Delaware General Assembly

CHAPTER 268,

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 259

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 1217, Title 14 of the Delaware Code by deleting the same in its entirety and substituting in lieu thereof the following:

Ҥ 1217. Denial of Licenses

(a) Pursuant to rules and regulations promulgated and adopted pursuant to this chapter, the Department may deny an applicant’s application for a license for failure to meet the qualifications for a license. The Department may further deny a license to an applicant who otherwise meets the requirements of this subchapter for any of the causes enumerated in sections 1218(a) and (b) of this title.

(b) The Department shall not take action to deny a license under this section without providing the applicant with written notice of the reasons for denial and with an opportunity for a full and fair hearing before the Standards Board.

(c) In any hearing before the Standards Board to challenge action taken under this section, the Standards Board shall have the power to administer oaths, order the taking of depositions, issue subpoenas, and compel attendance of witnesses and the production of books, accounts, papers, records, documents, and testimony.

(d) The burden of proof in a license denial action is on the applicant to show by a preponderance of the evidence that he or she should not be denied a license because he or she meets the qualifications for licensure pursuant to the applicable laws and regulations.”

Section 2. Amend § 1218, Title 14 of the Delaware Code by deleting the same in its entirety and substituting in lieu thereof the following:

Ҥ 1218. Limitation, Suspension and Revocation of Licenses

(a) The Secretary may suspend, revoke, or limit a license that has been issued to any person pursuant to this chapter, for the following causes:

(1) Obtaining or attempting to obtain a license or certificate by fraudulent means or through misrepresentation of material facts;

(2) Falsifying official school records, documents, statistics, or reports;

(3) Knowingly violating any of the provisions of the Student Testing Program set forth in Section 172 of this title;

(4) Pleading guilty or nolo contendere with respect to, or is convicted of, any crime against a child constituting a misdemeanor, except for Unlawful Sexual Contact in the Third degree;

(5) Pleading guilty or nolo contendere with respect to, or is convicted of, possession of a controlled substance or a counterfeit controlled substance classified as such in Schedule I, II, III, IV or V of Chapter 47 of Title 16;

(6) Being terminated or dismissed for immorality, incompetence, misconduct in office, willful neglect of duty, disloyalty, or misconduct involving any cause for suspension or revocation of a license provided for in this section;

(7) Resigning or retiring pending dismissal for immorality, provided that clear and convincing evidence establishes the underlying misconduct occurred; or

(8) Having had a license or certificate suspended, revoked, or voluntarily surrendered in another jurisdiction for cause which would be grounds for suspension or revocation under this section.

(b) Notwithstanding the provisions of subsection (a) of this section, the Secretary shall revoke a license if the license holder:

(1) Pleads guilty or nolo contendere with respect to, or is convicted of:

(a) Any crime constituting the manufacture, delivery, possession with intent to manufacture or deliver a controlled substance or a counterfeit controlled substance classified as such in Schedule I, II, III, IV or V of Chapter 47 of Title 16;

(b) Any crime constituting a violent felony as defined in § 4201(c) of Title 11;

(c) Any crime against a child constituting a felony, or Unlawful Sexual Contact in the Third degree;

(d) Any crime constituting a felony sexual offense; or

(e) Any crime constituting a felony offense against public administration involving bribery, improper influence or abuse of office; or

(2) Is terminated or dismissed for a sexual offense against a child; or

(3) Resigns or retires after official notice of allegations of a sexual offense against a child, provided that clear and convincing evidence establishes the underlying misconduct occurred.

(c) The Secretary may automatically suspend any license without a prior hearing if the license holder is arrested or indicted by a Grand Jury for a violent felony as defined in § 4201(c) of Title 11. A suspension under this subsection is effective on the date of the arrest or Grand Jury indictment.

(1) For a suspension under this subsection, the Secretary shall issue a written temporary order of suspension to the license holder at his or her last known address.

(2) The chief school officer or head of school, on behalf of the local board of education or charter school board of directors, shall report to the Secretary the name and last known address of any license holder employed by the district or charter school who it knows to have been arrested or indicted by a Grand Jury for a violent felony as defined in § 4201(c) of Title 11.

(3) A license holder whose license has been suspended pursuant to this subsection may request an expedited hearing before the Standards Board within 20 calendar days from the date the notice of the Secretary’s decision to temporarily suspend the license holder’s license was mailed. In the event that the license holder requests an expedited hearing in a timely manner, the Standards Board shall convene a hearing within 90 days of the receipt of such a request.

(4) If the license holder pleads guilty or nolo contendere with respect to, or is convicted of, a violent felony as defined in § 4201(c) of Title 11, the Secretary shall proceed with revocation under subsection (b).

(5) If the license holder is found not guilty of the underlying criminal charges, a nollo prosequi is entered on the record by the State, or the charges are otherwise dismissed by the Court, the license holder may file a written request for license reinstatement, including documentation of the final status of the judicial proceeding, and their license shall be reinstated If the license expired during the period of suspension, the holder of the former license may reapply for the same tier license that was suspended, but shall meet the license requirements that are in effect at the time of the application for license.

(6) An order of suspension under this subsection shall remain in effect until the final order of the Secretary or the Standards Board becomes effective.

(d) The Secretary may take an action under subsections (a), (b), or (c) of this section on the basis of substantially comparable conduct occurring in a jurisdiction outside this state or occurring before a person applies for or receives any license.

(e) Any license holder who has pled guilty or nolo contendere to, or has been convicted of, a crime in a court of law which would constitute grounds for revocation, suspension or limitation of license under subsections (a) or (b) or has been arrested or indicted by a Grand Jury for a violent felony as defined in § 4201(c) of Title 11, shall notify the Secretary of such action in writing within twenty days of such conviction, arrest or indictment, whether or not a sentence has been imposed. Failure to do so shall be grounds on which the Secretary may limit, suspend, or revoke the holder’s license.

(f) Any license holder who has surrendered an educator license or any professional license or certificate or who has had such a license or certificate revoked, suspended, or limited in any jurisdiction or by any agency shall notify the Secretary of such action in writing within 30 days of such action. Failure to do so shall be grounds on which the Secretary may limit, suspend or revoke the holder’s license.

(g) The chief school officer or head of school, on behalf of the local board of education or charter school board of directors, shall report to the Secretary the name and last known address of any license holder who is dismissed, resigns, retires or is otherwise separated from employment with that district or charter school after having received notice of misconduct that constitutes grounds for revocation or suspension under subsections (a), (b), or (c). Such report shall be made within 15 days of the dismissal, resignation, retirement or other separation from employment and is required notwithstanding any termination agreement to the contrary that the local board of education or charter school board of directors may enter into with the license holder. The reasons for the license holder’s dismissal, resignation, retirement or other separation from employment with the district or charter school shall also be provided along with all evidence that was reviewed by or is in the possession of the district or charter school relating to the dismissal, resignation, retirement, or other separation from employment. The Department shall give written notice to any license holder of any notification received under this subsection to the license holder’s last known address. Such notification shall be made within 15 days of receipt of the district or charter school’s report to the Department of misconduct under this subsection. The obligation to report also applies when a chief school officer or head of school acquires relevant information after a license holder’s dismissal, resignation, retirement, or other separation from employment. Failure to make such reports shall be grounds on which the Secretary may limit, suspend, or revoke the chief school officer’s or head of school’s license. All information obtained from the chief school officer or head of school shall be confidential and shall not considered public records under Delaware’s Freedom of Information Act.

(h) The Secretary may investigate any information received about a person that reasonably appears to be the basis for action under subsections (a) through (c) of this section. The Secretary shall not investigate anonymous complaints. The Department shall give written notice within a reasonable period of time to a license holder of any investigation initiated hereunder to the license holder’s last known address. All information obtained during an investigation is confidential and shall not be considered public records under Delaware’s Freedom of Information Act. The Secretary shall review the results of each investigation and shall determine whether the results warrant initiating action under subsections (a), (b), or (c) of this section.

(i) Whenever the basis of for action under subsections (a) or (b) of this section is a guilty plea, nolo contendere with respect to, or a conviction of a crime, a copy of the record of the plea, nolo contendere or conviction certified by the clerk of the court entering the plea, nolo contendere or conviction shall be conclusive evidence thereof.

(j) The Secretary may enter a consent agreement with a person against whom action is being taken under subsections (a), (b), or (c) of this section.

(k) The Secretary shall not take action against a person under subsections (a) or (b) of this section without providing the person with written notice of the charges and with an opportunity for a full and fair hearing before the Standards Board. Notice shall be sent to the person’s last known address. The license holder shall have 30 calendar days from the date the notice of the charges was mailed to make a written request for a hearing. Unless otherwise provided for in this section, the burden of proof in a license disciplinary action shall be on the agency taking official action to establish by preponderance of the evidence that the license holder has engaged in misconduct as defined by subsections (a) and (b) or otherwise has failed to comply with the applicable laws and regulations relating to the retention of the license. If no written request for a hearing is received by the Standards Board, the license holder’s license shall be deemed to be revoked, suspended, or limited and the holder shall be so notified.

(l) A license may be suspended for a period of time not to exceed five (5) years. The license may be reinstated by the Secretary, upon written request, with verification that all requirements for license renewal have been satisfied. If the license expired during the period of suspension, the holder of the former license may reapply for the same tier license that was suspended but shall meet the license requirements that are in effect at the time of the application for the license.

(m) If any of the causes listed in subsections (a) or (b) are determined, the Secretary or the Standards Board after a hearing, may put limitations on a license that may include but is not limited to:

(1) Restrictions on the ages of students with whom the license holder may work;

(2) Additional supervision requirements; or

(3) Education, counseling, or psychiatric examination requirements.

(n) If a decision of license limitation, suspension or revocation is based on subsections (a)(4), (a)(5), or (b)(1) of this section, and if the plea or conviction is overturned and there is no subsequent proceeding leading to a plea or conviction, the individual whose license is limited, suspended or revoked may file a written request for reinstatement, including documentation of the final status of the judicial proceeding, and the license shall be reinstated.

(o) An individual whose license has been revoked under subsection (a) of this section may petition the Secretary for reinstatement of the license not sooner than 5 years from the date of revocation. The individual shall submit to the Secretary a written petition showing credible evidence, by affidavit or otherwise, of the factors set forth in subsection (o)(1).

(1) The Secretary shall consider all of the following criteria in evaluating a petition for reinstatement and shall only grant such a petition if it is in the best interest of the public schools of the State of Delaware:

a. The nature and circumstances of the individual’s original misconduct;

b. The individual’s subsequent conduct and rehabilitation;

c. The individual’s present character; and

d. The individual’s present qualifications and competence to engage in the practice of instruction, administration or other related professional support services.

(2) A former license holder is entitled to a full and fair hearing before the Standards Board to challenge a denial of reinstatement pursuant to this subsection.

(3) A license revoked under subsection (b) or suspended under subsection (c) of this section may not be reinstated under this subsection. A license revoked under subsection (b)(1) may only be reinstated pursuant to subsection (n) and a license suspended under subsection (c) may only be reinstated pursuant to (c)(5) or after a hearing before the Standards Board.

(p) In any hearing before the Standards Board to challenge action taken under this section, the Standards Board shall have the power to administer oaths, order the taking of depositions, issue subpoenas, and compel attendance of witnesses and the production of books, accounts, papers, records, documents, and testimony.

(q) Notice of the limitation, revocation, suspension or reinstatement of a license shall be made by the Secretary, or his or her designee, to all chief state school officers of the other states and territories of the United States.

(r) All communications between a license holder and the Department or Standards Board provided for in this section shall be by certified mail, with a return receipt requested.

(s) For purposes of this section only, the term “license” shall include a Standard or Professional Status Certificate issued by the Department prior to August 31, 2003, an Initial license issued pursuant to § 1210 of this chapter, a Continuing license issued pursuant to § 1211 of this chapter, or an Advanced license issued pursuant to § 1213 of this chapter.

Approved June 30, 2008