Section 34.35. License revocation, reinstatement and denial.

 

(1)   Definitions. In this section:

(a) "Applicant" means any person who applies for a license, permit or other certificate from the department.

(b) "Hearing examiner" means the person designated to preside over the hearing, make findings of fact, conclusions of law and issue a proposed decision and order.

(c) "Immoral conduct" has the meaning defined in s. 115.31 (1) (c) , Stats.

(d) "Incompetency" means a pattern of inadequate performance of duties or the lack of ability, legal qualifications or fitness to discharge required duties, and which endangers the health, welfare, safety or education of any pupil.

(e) "License denial hearing" means a class 1 proceeding as defined in s. 227.01 (3) (a) , Stats., in which an applicant may appeal the state superintendent's denial of an application for a license.

(f) "Licensee" means a person holding a license or having the right to renew a license.

(g) "Notice" means the notice of probable cause and intent to revoke a license.

(h) "Reinstatement" means restoring the rights, privileges and authority previously revoked.

(i) "Restrict" means to impose conditions and requirements upon the holder of the license or permit, and to limit the scope of the holder's practice.

(j) "Revoke" means to terminate a license, permit or other certificate and all rights, privileges and authority previously conferred and associated with the license, including the right to renew the license.

(k) "State superintendent" means the superintendent of public instruction for the state of Wisconsin or his or her designee.

(L) "Suspend" means to completely and absolutely withdraw and withhold for a period of time all rights, privileges and authority previously conferred by the license or permit.

(2)   Standards for revocation.

(a) The state superintendent may revoke any license issued by the department for incompetency or immoral conduct on the part of the licensee. In making a decision to revoke a license, the state superintendent shall adhere to the following standards:

1. A license may be revoked for immoral conduct if the state superintendent establishes by a preponderance of the evidence that the person engaged in immoral conduct.

2. A license may be revoked for incompetency if the state superintendent establishes by a preponderance of the evidence that the incompetency endangers the health, welfare, safety or education of any pupil.

(b) The state superintendent shall revoke any license as provided in s. 115.31 (6m) , Stats.

(c) The state superintendent shall restrict or suspend any license as provided in s. 115.315 , Stats.

(d) The state superintendent shall revoke any license as provided in s. 115.31 (2g) , Stats.

(e) The state superintendent may revoke the license of a person whose license had been revoked in another state.

(3)   Complaint, investigation and probable cause.

(a) Complaint.

1. The state superintendent shall, at his or her initiative or upon receipt of a written complaint, make inquiries necessary to determine whether to conduct an investigation which may lead to license or permit revocation.

2. The state superintendent shall acknowledge, in writing, any written complaint and notify the complainant whether an investigation is being conducted which may result in the subsequent revocation of a person's license.

(b) Investigation.

1. If the state superintendent determines that an investigation should be conducted, the state superintendent shall appoint a person to serve as the investigator and shall notify the licensee that an investigation is proceeding and of the nature of the complaint or allegation. The licensee shall have an opportunity to respond to the investigator regarding the complaint or allegation.

2. Except as provided in s. 115.31 (6) (b) , Stats., as authorized in ss. 19.35 (1) and 19.85 (1) (b) , Stats., during the course of the investigation the state superintendent, the investigator and any department employee involved in the investigation shall maintain as confidential all files, communications and other information pertaining to the investigation.

(c) Probable cause.

1. If, based upon the investigation, the state superintendent finds no probable cause for license revocation, the state superintendent shall promptly notify the licensee and the complainant that the investigation is concluded and that there is no probable cause for license revocation.

2. If, based upon the investigation, the state superintendent finds probable cause for license revocation, the state superintendent shall promptly issue the notice informing the licensee of the specific charges, of the licensee's right to request a hearing, and of the state superintendent's intent to revoke the license. The state superintendent shall notify the complainant and the school board or other public or private educational agency employing the licensee in a licensed capacity of the finding of probable cause and of the specific charges.

3. The state superintendent shall notify the licensee that within 30 days following service of the notice, the licensee may request a hearing on the revocation. The notice shall inform the licensee that if a hearing is not requested within the 30 day period, the licensee's license shall be revoked without a hearing. Notice of the probable cause and intent to revoke may be served by mailing a copy to the last known address or by any other procedure described in s. 801.14 (2) , Stats. Service by mail is complete upon mailing.

4. Upon receipt of the licensee's written request for a hearing, the state superintendent shall schedule a hearing not later than 90 days after receipt of the licensee's request and shall provide the licensee with at least 20 days written notice of the hearing date. The hearing shall be conducted as a class 2 proceeding under subch. III of ch. 227 , Stats.

5. The notice of the date of the hearing may be served by mailing a copy to the licensee at the last known address or by any procedure described in s. 801.14 (2) , Stats. Service by mail is complete upon mailing.

(4)   Answer and discovery.

(a) Answer.

1. If the licensee has requested a hearing on the revocation of his or her license, the licensee shall file an answer with the state superintendent within 10 days following the licensee's written request for a hearing.

2. The licensee's answer shall state in short and plain terms the defenses to each cause for revocation asserted and shall admit or deny each allegation upon which the notice relies. If the licensee is without knowledge or information sufficient to form a belief as to the truth of an allegation, the licensee shall so state and this will have the effect of a denial. The licensee shall make denials as specific denials of designated allegations or paragraphs, but if the licensee intends in good faith to deny only a part of an allegation, the licensee shall specify so much of it as true and material and shall deny only the remainder.

3. The licensee shall set forth affirmatively in the answer any matter constituting an affirmative defense.

4. Specific allegations in the notice of probable cause and intent to revoke a license are admitted when not specifically denied in the answer.

(b) Discovery. The department and the licensee may, prior to the date set for the hearing, obtain discovery by use of methods described in ch. 804 , Stats. , for the purposes set forth therein. Protective orders, including orders to terminate or limit examinations, deadlines within which discovery shall occur, orders compelling discovery, sanctions provided in s. 804.12 , Stats., or other remedies as are appropriate for failure to comply with such orders may be made by the hearing examiner.

(5)   Conduct of hearings.

(a) Hearing examiners.

1. License revocation, license reinstatement and license denial hearings shall be presided over by a hearing examiner appointed by the state superintendent.

2. A hearing examiner presiding over a hearing has the authority described in s. 227.46 (1) , Stats.

(b) Procedure. The department and the licensee shall have the right to appear in person or with counsel, to call, examine and cross-examine witnesses and introduce evidence into the record.

(c) Record.

1. A stenographer, electronic or other record shall be made of all hearings in which testimony of witnesses is offered as evidence.

2. Upon filing a written request with the state superintendent, any person may obtain a written transcript of any disciplinary hearing and shall be charged a reasonable compensatory fee. A person who requests a written transcript for the purposes of appeal and who demonstrates indigence to the satisfaction of the department may be provided with a copy of the transcript at no expense.

(d) Motions. All motions, except those made at a hearing, shall be in writing filed with the hearing examiner and a copy served upon the opposing party not later than 10 days before the time specified for hearing the motion.

(e) Adjournments. The hearing examiner may, for good cause, grant continuances, adjournments and extensions of time.

(f) Subpoenas. Subpoenas for the attendance of any witness at a hearing in the proceeding may be issued in accordance with s. 805.07 (5) , Stats. Service shall be made in the manner provided in s. 805.07 (5) , Stats. A subpoena may command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein.

(g) Briefs. The hearing examiner may require the filing of briefs.

(h) Settlements. All stipulations or settlement agreements disposing of any investigation may not be effective or binding in any respect until reduced to writing, signed by the licensee and approved by the state superintendent.

(i) Default. If the licensee fails to answer as required in sub. (4) (a) 1. or fails to appear at the license revocation hearing at the time affixed therefor, the licensee is in default and the state superintendent may make findings and enter an order without hearing on the basis of the notice of probable cause and intent to revoke licenses and other evidence. The state superintendent may, only upon showing good cause, relieve the licensee from the effect of such findings and permit the licensee to answer and defend the notice of probable cause.

(j) Proposed decision.

1. The hearing examiner shall prepare a proposed decision and opinion, as well as findings of fact and conclusions of law in a form that may be adopted as the final decision and order in the case within 60 days of the close of the hearing record.

2. The proposed decision shall be served by the hearing examiner on all parties with a notice providing each party an opportunity to file objections and written argument with respect to objections. Any party may file objections and arguments to the proposed decision within 10 days of the date of the proposed decision.

(k) Final decision. The state superintendent shall issue a final decision under s. 227.47 , Stats., within 60 days of receipt of the hearing examiner's proposed decision.

(L) Witness fees. Witnesses subpoenaed at the request of the hearing examiner or the department shall be entitled to compensation from the state for attendance and travel as provided in ch. 885 , Stats.

(6)   Request and hearing for reinstatement.

(a) Upon written request from a person whose license has been revoked, the state superintendent shall conduct a hearing to consider the reinstatement of the license. The hearings shall be conducted as a class 1 proceeding under subch. III of ch. 227 , Stats.

(b) A license may be reinstated if the person whose license has been revoked establishes by a preponderance of the evidence that the cause of the revocation no longer exists and that reinstating the license will not endanger the health, welfare, safety or education of pupils. However, a license previously revoked based on a criminal conviction of any Class A, B, C or D felony under ch. 940 or 948 , Stats., occurring on or after September 12, 1991, except for a violation of s. 940.08 or 940.205 , Stats., may only be reinstated if both of the following apply:

1. Six years following the date of the conviction have elapsed.

2. The licensee establishes by clear and convincing evidence that the cause of the revocation no longer exists and that reinstating the license will not endanger the health, welfare, safety or education of pupils.

(7)   Standards for denial of license.

(a) The state superintendent shall deny, refuse to renew or refuse to revalidate a license as provided in s. 118.19 (1m) (a) and (b) , (1r) (a) and (b) , Stats.

(b) The state superintendent may deny, refuse to renew or refuse to revalidate a license to a person who has engaged in immoral conduct or incompetence.

(c) The state superintendent shall deny a license to a person who has not met the requirements for licensure as provided in this chapter and s. 118.19 , Stats.

(d) The state superintendent shall deny a license to a person as provided in s. 118.19 (4) , Stats.

(e) The state superintendent may deny or refuse to renew a license to a person who has provided a false, inaccurate or incomplete application.

(f) The state superintendent may deny licensure to a person whose license has been revoked in another state.

(8)   Procedures on denial of license.

(a) Denial. The state superintendent may deny, refuse to renew, or refuse to revalidate licensure to any applicant by informing the applicant, in writing, of the decision. The state superintendent shall inform the applicant that the applicant may request a hearing within 30 days after receipt of the notice denying the licensure by serving the state superintendent a written request containing all of the following:

1. The applicant's name and address.

2. The type of license for which the applicant has applied.

3. The reasons why the applicant requests a hearing.

4. The facts which the applicant intends to prove at the hearing.

5. A description of the mistake the applicant believes was made, if the applicant claims that the denial of license is based on a mistake in fact or law.

(b) Procedure.

1. The state superintendent shall hold the license denial hearing and make a final decision within 60 days after the receipt of the proposed decision.

2. The license denial hearing shall be conducted as a class 1 proceeding under s. 227.01 (3) (a) , Stats.

3. Service of a notice of denial of licensure may be made by mail addressed to the applicant at the last address filed in writing by the applicant. Service by mail is complete on the date of mailing.

4. If the applicant fails to appear at the license denial hearing the state superintendent shall dismiss the applicant's request for a hearing.

5. All hearing procedures provided in sub. (5) , except sub. (5) (i) , shall apply to hearings under this paragraph.

History: Cr. Register, April, 2000, No. 532 , eff. 5-1-00; corrections in (5) (f) and (6) (b) (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register October 2001 No. 550 ; CR 13-088 : am. (1) (c) Register April 2014 No. 700 , eff. 5-1-14.