Forfeiture for Service Without Proper Licensure

584-050-0060

Forfeiture for Service Without Proper Licensure

(1) Public school personnel are required by ORS Chapter 342 or the administrative rules of TSPC to hold valid licenses or conditional assignment permits appropriate to their assignments.

(2) TSPC may require a district to forfeit a portion of the State School Fund moneys due the district for each violation of licensure that takes place during a school year. The amount of forfeiture is determined by TSPC through procedures and criteria in OAR 584-050-0065 through 584-050-0067.

Stat. Auth.: ORS 342
Stats. Implemented: ORS 342.173
Hist.: TS 1-1980, f. & ef. 3-19-80; TS 1-1982, f. & ef. 1-5-82; TS 1-1992, f. & cert. ef. 1-15-92; TSPC 4-1999, f. & cert. ef. 8-2-99; TSPC 6-2002, f. & cert. ef. 10-23-02

584-050-0065

Procedure for Determining Propriety and Amount of Forfeiture

(1) If the Commission obtains information indicating that a person has served without proper licensure, the Executive Director will notify the employing district of the potential violation of licensure and request the district's response to the charge.

(2) The district may deny that a violation of licensure has occurred. In that case, the district should present all reasons that the district believes no violation has occurred. If the Executive Director determines that, in fact, no violation has occurred, he or she will so notify the district superintendent and the district board. No further action will be taken by TSPC.

(3) The district may agree that a violation has occurred. In that case, the district should submit an explanation of all factors which the district believes explain the violation including the following as appropriate:

(a) Demographic characteristics of the district;

(b) Size of school;

(c) Local availability of licensed personnel and substitutes;

(d) Date the district first became aware the position in question required filling (e.g., date the district was notified of the resignation, illness, etc., of the previous employee in that position or, if a new position, date of its authorization);

(e) Prior violations by the district, regardless of whether any penalty was assessed therefore, or absence of prior violations;

(f) Opportunity and degree of difficulty to correct the violation;

(g) Efforts made by the district to correct the violation;

(h) Gravity and magnitude of the violation;

(i) Cause of the violation: e.g., unexpected emergency, unavoidable error, negligence, or an intentional act by the district;

(j) Best interests of the students and the public; and

(k) Any other factor or factors the district believes the Commission should consider.

(4) The district must submit its written explanation or denial within thirty calendar days after the notice required by section (1) of this rule was mailed, unless the Executive Director agrees to a longer period for response. The district must include at this time all grounds for justification of the violation. The Commission may refuse to consider any other grounds in any subsequent hearing on the matter.

(5) The Executive Director will consider any written explanation submitted by the district under section (3) of this rule and any other factors the Executive Director deems relevant and will make a preliminary determination as to whether the employment without proper licensure was justified. The Executive Director will also make a preliminary determination of the appropriate forfeiture, if any, of state school funds due the district. In making these determinations the Executive Director will apply the criteria for setting forfeitures stated in OAR 584-050-0066 and 584-050-0067.

(6) The Executive Director will inform the Commission of the preliminary determinations reached under section (5) of this rule. The Executive Director shall also notify the Commission when, despite a denial by the district, the Executive Director has determined that a violation has occurred. The Commission may adopt the Executive Director's determinations or may modify those determinations. The determination of the amount of forfeiture is not a contested case proceeding, so the district is not entitled to present argument unless requested by the Commission.

(7) The Executive Director will issue a Notice of Proposed Forfeiture and Opportunity for a Hearing and will send the notice to the district in accordance with OAR 584-050-0070.

(8) The district is entitled to a contested case hearing as indicated in OAR 584-050-0070.

Stat. Auth.: ORS 342
Stats. Implemented: ORS 342.173
Hist.: TS 1-1980, f. & ef. 3-19-80; TS 2-1981(Temp), f. & ef. 8-17-81; TS 1-1982, f. & ef. 1-5-82; TS 1-1992, f. & cert. ef. 1-15-92; TS 4-1997, f. 9-25-97, cert. ef. 10-4-97; TSPC 4-1999, f. & cert. ef. 8-2-99; TSPC 7-2007, f. & cert. ef. 12-14-07

584-050-0066

Criteria for Setting Amount of Forfeiture

(1) The Commission will require any district which employs a person without proper licensure to forfeit the full amount of salary paid to the person for the period of service without proper licensure unless one of the conditions stated in sections (3) through (8) of this rule exists.

(2) In determining the number of days which a teacher has served without proper licensure, the Commission will include a teacher's inservice days and will not count the 120 calendar days past the license expiration date as permitted in OAR 584-050-0040:

(3) After consideration of the explanation of the district and any other factors deemed relevant, the Commission may determine that extraordinary circumstances justify a lesser forfeiture.

(4) No forfeiture will be assessed where the justification for employment without proper licensure is satisfactory to the Commission.

(5) A school district will be required to forfeit not more than $1,000 of State School Funds due the district if the license has lapsed during the time of employment with the district if the holder had at the time the license expired all the qualifications necessary to renew the license.

(a) Subject to any applicable collective bargaining agreement, a district required to forfeit any State School Funds under this section is entitled to recover one-half of the amounts forfeited from the licensed personnel whose unlicensed status caused the forfeiture.

(b) Recovery may not exceed one-half of the amounts forfeited that is attributed to the particular licensed person.

(6) The maximum forfeiture for a single incident of employment without proper licensure will be $5,000. "Single incident" means employment during a school year involving a single individual. Districts may be assessed the maximum forfeiture for each single incident of employment without proper licensure.

(7) If a conditional assignment permit issued pursuant to OAR 584-036-0081 is filed or an application for an emergency license is made, as provided in OAR 584-050-0055, no forfeiture will be assessed for employment during the six-week reporting period.

(8) No school district will be required to forfeit State School Funds solely as a result of payment for services from a private alternative education program registered with the Oregon Department of Education or for the conditional assignment of a teacher holding a valid Oregon teaching license in an alternative education program operated by the district.

(a) Education service districts will not be required to make payment to the State School Fund for the employment or assignments specified above.

Stat. Auth.: ORS 342
Stats. Implemented: ORS 342.127, 342.135, 342.140, 342.143, 342.147, 342.165, 342.175 & 342.176
Hist.: TS 1-1982, f. & ef. 1-5-82; TS 5-1989(Temp), f. & cert. ef. 10-6-89; TS 7-1989, f. & cert. ef. 12-13-89; TS 2-1990, f. 6-1-90, cert. ef. 6-14-90; TS 1-1992, f. & cert. ef. 1-15-92; TSPC 7-2007, f. & cert. ef. 12-14-07

584-050-0067

Setting Amount of Forfeiture During a Labor Dispute

(1) Notwithstanding provisions of OAR 584-050-0066 and 584-050-0070, if a school district employs a person not holding proper licensure in a position requiring licensure during a labor dispute, the district must forfeit the full amount of salary paid the person for each teaching day that the person was employed without licensure.

(2) Inservice days for teachers are not computed in the amount of forfeiture. See also ORS 342.173(3) regarding labor disputes.

Stat. Auth.: ORS 342
Stats. Implemented: ORS 342.127, 342.135, 342.140, 342.143, 342.147, 342.165, 342.175 & 342.176
Hist.: TS 1-1982, f. & ef. 1-5-82; TS 1-1992, f. & cert. ef. 1-15-92; TSPC 7-2007, f. & cert. ef. 12-14-07

584-050-0070

Notice of Commission's Determinations and Opportunity for a Hearing

(1) The Executive Director will notify the district superintendent and district board chair of the Commission's determinations concerning the alleged violation of licensure, the adequacy of the district's justification for the employment without proper licensure, and the amount of any forfeiture.

(2) The district is entitled to a contested case hearing on the matter if a written request for a hearing is received by the Commission within thirty days from the date of the notice. If the district does not submit a timely request for a hearing, the forfeiture will be imposed.

(3) The scope of a contested case hearing may be limited by the Commission to the justifying factors presented to the Executive Director in the district's written explanation. See OAR 584-050-0065(4) regarding the written explanation.

(4) Following the hearing, the Commission may affirm or deny the alleged violation, and may affirm, increase, or decrease the amount of forfeiture.

(5) The Commission will make its determinations based on the particular facts of each case, recognizing that this may result in variations in the amounts of penalties ordered.

Stat. Auth.: ORS 183 & 342
Stats. Implemented: ORS 183.310 - 183.550 & 342.173
Hist.: TS 1-1980, f. & ef. 3-19-80; TS 1-1982, f. & ef. 1-5-82; TS 1-1992, f. & cert. ef. 1-15-92; TS 4-1997, f. 9-25-97, cert. ef. 10-4-97; TSPC 7-2007, f. & cert. ef. 12-14-07

Data Classification Level: 1 – Published -4- 3.4b