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Policies and Procedures

1. Proceedings Relating To Action On An Application For Certification Or An Educator’s Certification

1.5. Procedure: Hearing Phase

  • Approved April 10, 2017

I. The hearing officer shall preside over the conduct of an administrative hearing and shall regulate the course of the proceedings in a manner which will promote the orderly and prompt conduct of the hearing. KRS 13B.080(1).

II. Right to Counsel. Any party to an administrative hearing may participate in person or be represented by counsel. KRS 13B.080(5).

III. Record. The original of all filings shall be mailed to the offices of the EPSB, and copies of any filed item shall be served on all parties and the hearing officer by mail, or any other means permitted by law. The EPSB shall stamp the time and date upon the document when the document is received. KRS 13B.080(2).

IV. Pre-Hearing Process.

  1. Pre-Hearing Conference. The hearing officer shall schedule a pre-hearing conference upon reasonable notice to all parties. KRS 13B.070.
    1. During the pre-hearing conference, the hearing officer will explore jurisdictional matters, mediation and settlement possibilities, preparation of stipulations, clarification of issues, rulings on witnesses, taking of evidence, issuance of subpoenas and orders, and other matters that will promote the orderly and prompt conduct of the hearing.
    2. Upon conclusion of a prehearing conference, the hearing officer shall issue a prehearing order incorporating all matters determined at the prehearing conference. If a prehearing conference is not held, the hearing officer may issue a prehearing order, based on the pleadings, to regulate the conduct of the hearing.
  2. Pre-Hearing Matters and Discovery. KRS 13B.080(2) – (3).
    1. The hearing officer, at appropriate stages of the proceedings, shall give all parties full opportunity to file pleadings, motions, objections, and offers of settlement. The hearing officer, at appropriate stages of the proceedings, may give all parties full opportunity to file briefs, proposed findings of fact and conclusions of law, and proposed recommended or final orders.
    2. The hearing officer may issue subpoenas and discovery orders when requested by a party or on his or her own volition. When a subpoena is disobeyed, any party may apply to the Circuit Court of the judicial circuit in which the administrative hearing is held for an order requiring obedience. Failure to comply with an order of the court shall be cause for punishment as contempt of the court.

V. Default. If a party properly served under KRS 13B.050 fails to attend or participate in a prehearing conference, hearing, or other stage of the administrative hearing process, or fails to comply with the orders of a hearing officer, the hearing officer may adjourn the proceedings and issue a default order granting or denying relief as appropriate. A Default Order shall be considered a Recommended Order and shall be processed as provided in KRS 13B.110. KRS 13B.080(6).

VI. Hearing.

  1. Burden of Proof. KRS 13B.090(7).
    1. The EPSB’s proposed action on a certification currently held.
      1. The EPSB has the burden of proof on any issue, has the burden of going forward, and the ultimate burden of persuasion as to that issue.
      2. The EPSB must demonstrate by the preponderance of evidence in the record that the penalty sought is appropriate.
      3. The educator has the burden of asserting an affirmative defense and has the burden to establish that defense.
    2. Applicant’s appeal on the EPSB’s denial of an application of certification.
      1. The applicant has the burden of proof and the ultimate burden of persuasion as to that issue.
      2. The applicant must demonstrate by the preponderance of evidence in the record entitlement to the benefit sought.
      3. The EPSB has the burden of asserting an affirmative defense and has the burden to establish that defense.
  2. Recommended Order. As appropriate, the presiding hearing officer shall issue a Recommended Order in conformance with the requirements of KRS Chapter 13B.
    1. Timeframe.
      1. The hearing officer shall complete and submit that Recommended Order to the EPSB no later than 60 days after receiving a copy of the official record of the proceeding. KRS 13B.110(1).
      2. If an extension of time is needed, the hearing officer may submit a request to the EPSB in accordance with KRS 13B.110.
    2. Format. In addition to the requirements of KRS Chapter 13B, the Hearing officer’s recommendation shall be consistent with the EPSB’s policy and procedures.
      1. The hearing officer’s Recommended Order shall include only those sanctions that are permitted pursuant to KRS 161.120 (1) and shall not to exceed the time limits set forth in KRS 161.120 (10) – (11).
      2. The hearing officer shall consider the factors set forth in Procedure Section 3, IIA when recommending sanctions.

VII. Filing of Exceptions. A party may file any exceptions to the Recommended Order within 15 days of the date the Recommended Order is mailed in accordance with KRS 13B.110(7), if applicable. This time limit may not be extended and no responses to exceptions shall be considered by the Board.

  1. Service
    1. Exceptions shall be served upon the other party by mail or any other means permitted by law.
    2. Original shall be mailed to the offices of the EPSB.
  2. Waiver. Any disagreement with a factual finding or conclusion of law in the Recommended Order not contained in an exception to the Recommended Order shall be waived.
  3. Form of Exceptions. Each exception or reply to a finding of fact or conclusion of law should be concisely stated and should summarize the evidence in support of each exception.
    1. Any evidence or arguments relied upon shall be grouped under the exceptions to which they relate.
    2. In summarizing evidence, the parties shall include a specific citation to the hearing record where such evidence appears or shall attach the relevant excerpts from the hearing record.
    3. Arguments shall be logical and coherent and citations to authorities shall be complete.
  4. Basis for Exceptions. Exceptions to the Recommended Order may include the following:
    1. the hearing officer has made an incorrect conclusion of law;
    2. the hearing officer has failed to make an essential fact finding;
    3. the hearing officer applied the incorrect burden or standard of proof;
    4. the findings of fact do not support the conclusions of law;
    5. the hearing officer has made a finding of fact that is not supported by the preponderance of the evidence; or
    6. the hearing officer recommended a sanction not permitted by law.
  5. VIII. Disclosure.
    1. All records relating to a private hearing are generally deemed preliminary and, therefore, exempt from disclosure pursuant to KRS 61.878 and KRS 13B.080 (8) during the hearing phase.
    2. Regardless of whether an educator elects to proceed with a private or public hearing, the Recommended Order and hearing transcript are considered preliminary and, therefore, exempt from disclosure pursuant to KRS 61.878 until the EPSB issues its Final Order.