Date of Adoption: August 23, 2002.

     Purpose: Update references to chapter 180-75 WAC, which have been changed to chapter 180-86 WAC; adds process for agreed orders of reprimand; adds process for voluntary surrender without a proposed order of revocation; removes proposed order requirement; and allows reporting of suspensions to NASDTEC. This also repeals WAC 180-86-020 and 180-86-055.

     Citation of Existing Rules Affected by this Order: Repealing WAC 180-86-020 and 180-86-055; and amending WAC 180-86-011, 180-86-013, 180-86-030, 180-86-065, 180-86-070, 180-86-075, 180-86-100, 180-86-116, 180-86-130, 180-86-145, 180-86-160, 180-86-170, 180-86-180, and 180-86-185.

     Statutory Authority for Adoption: RCW 28A.150.290(1).

      Adopted under notice filed as WSR 02-14-122 on July 2, 2002.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 14, Repealed 2.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
     Effective Date of Rule: Thirty-one days after filing.

September 11, 2002

Larry Davis

Executive Director

OTS-3263.6

AMENDATORY SECTION(Amending WSR 97-04-082, filed 2/5/97, effective 3/8/97)

WAC 180-86-011   Valid certificate required.   Persons serving as teachers in the public or private schools or as principals or educational staff associates in public schools and in vocational positions as established by chapter 180-77 WAC shall hold certificates authorized by the state board of education for service in the respective roles as required by statute or rules of the state board of education.

     Any certificate issued pursuant to chapter 180-77 or 180-79A WAC or previous standards of the state board of education shall entitle the holder thereof to be employed by a public or nonpublic school for the performance of duties encompassed by the type of certificate as specified in WAC 180-79A-140 if such certification is required by statute or rules of the state board of education, unless such certificate is under suspension or until such certificate expires, lapses, or is revoked or surrendered.

[Statutory Authority: RCW 28A.410.010. 97-04-082, § 180-86-011, filed 2/5/97, effective 3/8/97.]

     (1) No conviction of any felony crime involving:

     (a) The physical neglect of a child under chapter 9A.42 RCW;

     (b) The physical injury or death of a child under chapter 9A.32 or 9A.36 RCW, excepting motor vehicle violations under chapter 46.61 RCW;

     (c) The sexual exploitation of a child under chapter 9.68A RCW;

     (d) Sexual offenses where a child is the victim under chapter 9A.44 RCW;

     (e) The promotion of prostitution of a child under chapter 9A.88 RCW;

     (f) The sale or purchase of a child under RCW 9A.64.030;

     (g) Provided, That the general classes of felony crimes referenced within this subsection shall include equivalent federal and crimes in other states committed against a child;

     (h) Provided further, That for the purpose of this subsection "child" means a minor as defined by the applicable state or federal law;

     (i) Provided further, That for the purpose of this subsection "conviction" shall include a guilty plea.

     (2) No conviction of any crime within the last ten years, including motor vehicle violations, which would materially and substantially impair the individual's worthiness and ability to serve as a professional within the public and private schools of the state. In determining whether a particular conviction would materially and substantially impair the individual's worthiness and ability to practice, the following and any other relevant considerations shall be weighed:

     (a) Age and maturity at the time the criminal act was committed;

     (b) The degree of culpability required for conviction of the crime and any mitigating factors, including motive for commission of the crime;

     (c) The classification of the criminal act and the seriousness of the actual and potential harm to persons or property;

     (d) Criminal history and the likelihood that criminal conduct will be repeated;

     (e) The permissibility of service as a professional educator within the terms of any parole or probation;

     (f) Proximity or remoteness in time of the criminal conviction;

     (g) Any evidence offered which would support good moral character and personal fitness;

     (h) If this subsection is applied to a person certified under the laws of the state of Washington in a suspension or revocation action, the effect on the education profession, including any chilling effect, shall be weighed; and

     (i) In order to establish good moral character and personal fitness despite the criminal conviction, the applicant or certificate holder has the duty to provide available evidence relative to the above considerations. The superintendent of public instruction has the right to gather and present additional evidence which may corroborate or negate that provided by the applicant or certificate holder.

     (3) No behavioral problem which endangers the educational welfare or personal safety of students, teachers, or other colleagues within the educational setting.

     (4) No practice within the state of Washington within the previous five school years with an expired, lapsed, suspended, surrendered, or revoked certificate in a professional position for which certification is required under the rules of the state board of education.

[Statutory Authority: RCW 28A.410.010. 97-04-082, recodified as § 180-86-013, filed 2/5/97, effective 3/8/97. Statutory Authority: RCW 18A.410.010 [28A.410.010] and 28A.70.005. 92-01-127, § 180-75-081, filed 12/19/91, effective 1/19/92. Statutory Authority: RCW 28A.70.005. 90-02-073, § 180-75-081, filed 1/2/90, effective 2/2/90. Statutory Authority: RCW 34.05.220(A) [34.05.220 (1)(a)] and 34.05.250. 89-22-010, § 180-75-081, filed 10/20/89, effective 11/20/89. Statutory Authority: RCW 28A.70.005. 87-09-010 (Order 2-87), § 180-75-081, filed 4/3/87.]

     (1) Findings of fact.

     (2) One or more conclusions of law stating the commission of an act of unprofessional conduct.

     (3) An order to not continue or repeat the conduct or lack of good moral character or personal fitness.

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-030, filed 1/2/90, effective 2/2/90.]

     (1) That the certificate holder has admitted the commission of an act of unprofessional conduct or lack of good moral character or personal fitness and has presented to the superintendent of public instruction an agreed order to not continue or repeat the conduct described in the findings of fact.

     (2) That the certificate holder has committed an act of unprofessional conduct but the evidence is probably insufficient to meet the clear and convincing proof standard for suspension or revocation.

     (((2))) (3) That the certificate holder has committed an act of unprofessional conduct but the violation and the consequence were not serious and the interest of the state in protecting the health, safety, and general welfare of students, colleagues, and other affected persons is adequately served by a reprimand.

     (((3))) (4) Provided, That the superintendent of public instruction, in the administration of this chapter, shall place a high priority on processing complaints that allege circumstances which appear to warrant a suspension or revocation and, in order to do so, may elect not to pursue, when necessary, any and all complaints which appear to only warrant a reprimand.

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-065, filed 1/2/90, effective 2/2/90.]

     (1) The certificate holder has admitted the commission of an act of unprofessional conduct or lack of good moral character or personal fitness and has presented to the superintendent of public instruction an agreed order to not serve as an education practitioner for a stated period of time and the superintendent of public instruction has agreed that the interest of the state in protecting the health, safety, and general welfare of students, colleagues, and other affected persons is adequately served by a suspension. Such order may contain a requirement that the certificate holder fulfill certain conditions precedent to resuming professional practice and certain conditions subsequent to resuming practice.

     (2) The certificate holder has committed an act of unprofessional conduct or lacks good moral character but the superintendent of public instruction has determined that a suspension as applied to the particular certificate holder will probably deter subsequent unprofessional or other conduct which evidences lack of good moral character or personal fitness by such certificate holder, and believes the interest of the state in protecting the health, safety, and general welfare of students, colleagues, and other affected persons is adequately served by a suspension. Such order may contain a requirement that the certificate holder fulfill certain conditions precedent to resuming professional practice and certain conditions subsequent to resuming practice.

     (3) The certificate holder lacks personal fitness but the superintendent of public instruction has determined the deficiency is correctable through remedial action and believes the interest of the state in protecting the health, safety, and general welfare of students, colleagues, and other affected persons is adequately served by a suspension which states condition precedent to resuming professional practice and which also may state certain conditions subsequent to resuming practice.

     (4) Provided, That suspension shall never be appropriate if the certificate holder has committed a felony crime under WAC ((180-75-081)) 180-86-013(1).

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-070, filed 1/2/90, effective 2/2/90.]

     (1) The superintendent of public instruction has determined that the certificate holder has committed a felony crime under WAC ((180-75-081)) 180-86-013(1), which bars the certificate holder from any future practice as an education practitioner.

     (2) The certificate holder has not committed a felony crime under WAC ((180-75-081)) 180-86-013(1) but the superintendent of public instruction has determined the certificate holder has committed an act of unprofessional conduct or lacks good moral character or personal fitness and revocation is appropriate.

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-075, filed 1/2/90, effective 2/2/90.]

     (1) Whenever the superintendent of public instruction or the designated administrative officer of the superintendent of public instruction having responsibility for certification becomes aware from whatever source that a certificate holder has had a professional license revoked or suspended by a licensing agency, has voluntarily surrendered a license or has been arrested, charged, or convicted for any felony offense included within WAC ((180-75-081)) 180-86-013(1), the superintendent of public instruction or the designated administrative officer shall cause an investigation.

     (2) In all other cases, the initiation of investigative proceedings shall commence only upon receipt of a written complaint from a school district or educational service district superintendent or the chief administrative officer of an approved private school. Such written complaint shall state the grounds and summarize the factual basis upon which a determination has been made that an investigation by the superintendent of public instruction is warranted. The superintendent of public instruction shall provide the affected certificate holder with a copy of such written complaint and a copy of WAC 180-86-180.

[Statutory Authority: RCW 28A.410.010. 91-08-056, § 180-86-100, filed 4/2/91, effective 5/3/91. Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-100, filed 1/2/90, effective 2/2/90.]

     (a) Level I. Level I actions shall have the highest investigative priority and are those allegations, if proven true, for which permanent mandatory revocation shall be the appropriate disciplinary action. They include the following convictions for which permanent revocation of a certificate is mandatory under RCW 28A.410.090:

     (i) Physical neglect of a child under chapter 9A.42 RCW;

     (ii) The physical injury or death of a child under chapter 9A.32 or 9A.36 RCW (excepting motor vehicle violations under chapter 46.61 RCW);

     (iii) Sexual exploitation of a child under chapter 9.68A RCW;

     (iv) Sexual offenses under chapter 9A.44 RCW where a minor is the victim;

     (v) Promoting prostitution of a minor under chapter 9A.88 RCW;

     (vi) The sale or purchase of a minor child under RCW 9A.64.030; or

     (vii) Violation of similar laws of another jurisdiction.

     (b) Level II. Level II actions shall have the next investigative priority and are those allegations, if proven true, for which revocation may be the appropriate disciplinary action. They include, but are not limited to the following:

     (i) Sexual activity with children and/or students;

     (ii) Engaging in acts of violence leading to bodily injury;

     (iii) Selling and/or manufacturing illegal drugs; or

     (iv) Other activity that if convicted would result in a felony conviction.

     (c) Level III. Level III actions shall have the next investigative priority and are those allegations, if proven true, for which suspension may be the appropriate disciplinary action. They include, but are not limited to the following:

     (i) Illegal drug possession and/or use;

     (ii) Threats related to persons or property;

     (iii) Alcohol abuse;

     (iv) Reckless conduct where no bodily injury results;

     (v) Engaging in unauthorized corporal punishment;

     (vi) Verbal or physical sexual harassment of students;

     (vii) Engaging in activity that demonstrates poor professional judgment; or

     (viii) Other activity that if convicted would result in a misdemeanor conviction.

     (d) Level IV. Level IV actions shall have the next investigative priority and are those allegations, if proven true, for which a reprimand may be the appropriate disciplinary action. They include, but are not limited to the following:

     (i) Practicing with a lapsed or expired certificate, or a certificate not valid for the position;

     (ii) Isolated failure to timely evaluate certificated personnel; or

     (iii) Intentionally hiring a person for a certificated role who does not possess a valid certificate.

     (2) All cases shall be monitored periodically to determine if their priority level should change as a result of information uncovered during the investigation.

     (3) Notwithstanding any provision of this section to the contrary, the office of professional practices reserves the right to reprioritize the investigation of complaints based upon the efficient use of available resources and/or the relative urgency or lack of urgency in resolving various complaints in the public interest, and the right to recommend forms of discipline appropriate to the offenses committed.

[Statutory Authority: RCW 28A.410.010. 97-05-008, § 180-86-116, filed 2/7/97, effective 3/10/97.]

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-130, filed 1/2/90, effective 2/2/90.]

     The appeal procedure to the superintendent of public instruction consists of two levels, one informal and one formal. The use of the informal level is a condition precedent to use of the formal level. In addition, the provisions of WAC 180-86-155 provide an additional appeal to the state board of education and RCW 34.05.570 provides for judicial review of such decisions.

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-140, filed 1/2/90, effective 2/2/90.]

     The written notice must set forth the reasons why the appellant believes his or her application should have been granted or why his or her certificate should not be ((lapsed,)) suspended((,)) or revoked, or why the ((proposed)) reprimand should not be issued whichever is applicable.

     Following timely notice of appeal, the superintendent of public instruction shall appoint a review officer who shall proceed as follows:

     (1) If the appeal does not involve good moral character, personal fitness, or unprofessional conduct, the review officer shall review the application ((or notice of lapsing, whichever is applicable,)) and appeal notice and may request further written information including, but not limited to, an explanation from the person or persons who initially reviewed the application ((or decided to lapse the certificate, whichever is applicable,)) of the reason(s) why the application was denied ((or lapsed)). If the review officer deems it advisable, he or she shall schedule an informal meeting with the appellant, the person or persons who denied the application ((or lapsed the certificate)), and any other interested party designated by the review officer to receive oral information concerning the application ((or lapsing)). Any such meeting must be held within thirty calendar days of the date of receipt by the superintendent of public instruction of the timely-filed appeal notice.

     (2) If the appeal involves good moral character, personal fitness, or acts of unprofessional conduct, the review officer shall schedule an informal meeting of the applicant or certificate holder and/or counsel for the applicant or certificate holder with the admissions and professional conduct advisory committee. Such meeting shall be scheduled in accordance with the calendar of meetings of the advisory committee: Provided, That notice of appeal must be received at least fifteen calendar days in advance of a scheduled meeting.

     (3) Send by certified mail a written decision -- i.e., findings of fact and conclusions of law -- on the appeal within thirty calendar days from the date of receipt of the timely-filed appeal notice or informal meeting, whichever is later. The review officer may uphold, reverse, or modify the decision to deny the application, ((the lapsing of the certificate,)) the ((proposed)) order to reprimand, or the ((proposed)) order to suspend or revoke the certificate.

     (4) The timelines stated herein may be extended by the review officer for cause.

     (5) Provided, That in the case of an action for suspension or revocation of a certificate, the review officer, if so requested by an appellant, shall delay any review under this section until all quasi-judicial administrative or judicial proceedings (i.e., criminal and civil actions), which the review officer and the appellant agree are factually related to the suspension or revocation proceeding, are completed, including appeals, if the appellant signs the agreement stated in WAC 180-86-160. In requesting such delay, the appellant shall disclose fully all pending quasi-judicial administrative proceedings in which the appellant is involved.

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-145, filed 1/2/90, effective 2/2/90.]

     "I, . . . . . ., have received notice in the form of ((a proposed)) an order to suspend or revoke that the superintendent of public instruction believes sufficient cause exists for the suspension or revocation of the following certificate(s):

     (1) . . . . . . . . . . . . Cert. No. . . . . . . . . . . . .

     (2) . . . . . . . . . . . . Cert. No. . . . . . . . . . . . .

     As a condition to a delay in the hearing date, I agree not to commence or continue employment in any Washington public or private school or agency in a position requiring such certificate until the superintendent of public instruction dismisses the case without a hearing or until a hearing has been held and the final decision is rendered by the superintendent of public instruction. I further agree to advise the review officer assigned to my suspension or revocation proceedings of all decisions rendered in any administrative or judicial tribunal and all appeals therefrom which the review officer and I have agreed are factually related to the action to suspend or revoke my certificate(s). I understand my failure to abide by this agreement is an act of unprofessional conduct and, therefore, may be sufficient cause for revocation of my certificate(s)."

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-160, filed 1/2/90, effective 2/2/90.]

     (1) If an application for certification or reinstatement has been denied for lack of good moral character or personal fitness, the evidence submitted by the applicant must prove by clear and convincing evidence that he or she is of good moral character and personal fitness or the application will be denied.

     (2) In a suspension or revocation proceeding, the superintendent of public instruction must prove by clear and convincing evidence that the certificate holder is not of good moral character or personal fitness or has committed an act of unprofessional conduct.

     (3) In all other proceedings, including reprimand ((and lapsing proceedings)), the standard of proof shall be a preponderance of evidence.

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-170, filed 1/2/90, effective 2/2/90.]

     A certificate holder voluntarily surrendering a certificate shall provide the superintendent of public instruction the following affidavit:

     "I, . . . . . ., have reason to believe that I am or might be ineligible to hold a certificate(s) for reasons which do or might constitute grounds for revocation of the certificate(s). Accordingly, I hereby voluntarily surrender the following certificate(s):

     (1) . . . . . . . . . . . . Cert. No. . . . . . . . . . . . .

     (2) . . . . . . . . . . . . Cert. No. . . . . . . . . . . . .

     I have not been to the best of my knowledge convicted of any felony crime listed within WAC ((180-75-081)) 180-86-013(1).

     I agree, if I request reinstatement of the certificate(s) I have voluntarily surrendered, to provide the superintendent of public instruction with an affidavit describing in full the reasons for my voluntary surrender of the certificate(s) listed above. I further understand that the superintendent of public instruction will notify other states and public and private school officials within the state of Washington that I have voluntarily surrendered my certificate(s)."

     Upon request for reinstatement of such certificate, the applicant must comply with chapter 180-77 or 180-79A WAC ((180-75-087)) and, in addition, must disclose in full the reasons for the voluntary surrender of the certificate. In the event the surrendered certificate would have expired or lapsed but for the surrendering of the certificate, the applicant must meet all requirements for reinstating an expired or lapsed certificate.

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-180, filed 1/2/90, effective 2/2/90.]

[Statutory Authority: RCW 28A.70.005. 90-02-076, § 180-86-185, filed 1/2/90, effective 2/2/90.]

     The following sections of the Washington Administrative Code are repealed:

WAC 180-86-020	Lapse of certificate order -- Definition.
WAC 180-86-055	Grounds for issuance of lapse of certificate order.

© Washington State Code Reviser's Office