No. 35807 (New Rule): Rule R251-108. Adjudicative Proceedings

(New Rule)

DAR File No.: 35807
Filed: 02/02/2012 10:42:18 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to establish a procedure by which informal adjudicative proceedings shall be conducted as a result of a notice of agency action, or a request by a person for agency action regarding the Utah Department of Corrections (UDC) rules, orders, policies or procedures. This rule shall not apply to internal personnel actions conducted within the Department. This rule is authorized by Sections 63G-3-201, 63G-3-202, and 63G-4203.

Summary of the rule or change:

No substantive changes to previously established Rule R251-108 which expired due to extenuating circumstances with UDC's staff member. (DAR NOTE: A corresponding 120-day (emergency) rule filing that was effective as of 02/01/2012 for Rule R251-108 is under DAR No. 35769 and was published in the February 15, 2012, issue of the Bulletin.)

State statutory or constitutional authorization for this rule:

• Section 63G-4-202
• Section 63G-3-201
• Section 63G-4-203

Anticipated cost or savings to:

the state budget:

No impact--Putting rule back into place with no changes.

local governments:

No impact--Putting rule back into place with no changes.

small businesses:

No impact--Putting rule back into place with no changes.

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

No impact--Putting rule back into place with no changes.

Compliance costs for affected persons:

No impact--Putting rule back into place with no changes.

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

This rule will have no finical impacts. Simple resubmission of expired Rule R251-108.

Thomas Patterson, Executive Director

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

Corrections
Administration
14717 S MINUTEMAN DR
DRAPER, UT 84020-9549

Direct questions regarding this rule to:

• Greg Peay at the above address, by phone at 801-201-6052, by FAX at 801-545-5572, 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:

04/02/2012

This rule may become effective on:

04/09/2012

Authorized by:

Thomas Patterson, Executive Director

RULE TEXT

R251. Corrections, Administration.

R251-108. Adjudicative Proceedings.

R251-108-1. Purpose and Authority.

(1) The purpose of this rule is to establish a procedure by which informal adjudicative proceedings shall be conducted as a result of a notice of agency action, or a request by a person for agency action regarding Department rules, orders, policies or procedures. This rule shall not apply to internal personnel actions conducted within the Department.

(2) This rule is authorized by Sections 63G-3-201, 63G-4-202, 63G-4-203, and 64-13-10, of the Utah Code.

 

R251-108-2. Definitions.

(1) "Adjudicative proceeding" means a departmental action or proceeding.

(2) "Department" means Department of Corrections.

(3) "Hearing" means an adjudicative proceeding which may include not only a face-to-face meeting, but also a proceeding/meeting conducted by telephone, television or other electronic means.

(4) "Person" means an individual, group of individuals, partnership, corporation, association, political subdivision or its units, governmental subdivision or its units, public or private organization or entity of any character, or another agency.

(5) "Personnel actions" means any administrative hearings, grievance proceedings and dispositions, staff disciplinary process, promotions, demotions, transfers, or terminations within the department.

(6) "Presiding officer" means an agency head, or an individual or body of individuals designated by the agency head, by the agency's rules, or by statute to conduct an adjudicative proceeding; if fairness to the parties is not compromised, an agency may substitute one presiding officer for another during any proceeding.

(7) "Petition" means a request for the department to determine the legality of agency action or the applicability of policies, procedures, rules, or regulations relating to agency actions associated with the governing of persons or entities outside the Department.

 

R251-108-3. Policy.

It is the policy of the Department that:

(1) all adjudicative proceedings not exempted under the provisions of Section 63G-4-202, of the Utah Code, shall be informal;

(2) upon receipt of a petition, the Department shall conduct an informal hearing regarding its actions or the applicability of Department policies, rules, orders or procedures that relate to particular actions;

(3) the Department shall provide forms and instructions for persons or entities who request a hearing;

(4) hearings shall be held in accordance with procedures outlined in Section 63G-4-203, of the Utah Code;

(5) the provisions of this rule do not affect any legal remedies otherwise available to a person or an entity to:

(a) compel the Department to take action; or

(b) challenge a rule of the Department;

(6) the provisions of this rule do not preclude the Department, or the presiding officer, prior to or during an adjudicative proceeding, from requesting or ordering conferences with parties and interested persons to:

(a) encourage settlement;

(b) clarify the issues;

(c) simplify the evidence;

(d) expedite the proceedings; or

(e) grant summary judgment or a timely motion to dismiss;

(7) a presiding officer may lengthen or shorten any time period prescribed in this rule, with the exception of those time periods established in Title 63G, Chapter 4, of the Utah Code, applicable to this rule;

(8) the Executive Director/designee shall appoint a presiding officer to consider a petition within five working days after its receipt;

(9) the presiding officer shall conduct a hearing regarding allegations contained in the petition within 30 working days after notification by the Executive Director;

(10) the presiding officer shall issue a ruling subject to the final approval of the Executive Director within 15 working days following the hearing and forward a copy of same by certified mail to the petitioner;

(11) the petition and a copy of the ruling shall be retained in the Department's records for a minimum of two years;

(12) the ruling issued by the presiding officer terminates the informal adjudicative proceeding process; and

(13) appeals shall be submitted to a court of competent jurisdiction as outlined in Sections 63G-4-401 and 402.

 

KEY: corrections, administrative procedures

Date of Enactment or Last Substantive Amendment: 2012

Authorizing, and Implemented or Interpreted Law: 63G-3-201; 63G-4-202; 63G-4-203

 

---