questions of the license holder and petitioner during hearings. If the petition was initiated by the Board of Education, a VDOE staff person fulfilling the role of petitioner in the proceedings would be permitted to ask questions but only in order to fulfill that role.

16. Revisions to Proposed Guidelines • Most are technical or clarifying in nature such as • Changing the reference from “Office of Teacher Licensure” to “Division of Teacher Education and Licensure” • Correcting grammar and typos and wordsmithing • Some simply articulatecurrent practice such as • Permitting a license holder to hire a court reporter at his/her own expense • Mailing copies of exhibits, documents, and other evidence that will be used during a hearing to the license holder ahead of time • Considering the recommendation of the Panel as well as that of the Superintendent (because they sometimes differ)

17. Revisions to Proposed Guidelines • Other revisions simply import language already in the Board’s regulations such as • Making reference to “renewal or reinstatement” instead of “renewal” only • Making reference to “on motion of” the Board • Inserting “The Board shall consider the recommendation of the Superintendent of Public Instruction and such relevant and material evidence as the license holder may desire to present at the hearing.” See Proposed Guidelines, Page 6.

18. Revisions to Proposed Guidelines • Some revisions that are substantive such as: • Allowing excerpts of text-based materials to be presented but requiring one copy of the text materials in their entirety to be submitted and become part of the record. See Proposed Guidelines, page 2. • Clarifying that the FERPA/redaction provisions pertain to personally identifiable information from educational records (as opposed to investigative files) and describing new restrictions that will be imposed on the release of directory information from educational records effective on July 1, 2018. See Proposed Guidelines, page 3.

19. Revisions to Proposed Guidelines • Substantive revisions continued… • Providing for recusal by the Superintendent of Public Instruction and, under such circumstances, authorizing the Deputy Superintendent to act on behalf of the Board to review the record and decide whether to initiate a petition. See Proposed Guidelines, page 5. • Clarifying that, in extraordinary circumstances, the Board may consider additional inculpatory evidence that was not available to the Panel. See Proposed Guidelines, page 6.

20. Revisions to Proposed Guidelines • Substantive revisions continued… • Differentiating between hearings on petitions initiated by a local school board and those initiated on motion of the Board of Education as follows: • The Superintendent of Public Instruction will participate in the Board’s deliberations on petitions initiated by a local school board. (Note: This is a decision point.) • The Superintendent of Public Instruction will not participate in the Board’s deliberations on petitions initiated on motion of the Board of Education. • See Proposed Guidelines, page 8.