Del. Code 14, § 121 : Education — Department Of Education — Powers And Duties — General powers of the Department of Education

Date: 2 Sep 2016

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Current through 2016 Legislative Session, Act 399

(a) The Department shall exercise general control and supervision over the public schools of the State, including:

(1) Developing and executing the educational policies and laws of the State and promoting public sentiment in support of public education;

(2) Consulting, advising and cooperating with the boards of education and superintendents of reorganized school districts, and other officers, principals, teachers and interested citizens in matters relating to education and to the conduct of schools;

(3) Appointing, through the Secretary, by execution of a written contract for a term of not less than 1 year nor more than 5 years, of additional officers necessary for administering and developing the policies, rules and regulations of the Department. As used in this section, the term "additional officers" shall be defined as the team leaders and directors authorized by § 1321(a) of this title and any certificated professional employees assigned to the office of the Secretary whose positions are not covered in § 103(a)(2) of this title. The Secretary may elect not to renew the contract of any additional officer upon its expiration. However, in such a case the Secretary shall notify the officer in writing by certified mail, return receipt requested, at least 4 months prior to the expiration date of the existing contract that the Secretary does not intend to renew the contract, thereby providing official notice that the services of the officer are to be terminated. Failure to notify an additional officer covered by this subsection in writing by the required date shall result in an automatic extension of the existing contract for a period of 1 year from its expiration date;

(4) Hiring, through the Secretary, by execution of a written contract for a term of not less than 1 year and not more than 5 years, of certificated professional employees, other than those persons described in paragraph (a)(3) of this section and § 103(a)(2) of this title, necessary for carrying out the policies, rules and regulations of the Department. For the purposes of this subsection, the term "certificated professional employees" includes education associates, education specialists, field agents, technicians and other employees holding positions of similar rank. The Secretary may elect not to renew the contract of a certificated professional employee upon its expiration. However, in such a case, the Secretary shall notify the employee in writing by certified mail, return receipt requested, at least 4 months prior to the expiration date of the existing contract that the Secretary does not intend to renew the contract, thereby providing official notice that the services of the employee are to be terminated. Failure to notify a person covered under this subsection in writing by the required date shall result in an automatic extension of the existing contract for a period of 1 year from its expiration date. The written notification shall indicate that just cause exists for the Secretary's proposed action. For the purposes of this subsection, "just cause" shall be defined as including, but not limited to, reduction in force, inefficiency, or unsatisfactory performance of duties. Any employee notified of the Secretary's intention not to renew for reasons other than a reduction in force may request a formal hearing before a hearing officer appointed by the Director of the Office of Management and Budget within 15 calendar days from the date that notice of the Secretary's intention not to renew is sent by certified mail. In the event that an employee requests a hearing in a timely manner, the Office of Management and Budget shall convene a hearing no earlier than 10 days nor later than 90 days after receipt of the request for a hearing, unless both parties agree to a different schedule. The employee shall have the opportunity to present information in the employee's own defense and may have legal counsel at the hearing;

(5) Dismissing or disciplining, through the Secretary, during the contract period, for misconduct in office, incompetency, or wilful neglect of duty, any officer or certificated professional employee appointed under this title or under any special school law, except an employee whose position is covered in § 103(a)(2) of this title, giving the employee a copy of the charges against the employee. In making a determination to dismiss or to impose a lesser disciplinary action, the Secretary shall assess and take into account any mitigating or extenuating circumstances as well as the employee's work history. Any employee dismissed pursuant to this subsection may request a formal hearing before a hearing officer appointed by the Director of the Office of Management and Budget within 15 calendar days from the date that notice is sent by certified mail or the date of receipt of the written notification of dismissal from the Secretary if hand-delivered, whichever is applicable. In the event that an employee timely requests a hearing, the Office of Management and Budget shall convene a hearing no earlier than 10 days nor later than 90 days after receipt of the request for a hearing, unless both parties agree to a different schedule. The employee shall have the opportunity to present information in the employee's own defense and may have legal counsel at the hearing;

(6) Hiring, through the Secretary, any clerical assistants and other noncertificated employees necessary to provide support in carrying out the policies, rules and regulations of the Department or the State Board, or both. An employee hired pursuant to this subsection shall not enter into a written contract with the Department. Such employee shall be subject to dismissal or other disciplinary action imposed by the Secretary only for just cause. For the purposes of this subsection, "just cause" includes, but is not limited to, reduction in force, inefficiency, unsatisfactory performance of duties, misconduct, immorality, incompetency, and wilful neglect of duty;

In making a determination to dismiss or to impose a lesser disciplinary action pursuant to this subsection, the Secretary shall assess and take into account any mitigating or extenuating circumstances as well as the employee's work history. Any employee dismissed pursuant to this subsection may request a formal hearing before a hearing officer appointed by the Director of the Office of Management and Budget within 15 calendar days from the date that notice is sent by certified mail or the date of receipt of the written notification of dismissal from the Secretary if hand-delivered, whichever is applicable. In the event that an employee timely requests a hearing, the Office of Management and Budget shall convene a hearing no earlier than 10 days nor later than 90 days after receipt of the request for a hearing, unless both parties agree to a different schedule. The employee shall have the opportunity to present information in the employee's own defense and may have legal counsel at the hearing;

(7) Granting to any person employed by the Department pursuant to this section who is called to the service or voluntarily enters the Armed Forces of the United States or the National Guard of the State, when in continuous active service, a leave of absence which shall cover the period of voluntary service, not to exceed 3 years, or the term of service to which the person has been called until that term of service is terminated; and upon the completion of the leave of absence, reinstating such person in the position which the person held at the time that the leave of absence was granted, if such person has received a certificate of satisfactory completion of service;

(8) Appointing persons to replace employees on leaves of absence for active military service, as described in paragraph (a)(7) of this section, but such appointments shall be only for the period covered by said leaves of absence;

(9) Requiring boards of education of reorganized school districts to submit reports covering student achievement, discipline, expenditures, business methods, accounts, registration, attendance, and any other matter it finds necessary and advisable consistent with the State's policy, as reflected in §§ 122(d), (e) and 124A(f) of this title, to avoid duplicative or unnecessarily burdensome reporting obligations; and receiving and examining such reports and, through its staff, examining and giving advice on expenditures, business methods, and accounts of boards of education of reorganized school districts;

(10) Conducting investigations relating to the educational needs of the State and the means of improving the educational conditions including, without limitation: conducting an audit or evaluation of education programs; developing, validating, or administering predictive tests; administering student aid programs; improving instruction; conducting research and evaluation regarding federal, state or local education and training programs; or providing for the enforcement of or compliance with federal legal requirements relating to those programs; and, for such investigations, collaborating with other organizations, including, without limitation, the P-20 Council, to conduct studies for or on behalf of the Department, employing additional expert assistants and appointing special agents when deemed advisable;

(11) Causing the provisions of this title to be carried into effect, so as to provide a general and efficient system of public schools throughout the State;

(12) Deciding, without expense to the parties concerned, certain types of controversies and disputes involving the administration of the public school system. The specific types of such controversies and disputes appropriate for Department resolution and the procedures for the resolution of such controversies and disputes shall be established by rules and regulation proposed by the Secretary subject to approval by the State Board. Hearing examiners or panels, including panels of the State Board of Education, may be appointed to hear such controversies and disputes;

(13) Obtaining witnesses and documents through subpoena, administering oaths, examining under oath, and causing such examinations to be reduced to writing, when necessary to enforce any provision of this title. The Secretary and the State Board of Education, and any hearing examiner or panel duly appointed by either, may exercise the provisions of this subsection;

(14) Entering into contracts with states bordering on the State, or with agencies, political subdivisions or school districts of such states, for the establishment and operation of joint educational facilities wherever it is found by the Department that such joint facilities would be of greater educational value to the citizens of the State than separate facilities. Tuition payments required by such contracts shall be paid from funds specifically appropriated in the annual budget for this purpose, from educational contingency funds, or from both. Tuition payments received under such contracts shall be deposited in the General Fund of the State, notwithstanding any other provisions of this title;

(15) Supervising generally the design of educational facilities by:

a. Establishing and applying evaluative criteria to all stages in the design of proposed educational facilities;

b. Analyzing and researching design factors as they relate to educational effectiveness;

c. Recommending to local school districts matters dealing with educational design;

(16) Determining criteria to be met and procedures to be followed by institutions of postsecondary education that offer courses, programs of courses, or degrees within the State but that are not institutions either incorporated in Delaware or located in Delaware except for the purpose of offering the particular courses, programs of courses, or degrees referred to above. The administration of the authority herein granted shall be carried out according to rules and regulations of the Department as authorized in § 122 of this title; and

(17) Collecting, integrating and reporting longitudinal student and educator data for such purposes as implementing federal- or state-required education performance accountability measures; conducting research and evaluation regarding federal, state and local education and training programs; and conducting audits and ensuring compliance of those programs with applicable federal and state requirements.

(b) The Department shall establish a voluntary licensure and certification system for nonpublic school teachers, specialists and administrators employed in this State, and is empowered to make rules and regulations to implement the same.

(1) Said system shall consist of a 3-tiered licensure system consisting of an initial license, continuing license and an advanced license. The prerequisites required for issuance of an initial, continuing or advanced license to a nonpublic school teacher, specialist or administrator shall be consistent, to the extent possible, with those required for the issuance of an initial, continuing or advanced license to a public school educator as set forth in subchapter II of Chapter 12 of this title. The qualifications for a standard certificate and an emergency certificate shall be consistent, to the extent possible, with those required for the issuance of same to a public school educator, as set forth in subchapter III of Chapter 12 of this title.

(2) If a nonpublic school licensee intends to apply for a continuing license, the licensee shall, prior to the expiration of the licensee's initial license, complete such professional development and mentoring activities as may be required by the Department.

(3) A licensed and certified non-public school teacher, specialist or administrator must receive at least 1 performance appraisal evaluation annually. The evaluation must be in a form approved by the Department and consistent with the Delaware Professional Teaching Standards and the Delaware Administrator Standards. The performance appraisal evaluation must include an overall rating and a student improvement component rating, and must identify what constitutes satisfactory and unsatisfactory performance on the overall evaluation and each component of the evaluation. The performance appraisal evaluation must have no more than 5 components and must have a strong focus on student improvement, with 1 component dedicated exclusively to student improvement and weighted at least as high as any other component. The measure of student improvement must be approved by the Department.

(4) The Department, through the Associate Secretary, Administration and Innovation, may deny an applicant's application for a license for failure to meet the qualifications for a license. The Department may further deny a license to an applicant who otherwise meets the requirements of this subsection for any of the causes enumerated in § 1218(a) or (b) of this title. The Department shall not take action to deny a license under this subsection without providing the applicant with written notice of the reasons for denial and with an opportunity for a full and fair hearing before the Secretary of Education or the Secretary's designee. The burden of proof in a license denial action is on the applicant to show by a preponderance of the evidence that the applicant should not be denied a license because that applicant meets the qualifications for licensure pursuant to the applicable laws and regulations.

(5)

a. Except as otherwise provided in paragraphs (b)(5)b. and c. of this section, the Department, through the Associate Secretary, Administration and Innovation, may suspend, revoke or limit a license issued under the provisions of this subsection for any of the causes set forth in § 1218(a) of this title.

b. The Department, through the Associate Secretary, Administration and Innovation, shall revoke a license issued under the provisions of this subsection for any of the causes set forth in § 1218(b) of this title.

c. The Department, through the Associate Secretary, Administration and Innovation, may automatically suspend any license without a prior hearing if the license holder is arrested or indicted by a grand jury for a violent felony as defined in § 4201(c) of Title 11. A suspension under this paragraph is effective on the date of the arrest or grand jury indictment. The provisions of § 1218(c) of this title shall apply to any automatic suspension under this subsection with the exception that the license holder may request an expedited hearing before the Secretary of Education within 20 calendar days from the date the notice of the Department's decision to temporarily suspend the license holder's license was mailed. In the event that the license holder requests an expedited hearing in a timely manner, the Secretary of Education or the Secretary's designee shall convene a hearing within 90 days of the receipt of such a request. An order of suspension under this subsection shall remain in effect until the final order of the Associate Secretary, Administration and Innovation or the Secretary of Education becomes effective.

d. The Department, through the Associate Secretary, Administration and Innovation, may take an action under paragraph (b)(5)a., b., or c. of this section on the basis of substantially comparable conduct occurring in a jurisdiction outside this State or occurring before a person applies for or receives any license.

e. Any license holder who has pled guilty or nolo contendere to, or has been convicted of, a crime in a court of law which would constitute grounds for revocation, suspension or limitation of license under § 1218(a) or (b) of this title or has been arrested or indicted by a grand jury for a violent felony as defined in § 4201(c) of Title 11, shall notify the Department of such action in writing within 20 days of such conviction, arrest or indictment, whether or not a sentence has been imposed. Failure to do so shall be grounds on which the Department may limit, suspend, or revoke the holder's license.

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

g. The Department may investigate any information received about a person that reasonably appears to be the basis for action under paragraphs (b)(5)a. through c. of this section. The Department shall not investigate anonymous complaints. The Department shall give written notice within a reasonable period of time to a license holder of any investigation initiated hereunder to the license holder's last known address. All information obtained during an investigation is confidential and shall not be considered public records under Delaware's Freedom of Information Act (Chapter 100 of Title 29). The Associate Secretary, Administration and Innovation, shall review the results of each investigation and shall determine whether the results warrant initiating action under paragraph (b)(5)a., b. or c. of this section.

h. Whenever the basis of for action under paragraph (b)(5)a. or b. of this section is a guilty plea, nolo contendere with respect to, or a conviction of a crime, a copy of the record of the plea, nolo contendere or conviction certified by the clerk of the court entering the plea, nolo contendere or conviction shall be conclusive evidence thereof.

i. The Department, through the Associate Secretary, Administration and Innovation, may enter a consent agreement with a person against whom action is being taken under paragraph (b)(5)a., b. or c. of this section.

j. The Associate Secretary, Administration and Innovation, shall not take action against a person under paragraph (b)(5)a. or b. of this section without providing the person with written notice of the charges and with an opportunity for a full and fair hearing before the Secretary of Education. Notice shall be sent to the person's last known address. The license holder shall have 30 calendar days from the date the notice of the charges was mailed to make a written request for a hearing. Unless otherwise provided for in this subsection, the burden of proof in a license disciplinary action shall be on the agency taking official action to establish by preponderance of the evidence that the license holder has engaged in misconduct as defined by paragraphs (b)(5)a. and b. of this section or otherwise has failed to comply with the applicable laws and regulations relating to the retention of the license. If no written request for a hearing is received by the Secretary of Education, the license holder's license shall be deemed to be revoked, suspended, or limited and the holder shall be so notified.

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

l. If any of the causes listed in § 1218(a) or (b) of this title are determined, the Associate Secretary, Administration and Innovation or the Secretary of Education after a hearing, may put limitations on a license that may include but are not limited to:

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

2. Additional supervision requirements; or

3. Education, counseling, or psychiatric examination requirements.

m. If a decision of license limitation, suspension or revocation is based on § 1218(a)(4), (a)(5), or (b)(1) of this title, and if the plea or conviction is overturned and there is no subsequent proceeding leading to a plea or conviction, the individual whose license is limited, suspended or revoked may file a written request for reinstatement, including documentation of the final status of the judicial proceeding, and the license shall be reinstated.

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

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

A. The nature and circumstances of the individual's original misconduct;

B. The individual's subsequent conduct and rehabilitation;

C. The individual's present character; and

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

2. A former license holder is entitled to a full and fair hearing before the Secretary of Education or designee to challenge a denial of reinstatement pursuant to this subsection.

3. A license revoked under paragraph (b)(5)b. of this section or suspended under paragraph (b)(5)c. of this section may not be reinstated under this section. A license revoked under § 1218(b)(1) of this title may only be reinstated pursuant to this paragraph (b)(5)n. and a license suspended under paragraph (b)(5)c. of this section may only be reinstated pursuant to of § 1218(c)(5) of this title or after a hearing before the Secretary of Education or the Secretary's designee.

o. All communications between a license holder and the Department provided for in this subsection shall be by certified mail, return receipt requested.

(6) The Department shall issue a continuing license to a nonpublic school teacher, specialist or administrator holding a Delaware certificate issued by an education certifying board prior to July 13, 1971, or upon the expiration of a professional status certificate or standard certificate issued by the Department.

(7) Licenses and certificates issued to nonpublic school teachers, specialists and administrators shall have the same force and effect as licenses and certificates issued pursuant to subchapters II and III of Chapter 12 of this title.

(c) The Department shall establish a licensure and certification system for public education employees in this State that applies to Department of Education employees, adult education employees, and prison education employees whose work responsibilities are directly related to curriculum and instruction, but does not apply to public school educators who shall be licensed and certified in accordance with subchapters II and III of Chapter 12 of this title. The Department shall be empowered to promulgate rules and regulations to implement such system.

(1) For purposes of this section only, "public education employee" means a public education employee whose work responsibilities are directly related to curriculum and instruction, and includes Department employees, adult education employees, and prison education employees, but does not include public school educators who shall be licensed and certified in accordance with subchapters II and III of Chapter 12 of this title.

(2) Said system shall consist of 3-tiered licensure system consisting of an initial license, continuing license and an advanced license. The prerequisites required for issuance of an initial, continuing or advanced license to a public education employee shall be consistent, to the extent possible, with those required for the issuance of an initial, continuing or advanced license to a public school educator as set forth in subchapter II of Chapter 12 of this title. The qualifications for a standard certificate and an emergency certificate shall be consistent, to the extent possible, with those required for the issuance of same to a public school educator, as set forth in subchapter III of Chapter 12 of this title.

(3) If a licensee under this section intends to apply for a continuing license, the licensee shall, prior to the expiration of the licensee's initial license, complete such professional development as may be required by the Department.

(4) A licensed and certified public education employee shall be evaluated pursuant to a performance appraisal evaluation developed by the Department.

(5) The Department, through the Associate Secretary, Administration and Innovation, may deny an applicant's application for a license for failure to meet the qualifications for a license. The Department may further deny a license to an applicant who otherwise meets the requirements of this subsection for any of the causes enumerated in § 1218(a) or (b) of this title. The Department shall not take action to deny a license under this subsection without providing the applicant with written notice of the reasons for denial and with an opportunity for a full and fair hearing before the Secretary of Education or the Secretary's designee. The burden of proof in a license denial action is on the applicant to show by a preponderance of the evidence that the applicant should not be denied a license because that applicant meets the qualifications for licensure pursuant to the applicable laws and regulations.

(6)

a. Except as otherwise provided in paragraphs (c)(6)b. and c., of this section the Department, through the Associate Secretary, Administration and Innovation, may suspend, revoke or limit a license issued under the provisions of this subsection for any of the causes set forth in § 1218(a) of this title.

d. The Department, through the Associate Secretary, Administration and Innovation, may take an action under paragraph (c)(6)a., b., or c. of this section on the basis of substantially comparable conduct occurring in a jurisdiction outside this State or occurring before a person applies for or receives any license.

g. The Department may investigate any information received about a person that reasonably appears to be the basis for action under paragraphs (c)(6)a. through c. of this section. The Department shall not investigate anonymous complaints. The Department shall give written notice within a reasonable period of time to a license holder of any investigation initiated hereunder to the license holder's last known address. All information obtained during an investigation is confidential and shall not be considered public records under Delaware's Freedom of Information Act (Chapter 100 of Title 29). The Associate Secretary, Administration and Innovation, shall review the results of each investigation and shall determine whether the results warrant initiating action under paragraph (c)(6)a., b. or c. of this section.

h. Whenever the basis of for action under paragraph (c)(6)a. or b. of this section is a guilty plea, nolo contendere with respect to, or a conviction of a crime, a copy of the record of the plea, nolo contendere or conviction certified by the clerk of the court entering the plea, nolo contendere or conviction shall be conclusive evidence thereof.

j. The Associate Secretary, Administration and Innovation, shall not take action against a person under paragraph (c)(6)a. or b. of this section without providing the person with written notice of the charges and with an opportunity for a full and fair hearing before the Secretary of Education. Notice shall be sent to the person's last known address. The license holder shall have 30 calendar days from the date the notice of the charges was mailed to make a written request for a hearing. Unless otherwise provided for in this subsection, the burden of proof in a license disciplinary action shall be on the agency taking official action to establish by preponderance of the evidence that the license holder has engaged in misconduct as defined by paragraphs (c)(6)a. and b. of this section or otherwise has failed to comply with the applicable laws and regulations relating to the retention of the license. If no written request for a hearing is received by the Secretary of Education, the license holder's license shall be deemed to be revoked, suspended, or limited and the holder shall be so notified.

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

2. Additional supervision requirements; or

3. Education, counseling, or psychiatric examination requirements.

n. An individual whose license has been revoked under paragraph (c)(6)a. of this section may petition the Department for reinstatement of the license not sooner than 5 years from the date of revocation. The individual shall submit to the Department a written petition showing credible evidence, by affidavit or otherwise, of the factors set forth in paragraph (c)(6)n.1. of this section.

A. The nature and circumstances of the individual's original misconduct;

B. The individual's subsequent conduct and rehabilitation;

C. The individual's present character; and

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

2. A former license holder is entitled to a full and fair hearing before the Secretary of Education or designee to challenge a denial of reinstatement pursuant to this subsection.

3. A license revoked under paragraph (c)(6)b. of this subsection or suspended under paragraph (c)(6)c. of this section may not be reinstated under this section. A license revoked under of § 1218(b)(1) of this title may only be reinstated pursuant to paragraph (c)(6)n. of this section and a license suspended under paragraph (c)(6)c. of this section may only be reinstated pursuant to § 1218(c)(5) of this title or after a hearing before the Secretary of Education or the Secretary's designee.

o. All communications between a license holder and the Department provided for in this subsection shall be by certified mail, return receipt requested.

Del. C. § 121

21 Del. Laws, c. 67, § 2; 26 Del. Laws, c. 94, § 2; 27 Del. Laws, c. 106; Code 1915, § 2275; 32 Del. Laws, c. 160, § 7; Code 1935, § 2629; Code 1935, c. 71, § 146; 42 Del. Laws, c. 122, § 1; 43 Del. Laws, c. 190, § 3; 14 Del. C. 1953, § 121; 49 Del. Laws, c. 163; 57 Del. Laws, c. 113; 58 Del. Laws, c. 231; 59 Del. Laws, c. 87, § 1; 59 Del. Laws, c. 205, § 1; 62 Del. Laws, c. 118, §1; 67 Del. Laws, c. 281, §204; 67 Del. Laws, c. 431, §2; 68 Del. Laws, c. 290, §225; 69 Del. Laws, c. 64, §275; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 425, §§ 343, 344; 71 Del. Laws, c. 180, § 5; 74 Del. Laws, c. 169, §§ 1, 2; 75 Del. Laws, c. 76, § 1; 75 Del. Laws, c. 77, §§ 39, 40, 45; 75 Del. Laws, c. 88, § 20(2); 77 Del. Laws, c. 114, §§ 1 - 4; 78 Del. Laws, c. 66, §§ 1 - 4; 78 Del. Laws, c. 113, §§ 3 - 5.;

Del. Code 14, § 121 : Education — Department Of Education — Powers And Duties — General powers of the Department of Education

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