§ 233.123. Reinstatements.
(a) Application for reinstatement.
(1) Under section 16 of the act (24 P. S. § 2070.16), an educator whose certificate or employment eligibility has been suspended, surrendered or revoked may apply to the Commission for an order lifting the suspension or reinstating the certificate or employment eligibility. The application should be filed with the Commission, served upon the Department in accordance with 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) and be in the form prescribed by the Commission. The educator shall indicate expressly whether the educator wishes to invoke or waive the right to a hearing.
(2) The Commission will immediately assign a docket number and inform the educator, the Department and the governing board of the school entity or entities where the educator was employed at the time the misconduct occurred, as well as the school entity by which the applicant was last employed, if different.
(3) In accordance with section 16(b) of the act, the Commission will not consider any application for reinstatement of any educator whose certificate or employment eligibility was revoked or suspended as a result of a finding of guilt for sexual abuse or exploitation, or who surrendered a certificate or employment eligibility for conduct related to sexual abuse or exploitation.
(4) In accordance with section 16(c) of the act, the Commission will not consider any application for reinstatement of a certificate or eligibility of an educator convicted of a crime under 18 Pa.C.S. (relating to Crimes Code) set forth in section 111(e)(1)—(3) of the Public School Code of 1949 (24 P. S. § 1-111(e)(1)—(3)) for the time period established in that section.
(b) Recommendation of the Department and local school entity.
(1) Under section 16 of the act, the Department and the school entity or entities in which the educator was employed at the time of the misconduct may review the application and, based upon the information in the application and any investigation the Department or school entity or entities might deem appropriate, make a recommendation regarding the application within 90 days, or the time designated by the Commission, after their receipt of the application.
(2) The recommendation of the Department and of the school entity or entities should be served upon the educator in accordance with 1 Pa. Code Part II.
(3) The Executive Director will verify that the Department and the school entity or entities in which the educator was employed at the time of the misconduct have received the application for purposes of making a recommendation. If the Commission has not received the Department’s or the school entity’s or entities’ recommendation or a request for additional time in which to respond within the time prescribed, the Commission will presume that the Department or the school entity or entities has no position on the application.
(4) The decision making of the Commission will be best served if the Department conducts an investigation of the justification and propriety of the relief requested by the educator and provides complete information to support its recommendation.
(c) Notices.
(1) The confidentiality provisions of section 17.2 of the act (24 P. S. § 2070.17b) do not apply to applications for reinstatement. It is the policy of the Commission to conduct proceedings involving applications for reinstatement in public and to provide the public with a full opportunity to comment upon these applications by publishing the appropriate notice in the Pennsylvania Bulletin consistent with the format prescribed by 1 Pa. Code § § 11.31 and 11.32 (relating to sample notice of opportunity for hearing; and sample notice of hearing). The notice will describe the application and will provide interested persons and entities 30 days within which to petition to intervene or file protests with the Commission.
(2) The Executive Director will provide copies of all notices prescribed by this subsection to the applicant educator, the Department, the school entity or entities where the misconduct occurred, and the governing board of the school entity by which the applicant was last employed, if known.
(d) Waiver of hearing. Notwithstanding the educator’s waiver of a hearing, the Department may request a hearing or the Commission may appoint a hearing officer to prepare a proposed report or proceed directly to consider the application.
(e) Hearing procedures.
(1) Hearing officer appointed. If it has been determined that a hearing will be held, the Commission will appoint a hearing officer from a list of impartial third parties qualified to conduct hearings from the list agreed upon jointly by the Governor’s General Counsel and at least two-thirds of the Commission under section 13(c)(1) of the act (24 P. S. § 2070.13(c)(1)).
(2) Burden of proof.
(i) Burden of proof on applicant. The burden of proof is on the applicant to establish that the relief the applicant seeks is just and proper. The applicant may not contest the allegations of misconduct that resulted in the revocation, suspension or surrender of the applicant’s certificate or employment eligibility.
(ii) Just and proper standard. For purposes of determining whether it is just and proper to lift a suspension or reinstate a certificate, at a minimum, the Commission may consider the following:
(A) The conduct which resulted in discipline or which led to the surrender.
(B) Other past conduct of the applicant.
(C) The applicant’s current attitude towards past conduct.
(D) Rehabilitation efforts and activities.
(E) References and letters of support or opposition.
(3) Right to counsel. An applicant has the right to be represented by counsel and to present evidence and argument in accordance with 1 Pa. Code Part II and other rules of procedure promulgated by the Commission.
(4) Hearing officer’s proposed report. Within 90 days after the conclusion of the hearing, including briefing and oral argument, the hearing officer will issue a proposed report concerning whether relief should be granted. A proposed report will include proposed findings of fact and conclusions of law, and will specify the relief, if any, proposed.
(5) Exceptions to hearing officer’s decision.
(i) The proposed report of the hearing officer will become final unless excepted to by a party within 30 days after the date the proposed report was mailed or unless the Commission initiates a review of the hearing officer’s proposed report in the absence of exceptions or reopens the proceeding for the reception of further evidence within 60 days of the date the proposed report was mailed. If no timely exceptions are filed and the Commission does not initiate a review of the proposed report in the absence of exceptions or reopen the proceeding for the reception of further evidence, the Commission will at its next regularly scheduled meeting consider the report of the hearing officer and issue an order implementing the hearing officer’s proposed report.
(ii) If timely exceptions are filed or the Commission initiates a review of the proposed report in the absence of exceptions or reopens the proceeding for the reception of further evidence, the Commission, within a reasonable time, will by a majority vote of its full membership accept, modify or reject the hearing officer’s proposed report and issue a written decision.
(6) Automatic reinstatement.
(i) Any certificate or employment eligibility suspended or revoked pursuant to a criminal indictment or conviction under section 9.2 of the act (24 P. S. § 2070.9b) will be reinstated upon notice to the Commission that the criminal indictment has been dismissed or that the conviction was overturned and the underlying charges dismissed.
(ii) Notice to the Commission means the filing of court records reflecting the dismissal. The court records shall be certified or bear comparable written indicia of validity.
(iii) The Commission authorizes its legal counsel to enter reinstatement orders under this subsection. Legal counsel shall report all reinstatement orders to the Commission at its regularly scheduled meetings.
Source The provisions of this § 233.123 adopted May 3, 2002, effective May 4, 2002, 32 Pa.B. 2226; amended September 11, 2015, effective September 12, 2015, 45 Pa.B. 5586. Immediately preceding text appears at serial pages (289679) to (289683).
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