No. 42286 (New Rule): Rule R25-3. Personal Use Expenditures Administrative Penalty Appeal Procedures

(New Rule)

DAR File No.: 42286
Filed: 11/01/2017 03:55:19 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to establish official procedures and standardized practices for administering appeal procedures for H.B. 431 passed during the 2017 General Session.

Summary of the rule or change:

This rule establishes appeal procedures for requesting an informal adjudicative hearing by the appeal authority when an employee or officer of a governmental entity disagrees with the responsible governmental entity's finding and administrative penalties regarding making personal use expenditures.

Statutory or constitutional authorization for this rule:

• Subsection 63A-3-110(4)

Anticipated cost or savings to:

the state budget:

The proposed rule is not expected to impact state revenues or expenditures. The purpose of this rule is to describe the process for appealing administrative findings and penalties associated with personal use expenditures. The goal of the underlying personal use expenditure law is to provide a deterrent, such that there is a $0 net impact on all parties involved. However, direct fiscal impacts of the underlying personal use expenditure law on the state budget may include a possible monetary gain to the Division of Finance, in the form of an administrative penalty equal to 50% of the personal use expenditure. These fiscal impacts are inestimable, both because they apply only in cases of unforeseeable violations of law, and because the penalty assessed will vary depending on the amount of the personal use expenditure. Accordingly, the fiscal impacts of this rule, which describes a process through which the penalty may be confirmed or overturned, are also inestimable. Direct fiscal impacts may also include agency staff time and resources dedicated to the appeals process. These fiscal impacts are also inestimable, as the number of state employees or officers that will be determined to have made a personal use expenditure, be assessed a penalty, and appeal the determination and penalty is unknown and, ideally, will be $0.

local governments:

Because this rule applies only to state officers and employees, it is expected to have no impact on local governments.

small businesses:

The purpose of this rule is to describe the process for appealing administrative findings and penalties associated with personal use expenditures. The goal of the underlying personal use expenditure law is to provide a deterrent, such that there is a $0 net impact on all parties involved. However, inestimable fiscal impacts of the underlying law on small businesses may include any money that a state officer or employee might have spent at a small business but must instead pay to the Division of Finance in the form of an administrative penalty. This amount is inestimable, both because it applies only in cases of unforeseeable violations of law, and because the penalty assessed will vary depending on the amount of the personal use expenditure. Accordingly, the fiscal impacts of this rule, which describes a process through which the penalty may be confirmed or overturned, are also inestimable.

persons other than small businesses, businesses, or local governmental entities:

The purpose of this rule is to describe the process for appealing administrative findings and penalties associated with personal use expenditures. The goal of the underlying personal use expenditure law is to provide a deterrent, such that there is a $0 net impact on all parties involved and minimal occasions to file an appeal. Therefore, for the typical member of the affected party (a state officer or employee), the proposed rule is expected to have no direct or indirect fiscal impacts. However, inestimable fiscal impacts of the underlying personal expenditure law on a state officer or employee may include any money he or she might have to pay to the Division of Finance in the form of an administrative penalty. This amount is inestimable, both because it applies only in cases of unforeseeable violations of law, and because the penalty assessed will vary depending on the amount of the personal use expenditure. Accordingly, the fiscal impacts of this rule, which describes a process through which the penalty may be confirmed or overturned, are also inestimable. The state officer or employee may also be responsible for costs associated with filing the appeal. This amount is also inestimable, because it again applies only in cases of unforeseeable violations of law and depends on the actions taken and resources engaged by the appellant.

Compliance costs for affected persons:

The costs could be: time to prepare an appeal and attend an appeal hearing, attorney fees if the affected person hires an attorney, and travel costs to attend the appeal hearing. These costs cannot be reasonably estimated.

Comments by the department head on the fiscal impact the rule may have on businesses:

I have reviewed these changes with the Division of Finance Director and believe these changes are reasonable and warranted. As further detailed in the cost answers above and the attached Appendix, inestimable fiscal impacts of the underlying law on small and non-small businesses may include any money that a state officer or employee might have spent at a small or non-small business but must instead pay to Division of Finance in the form of an administrative penalty. This amount is inestimable, both because it applies only in cases of unforeseeable violations of law, and because the penalty assessed will vary depending on the amount of the personal use expenditure. Accordingly, the fiscal impacts of this rule, which describes a process through which the penalty may be confirmed or overturned, are also inestimable. As the goal of the underlying personal use expenditure law is to provide a deterrent, such that there is a $0 net impact on all parties involved, the estimated fiscal impact of this rule on small and non-small businesses is $0.

Tani Downing, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Administrative Services
Finance
Room 2110 STATE OFFICE BLDG
450 N STATE ST
SALT LAKE CITY, UT 84114-1201

Direct questions regarding this rule to:

• John Reidhead at the above address, by phone at 801-538-1678, by FAX at 801-538-3244, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2017

This rule may become effective on:

12/22/2017

Authorized by:

John Reidhead, Director

RULE TEXT

Appendix: Regulatory Impact Analysis for Small and Non - Small Businesses

FY 2018

FY 2019

FY 2020

Fiscal Costs

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Costs:

$0

$0

$0

Fiscal Benefits

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Benefits:

$0

$0

$0

Net Fiscal Benefits:

$0

$0

$0

 

 

Number of small businesses affected: 0 (constrained parties are state officers and employees only)

 

Average one-year fiscal impacts for non-small businesses: $0 (one-time and ongoing)

 

Inestimable fiscal impacts: The purpose of this rule is to describe the process for appealing administrative findings and penalties associated with personal use expenditures. The goal of the underlying personal use expenditure law is to provide a deterrent, such that there is a $0 net impact on all parties involved. However, inestimable fiscal impacts of the underlying law on small and non-small businesses may include any money that a state officer or employee might have spent at a small or non-small business but must instead pay to the Division of Finance in the form of an administrative penalty. This amount is inestimable, both because it applies only in cases of unforeseeable violations of law, and because the penalty assessed will vary depending on the amount of the personal use expenditure. Accordingly, the fiscal impacts of this rule, which describes a process through which the penalty may be confirmed or overturned, are also inestimable.

 

Other relevant non-fiscal impacts: None

R25. Administrative Services, Finance.

R25-3. Personal Use Expenditures Administrative Penalty Appeal Procedures.

R25-3-1. Authority and Purpose of Rule for Appeal Procedures.

(1) The authority for the rule on these appeal procedures is found in Section 63A-3-110.

(2) This rule establishes official procedures and standardized practices for administering these appeal procedures.

 

R25-3-2. Definitions.

Terms used in this rule are defined in Subsection 63A-3-110(1).

In addition:

"Administrator" means the Department of Administrative Services Division of Finance Director or designee.

"Appeal" means a formal request to a higher level of review of a lower level decision.

"Appeal Authority" means the individual(s) designated by the Administrator to act as the Appeal Authority hearing officer(s).

"Appellant" means the person who requested the review hearing.

"Extraordinary Circumstances" means a failure to take proper steps at the proper time, not in consequence of the person's own carelessness, inattention, lack of preparation, or willful disregard in the processing of an Appeal, but in consequence of some unexpected or unavoidable hindrance or accident.

"Party(ies)" means the officer or employee commencing a Request for Review, all respondents, and all persons authorized by statute or agency rule to participate as Parties in an adjudicative proceeding.

"Personal Use Expenditure" means an expenditure made without the authority of law that is not directly related to the performance of an activity as a state officer or employee; primarily furthers a personal interest or a state officer or employee or a state officer's or employee's family, friend, or associate; and would constitute taxable income under federal law. It does not include a de minimis or incidental expenditure, or a state vehicle or a monthly stipend for a vehicle that an officer or employee uses to travel to and from the officer's or employee's official duties, including a minimal allowance for a detour as provided by the state.

"Request for Review" means a formal request, in writing, for an informal hearing before the Appeal Authority.

"Responsible Governmental Entity" means the governmental entity from whose fund or account the Personal Use Expenditure or the payment for the indebtedness or liability for a Personal Use Expenditure was disbursed.

"Responsible Governmental Entity Head" means the executive director, commissioner, chief justice, or other top executive of the Responsible Governmental Entity, or a designee.

 

R25-3-3. Appeal and Request for Review Process.

Person(s) acting on an Appeal and Request for Review pursuant to Subsection 63A-3-110(4), and in accordance with Title 63G, Chapter 4, Utah Administrative Procedures Act, and these rules, shall conduct the Appeal process according to the following steps:

(1) A review hearing before the Appeal Authority may be requested only after the Responsible Governmental Entity has determined--in accordance with its own investigative and Appeal processes--the following:

(a) an employee or officer intentionally made a Personal Use Expenditure or incurred indebtedness or liability on behalf of, or payable by, the Responsible Governmental Entity for a Personal Use Expenditure in violation of Subsection 63A-3-110(2); furthermore,

(b) the Responsible Governmental Entity Head imposed upon the employee or officer the administrative penalties specified in Subsection 63A-3-110(3), in writing.

(2) Should an employee or officer disagree with the Responsible Governmental Entity Head's finding or authorization of the administrative penalties, the aggrieved Party may file a Request for Review with the Administrator.

(a) The Request for Review must be submitted to the Administrator in writing, using the form available from the Division of Finance, within 30 calendar days of the day the Responsible Governmental Entity Head's formal notice of the finding and authorized administrative penalties is issued. All related documentation required by the Division of Finance form must also be submitted with the form.

(b) Copies of the form and the required documentation must be submitted to the Responsible Governmental Entity Head and other Parties by the employee or officer requesting the hearing.

(3) Within 15 days of submission of the Request for Review, any Party to the hearing may file a response with the Administrator. The Party who submits a response shall send a copy of the response to other Parties.

 

R25-3-4. Administrator's Initial Review of Eligibility and Merit of the Request for Review.

(1) Upon receipt of the Request for Review, the Administrator shall make an initial determination on the basis of Section 63A-3-110 and Section 63G-4-201 that the Appeal Authority has authority to review or decide the requested Appeal:

(a) Procedural Issues. The Administrator shall make an initial determination of the timeliness, jurisdiction, standing, and eligibility of the issues to be advanced.

(b) Determination. The Administrator has authority to determine which types of Appeals may be heard by the Appeal Authority. Those types of Appeals found to have been resolved by a preponderance of the evidence at the level of the Responsible Governmental Entity Head or those that do not qualify for advancement to the Appeal Authority are precluded from further consideration and review by the Appeal Authority.

(c) Preclusion. When an Appeal request is precluded from an Appeal Authority review, the matter under dispute shall be deemed as final at the level of the Responsible Governmental Entity Head.

(2) The Administrator shall notify within 30 days the requesting Party and the Responsible Governmental Entity Head in writing that the Request for Review is either granted or denied, constituting the final action by the Administrator. The decision letter must describe the factual findings and conclusions of the Administrator's review. The letter must state that any Party may file with the Administrator a written request for reconsideration within 30 days after the date the Administrator issues the decision, in accordance with Section 63G-4-302.

(a) Filing of a request for reconsideration is not a prerequisite for seeking judicial review of the decision.

(3) The decision letter should include a statement that a Party aggrieved may obtain judicial review of the decision, in accordance with Section 63G-4-401, by filing a petition within 30 days after the date the decision is issued; or, in the case of a request for reconsideration, by filing a petition within 30 days after the date the decision is issued, in accordance of Section 63G-4-302.

 

R25-3-5. Commencement of Informal Adjudicative Proceedings.

(1) Purpose. An informal review hearing provides a fair and impartial opportunity for the Parties to be heard and to present evidence. The adjudicative process allows the Appeal Authority to be completely informed about the case. After having considered the Parties' evidence, the Appeal Authority may then render a decision based upon all of the facts, circumstances, and applicable laws, rules, and policies.

(2) After granting the Request for Review, the Administrator shall promptly designate the Appeal Authority and its presiding hearing officer, as authorized in Subsection 63A-3-110(4)(b).

(3) The presiding Appeal Authority hearing officer shall schedule a hearing date at least 30 days from the mailing date of the hearing notice.

(4) A written notice of the review hearing, signed by the presiding Appeal Authority hearing officer, shall be mailed to the Administrator and all Parties and any other person who has a right to notice under statute or rule in accordance with Section 63G-4-201, and shall include the following:

(a) the names and mailing addresses of all persons to whom notice is being given, and the name, title, and mailing address of any attorney or employee who has been designated to appear for the Responsible Governmental Entity;
(b) the case file number or other reference number (if applicable);

(c) the name of the adjudicative proceeding;

(d) the date that the notice of the review hearing was mailed;

(e) a statement that the review hearing is to be conducted informally according to the provisions of rules adopted under Sections 63G-4-202 and 63G-4-203;

(f) a statement of the time and place of the scheduled review hearing, a statement of the purpose for which the hearing is to be held, and, to the extent known by the presiding Appeal Authority hearing officer, the questions to be decided;

(g) a statement that a Party who fails to attend or participate in a scheduled and noticed hearing may be held in default;

(h) a statement of the legal authority and jurisdiction under which the review hearing is to be maintained (i.e. Subsection 63A-3-110(4);

(i) the name, title, mailing address, and telephone number of the presiding Appeal Authority hearing officer.

 

R25-3-6. Commencement of Informal Adjudicative Proceedings -- Granting Continuance or Extension of Time.

(1) Notwithstanding Administrative Rule Subsection R25-3-5(3) above, after the review hearing date has been set, each Party may be granted one continuance or extension of time for the hearing, provided there are Extraordinary Circumstances justifying such continuance or extension. A Party desiring an extension of time or a continuance of the review hearing shall file a written request with the presiding Appeal Authority hearing officer.

(a) Every petition for a continuance shall specify the reason for the requested delay.

(b) In considering a request for continuance, the Appeal Authority shall take into account:

(i) whether the request was timely made in writing; and

(ii) whether the request is based on Extraordinary Circumstances.

 

R25-3-7. Informal Adjudicative Proceedings.

(1) An informal review hearing will be held only after timely notice to all Parties; timely notice being at least 30 days prior to the scheduled hearing in accordance with Administrative Rule Subsection R25-3-5(3) above.

(2) In reference to Section 63G-4-203, the following procedures for informal adjudicative proceedings apply:

(a) A hearing may be conducted without adherence to the rules of evidence required in judicial proceedings. Irrelevant, immaterial, and unduly repetitious evidence shall be excluded. The weight to be given to evidence shall be determined by the presiding Appeal Authority hearing officer. Any relevant evidence may be admitted if it is the type of evidence commonly relied upon by prudent persons in the conduct of their affairs. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding.

(b) Discovery is prohibited, but the Appeal Authority may issue subpoenas and other orders to compel production of necessary evidence.

(c) All Parties shall have access to information contained in the case files and to all materials and information gathered in any investigation, to the extent permitted by law.

(d) Intervention is prohibited, except as stated in Subsection 63G-4-203(1)(g).

(e) A review hearing shall be open to all Parties named in the hearing notice, and all Parties shall be entitled to introduce evidence, examine and cross-examine witnesses, make arguments, and fully participate in the proceeding.

(f) The testimony and statements received at a review hearing may be under oath.

(g) The proceedings may be recorded electronically by the Department of Administrative Services Division of Finance at the division's expense. At its own expense any Party may have a reporter, who is approved by the division, prepare a transcript from the record of the hearing. If a Party desires that the testimony be recorded by means of a court reporter, that Party may employ a court reporter at its own expense and shall furnish a transcript of the testimony to the division free of charge. This transcript shall be available at the Division of Finance to any Party to the hearing.

 

R25-3-8. Informal Adjudicative Proceedings -- Subpoenas.

(1) Subpoena power. Pursuant to Subsection 63G-4-203(1)(e), the Appeal Authority may issue subpoenas to witnesses and may obtain documents or other evidence in conjunction with any inquiry, investigation, hearing, or other proceedings.

(a) The Appellant has the right to require the production of books, papers, records, documents, and other items pertinent to the facts at issue that are within the control of the governmental entity against which the Appeal is lodged, and which are not held to be protected or privileged by law. Affidavits and ex parte statements offered during a hearing may be received and considered by the Appeal Authority.

(b) A person receiving a subpoena issued by the Appeal Authority will find the title of the proceeding posted thereon, and the person to whom it is directed shall be compelled to attend and give testimony. A subpoena duces tecum may be used to produce designated books, or other items at a specified time and place when these items are under an agency's or a person's control.

(c) A request by counsel or a Party's representative to issue a subpoena must be reasonable and timely. At least 5 full working days' notice prior to a scheduled hearing must be given to the Appeal Authority, not counting preparation and delivery time. The requesting Party shall simultaneously notify the other Parties of the request.

(d) The original of each subpoena is to be presented to the person named therein, and, if applicable, a copy shall be issued to the counsel or representative of each Party.

(2) Service of subpoenas. Service of subpoenas shall be made by the requesting Party delivering the subpoena to the person named, unless the Appeal Authority is requested to deposit the subpoena properly addressed and postage prepaid, with the U.S. Postal Service, or to send it by State Mail and Distribution Services, or to send it by e-mail, or in any combination.

(3) Proof of service. If service has not been acknowledged by the witness, the server may make an affidavit of service. Failure to make proof of service does not affect the validity of the service.

 

R25-3-9. Informal Adjudicative Proceedings -- Witnesses.

(1) Availability of employees to testify. A governmental entity shall be responsible for making available any of its employees who are subpoenaed to testify in a review hearing.

(a) Off-duty employees. Agencies are not responsible for making available an employee who is: off duty; on sick, annual or other approved leave; or who, for any other reason, is not at work during the time the hearing is in progress.

(b) Non-disruption. The Parties and their representatives and the Appeal Authority shall make every effort to avoid disruption to the operation of state government or other governmental entities in the calling of employees to testify in hearings under these Appeal procedures.

(c) Witness failure. If a requested witness does not appear at the scheduled hearing, the witness' failure to appear may not necessitate the postponement of any proceedings.

(d) Excessive witnesses. If the number of witnesses requested by a Party is excessive, the Appeal Authority may require the Party to justify the request or face denial of part or all of the request.

(2) Hostile witnesses. When the presiding Appeal Authority hearing officer determines that a witness is uncooperative or even hostile, the witness may be examined by the Party calling that witness as if under cross-examination. The Party calling the witness may, upon showing that the witness was called in good faith but that the testimony is a surprise, proceed to impeach the witness by proof of prior inconsistent statements.

(3) Exclusion/sequestering of witnesses.

(a) The Appeal Authority presiding hearing officer may sequester witnesses from the hearing until they are called to testify.

(b) Witnesses not presently testifying may be sequestered on motion by one or both Parties or in the presiding hearing officer's discretion.

(c) The presiding Appeal Authority hearing officer will counsel the witnesses not to discuss the case with those witnesses who have not yet testified.

(4) Management representative. Prior to a hearing, the Responsible Governmental Entity may designate one person to serve as the agency's management representative. The agency's management representative is entitled to remain throughout the hearing to represent the agency at any proceeding even if called to testify, unless the presiding Appeal Authority hearing officer determines it is reasonable to expel the management representative for any or part of the hearing.

 

R25-3-10. Informal Adjudicative Proceedings -- Failure to Appear; Default.

When a Party or the Party's authorized representative to a proceeding fails to appear at a review hearing after due notice has been given, the presiding Appeal Authority hearing officer, at his or her discretion, may continue the matter, or may enter an order of default, pursuant to Section 63G-4-209, or may proceed to hear the matter in the absence of the defaulting Party.

 

R25-3-11. Informal Adjudicative Proceedings -- Issuance of Decisions; Final Action.

(1) Within 30 days after the close of the informal review hearing, the presiding Appeal Authority hearing officer shall issue in writing a signed decision, constituting the final action, which states the following:

(a) the decision;

(b) the reasons for the decision based on the facts appearing in the case files and on the facts presented in evidence at any review hearings;

(c) a statement that a Party aggrieved may within 20 days after the date that the decision is issued file with the presiding Appeal Authority hearing officer a written request for reconsideration;

(i) Filing of a request for reconsideration is not a prerequisite for seeking judicial review of the decision.

(d) a statement that a Party aggrieved may obtain judicial review of the decision in accordance with Section 63G-4-401 by filing a petition within 30 days after the date the decision constituting the final Appeal Authority action is issued; or, in the case of a request for a reconsideration, by filing a petition within 30 days after the date the decision is issued, in accordance of Section 63G-4-302;

(e) the names and mailing addresses of all persons to whom the decision is being given, and the name, title, and mailing address of any attorney or employee who was designated to appear for the Responsible Governmental Entity;

(f) the name, title, mailing address, and telephone number of the presiding Appeal Authority hearing officer.

(2) The distribution of the decision to all Parties, as well as to the Administrator, is accomplished when any of the following occurs:

(a) deposit postage prepaid with the U.S. Postal Service;

(b) deposit with State Mail and Distribution Services;

(c) personal delivery; or

(d) e-mail transmission.

(3) A mailing certificate must be attached to the decision, bearing the date of mailing and the names and addresses of those persons to whom the decision is originally distributed.

 

R25-3-12. Informal Adjudicative Proceedings -- Request for Reconsideration.

(1) Reconsideration. A written request for reconsideration may be filed by any Party with the presiding Appeal Authority hearing officer. It must be filed within 20 days after the date the decision is issued. The written reconsideration request must contain specific reasons why reconsideration is warranted with respect to the factual findings and conclusions of the Appeal Authority's final action. New or additional evidence may not be considered. A copy of the request for reconsideration shall be mailed to each Party by the person making the request.

(a) The presiding Appeal Authority hearing officer shall issue a written decision granting or denying the reconsideration request to the person making the request and shall send a copy of the decision to the other Parties.

(b) If the presiding Appeal Authority hearing officer does not issue a decision within 20 days after the filing of the request, the request for reconsideration shall be considered to be denied.

 

R25-3-13. Record Retention.

(1) The Department of Administrative Services Division of Finance shall retain the record copy of the decision along with the minutes, or electronic recording, or court reporter transcript (if available) of the proceedings according to the designated State of Utah retention schedules.

 

R25-3-14. Appellant's Rights.

(1) Representation. An Appellant may be represented by an attorney of law. However, the State neither provides legal counsel or representation to employees or officers who request a review hearing nor pays the fees for their representation in the course of the Appeal proceedings.

(2) Pro Se Status. A Party to an Appeal proceeding may appear pro se. When a Party appears pro se, the Party is entitled to request the issuance of subpoenas, directly examine and cross-examine witnesses, make opening and closing statements, submit documentary evidence, summarize testimony, and in all respects fully present one's own case.

(3) No Reprisal. Pursuant to Subsection 67-19a-303(3), no appointing authority, director, manager, or supervisor may take action to retaliate against an Appellant, a representative, or a witness who participates in or is scheduled to participate in an Appeal proceeding.

 

KEY: informal adjudicative proceedings, hearings, Finance appeals

Date of Enactment or Last Substantive Amendment: 2017

Authorizing, and Implemented or Interpreted Law: 63A-3-110

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