Ariz. Admin. Code § 7-2-206

Current through Register Vol. 30, No. 50, December 13, 2024

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

A. Request for hearing. A person who has had an application for certification denied by the Department of Education pursuant to A.R.S. § 15-534.01(B) may file a written request for a hearing with the Board within 15 days after being served notice of the denial pursuant to subsection C of this section. Intermediate Saturdays, Sundays 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. Applications for certification that involve allegations of immoral or unprofessional conduct shall be reviewed by the Professional Practices Advisory Committee pursuant to R7-2-205.

B. 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 hearing.

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. Thereafter upon application a more definite and detailed statement shall be furnished.

C. Service of documents; change of address notice requirement

1. Every notice or decision issued by the Board or the Department pertaining to the denial of an application for initial certification or renewal of a certificate shall be served by personal delivery, first class mail or certified mail, return receipt requested, to the applicant 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 applicant or the certificated person. A document is filed with the Board on the date it is received by the Board, as established by the Board's date stamp on the face of the document. A document issued by the Board or the Department pursuant to this section is served on a party as follows:

a. On the date it is personally served.

b. Five days after it is mailed by first class mail.

c. On the date of the return receipt if it is mailed by certified mail.

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

D. Hearing process

1. All hearings shall be conducted before the Board or a hearing officer pursuant to A.R.S. Title 41, Chapter 6, Article 6 and this section.

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

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

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

5. The Board may dispose of any certification appeal by decision or approved stipulation, agreed settlement, consent agreement or by default.

6. A hearing shall be recorded manually or by a recording device and shall be transcribed on request of any party, unless otherwise 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.

7. The hearing may be rescheduled, maintaining due regard for the interests of justice and the orderly and prompt conduct of the proceedings.

8. 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 officer;

g. All staff memoranda, other than privileged communications, or data submitted to the hearing officer in connection with its consideration of the case.

9. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

10. 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 evidence required in judicial proceedings shall be grounds for reversing any administrative decision or order, providing the evidence supporting such decision or order is substantial, reliable, and probative. Irrelevant, immaterial or unduly repetitious evidence shall be excluded. Every person 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-examination. Unless otherwise provided by law, hearings may be held at any place determined by the Board. At such hearing such applicant shall be the moving party and have the burden of proof.

11. Copies of documentary evidence may be received in the discretion of the hearing officer. Upon request, the parties shall be given an opportunity to compare the copy with the original.

12. Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the specialized knowledge of the hearing officer. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material noticed including any staff memoranda or data and they shall be afforded an opportunity to contest the material so noticed. The hearing officer's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence.

E. Subpoenas

1. The hearing officer may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence on the hearing officer's 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 case, the case number, and the date, time and place where the witness is expected to appear and testify;

b. The name and address of the witness subpoenaed;

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

d. A brief statement of the relevance of the testimony or documents.

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

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

5. The hearing officer shall quash or modify the subpoena if:

a. It is unreasonable or oppressive; or

b. The desired testimony or evidence may be obtained by an alternative method.

6. 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 Board.

F. Conduct of hearing

1. The hearing officer may conduct all or part of the hearing by telephone 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 presentation of evidence protected by law as confidential, or which are otherwise closed pursuant to an express provision of law, all hearings are open to public observation.

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

G. Evidence

1. All witnesses shall testify under oath or affirmation.

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

3. All parties shall have the right to present such oral or documentary evidence and to conduct such cross-examination as may be required for a full and fair disclosure of the facts.

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

5. Unless otherwise ordered by the hearing officer, documentary evidence shall be limited in size when folded to 8 1/2 by 11 inches. The submitting party shall identify documentary exhibits by number or letter and party and furnish a copy of each exhibit to each party present. One additional copy shall be furnished to the hearing officer unless the hearing officer otherwise directs. When evidence offered by any party appears in a larger work, containing 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 evidence but may be marked for identification and, if properly authenticated, the designated portion may be read into or photocopied for the record. All documentary evidence offered shall be subject to appropriate and timely objection.

H. 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 hearing officer, agreement on matters of procedure shall be binding upon the parties to the stipulation. The hearing officer may require presentation of evidence for proof of stipulated facts for the hearing officer's consideration. No substantive matter agreed to by the parties shall be binding upon the Board unless incorporated into the decision of the Board.

I. Recommendations

1. A recommended decision shall be prepared for the Board by the hearing officer and shall include findings of fact and conclusions of law, separately stated.

2. Parties shall be notified either personally or by mail to their last known address of any decision or order.

3. 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.

J. 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 decision from the hearing officer, 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 officer with instructions, or may convene itself as the hearing body.

K. Rehearing and review of decisions

1. After a hearing is held, a 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 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 filing 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 prevented 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 paragraph 2 of this subsection. An order granting a rehearing shall specify with particularity the ground or grounds on which the rehearing 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 parties. 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 decision. If a review of the decision is granted, the Board may affirm or modify the previous decision.

Ariz. Admin. Code § R7-2-206

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). Amended by final exempt rulemaking at 25 A.A.R. 98, effective 12/17/2018.