No. 35769 (Emergency Rule): Rule R251-108. Adjudicative Proceedings

DAR File No.: 35769
Filed: 02/01/2012 02:58:44 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Due to extenuating circumstances with the department's rules monitor, this rule expired on 01/18/2012 because a five-year review was not filed. The rule is essential and needs to be in place.

Summary of the rule or change:

This filing puts the rule back into place. (DAR NOTE: A proposed new rule filing for Rule R251-108 is under DAR No. 35807 and will be published in the March 1, 2012, Bulletin.)

Emergency rule reason and justification:

Regular rulemaking procedures would cause an imminent peril to the public health, safety, or welfare.

Justification: This rule is necessary for defining interaction with the public and the prison.

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

No costs or savings to the state budget because this filing puts the rule back into place as it was with no changes.

local governments:

No costs or savings to local government because this filing puts the rule back into place as it was with no changes.

small businesses:

No costs or savings to small businesses because this filing puts the rule back into place as it was with no changes.

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

No costs or savings to other persons because this filing puts the rule back into place as it was with no changes.

Compliance costs for affected persons:

No compliance costs because this filing puts the rule back into place as it was with no changes.

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

No impact to businesses because this filing puts the rule back into place as it was with no changes.

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]

This rule is effective on:

02/01/2012

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: February 1, 2012

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

 

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