CHAPTER
Ed 200 RULES OF PRACTICE AND PROCEDURE
Statutory
Authority: RSA 21-N:11, III; RSA
541-A:16, I(b)
PART
Ed 201 PURPOSE AND SCOPE
Ed 201.01 Purpose.
(a)
Parts Ed 201 through Ed 213 provides rules of practice and procedure for
the conduct of adjudicative proceedings in contested cases. The board has adopted these rules for the
purpose of establishing an orderly procedure for acquiring sufficient
information to make fair and reasoned decisions.
(b)
In accordance with RSA 541-A:38, Part Ed 205 provides for a neutral
evaluation and mediation as methods of
alternative dispute resolution. The
board encourages parties to utilize either of these informal procedures to
reach settlement of a dispute prior to the dispute becoming a contested case.
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 201.02 Scope.
The rules in this chapter shall apply to all adjudicative proceedings as
defined in Ed 202.01 conducted by the board or its agents under RSA 21-N:11,
III, including, but not limited to, nonpublic school grievances,
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 201.03 Waiver or Suspension of Procedural Rules. In accordance with RSA 541-A:37, the board or
hearing officer upon the motion or petition of any interested person, shall
agree to suspend or waive any procedural requirement or limitation imposed by
this chapter upon 7 days notice to affected persons, upon a finding that the
waiver or suspension will not adversely affect the rights of parties and
intervenors to a fair resolution of the dispute, and all parties and
intervenors agree to the waiver or suspension and such waiver or suspension is
not precluded by law.
Source.
#6348, eff 10-5-96; ss by #6819, eff
9-1-98; ss by #8334-A, eff 4-23-05
Ed 201.04 Computation of Time.
(a)
Any time period specified in this chapter shall begin with the day
following the event, act or default and shall include the last day of the period
unless it is a Saturday, Sunday, or state legal holiday, in which event the
period shall run until the end of the next business day. When the period prescribed or allowed is less
than 7 days, intermediate Saturdays, Sundays, and state legal holidays shall be
excluded from the computation.
(b)
Upon a finding of good cause and except where the time is fixed by
statute, the hearing officer shall increase or decrease the time provided for
the filing of any documents, or advance or postpone the time set for any oral
hearings. Good cause shall include
temporary unavailability of representative, party, witness or evidence. A motion for a change in time shall be
granted upon a finding of diligence and probable injury to the moving party
which outweighs any detriment likely to be suffered by any other party to the
proceeding.
(c)
A motion to change time shall be filed within 3 business days of the
event in question, unless good cause is shown, including, but not limited to
instances of illness.
Source. #8334-A,
eff 4-23-05 (from Ed 206.01)
Ed 201.05 Role of
Complainants and Department Staff in Adjudication.
(a) Unless called as witnesses, department staff shall
have no role in any enforcement or disciplinary hearing other than ministerial
acts, including but not limited to scheduling hearings and providing notice to
the parties.
(b) Unless called as a witness or granted party
or intervener status, a person who initiates an adjudicative proceeding by
complaining to the department about the conduct of person who becomes a party
shall have no role in any enforcement or disciplinary hearing.
Source. #8334-A,
eff 4-23-05
Ed 201.06 Reopening
of the Record. At any time prior to
the issuance of the decision on the merits, the presiding officer, on the
presiding officer's own initiative or on the motion of any party, shall reopen
the record to receive relevant, material and non-duplicative testimony,
evidence or arguments not previously received, if the presiding officer
determines that such testimony, evidence or arguments are necessary to a full
and fair consideration of the issues to be decided.
Source. #8334-A,
eff 4-23-05
Ed 201.07 Withdrawal
of Hearing Officer.
(a) Upon his or her own initiative or upon the
motion of any party, a hearing officer shall, for good cause withdraw from any
hearing.
(b) Good cause shall exist if a hearing officer:
(1) Has a
direct interest in the outcome of a proceeding, including, but not limited to,
a financial or family relationship, within the third degree of relationship,
with any party; or
(2) Has made
statements or engaged in behavior which objectively demonstrates that he or she
has prejudged the facts of a case; or
(3) Personally
believes that he or she cannot fairly judge the facts of a case.
(c) Mere knowledge of the issues, the parties or
any witness shall not constitute good cause for withdrawal.
Source. #8334-A,
eff 4-23-05
Ed
201.08 Retention Schedule for Written
Decisions or Orders. The original
copy of the hearing officer’s report shall be maintained in the case file in
the office of legislation and hearings.
A copy of the report and recommendations shall be maintained in the
state board of education’s files maintained in the office of the commissioner. Said files shall be retained in accordance
with periods for retention set by the director of the division of archives and
records management of the department of state pursuant to rules adopted under
RSA 5:40.
Source. #8334-A,
eff 4-23-05
PART Ed 202
DEFINITIONS
Ed 202.01 "Adjudicative Proceeding" means the
procedures to be followed in contested cases, as set forth in RSA 541-A:31
through RSA 541-A:36 and this chapter.
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.02 "Board" means the state board of
education.
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.03 "Commissioner" means the
commissioner of the
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.04 "Contested case" means a
"contested case" as defined in RSA 541-A:1, IV.
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.05 "Data" means all information other
than argument, including, but not limited to:
(a)
Oral or written descriptions;
(b)
Reports;
(c)
Maps;
(d)
Charts;
(e)
Drawings;
(f)
Photographs;
(g)
Audio or video recordings;
(h)
Computer programs or printouts;
(i)
Testimony;
(j)
Notes; and
(k)
Memoranda or documents, whether finished or unfinished.
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.06 "Department" means the
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.07 "Educator" means any professional
employee of any school district whose position requires certification by the
state board pursuant to RSA 189:39.
Administrators, specialists, and teachers are included within the
definition of this term.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.08 "Ex parte communication" means the
transmittal of data or argument, by a party or at the request of a party,
concerning the merits of the subject matter of any hearing to or from a person
who is to render a decision or make findings of fact and conclusion of law in a
contested case without prior notice to all parties allowing them to
participate.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.09 "File" means to place a document in
the actual possession of the department.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.10 "Hearing officer" means an individual
to whom the board has delegated authority pursuant to 186:10-a.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.11 "Hearing" means the process by which
the parties actually present evidence, data, and/or argument by methods
appropriate to the circumstance and includes, but is not limited to:
(a)
Conducting trial-type evidentiary procedures;
(b)
Directing the filing of exhibits, affidavits, memoranda, or briefs;
(c)
Directing the delivery of oral argument; or
(d)
Any combination of the above or similar procedures.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.12 "Motion" means any request by a
party to a proceeding for an order relating to that proceeding.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 202.13 “Office of legislation and hearings” means an
entity within the office of the commissioner that acts as agent for the state
board or commissioner for the purpose of overseeing the resolution of disputes.
Source. #8334-A,
eff 4-23-05
Ed 202.14 "Order" means a document issued by
the board or hearing officer on behalf of the board:
(a)
Establishing procedures to be followed in an adjudicative or
non-adjudicative proceeding;
(b)
Granting or denying a petition or motion;
(c)
Requiring a person to do or to abstain from doing; or,
(d)
Determining a person's rights to a credential or other privilege
established by RSA 189:39, RSA 186:11 X (a) or the rules of this chapter.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 202.13)
Ed
202.15 "Party" means
"party" as defined in RSA 541-A:1, XII.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 202.14)
Ed 202.16 "Person" means "person"
as defined in RSA 541-A:1,XIII.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 202.15)
Ed 202.17 "Petition" means any request to the
board seeking an order or any other action or relief, but does not include a
certificate application, a complaint against a licensee, or a motion.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 202.16)
Ed 202.18 "Prehearing conference" means a
prehearing conference conducted in accordance with Ed 208.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 202.17)
Ed 202.19 "Rulemaking" means the process by
which the board proposes and adopts an administrative rule.
Source. #8334-A,
eff 4-23-05 (from Ed 202.18)
PART
Ed 203 FILING DOCUMENTS GENERAL AND
SPECIFIC REQUIREMENTS
Ed 203.01 Filing of Documents with the Board. A document shall be considered properly filed
when it is actually received by the office of legislation and hearings or the hearing
officer, and conforms to the requirements of this chapter.
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 207.01)
Ed 203.02 Form, Appearance, and Number of Documents. All documents to be filed under this chapter
shall:
(a)
Be legible and of the size 8-1/2”x11”, with a left margin of 1-1/2”;
(b)
Be produced using a font that is easily read and not smaller than 10
point;
(c)
Be printed on only one side of the page;
(d)
Contain the title of the proceeding and the docket number after it is
assigned;
(e)
Be dated and signed in ink; and
(f)
State the title, if applicable, and address of the signer.
Source. #8334-A,
eff 4-23-05 (from Ed 207.02)
Ed 203.03 Signature and Certification of Veracity. All petitions, motions, and replies filed
with the department shall be signed by the party, or if represented, by his/her
representative. The signature on the
document shall constitute certification by the signor that the signor has read
the document, is authorized to file it, and that to the best of his or her
information, knowledge, and belief, there are reasonable grounds to support it
and it has not been filed for delay.
Source. #8334-A,
eff 4-23-05 (from Ed 207.03)
Ed 203.04 Notice of Hearings.
(a)
All notices of hearings shall:
(1) Be prepared
and forwarded so as to afford all parties sufficient opportunity to prepare
for, and develop the issues to be considered and decided at, the hearing; and
(2) Be
forwarded to all parties:
a. In
sealed envelopes;
1.
Through the
2.
Registered mail;
3.
Return receipt; or
b. By
personal service; or
c.
Transmitted electronically with automatic receipt.
(b)
The notice shall contain all the elements listed in Ed 206.03.
Source. #8334-A,
eff 4-23-05 (from Ed 210.01)
Ed 203.05 Pleadings.
(a)
The only pleadings permitted shall be petitions and replies
thereto. Petitions and replies thereto
shall be served upon all other parties.
(b)
Unless otherwise specified by statute or this chapter, all petitions
shall contain:
(1) The
name and address of the petitioner;
(2) The
name and address of the petitioner's representative, if any;
(3) A
concise statement of the facts which cause the petitioner to request the board
to act;
(4) The
action which the petitioner requests the board to take;
(5) The
identification of any statutes, rules, orders, or other authority which
entitles the petitioner to have the board act as requested; and
(6) The
name and address of the interested persons, if any:
a.
Against whom the petitioner complains, or against whom the petitioner
wishes the board to act; or
b. Whose
rights might be affected by decisions of the board.
(c)
Unless otherwise required by statute or this chapter, all answers shall
contain the following:
(1) The
name and address of the respondent;
(2) The
name and address of the respondent's representative, if any;
(3) A statement
admitting, denying, or claiming to have insufficient information to respond to,
each and every fact stated in the petition;
(4) A
statement admitting or denying the authority identified in support of the
action requested by the petitioner;
(5) A
concise statement of each and every additional or different fact which causes
the respondent to request the department not to act, or to act differently from
that requested by the petitioner;
(6) The
identification of any statutes, rules, orders, tariffs, or other authority, not
identified in the petition, bearing upon the subject matter of the petition;
and
(7) The
action which the respondent wishes the board to take.
(d)
An answer shall be filed within 30 days after service of a petition
unless otherwise ordered by the hearing officer, for good cause shown,
including but not limited to illness, accident, or death of a family member.
(e)
The petitioner shall be presumed to deny all the allegations in the
answer and no response shall be permitted to the reply.
Source. #8334-A,
eff 4-23-05 (from Ed 208.01)
Ed 203.06 Motions.
(a)
Unless otherwise specifically provided in this chapter, all motions and
objections thereto shall conform to the requirements of this section.
(b)
Unless presented orally during a pre-hearing conference, hearing or
other proceeding, all motions and objections thereto shall be in writing and
served upon all other parties.
(c)
All motions shall state clearly and concisely:
(1) The
purpose of the motion;
(2) The
relief sought by the motion;
(3) The
statutes, rules, orders, and other authority authorizing the relief sought by
the motion; and
(4) The facts
claimed to constitute the grounds requiring the relief requested by the motion.
(d)
Objections to motions shall state clearly and concisely:
(1) The
defense of the party filing the reply;
(2) The
action which the party filing the reply wishes the presiding officer to take on
the motion; and
(3) The
statutes, rules, orders, or other authority, including but not limited to case
law, relied upon in defense of the motion.
(e)
An objection to a motion shall specifically admit, deny, or state that
the respondent has insufficient information to admit or deny each and every
fact contained in the motion. Failure to
deny or claim insufficient information shall constitute the admission of the
fact for the purpose of the motion.
(f)
All motions shall be decided upon the written record submitted unless
oral argument on the motion is requested by a party. Any request for oral argument on a motion
shall be filed with the hearing officer and shall set forth specific reasons
for the request. Repetitious motions
shall not be filed.
(g)
Unless otherwise provided by statute, this chapter, or by agreement of
the parties, objections to motions shall be filed within 10 days after the
party receives a copy of the motion.
Failure to reply to a motion within the time allowed shall constitute a
waiver of objection to the motion.
Source. #8334-A,
eff 4-23-05 (from Ed 208.02)
PART
Ed 204 MINIMUM REQUIREMENTS FOR DUE
PROCESS BY THE LOCAL SCHOOL BOARD
Ed 204.01 Proceedings at the School Board Level to
Resolve Disputes Between Individuals and the School System.
(a)
A local school board shall adhere to the following due process
procedures prior to a party filing a dispute as a contested case with the
office of legislation and hearings except for disputes governed by Ed 204.02 or other rules of the board governing
specific circumstances:
(1)
Provide opportunity for a hearing when the legal rights, duties or
privileges of a party are threatened;
(2)
Provide notice of such a hearing;
(3)
Conduct a hearing in a manner assuring due process;
(4)
Establish an adequate record in all contested cases; and
(5) Issue
timely decisions and orders.
(b)
The local board shall provide an opportunity for a hearing if requested
at which the following procedures shall apply:
(1) The
party, together with a parent or guardian, if applicable, or legal counsel, if
applicable, may waive the right to a hearing in (a), above;
(2)
Formal rules of evidence shall not be applicable;
(3) The
hearing shall be either public or nonpublic consistent with the provisions of
RSA 91-A:3, II(a); and
(4)
During the hearing, the school board shall allow a party, or a
designated representative of the party, to examine any and all witnesses.
(c)
The local board shall include a statement that the local school board
has complied with all the requirements of RSA 91-A, the state's right to know
law, including compliance with all the recordkeeping requirements of that law.
(d)
The local board shall provide a written decision determined by a quorum
of the local board which shall include notice that the decision may be appealed
to the state board.
(e)
The decision of the local board shall at a minimum, include the
following:
(1) The date
of the decision;
(2) A
description of the issue in dispute;
(3) The
board’s decision; and
(4) The
rationale for the board’s decision;
(f)
The written decision shall be considered a final decision at the local
level.
(g)
A party may appeal a final decision of the local board to the state
board within 30 calendar days of receipt of the written decision of the local
board, in accordance with RSA 541-A and Ed 200.
The state board may waive the 30-day requirement for good cause shown,
including, but not limited to, illness, accident, or death of a family member.
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 216.01)
Ed 204.02 Hearing
Procedure For Teacher Nonrenewal.
(a) A school board
shall notify an educator who will not be renominated or reelected for the next
school year.
(b) The notice of
nonrenewal shall be sent to such educator by the date specified in RSA
189:14-a.
(c) The procedure in
this section shall apply to any educator who has received notice of nonrenewal
who has:
(1) A
valid educator certificate issued by the department; and
(2) Taught
for 3 or more years in the school district; or
(3)
Taught for 2 consecutive years or more in any school district in the
state, after having taught 3 consecutive years or more in any school district
in the state may request in writing, within 10 days of receipt of said notice:
a. A hearing before the school board, and
b. The reasons for nonrenewal.
(d) The school
board, upon receipt of a request, pursuant to (c), above, shall commence a
hearing for the educator within 15 days, unless the parties agree otherwise.
(e) The hearing
shall be conducted in accordance with the following:
(1) The
hearing shall be either public or nonpublic;
(2) The
choice shall be that of the educator, consistent with the provisions of RSA
91-A:3, II(a);
(3) The
hearing shall be recorded;
(4) Upon
request of either party the board shall arrange for transcription;
(5) The
party requesting the transcription shall bear the cost;
(6)
Either party may be represented by legal counsel;
(7) All witnesses,
except the parties principal to the action, shall be:
a. Sequestered from hearings held in nonpublic
session; and
b. Allowed to enter the nonpublic session only
for the purpose of testifying;
(8) All testimony shall be under oath or affirmation;
(9) The school superintendent, or school board if
the teacher was nominated but not reelected, or their representative shall open
the proceedings through the production of witnesses and documents;
(10) Each party opponent shall be afforded the opportunity
to cross-examine each witness immediately following the direct testimony;
(11) After each party opponent has had an
opportunity to cross-examine a witness, members of the board may ask questions
of the witness for purposes of clarification;
(12) A party shall offer evidence as follows, but
irrelevant, immaterial, or unduly repetitious evidence shall be excluded:
a. A party shall produce such additional
evidence as the school board deems necessary to an understanding and
determination of the issues;
b. All relevant and material evidence shall be
admissible; and
c. Hearings shall not be bound by the
(13) The school board may receive and consider the
evidence of witnesses subject to consideration of any objections made to its
admission;
(14) Witnesses shall appear in person unless
extenuating circumstances prevent them from such appearance, provided that both
parties agree, in which event:
a. The appearance shall occur through other
means including, but not limited to a telephone call; and
b. Cross-examination shall be available;
(15) Exhibits, when offered by either party, may
be received in evidence by the school board;
(16) After the school board or superintendent has
presented its case, the educator shall present his/her case and produce his/her
witnesses for examination;
(17) Rebuttal evidence may be presented by either
party, limited to rebut evidence previously submitted by the other party;
(18) After all the evidence is submitted to the
school board, the educator or his/her legal counsel shall be given an
opportunity to make a short summary of his/her case to the school board;
(19) The school board or superintendent shall then
be afforded an opportunity to present a short summary of its case to the school
board;
(20) If the educator was nominated but not
reelected, the school superintendent or school board or its representative shall
have the burden of proving its case by a preponderance of the evidence;
(21) The school board shall meet to deliberate
based solely on the evidence presented at the hearing, and the deliberation
shall be in public or nonpublic session consistent with RSA 91-A:3,II(a);
(22) The school board shall provide a written
decision to the educator within the time specified in RSA 189:14-a;
(23) The decision shall list the pertinent facts
and conclusions of law found by the school board in arriving at its decision;
(24) The school board shall, in its decision,
advise the educator of his/her right to appeal the decision to the state board;
and
(25) This decision shall be mailed to the educator
by certified mail.
Source. #2055, eff 6-16-82; ss by #2714, eff 5-16-84;
ss by #4851, eff 6-25-90; ss by #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 216.02)
PART
Ed 205 ALTERNATIVE DISPUTE RESOLUTION
Ed 205.01 Availability.
(a)
Any person aggrieved by a final decision at the local level may request
alternative dispute resolution, prior to seeking an appeal at the state level.
(b)
Methods of alternative dispute resolution shall not be mandatory for any
party nor shall such evaluation impair either party's right to an appeal.
(c)
If neutral evaluation is chosen the procedure shall be governed by Ed
205.02.
(d)
If mediation is chosen the procedure shall be governed by Ed 205.03.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 215.01)
Ed 205.02 Neutral
Evaluation Procedure.
(a)
If both parties agree to attempt to settle differences through neutral
evaluation, the department shall schedule and conduct such evaluation.
(b)
The following requirements shall apply to an evaluation pursuant to (a)
above:
(1) A
neutral evaluation shall consist of an informal, abbreviated presentation of
case facts and issues by the parties to a neutral evaluator appointed by the
office of legislation and hearings and who shall be responsible for reviewing
the strengths and weaknesses of the case and issuing a written report as
provided in (j), a copy of which shall be given to all parties.
(2) There
shall be no record made of the neutral evaluation except only the date and
names of the participants shall be recorded; and
(3)
Evidence that would otherwise be admissible in an appeal, a due process
hearing or in a subsequent court hearing shall not be rendered inadmissible as
a result of its use in a neutral evaluation.
(c)
Once the neutral evaluation process has been selected the office of
legislation and hearings shall assign a neutral evaluator to the case.
(d)
The following shall apply to selection of a neutral evaluator:
(1) The
neutral evaluator shall not have personal knowledge of any of the parties;
(2) Upon
receipt of notice of appointment in a case, the neutral evaluator shall disclose
any circumstances likely to create a conflict of interest, the appearance of a
conflict of interest, a reasonable inference of bias, or likely to prevent the
process from proceeding as scheduled;
(3) If
the neutral evaluator withdraws, has a conflict of interest, or is otherwise
unavailable, a replacement neutral
evaluator shall be appointed by the office of legislation and hearings on
behalf of the board to hear the issue; and
(4) The
neutral evaluator shall not act as a legal advisor or legal representative.
(e)
Following selection of a neutral evaluator, the department shall:
(1)
Schedule the neutral evaluation;
(2)
Provide the parties with the neutral evaluator's name and address;
(3)
Provide the time, date, and place of the neutral evaluation; and
(4)
Specify the date by which the parties shall furnish the neutral
evaluator with required information and documentation.
(f)
Not less than 5 days prior to the neutral evaluation, the parties shall
submit to the neutral evaluator and exchange a summary of the significant
aspects of their case. The parties shall
attach to the summary copies of all documents on which they rely. Such summaries shall be not more than 4
pages.
(g)
Parties shall not communicate with the neutral evaluator concerning
their case outside of the neutral evaluation.
(h)
At the neutral evaluation, the parties shall be present and shall have
authority to authorize settlement.
(i)
If the neutral evaluator deems it necessary, such neutral evaluator may
request additional written information prior to the evaluation from either
party. At the neutral evaluation, the
neutral evaluator may address questions to the parties and shall allow each
party no more than 30 minutes to complement their written summaries with a
brief oral statement. The evaluation
shall be limited to not more than 2 hours.
(j)
The neutral evaluator shall issue an oral opinion following the
conference with a written report mailed to the parties within 48 hours of the
conference excluding Saturday, Sunday, or a holiday. The report shall contain a suggested
settlement or disposition and the reasons therefor.
(k)
Following a scheduled neutral evaluation the evaluator shall advise the
office of legislation and hearings as follows:
(1) If
the neutral evaluation results in agreement, the conclusions shall be
incorporated into a written binding agreement signed by each party with a copy
to the office of legislation and hearings; or
(2) If
the neutral evaluation does not result in agreement, the neutral evaluator
shall report only the date and the participants at the meeting.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 215.02)
Ed 205.03 Mediation Procedure. If mediation is chosen by both parties as an
alternative dispute resolution, the following shall apply:
(a)
A request for mediation shall be made by either party in writing and
shall be accompanied by the final written decision at the local level. The mediation request shall specify the issue
or issues in dispute and the relief sought.
(b)
Once the mediation procedure is selected, the department shall assign
and provide the parties with the name and address of a mediator. The office of
legislation and hearings shall establish the time and date for the
session. The session shall be conducted
at a place determined by the office of legislation and hearings.
(c)
A mediation conference shall be conducted within 30 calendar days after
receipt of a written request in order to:
(1)
Determine issues;
(2)
Explore options; and
(3)
Suggest an equitable resolution to the dispute.
(d)
The role of the mediator shall be:
(1) To
facilitate communication;
(2) To define
the issues and explore possible resolutions to the dispute;
(3) To
remain neutral; and
(4) To
insure that parties openly, freely, and candidly discuss the strengths and
weaknesses of their positions with the mediator.
(e)
Information provided to the mediator in private discussion shall be
confidential and shall not be divulged to the opposing side unless specifically
authorized.
(f)
The mediator shall not have the authority to render a decision or impose
a settlement on the parties.
(g) The mediation conference shall consist of a
session or sessions with the parties and their counsel, if retained, to
facilitate a settlement acceptable to the parties.
(h)
Not later than 10 days prior to the session each party shall submit to
the mediator and all other parties a summary of the significant aspects of
their case. Each party shall attach to
the summary copies of all documents on which they rely; such summaries shall be
not more than 4 pages.
(i)
Upon receipt of a party's submission, any party may send to the mediator
and all other parties additional information responding to that submission.
(j)
At the mediation session, all parties and counsel, if retained, shall
have authority to authorize the mediation agreement.
(k)
If resolution cannot be achieved on the date assigned, the mediator
shall continue the mediation process, either with additional in-person
mediation sessions or electronically.
(m)
Within 30 days of the initial mediation session, the mediator shall file
a report with the office of legislation and hearings advising that the case has
been settled, that mediation is ongoing, or that mediation failed to resolve
the dispute.
(n)
If mediation is ongoing, the mediator shall file a final report within 3
days of the final mediation session.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 215.03)
PART
Ed 206 ADJUDICATIVE PROCEEDINGS
Ed 206.01 Appeal to State Board.
(a) A party aggrieved
by a decision at the local level may appeal to the state board for review, in
accordance with RSA 541-A and Ed 200, provided that such appeal is filed within
30 days of receipt of the written decision of the local board or 7 days after
any alternative dispute resolution that did not produce an agreement with
parties. Decisions made under RSA 186-C
relative to special education shall be appealed directly to a court of
competent jurisdiction
(b)
Each appeal shall be in writing and shall be addressed to the office of
legislation and hearings.
(c)
Each appeal shall state the following:
(1) The
name, address and phone number of the person making the appeal;
(2) How
the person has been adversely affected by the decision;
(3) Any
other information the person deems relevant to a speedy resolution of the
matter including but not limited to the law, rule or local policy which was the
basis for the decision which the person is challenging.
(d)
The party filing the appeal shall enclose a copy of the final local
board decision.
(e) The hearing officer may waive this
requirement for good cause shown including but not limited to illness,
accident, or death of a family member.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05
Ed 206.02 Docketing and Service.
(a)
The office of legislation and hearings shall assign the appeal a docket
number and serve the order of notice upon all parties to the proceeding by
certified mail, personal service, or electronic submission with record of
transmittal. The date of service shall
be the date of personal delivery or receipt by the parties.
(b)
All subsequent communications by each party shall include all other
parties and be by personal service, the
(c)
Orders, notices, memoranda, and all other material submitted in a
docketed case shall be kept in a docket file and made available for public
inspection in the department.
(d)
Upon agreement of the parties, the hearing officer shall amend the order
of notice.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New.
#8334-A,
eff 4-23-05 (from Ed 209.03)
Ed 206.03 Commencement and Order of Notice.
(a)
Upon receipt of the appeal filed under Ed 206.01 and docketed under Ed
206.02 the office of legislation and hearings shall:
(1)
Assign the case to a hearing officer;
(2)
Include the following in the order of notice sent to the parties:
a. The
date the appeal was received by the office of legislation and hearings;
b. The
docket assigned to the appeal;
c. Name, address,
and telephone number of the hearing officer;
d. The
date scheduled for mediation, if mediation is agreed to by parties;
e.
Summary of issue (s);
f. The
date, time, and place of the pre-hearing, which shall be limited to
procedural matters or settlement;
g. The
names of the parties to the proceedings as of the date of the notice;
h. A
statement of the legal authority under which the hearing is to be held;
i. A
reference to the particular sections of the statutes and rules involved;
j. A
statement that each party has the right to have an attorney present to
represent the party at the party's expense, and
k. A
statement that each party has the right to have the department provide a certified shorthand court reporter,
at the party's expense, for proceedings before the state board of education
concerning teacher non-renewal, as
provided in RSA 541-A:31, VII-a. Any
such request shall be submitted in writing, to the office of legislation and
hearings, at least 10 days prior to the proceeding.
(b)
Unless otherwise provided for by statute, hearings shall be scheduled
not later than 3 business days after received by the office of legislation and
hearings. The date set shall allow
sufficient and reasonable time for preparation of the case by the hearing
officer and all other parties.
(c)
Upon agreement of the parties, the hearing officer may continue the
hearing and reschedule it for a date later than that specified in the notice, provided
that the right of parties and intervenors to a timely resolution of the dispute
is not adversely affected.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 209.02)
Ed 206.04 Failure to Appear.
(a)
Upon good cause shown, including but not limited to illness, accident or
death of a family member, the hearing officer shall continue the hearing and
reschedule it for a date later than that shown in the order of notice but in no
case shall the continuance be granted for more than 15 calendar days. Notice of
the continuance shall be made in writing to all parties except that, if the
continuance is granted less than 3 business days before the scheduled hearing
date, notice shall be made by telephone followed by notice in writing.
(b)
Any party who has been served notice in
accordance with this chapter, who fails to appear, and who fails to obtain a
continuance from the hearing officer prior to the scheduled time of the
hearing, shall have a decision rendered against her/him if the interests of
justice will be served by such action.
(c)
A party against whom a decision has been rendered may request by motion
that a decision be set aside. The motion
shall set forth the specific reasons for failure to appear.
(d)
Motions to set aside decisions shall be granted for good cause shown
which shall include any circumstances which prevented the party from appearing
and which was beyond the party's control.
Source. #8334-A,
eff 4-23-05 (from Ed 209.04)
Ed 206.05 Intervention.
(a)
Petitions for intervention shall be filed at least 3 days before the
commencement of a proceeding or at any time if the hearing officer determines
that such intervention would not impair the orderly and prompt conduct of the
proceeding.
(b)
Petitions for intervention shall state, with particularity:
(1) The
petitioner's interest in the subject matter of the proceeding;
(2) The petitioner's
point of view with respect to the subject matter of the hearing;
(3) Why
the interests of the parties and the orderly and prompt conduct of the
proceedings would not be impaired; and
(4) Any
other reasons why the petitioner should be permitted to intervene.
(c)
Petitions for intervention shall be granted and shall include any
conditions and limitations specific to the circumstances unique to the
case. Orders granting intervention shall
be modified at any time as necessary to prevent or rectify prejudice to a
party.
(d)
An intervenor shall be subject to the same time limitations which would
have been applicable if he or she had been a party from the commencement of the
proceedings. An intervenor shall participate
in the remaining aspects of the proceeding from the time of intervention, and
no phase or portion of the proceeding shall be repeated for the benefit of the
intervenor.
Source. #8334-A,
eff 4-23-05 (from Ed 209.05)
Ed 206.06 Consolidation and Severance.
(a)
Whenever it shall appear to the hearing officer that 2 or more
proceedings involve substantially similar or substantially related issues the
hearing officer shall consolidate those proceedings for appeal decision, or
both.
(b)
Whenever it shall appear to the hearing officer that prejudice to a
party or parties or undue delay shall be thereby avoided, the hearing officer
shall sever one or more issues or parties, and dispose of those issues and
include those parties in another proceeding.
Source. #8334-A,
eff 4-23-05 (from Ed 209.06)
PART
Ed 207 APPEARANCE BEFORE HEARING OFFICER
Ed 207.01 Who May Appear. A person shall appear in a proceeding by
personal attendance or through the attendance of a representative appointed by
the person.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 205.01)
Ed 207.02 Representatives.
(a)
Individuals or public or corporate bodies may appoint a representative
who is either an attorney-at-law licensed in New Hampshire or is a person
knowledgeable about the subject matter of the appeal to represent him or her.
(b)
In the case of a party being represented by an attorney, all
correspondence relative to the case at issue shall be forwarded to the attorney
rather than directly to the party the attorney represents.
(c)
An attorney representing a party shall file an appearance with the
hearing officer announcing the fact of representation at the earliest date
practical.
(d) Parties shall
retain counsel at their own expense and requests for appointment of counsel
shall not be entertained.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 205.02)
Ed 207.03 Disqualification
or Suspension.
(a)
After notice and opportunity for hearing and a finding of misconduct by any
individual relating to representation before the hearing officer, the
individual shall be disqualified from acting as a representative before the
hearing officer.
(b)
A finding of misconduct shall be based on the following actions or
behaviors:
(1)
Obstruction of fair, due process; or
(2)
Disruption of the orderly conduct of procedure; or
(3)
Willful action which violates RSA 541-A.
(c)
The prohibition shall be for all pending matters.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 205.03)
PART
208 PREHEARING CONFERENCES
Ed 208.01 Prehearing Conferences.
(a)
Upon receipt of a written request for an appeal, the office of
legislation and hearings shall schedule one or more prehearing conferences.
(b)
Matters which may be considered at prehearing conferences shall include,
but not be limited to, the following:
(1)
Offers of settlement;
(2)
Identification of the issues and pre-hearing rulings of law;
(3)
Stipulations or admissions as to issues of fact;
(4)
Limitations on the number of witnesses;
(5)
Recommendations to the board, and subject to its approval, concerning
procedures which shall be changed or tailored to suit the needs of the particular
parties and their circumstances;
(6)
Scheduling; and
(7) Any
other matters which may aid in the disposition of the proceeding.
(c)
The hearing officer shall develop a prehearing discovery schedule which
shall include but not be limited to deadlines for parties to provide the
following:
(1) Dates
for alternative dispute resolution;
(2) A
hearing date;
(3) Close
of discovery date; and
(4) A
date for exchanging a list giving the name and address of all witnesses and a
list briefly identifying all exhibits.
(d) Copies of
witness and exhibit lists shall also be provided to the hearing officer. These lists shall be updated whenever there
is a change in the contents of the list.
No witness shall testify, and no exhibits shall be offered, if not
identified in a list in accordance with this paragraph, unless the hearing
officer waives this requirement for good cause shown.
(e)
The hearing officer shall cause all formal conference proceedings, such
as prehearing conferences and hearings, to be recorded verbatim. Any party may request a copy of such
recording or request transcription. The
requesting party shall pay all actual costs for such transcription unless
otherwise provided by law.
(f)
No formal proceeding shall begin until at least one prehearing
conference has been held.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 204.01)
PART
Ed 209 CONDUCT OF HEARINGS
Ed 209.01 Authority of Hearing Officer. The hearing officer shall:
(a)
Hold hearings;
(b)
Regulate and control the course of hearing;
(c)
Administer oaths or affirmations;
(d)
Determine the order of proof;
(e)
Receive relevant evidence;
(f)
Take official notice of facts which are of common knowledge and general
notoriety;
(g)
Dispose of procedural requests;
(h)
Hold informal conferences, preceding a prehearing;
(i)
Interview or examine parties or witnesses;
(j)
Consider and evaluate facts and evidence in order to make proposed
findings of fact or conclusions of law;
(k)
Cause a complete record of any proceeding to be made; and
(l)
Take any other action, consistent with applicable statutes and rules, necessary
to conduct and complete the proceeding in a fair and timely manner.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 210.03)
Ed 209.02 Burden of Proof. In all proceedings governed by this chapter
the party asserting the affirmative of a proposition shall have the burden of
proving the truth of that proposition.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 210.04)
Ed 209.03 Standard of Proof. In all proceedings governed by this chapter
the party who proves his or her case by a preponderance of the evidence shall
prevail.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 210.05)
Ed 209.04 Order of Proof. The party bearing the burden of proof shall
present its evidence first unless otherwise agreed to by the parties. All parties shall have the opportunity to
present testimony, demonstrative and documentary evidence, cross-examine
adverse witnesses and make opening and closing statements.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New.
#8334-A,
eff 4-23-05 (from Ed 210.06)
Ed 209.05 Evidence. Introduction and admissibility of evidence
shall be governed by the following:
(a)
Pursuant to RSA 541-A:33, II, hearings shall not be bound by the
(b)
All relevant and material evidence shall be admissible. Repetitive, cumulative or irrelevant evidence
shall be excluded.
(c)
Evidence may include, but shall not be limited to, depositions,
affidavits, official documents, and testimony of witnesses.
(d)
To promote efficiency, the hearing officer shall officially notice
facts. When he or she officially notices
a fact or facts, it shall be so stated in the official record, and any party
shall, within 10 days, be given the opportunity to show the contrary.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 210.07)
Ed 209.06 Trial-type Evidentiary Proceedings. Proceedings shall consist of submission of
memoranda and trial-type evidentiary sessions at which:
(a)
All evidence shall be adduced in the presence of the hearing officer.
(b)
All witnesses giving testimony shall first be administered an oath or
affirmation by the hearing officer.
(c)
Exhibits shall be sequentially identified and numbered for each
party. At the time the exhibit is marked
for identification, the party offering the exhibit shall provide an original, a
copy for each party, and a copy for the department, if practicable. No reference shall be made to an exhibit,
other than to mark it for identification, before the hearing officer has
accepted it into evidence.
(d)
Should the hearing officer determine that the subject matter of the
proceeding is so complex, and that no party will be prejudiced thereby, the
hearing officer shall require that the direct testimony of specific witnesses
be prepared in writing by the party offering that direct testimony.
(e)
Written testimony shall be subscribed under oath or affirmation by the
witness, and served upon all parties at least 15 days before the first formal
evidentiary session of the proceeding.
Such written testimony shall not be in lieu of testimony under oath at
hearing, so as to afford an opportunity for cross examination on oral and
written testimony.
(f)
If no other party will be prejudiced by the introduction of written
testimony, a party may elect to submit such written testimony without an order,
but this election shall require no other party to do so. Written direct testimony so distributed shall
be marked as an exhibit, and shall be received into evidence before the witness
is cross-examined upon the contents of the exhibit.
(g)
Written testimony offered in lieu of oral testimony at hearing shall be
permitted provided that there is no material prejudice to the other parties.
(h)
Unless otherwise provided by statute or the rules, the petitioner or
intervenor shall first adduce all evidence necessary to support its claim. The respondent shall then adduce any evidence
desired in defense of the claim, or as directed in the order of notice. The petitioner or intervenor shall then
adduce any evidence desired in rebuttal.
(i)
The party who calls a witness shall first examine the witness. The party first calling the witness may
re-examine the witness, but only concerning those matters raised in
cross-examination.
(j)
The hearing officer shall accept closing legal memoranda and requests
for findings of fact and rulings of law from all parties and intervenors up to
30 days after the close of the hearing unless otherwise provided by law. Such
memoranda shall be limited to argument on the evidence presented. Separate requests for findings of fact and
conclusions of law which the parties wish the hearing officer to reach shall
not exceed 50 pages in length.
(k)
Upon expiration of the time for filing closing legal memoranda and requests
for finding of fact and rulings of law, the hearing record shall be closed, and
the hearing officer shall proceed to a proposed decision. The hearing officer shall reopen the record,
at any time prior to a decision, upon appropriate notice to all parties if the
hearing officer determines that there is new evidence that was not available at
the time of the hearing and that is required to reach a fair and equitable
decision.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 210.08)
Ed 209.07 Ex Parte Communications. Ex parte communications during the pendency
of the proceeding shall be prohibited.
Source. #8334-A,
eff 4-23-05 (from Ed 210.09)
PART
Ed 210 PROPOSED DECISIONS BY HEARING
OFFICER
Ed 210.01 Proposed Decisions by Hearing Officer.
(a)
Unless otherwise provided by law, the hearing officer shall prepare a
written proposed decision within 45 days of the conclusion of the hearing
containing, at a minimum, the following information:
(1) The
name of the case;
(2) The
date of the hearing officer's decision;
(3) The
jurisdictional basis for the decision;
(4) A listing
of parties and intervenors to the proceeding;
(5) The
names of those participating in the hearing;
(6) An
introduction briefly summarizing the subject matter and the issues being
resolved;
(7) A
discussion of the issues, including an identification of any additional
testimony which was requested by any of the parties;
(8)
Evidentiary rulings or other procedural matters which may impact
findings of fact or conclusions of law;
(9)
Findings of fact;
(10)
Conclusions of law;
(11) The
decision of the hearing officer;
(12) An
explanation of how the decision can be appealed to the board; and
(13) A
statement explaining how to request a nonpublic appeal in accordance with RSA
91-A.
(b)
Proposed decisions shall be served upon the parties with notice that
within 15 days from the date that the proposed decision was served, they may
file exceptions and supporting memoranda of law to be reviewed by the
board. Should the parties wish to
present oral argument to the board, they shall file a separate request for oral
argument at the same time.
(c)
If no exceptions are filed to a proposed decision, the board shall
consider the proposed decision and issue the final order based on the record.
(d)
The matter shall be placed on the agenda for consideration by the board
at its next regularly scheduled meeting.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A, eff 4-23-05 (from Ed 211.01)
Ed 210.02 Settlements.
(a)
Upon agreement by all parties to an offer of settlement, the hearing
officer shall cause a formal document to be drawn which shall specify the terms
and conditions of the settlement.
(b)
The agreement shall not become final and binding until the document is
signed by all parties. All parties shall receive copies of the fully executed
documents.
(c)
By signing the document all parties shall thereby waive their right to
an adjudicative proceeding and the matter and related matters and issues shall
be deemed concluded and the settlement binding on the parties. Unless otherwise provided by law, neither the
state board nor the department shall enforce the terms and conditions of a
settlement agreement.
(d)
The hearing officer shall write a proposed recommendation to the state
board indicating the parties have settled the matter and include the original
settlement agreement defined in (a) and (b).
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 204.02)
PART
Ed 211 EXCEPTIONS TO RULINGS BY THE
HEARING OFFICER
Ed 211.01 Exceptions to Rulings by the Hearing
Officer.
(a)
There shall be no interlocutory appeal to the board of procedural or discovery
orders made by the hearing officer.
(b)
The parties shall be provided a minimum of 15 days after the receipt of
the proposed decision to submit written exceptions to rulings of the hearing
officer, except as otherwise provided by law.
(c)
The board shall rule upon any such exceptions and shall reopen or modify
the record, if necessary, or appropriate to effectuate relief. The board shall base its review on any errors
in the record, and shall request that the hearing officer reconsider based upon
the board's discovery of such an error.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 212.01)
PART
Ed 212 FINAL REVIEW AND DECISION BY THE
BOARD
Ed 212.01 Submission of Written Record to Board. Upon the close of the evidentiary hearing and
time period to respond to the proposed decision with written exceptions, the
hearing officer shall provide to the full board the record of the hearing,
including the hearing officer's proposed decision required under Ed 212.01 (a)
and any written exceptions to rulings by the hearing officer.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 213.01)
Ed 212.02 Petition for Oral Argument Before Board.
(a)
Petitions requesting oral argument before the board shall be submitted
with the written exceptions to the hearing officer's proposed decision.
(b)
Once granted, the party shall have the right to a 10-minute oral
argument on the record before the board and shall be notified in writing of the
party's place on the agenda on the board's meeting date.
(c)
Oral arguments shall focus on:
(1) The findings
of the decision;
(2) Any
errors of fact or conclusions of law in the decision; and
(3) Any
information which the party can show is relevant which the decision omits.
(d)
In the case of a non-renewal of a contract for educational personnel certified
under Ed 500, oral argument shall be limited to evidence in the written
record. If new evidence is available
after the conclusion of the hearing and the board's receipt of the proposed
decision, the board shall refer the matter to the hearing officer for review.
(e)
The choice of whether the review by the board and the hearing are
conducted in a public or nonpublic session shall be that of the:
(1) The
public employee, consistent with RSA 91-A:3,II(a), or
(2) Any
person, other than a member of the board, if the matter which, if discussed in
public, would likely affect adversely the person’s reputation, consistent with
RSA 91-A:3,II (c).
(f)
Oral sessions of the proceeding shall be recorded. If a tape recording is employed, the tape
shall be made available for public inspection unless the hearing is held in
non-public session pursuant to RSA 91-A.
Upon the request of any person or persons, the board shall arrange for
transcription. The person or persons
requesting the transcript shall bear the costs.
Alternatively, a copy of the audio recording shall be made for the
requestor in lieu of written transcription.
The requestor shall bear the cost of such copying.
(g)
Transcripts shall be distributed as follows:
(1) The
original to the record of the proceeding; and
(2) One
copy to the person requesting the transcript.
(h)
The board shall meet in nonpublic session to deliberate.
Source. #8334-A,
eff 4-23-05 (from Ed 213.02)
Ed 212.03 Final Decision. All interested parties shall be notified of
the board's final decision in writing and shall be provided with a copy of the
decision by certified mail within 10 days after the date such decision is made.
Source. #8334-A,
eff 4-23-05 (from Ed 213.03)
PART
Ed 213 APPEALS OF FINAL BOARD DECISION
Ed 213.01 Right to Appeal.
(a)
All appeals of final action by the state board shall be taken in
accordance with RSA 541.
(b)
A decision of the board shall be considered final:
(1)
Thirty days after the decision, if there is no request for rehearing in
accordance with Ed 213.02; or
(2) At
the conclusion of action required by Ed 213.02.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 214.01)
Ed 213.02 Rehearing.
(a)
Within 30 days of a decision of the board, any party pursuant to RSA
541:3 may make a motion for rehearing.
(b)
A motion for rehearing shall:
(1)
Include any memorandum of law the petitioner wishes to submit;
(2)
Identify each error of fact, error of reasoning, or conclusion of law
contained in the decision that the moving party wishes reconsidered; and
(3) Concisely
state the correct factual finding, correct reasoning, and correct conclusion
urged by the moving party.
(c)
The board shall:
(1) Deny
the motion for rehearing;
(2) Grant the motion for rehearing and remand the
matter to the hearing officer; or
(3) Treat
the motion for rehearing as a motion for reconsideration and:
a.
Grant the motion as a motion for reconsideration;
b.
Deny the motion as a motion for reconsideration; or
c.
Table the matter for further discussion and decision at the next board
meeting.
Source. #6348, eff 10-5-96; amd by #6819, eff 9-1-98;
ss by #8334-A, eff 4-23-05 (from Ed
214.02)
PART
Ed 214 PUBLIC COMMENT HEARINGS FOR
RULEMAKING
Ed 214.01 Purpose. The purpose of this part is to provide a
uniform procedure for the conduct of public hearings at which comment from the
general public will be solicited for evaluation and consideration by a quorum
of the board relative to the adoption, amendment or repeal of a board rule
under RSA 541-A.
Source. #6348, eff 10-5-96; ss by #6819, eff 9-1-98; ss by #8334-A, eff 4-23-05 (from Ed 217.01)
Ed 214.02 Scope.
(a)
These rules shall apply to all hearings required by state law to be
conducted by the board at which public comment shall be solicited under RSA
541-A:11. They shall not apply to
contested cases as defined by RSA 541-A:1, IV.
(b)
If any requirement set by these rules conflicts with an applicable statute
or federal regulation, such other authority shall control.
Source. #6348, eff 10-5-96; ss by #6819, eff 9-1-98; ss by #8334-A, eff 4-23-05 (from Ed 217.02)
Ed 214.03 Notice.
(a)
A public comment hearing concerning rulemaking shall be commenced by
placing notice of the hearing in the "Rulemaking Register" so that it
shall appear at least 20 days prior to the hearing date.
(b)
Notice of rulemaking public comment hearings shall comply with RSA 541-A:6.
(c)
Nothing in these rules shall prohibit the board from giving greater
notice than the minimum set out in this part.
Source. #8334-A, eff 4-23-05 (from Ed 217.03)
Ed
214.04 Media Access.
(a)
Public comment hearings shall be open to the print and electronic media.
(b)
The moderator shall place limits on the activities of the media to avoid
disruption in the following ways:
(1) Limit
the placement of television cameras to certain locations in the hearing room;
and
(2)
Prohibit interviews from being conducted within the hearing room during
the hearing.
Source. #8334-A, eff 4-23-05 (from Ed 217.04)
Ed 214.05 Moderator.
(a)
The hearing shall be presided over by the moderator who shall be the
board chair or a designee.
(b)
The moderator shall:
(1) Call
the hearing to order;
(2) Cause
a recording of the hearing to be made;
(3) Place
limits on the media to avoid disruption as set out in Ed 214.04(b);
(4)
Recognize those who wish to be heard and establish the order thereof;
(5) Limit
the time for each speaker, as set out in Ed 214.06(b)(2);
(6)
Recognize or revoke recognition of a speaker for cause as set out in Ed 214.06(b);
(7)
Remove or have removed any person who disrupts the hearing;
(8)
Adjourn the hearing; and
(9)
Provide opportunity for the submission of written comments consistent
with the notice published in the rulemaking register.
Source. #8334-A, eff 4-23-05 (from Ed 217.05)
Ed 214.06 Public Participation.
(a)
Any person who wishes to speak on the issue or issues which are the
subject of the hearing shall list both name and address on a speakers'
list. All those whose names appear on
the speakers' list, as provided, may speak at the hearing.
(b)
The board, through the moderator, shall:
(1)
Refuse to recognize a person who refuses to give his full name and
address;
(2) When
a group or organization wishes to comment, limit the group to no more than 3
persons, provided that the members who are present may enter their names and
addresses into the record as supporting the position expressed by the group or
organization;
(3)
Revoke recognition of a speaker who speaks or acts in an abusive or
disruptive manner; and
(4)
Revoke recognition or a speaker who refuses to keep comments relevant to
the issues which are the subject of the hearing.
(c)
Written comments may be submitted any time from the time notice has been
published until the record has been closed by the moderator, which shall be
consistent with the notice published in the rulemaking register.
Source. #8334-A, eff 4-23-05 (from Ed 217.06)
PART
Ed 215 RULES FOR PETITIONING THE BOARD
Ed 215.01 Rulemaking Petitions.
(a)
Any interested person may petition the board, for the adoption,
amendment or repeal of any board rule under RSA 541-A:4.
(b)
Within 30 days of the receipt of the completed petition required by Ed
215.03, the board shall either:
(1)
Initiate rulemaking procedures in compliance with the petition and in
accordance with RSA 541-A:3; or
(2) Deny
the petition in writing, stating the reasons for the denial. Such reasons shall detail why the board deems
the problem can be solved by a method which does not require a formal
rulemaking proceeding.
(c)
The board shall determine whether to initiate a requested procedure or
deny a petition based on whether the requested change is consistent with the
duties of the board under RSA 21-N:11 or RSA 186:11, and the policy statement
contained in RSA 21-N:1.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 218.01)
Ed 215.02 Petition for Declaratory Ruling.
(a)
Any interested person may petition the board using the form specified in
Ed 215.03, requesting a declaratory ruling on the applicability of any statute
concerning the board or rule adopted by the board.
(b)
Within 45 days of the receipt of the completed petition required by Ed
215.03, the board shall either:
(1) Issue
a declaratory ruling responsive to the petition; or
(2) If a legal opinion is required the board
shall request the opinion of the attorney general's office and issue a
responsive declaratory ruling within 20 working days of receipt of the attorney
general's reply explaining the reply to the petitioner.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 218.02)
Ed 215.03 Petition Form.
(a)
The board shall consider any petition which meets the following minimum
requirements:
(1) Each
petition shall be in legible written form and addressed to the board as
follows:
Chair, State Board of Education
c/o Office of legislation and hearings
101 Pleasant Street
(2)
Petitions for proposed rulemaking shall state the nature of each
proposed rule, state the petitioner's reasons for proposing the rule and
include a text of the proposed rule;
(3)
Petitions for the amendment or repeal of a rule shall identify specifically
which rule or rules are to be amended or repealed and state the petitioner's
reasons for proposing the rule change;
(4)
Petitions for a declaratory ruling shall identify all material facts and
specify the statute, rule or order on which a declaratory ruling is sought;
(5) Each
petition shall include the name and the address of the petitioner, and, if
applicable, the name and address of the organization the petitioner represents;
and
(6) Each petition
shall include the date of the petition and shall be signed by the petitioner.
(b)
If the petition is deficient and does not meet the minimum requirements
of paragraph (a), the chair, through the commissioner, shall notify the
petitioner within 10 working days of the receipt of the incomplete petition.
(c)
Notification pursuant to (b) above shall be in writing and:
(1)
Identify the specific deficiencies; and
(2)
Contain an explanation of how the petition can be corrected and allow
the petitioner to amend the petition in accordance with the terms of the
notification.
(d)
A completed petition which meets the requirements of these rules shall
be placed on the next available board agenda.
Source. #6348, eff 10-5-96, EXPIRED: 10-5-04
New. #8334-A,
eff 4-23-05 (from Ed 218.03)
PART Ed 216
EXPLANATION OF ADOPTED RULES
Ed 216.01 Requests
for Explanation of Adopted Rules.
Any interested person may, within 30 days of the final adoption of a rule,
request a written explanation of that rule by making a written request to the
board including:
(a) The name and
address of the individual making the request; or
(b) If the request
is that of an organization or other entity, the name and address of such
organization or entity and the name and address of the representative
authorized by the organization or entity to make the request.
Source. #8334-B, eff 4-23-05; ss by #10361-A, eff 6-15-13
Ed 216.02 Contents
of Explanation. The board shall,
within 90 days of receiving a request in accordance with Ed 216.01, provide a
written response which:
(a) Concisely states
the meaning of the rule adopted;
(b) Concisely states
the principal reasons for and against the adoption of the rule in its final
form; and
(c) States, if the
board did so, why the board overruled any arguments and considerations
presented against the rule.
Source. #8334-B, eff 4-23-05; ss by #10361-A, eff 6-15-13
APPENDIX
|
Rule |
Statute |
|
|
|
|
Ed 201 - 202 |
RSA 541-A:30-a; RSA 541-A:31 |
|
Ed 203 |
RSA 541-A:30-a |
|
Ed 204.01 |
RSA 21-N:11,III |
|
Ed 204.02 |
RSA 189:14-a |
|
Ed 205 |
RSA 541-A:38 |
|
Ed 206 |
RSA 541-A:30-a |
|
Ed 207 - 208 |
RSA 21-N:4,III |
|
Ed 209 |
RSA 541-A:30-a |
|
Ed 210 - 213 |
RSA 21-N:4,III |
|
Ed 214 |
RSA 541-A:16,I(b)(3) |
|
Ed 215.01 |
RSA 541-A:16,I(b)(3); 541-A:4 |
|
Ed 215.02-.215.03 |
RSA 541-A:16,I(c) |
|
Ed 216 |
RSA 541-A:11,VII |