Current through Register Vol. XLI, No. 50, December 13, 2024
Section 126-4-8 - General Hearing Procedures8.1. Quorum. 8.1.a. In any matter in which the Professional Practice Panel, Licensure Appeal Panel, or the School Bus Operator Review Panel convenes to hear and make a recommendation to the State Superintendent, a quorum, or majority, of the Panel members shall be required.8.2. Open Hearings.8.2.a. In cases involving the revocation, suspension, recall, denial for cause, or reinstatement of a teacher's license or a school bus operator's certificate, all hearings shall be open to the public, unless the teacher, teacher applicant, school bus operator, or school bus operator applicant requests that the hearing be closed.8.2.b. In all hearings before the State Superintendent, designee, or a Panel, portions of a hearing may be closed to the public when evidence under the Family Education Rights and Privacy Act, 12 U.S.C. § 1232g, is presented.8.2.c. In all hearings before the State Superintendent, designee, or a Panel, students shall be referred to by their initials, whenever possible.8.3. Notice. 8.3.a. At least ten days prior to any hearing, the State Superintendent shall cause a written notice of hearing to be served upon a teacher, teacher applicant, school bus operator, school bus operator applicant, or any other person who is a party to the proceeding to which the hearing pertains.8.3.b. Notice given under this section shall include: 8.3.b.1. a statement of the date, time, place, and nature of the hearing;8.3.b.2. a statement of the legal authority and jurisdiction under which the hearing is to be held;8.3.b.3. a reference to the statute, policy, rule, or regulation involved in the proceeding;8.3.b.4. a short, plain description of any alleged conduct or alleged facts that have given rise to the hearing; and8.3.b.5. the possible actions that may be taken after the hearing is concluded.8.3.c. Service of the written notice shall be made upon a party by personal service or by registered or certified mail, return receipt requested.8.3.d. Upon timely request by a party, a more definite statement of the issues and/or claims involved in the proceeding shall be provided.8.3.e. After a hearing has begun, the State Superintendent, designee, or the Chair of the appropriate Panel, may adjourn the hearing from one day to another, or to another place, by announcing the date, time and place for reconvening the hearing.8.3.f. In cases involving the revocation, suspension, recall, denial for cause, or reinstatement of a teacher's license or a school bus operator's certificate, if a party fails to appear and defend after proper notice, the State Superintendent, designee, or the appropriate Panel may deem the allegations and/or claims admitted and confessed by default.8.4. Continuances.8.4.a. Upon receipt of a notice of hearing, any party to the proceeding may request a continuance of the hearing.8.4.b. The State Superintendent, designee, or the Chair of the appropriate Panel, may grant a continuance of the hearing for good cause shown.8.4.c. A continuance may be ordered by the State Superintendent, designee, or the Chair of the appropriate Panel.8.5. Subpoenas and Subpoenas Duces Tecum.8.5.a. In cases involving the revocation, suspension, recall, denial for cause, or reinstatement of a teacher's license or a school bus operator's certificate, the State Superintendent may issue subpoenas to compel testimony or subpoenas duces tecum to compel the production of documents, books, records, papers, and other items.8.5.b. Any party to a teacher licensure or school bus operator certification proceeding may request the issuance of subpoenas or subpoenas duces tecum to compel testimony or production of documents at a hearing. Such a request shall be in writing to the State Superintendent and shall contain the names and addresses of the witnesses and/or a description of the documents sought.8.5.c. Any party who requests the issuance of subpoenas or subpoenas duces tecum for a hearing shall be responsible for proper service and payment of fees for the attendance and travel of witnesses in accordance with the requirements of the West Virginia Administrative Procedures Act, W. Va. Code § 29A-5-1(b). The written request for the issuance of subpoenas or subpoenas duces tecum shall contain a statement acknowledging that the requesting party agrees to pay such fees.8.5.d. Every subpoena or subpoena duces tecum shall be served at least five days before the date of the hearing either by personal service made by a person over 18 years of age or by registered or certified mail. If served by registered or certified mail, a return acknowledgement or receipt signed by the person to whom the subpoena or subpoena duces tecum is directed shall be required to prove service.8.5.e. In the case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which the witness may be lawfully interrogated, the State Superintendent may make application in the circuit court of the county in which the hearing is being held to compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from a circuit court or a refusal to testify therein.8.6. Evidence. 8.6.a. The formal rules of evidence as applied in civil cases shall be relaxed.8.6.b. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded.8.6.c. Hearsay evidence may be admitted if it is of a type that is commonly relied upon by reasonably prudent people.8.6.d. The rules of privilege recognized by West Virginia law shall apply.8.6.e. Revocation, suspension, or other action against a teacher's license or a school bus operator's certificate in another jurisdiction or refusal by another jurisdiction to issue a teacher's license or a school bus operator certificate shall be prima facie evidence of grounds for revocation, suspension, denial for cause, or other action against the license or certificate in West Virginia.8.6.f. The State Superintendent, designee, or any Panel authorized to conduct hearings and make recommendations to the State Superintendent shall have the authority to: 8.6.f.1. receive evidence;8.6.f.2. determine the weight and credibility of any evidence and/or testimony;8.6.f.3. determine the admissibility of evidence;8.6.f.4. examine witnesses;8.6.f.5. set reasonable times within which a party may present evidence and within which a witness may testify;8.6.f.6. permit and limit oral argument;8.6.f.7. require written arguments to be filed by the parties on a fixed date;8.6.f.8. take administrative notice of any fact which may be judicially noticed by a court or any fact within the specialized expertise or knowledge of the State Superintendent, and allow any party a fair opportunity to refute a fact so noticed;8.6.f.9. regulate the course of the hearing;8.6.f.10. determine procedural matters;8.6.f.11. take or cause depositions to be taken whenever fundamental fairness or other circumstances warrant; and8.6.f.12. perform other duties or take other action necessary to a fair and proper hearing.8.7. Oaths or Affirmations. 8.7.a. Each witness who provides testimony at a hearing shall be administered an oath or affirmation by the State Superintendent, a court reporter, or any other person authorized to administer oaths or affirmations.8.8. Burden of Proof. 8.8.a. In cases involving the revocation, suspension, recall, or denial for cause of a teacher's license or a school bus operator's certificate, the State Superintendent has the burden of proof to show by a preponderance of the evidence that the claims set forth in the notice of hearing are true.8.8.b In cases involving the reinstatement of a teacher's license or a school bus operator's certificate that has been suspended or revoked, the teacher or school bus operator applying for reinstatement has the burden of proof to show by a preponderance of the evidence that reinstatement is warranted.8.8.c. In cases involving the discipline of a teacher's license in which it is alleged that the teacher has engaged in conduct involving intemperance, cruelty, or immorality; or, using fraudulent, unapproved, or insufficient credit to obtain licensure, the State Superintendent must demonstrate a rational nexus between the conduct of the teacher and the teacher's job performance.8.8.d. In cases involving the discipline of a school bus operator's certificate in which it is alleged that the school bus operator has engaged in conduct involving intemperance, untruthfulness, cruelty, or immorality; using fraudulent, unapproved, or insufficient credit to obtain certification; or, conduct constituting just and sufficient cause for discipline as specified by WVBE rule or policy, the State Superintendent must demonstrate a rational nexus between the conduct of the school bus operator and the school bus operator's job performance.8.9. Recording and Transcripts. 8.9.a. All hearings shall be recorded by electronic means or by a court reporter.8.9.b. A transcript of the hearing may be produced, if necessary.8.9.c. Where there is an available recording or transcript of proceedings before a county board of education, or before any court of record or other official or body concerning issues which form or support the basis for a hearing, any party may seek to have such recording or transcript considered as evidence in lieu of producing the witness or witnesses whose testimony is contained in the recording or transcript. Any party seeking to introduce such a recording or transcript shall provide copies of the same to all other parties and the person or Panel presiding over the hearing.8.10. Representation. 8.10.a. Parties may represent themselves; may be represented by a lay representative; or, by an attorney licensed to practice law in the State of West Virginia.8.10.b. Attorneys who are not licensed to practice law in the State of West Virginia, and who seek to represent a party in a proceeding subject to the terms and conditions of this policy, must comply with Rule 8.0, Admission Pro Hac Vice, of the West Virginia Rules for Admission to the Practice of Law promulgated by the West Virginia Supreme Court of Appeals, before representing any party.8.11. Decisions. 8.11.a. At the conclusion of the hearing, if post-hearing written arguments are not to be submitted, the State Superintendent, designee, or a Panel may adjourn into closed session to deliberate upon a decision.8.11.b. Upon completion of deliberations, the State Superintendent, designee, or a Panel may exit the closed session and orally announce a decision to the parties.8.11.c. Whether or not a decision is orally announced to the parties, all decisions shall be reduced to writing and shall contain findings of fact, conclusions of law, and an appropriate resolution. If a hearing is conducted by a Panel or a designee, a written recommended decision containing proposed findings of fact, conclusion of law, and a recommended resolution shall be issued to the State Superintendent.8.11.d. The following are the possible actions that may be recommended by a designee or Panel, or taken by the State Superintendent, after a hearing with regard to discipline of a teacher's license or a school bus operator's certificate: 8.11.d.1. revocation with the condition that the teacher or school bus operator may apply for reinstatement after the expiration of five years from the effective date of the revocation and with or without specified conditions that must be met for reinstatement;8.11.d.2. permanent revocation with the condition that the teacher or school bus operator may not apply for reinstatement;8.11.d.3. suspension for a fixed period of time with or without specified conditions that must be met upon application for reinstatement after the period of suspension;8.11.d.4. recall, if a license or certificate was granted through error, oversight, or misinformation;8.11.d.6. limitations or conditions upon a license or certificate; or8.11.e. Notwithstanding the possible actions that may be recommended or taken as set forth in section 8.11.d, in cases where a teacher is found to have committed any act of sexual abuse of a student or minor or to have engaged in inappropriate sexual conduct with a student or minor; committed an act of cruelty to children or an act of child endangerment or solicited, encouraged, engaged in, or consummated an inappropriate relationship with any student, minor, or individual; exploited a student within 12 months of that student's graduation; or engaged in grooming a student or minor, the teacher's license shall be revoked for a period of not less than five years as required by W. Va. Code § 18A-3-6(c).8.11.f. The following are the possible actions that may be recommended by a designee or Panel, or taken by the State Superintendent, after a hearing with regard to the denial for cause of an application for a teacher's license of school bus operator's certificate: 8.11.f.1. granting the application with or without specified conditions;8.11.f.2. denying the application with the condition that the denial is permanent and the applicant may not re-apply at a later date;8.11.f.3. denying the application with the condition that the applicant may reapply after a specified period of time and with or without specified conditions that must be met upon reapplication.8.11.g. Upon receipt of a recommended decision, the State Superintendent shall review the same, along with the record, and issue a final order: 8.11.g.1. adopting or modifying the recommended decision, in whole or in part;8.11.g.2. declining to adopt the recommended decision, in whole or in part;8.11.g.3. remanding the proceeding to the Panel or designee with instructions for further proceedings; or8.11.g.4. remanding the proceeding to the Panel or designee with instructions for further consideration without reopening the hearing.8.11.h. If the State Superintendent modifies or declines to adopt a recommended decision of a Panel or designee, either in whole or in part, the State Superintendent shall issue a reasoned, articulate explanation and a recitation of the underlying evidence or other matters upon which the State Superintendent bases the decision and the particularized findings of fact and conclusions of law that support the decision.8.11.i. Within 30 days following the State Superintendent's receipt of a recommended decision of a Panel or designee, the State Superintendent shall issue a final order which shall be served upon the parties by personal service or by registered or certified mail, return receipt requested.8.11.j. If a hearing is conducted by the State Superintendent, the State Superintendent shall issue a written decision containing findings of fact and conclusions of law within 30 days following the conclusion of the hearing. The written decision shall be served upon the parties by personal service by a person 18 years of age or by registered or certified mail, return receipt requested.8.11.k. The State Superintendent has discretion to extend the 30 day period referred to in sections 8.11.i and 8.11.j by giving written notice to the parties.8.12. Waiver of Rules. 8.12.a. A party to a proceeding subject to the terms and conditions of this policy may voluntarily waive any of the provisions of this policy relating to notice and the presentation of evidence.