10.6.125    APPELLATE PROCEDURE - STANDARD OF REVIEW

(1) The state superintendent of public instruction shall be subject to the standard of review as set forth below and shall be confined to the record established at the fact finding hearing.

(2) In cases of alleged irregularities in procedure before the county superintendent not shown on the record, proof thereof may be taken by the state superintendent.

(3) The state superintendent, at his/her discretion or upon request, may hear oral arguments and receive written briefs.

(4) The state superintendent may not substitute his/her judgment for that of the county superintendent as to the weight of the evidence on questions of fact. The state superintendent may affirm the decision of the county superintendent or remand the case for further proceedings or refuse to accept the appeal on the grounds that the state superintendent fails to retain proper jurisdiction on the matter. The state superintendent may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings of fact, conclusions of law and order are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion;

(g) affected because findings of fact upon issues essential to the decision were not made although requested.

History: 20-3-107, MCA; IMP, 20-3-107, MCA; NEW, 1982 MAR p. 1689, Eff. 9/17/82; AMD, 1993 MAR p. 344, Eff. 3/12/93.