§ 233.123. Reinstatements.

 (a)  Application for reinstatement.

   (1)  Under section 16 of the act (24 P. S. §  2070.16), an educator whose certificate or eligibility to serve in a charter school has been suspended, surrendered or revoked may apply to the Commission for an order lifting the suspension or reinstating the certificate or 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 by which the applicant was last employed.

   (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the Commission will not consider any application for reinstatement of any educator whose certificate or eligibility was revoked or suspended as a result of a finding of guilt for sexual abuse or exploitation or who surrendered a certificate or eligibility in lieu of discipline for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 the 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.

   (1)  Under section 16 of the act, the Department may review the application and, based upon the investigation and information it might deem appropriate, make a recommendation regarding the application within 90 days, or the time designated by the Commission, after its receipt of the application.

   (2)  The recommendation of the Department should be served upon the educator in accordance with 1 Pa. Code Part II.

   (3)  The Executive Director will verify that the Department has received the application for purposes of making a recommendation. If the Commission has not received the Department’s recommendation or a request for additional time in which to respond within the time prescribed, the Commission will presume that the Department 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 10 of the act (24 P. S. §  2070.10) 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.

   (2)  If the Department recommends approval of the application or fails to make a recommendation, the Executive Director of the Commission will publish in the Pennsylvania Bulletin a notice of opportunity for hearing consistent with the format prescribed by 1 Pa. Code §  11.31 (relating to sample notice of opportunity for hearing). The notice will describe the application and the Department’s recommendation and will state that the Commission may act upon the application, without hearing, unless within 30 days an interested party or entity files a petition to intervene or files a protest to the application with the Commission under 1 Pa. Code § §  35.23 and 35.24 (relating to protests).

   (3)  If the Department opposes the application, but the applicant has waived the opportunity for hearing and the Department has not requested a hearing, the Executive Director of the Commission will publish in the Pennsylvania Bulletin a notice of opportunity for hearing consistent with the format prescribed by 1 Pa. Code §  11.31. The notice will describe the application and the Department’s recommendation and will further state that the Commission may act upon the application, without hearing, unless within 30 days an interested person or entity files a petition to intervene or files a protest to the application with the Commission under 1 Pa. Code § §  35.23 and 35.24.

   (4)  If the Department opposes the application and the applicant or the Department has requested a hearing, or if the Commission determines to hold a hearing without request, the Executive Director will publish in the Pennsylvania Bulletin a notice of hearing consistent with the format prescribed by 1 Pa. Code §  11.32 (relating to sample notice of hearing). The notice will describe the application and the Department’s recommendation and will state that a hearing officer has been appointed to conduct hearing proceedings in accordance with the act, 1 Pa. Code Part II and other rules and procedures the Commission might promulgate. The notice will further provide interested persons and entities 30 days within which to petition to intervene or file protests with the Commission.

   (5)  The Executive Director will provide copies of all notices prescribed by this subsection to the applicant educator, the Department 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.

   (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.

     (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 decision. Within 60 days after the conclusion of the hearing, including briefing and oral argument, the hearing officer will issue a decision concerning whether relief should be granted. A decision 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 decision of the hearing officer will become final unless excepted to by a party within 30 days after the filing and service of the recommended decision. If no timely exceptions are filed, 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 decision.

     (ii)   If timely exceptions are filed, the Commission, within a reasonable time, will consider the exceptions and by a majority vote of its full membership, will accept, modify or reject the hearing officer’s decision. The Commission will issue a written opinion and order announcing its decision within 45 days of receiving the exceptions or brief on exceptions and hearing oral argument.

   (6)  Automatic reinstatement.

     (i)   Any professional certificate or 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)   Upon receipt of the notice, the Commission will provide the Department and the governing board of the school entity by which the educator was last employed with a copy of the notice. Within 10 days from the receipt of the notice, the Department may challenge the validity of the court records. In the absence of challenge, the Commission will direct the Department to immediately reinstate the certificate or eligibility.

     (iv)   The Commission authorizes its legal counsel to enter reinstatement orders. Legal counsel shall report all reinstatement orders to the Commission at its regularly scheduled meetings.

   The provisions of this §  233.123 adopted May 3, 2002, effective May 4, 2002, 32 Pa.B. 2226.