DEPARTMENT OF EDUCATION Colorado State Board of Education DECLARATORY ORDERS PROCEDURES 1 CCR 301-31 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ 2404-R-1.00 Declaratory Orders Procedures Any person may petition the State Board of Education (hereinafter “board”) for a declaratory order to terminate controversies or to remove uncertainties as to the applicability to the petitioner of any statutory provision or of any rule or order of the board. The petition shall be filed with the Commissioner of Education.

1.02 Any petition filed pursuant to this rule shall set forth the following: 1.02 (1) The name and address of the petitioner.

1.02 (2) The statute, rule or order to which the petition relates. 1.02 (3) A concise statement of all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner. Petitioner may also include a concise statement of the legal authorities upon which petitioner relies.

1.02 (4) A concise statement of the specific declaratory order sought by petitioner. 1.03 The board will determine, in its discretion and without notice to petitioner, whether to rule upon any such petition. If the board determines that it will not rule upon such a petition, the board shall promptly notify the petitioner of its action and state the reasons for such action. 1.04 The board may for any reason whatsoever elect to rule upon or not rule upon a petition filed pursuant to this rule. Any of the following grounds, among others, is sufficient reason to refuse to rule upon a petition:

1.04 (1) Failure to comply with 1.02.

1.04 (2) A ruling on the petition will not terminate a controversy or remove uncertainties as to the applicability to petitioner of any statutory provision or rule or order of the board. 1.04 (3) The petition involves any issue raised in an investigation, complaint or proceeding currently pending before the board, the Department of Education, an administrative agency, local school district or a court, particularly if such proceeding involves one or more of the petitioners.

1.04 (4) The petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.

1.05 If the board determines that it will rule on the petition, the following procedures shall apply: Code of Colorado Regulations 1 1.05 (1) The board may rule upon the petition without holding an evidentiary hearing. In such case:

1.05 (1) (a) Any ruling of the board will apply only to the extent of the facts presented in the petition and any amendment to the petition.

1.05 (1) (b) The board may order the petitioner to file a written clarification of factual matters, written brief, memorandum or statement of position. 1.05 (1) (c) The board may set the petition, upon due notice to petitioner, for a non- evidentiary hearing.

1.05 (1) (d) The board may dispose of the petition on the sole basis of the matters set forth in the petition.

1.05 (1) (e) The board may take administrative notice of commonly known facts within its expertise or contained in its records and consider such facts in ruling on the petition. The board may also request information from other persons. 1.05 (1) (f) If the board rules upon the petition without a hearing, it shall promptly notify the petitioner of its decision.

1.05 (2) The board may, in its discretion, set the petition for evidentiary hearing, upon due notice to the petitioner, for the purpose of obtaining additional facts or information or to determine the truth of any facts set forth in the petition or to hear oral argument on the petition. The notice to the petitioner setting such hearing shall set forth, to the extent known, the factual or other matters into which the board intends to inquire. For the purpose of such a hearing, the petitioner shall have the burden of proving all of the facts stated in the petition, all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner and any other facts the petitioner desires the board to consider. The board will exclude irrelevant evidence and will conduct the hearing in an expeditious manner. The board may also request information from persons other than the petitioner.

1.06 The parties to any proceeding pursuant to this rule shall be the board and the petitioner. Any other person may seek leave of the board to intervene in such a proceeding. The board may also request persons to intervene. Leave to intervene will be granted at the sole discretion of the board. A petition to intervene shall set forth the same matters as required by section 1.02 of this rule. Any reference to a “petitioner” in this rule also refers to any person who has been granted leave to intervene by the board.

1.07 Any declaratory order or other order disposing of a petition pursuant to this rule shall constitute agency action subject to judicial review pursuant to section 24-4-106, C.R.S. 2404-R-2.00 Statement of Basis and Purpose:

Code of Colorado Regulations 2 The statutory authority for the adoption of these rules, adopted by the State Board of Education on June 18, 1987 is section 24-4-105(11), C.R.S. These regulations provide for the entertaining and prompt disposition of petitions for declaratory orders to terminate controversies or to remove uncertainties as to the applicability of the petitioners of any statutory provision or of any rule or order of the State Board of Education. These rules retain discretion in the State Board of Education either to entertain or not rule on any petition for declaratory orders and alert persons wishing to file such petitions to reasons the State Board of Education may rely upon in refusing to entertain petitions. The orderly process for filing and resolution of declaratory orders petitions provides for maximum flexibility in handling petitions in a prompt fashion.

_________________________________________________________________________ Editor’s Notes History Code of Colorado Regulations 3