Vermont Department of Education - State Board of Education Manual of Rules and Practices
1230 Rules of Practice
1231 Administrative Procedure Act
Hearings, appeals, rule-making, and declaratory rulings
shall be conducted in accordance with 3 VSA Chapter 25.
The commissioner or his designee shall prepare and sign all
forms necessary for the proposal and adoption of rules.
1232 Formal Proceedings
A formal proceeding is a proceeding authorized by a
provision of Title 16 of the Vermont Statutes Annotated or
the State Department of Education’s Manual of Rules and
Practices which designates the State Board of Education,
the Department of Education or the Commissioner as the
authority to sit in a quasi-judicial capacity and make a
determination. The authority designated in a particular
provision of statute or rule will hereafter in these rules be
referred to as the hearing authority.
The provisions in statute or rule calling for a formal
proceeding include but are not limited to:
1) 16 VSA 164 (5) Certification of teachers
Rules 5721-5722 and school personnel
2) 16 VSA 164 (14), 165 Public School Approval
Rule 2126
3) 16 VSA 164 (14), 166 Private and Independent
Rule 2248.1 School Approval
4) 16 VSA 164 (14), 166a Home Study
5) 16 VSA 828 Tuition
6) 16 VSA 1075 Residency
7) 16 VSA 168 (b), 2944 (c) Special Education
Rules 2364.3.5-2364.3.6
A “party” to a formal proceeding is an individual or legal
entity actively taking part in a legal proceeding and directly
affected by its outcome. For purposes of these rules a
“person” shall be defined by 1 VSA 128.
1232.1 Commencement of Formal Proceedings
1232.1.1 A party to a formal proceeding before the
hearing authority may represent himself or
herself or he or she may be represented by
an attorney or other representative.
1232.1.2 A formal proceeding before the hearing
authority shall be initiated by filing a
petition with the hearing authority. Except
for interventions during the course of a
hearing all persons who wish to petition for
permission to intervene in formal
proceedings shall give notice in writing of
intent to do so to the hearing authority. The
grant of the petition to intervene under this
rule and Rule 1232.2.5 is within the
discretion of the hearing authority and shall
be based on whether the petition is relevant
to the formal proceedings or otherwise
necessary to a full and complete disposition
of the formal proceeding. The hearing
authority shall notify all other parties upon
intervention of a new party.
1232.1.3 All notice given to or by an attorney of
record for a party in a formal proceeding
shall be considered in all respects as notice
to or from that party.
1232.1.4 When an attorney has appeared for a party in
a formal proceeding, he shall remain
attorney for such party until he has been
granted leave to withdraw by order of the
hearing authority.
1232.2 Filing and Service of Documents
1232.2.1 The document initiating a formal proceeding
before the hearing authority shall be signed
by the person filing the document and shall
be filed with the hearing authority in
quadruplicate. The document shall include
the following information:
(a) A statement of the legal authority of
the hearing authority to determine
the case;
(b) A short and plain statement of the
issues involved;
(c) The outcome sought.
1232.2.2 All papers filed with the hearing authority in
formal proceedings shall be on paper
measuring 8 ½ x 11 inches. Filing shall be
deemed to occur when a document or paper
is received by the hearing authority or the
Department of Education.
1232.2.3 Every document or paper filed by a party
subsequent to the initial petition in a formal
proceeding shall be served upon all other
parties. The hearing authority shall serve a
copy of the initial petition upon all parties
entitled by law to be served. Service shall
consist of hand delivering a copy or mailing
it to the party’s last known address. Delivery
of a copy means handing it to the attorney or
to the party, or leaving it at his or her office
with the person in charge thereof, or if the
office is closed or the person to be served
has no office, leaving it at his dwelling,
house, or usual place of abode with some
person of suitable age and discretion then
residing therein. Service by mail shall mean
first class mail, in a sealed and properly
stamped envelope. Service by mail is
deemed complete upon posting the mail in a
proper United States Post Office receptacle.
The document or paper shall contain a
signed statement stating upon whom, and
the means by which, the document has been
served.
1232.2.4 The response to an initial petition by persons
permitted or required by law to respond
shall be filed with the hearing authority and
all parties by the date of the pre-hearing
conference, if any, authorized by Rule 1236
of these rules, but no later than seven days
prior to the date set for the hearing of the
case.
1232.2.5 A petition for permission to intervene in a
formal proceeding must set forth the
grounds of the proposed intervention, of
position and interests of the petitioner in the
proceeding, and whether the petitioner’s
position is in support of or in opposition to
the remedy sought by the person initiating
the proceeding.
1232.2.6 In its discretion the hearing authority may
treat any written communication to it
concerning a matter within its legal authority
as a petition initiating a formal proceeding.
1232.2.7 Written memoranda in support of a party’s
position, if any, shall be filed no later than 5
days following the conclusion of a hearing.
This 5-day requirement may be waived by
the hearing authority for good cause.
1232.3 Hearings
1232.3.1 An oral hearing shall be held in every formal
proceeding except that hearing may be
waived in the discretion of the hearing
authority: (1) in a formal rule-making or
declaratory ruling proceeding, if no request
for a hearing is made at least five days prior
to the hearing date in accordance with 3
VSA 803(a); and the petitioner, if any,
waives hearing; and (2) in any other formal
proceeding if all the parties file written
waivers of opportunity for hearing.
1232.3.2 Upon the filing of a petition initiating a
formal proceeding, or upon the initiation of
such a proceeding by the hearing authority
on its own motion, the hearing authority
shall order or otherwise assign a time and
place for the hearing thereof and the hearing
authority shall cause written notice of the
hearing to be served upon each party.
1232.3.3 Hearings shall be transcribed at the request
of any party made at least 10 days prior to
the hearing upon payment of the reasonable
costs thereof.
1232.3.4 The admissibility of evidence in all formal
proceedings before the hearing authority
will be determined under the criteria
specified in 3 VSA 810 (1) – (4).