No. 39143 (New Rule): Rule R849-1. Appeal Rule

(New Rule)

DAR File No.: 39143
Filed: 02/17/2015 10:40:41 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this new rule is to implement an administrative hearing procedure as required by H.B. 168 (2014 General Session).

Summary of the rule or change:

The rule establishes an administrative hearing procedure for a person aggrieved by a decision or action of the director or office.

State statutory or constitutional authorization for this rule:

• Section 53D-1-702

Anticipated cost or savings to:

the state budget:

No anticipated costs or savings are expected. The rule implements requirements of H.B. 168 (2014).

local governments:

No anticipated costs or savings are expected. The rule implements requirements of H.B. 168 (2014).

small businesses:

No anticipated costs or savings are expected. The rule implements requirements of H.B. 168 (2014).

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

No anticipated costs or savings are expected. The rule implements requirements of H.B. 168 (2014).

Compliance costs for affected persons:

No anticipated costs or savings are expected. The rule implements requirements of H.B. 168 (2014).

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

This rule does not have a fiscal impact on businesses. The rule implements requirements of H.B. 168 (2014).

Richard K. Ellis, Board Chair

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

School and Institutional Trust Fund Board of Trustees
Administration
350 North State Street
Salt Lake City, UT 84114

Direct questions regarding this rule to:

• Allen Rollo at the above address, by phone at 801-538-1462, by FAX at 801-538-1465, 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:

03/31/2015

This rule may become effective on:

04/15/2015

Authorized by:

Richard Ellis, State Treasurer

RULE TEXT

R849. School and Institutional Trust Fund Board of Trustees, Administration.

R849-1. Appeal Rule.

R849-1-1. Introduction and Authority.

(1) This rule sets forth the administrative hearing procedures for the Office.

(2) This rule is authorized by Sections 53D-1-701 and 702.

 

R849-1-2. Definitions.

(1) "Action" means an action by the Office that affects the legal rights of a person or group of persons, but not including rules made under the Utah Administrative Rulemaking Act, Title 63G, Chapter 3.

(2) "Administrative Law Judge" or ALJ means the person appointed to conduct an adjudicatory proceeding.

(3) "Ex Parte Communication" means direct or indirect communication in connection with an issue of fact or law between the ALJ and one party only.

(4) "Order" means a ruling by an ALJ that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.

(5) "Respondent" means any group or individual who is adversely affected by any action or inaction of the Office.

(6) "Office" means the School and Institutional Trust Fund Office established under Section 53D-1-101 et seq.

 

R849-1-3. Computation of Time.

Unless otherwise provided in a specific section of these rules, time shall be computed in accordance with the Utah Rules of Civil Procedure.

 

R849-1-4. Request for Hearing.

(1) An aggrieved person may file a written request for agency action pursuant to Section 63G-4-201, and in accordance with this rule.

(2) Hearings must be requested within 30 calendar days from the date that the Office sends written notice of its intended action.

(3) Failure to submit a timely request for a hearing constitutes a waiver of a respondent's due process rights. The request must explain why the party is seeking agency relief, and the party must submit the request on the "Request for Hearing/Agency Action" form. The party must then mail or fax the form to the address or fax number contained on the notice of agency action.

(4) The Office considers a hearing request that a recipient sends via mail to be filed on the date of the postmark. If the postmark date is illegible, erroneous, or omitted, the Office considers the request to be filed on the date that the Office receives it, unless the sender can demonstrate through competent evidence that it was mailed before the date of receipt.

 

R849-1-5. Designation of Proceedings Informal.

(1) All proceedings shall be considered informal hearings.

(2) Informal hearings will be conducted in accordance with the Utah Administrative Procedure Act, Sections 63G-4-202, 203, 209, 302, 401, 402, 405, 501, 502, 503, and 601.

 

R849-1-6. Service.

(1) The individual or party that files a document with the Office shall also serve the document upon all other named parties to the proceeding and file a proof of service with the Office that consists of a certificate, affidavit or acknowledgment of service.

(2) If the Office must provide notice of a hearing, the notice becomes effective on the date notification is sent.

 

R849-1-7. Availability of Hearing.

(1) All requests for Hearings/Agency Action shall be set for an initial hearing in accordance with Section R849-1-11.

(2) The ALJ will conduct an evidentiary hearing in connection with the agency action if the aggrieved person requests a hearing and there is a disputed issue of fact. If there is no disputed issue of fact, the ALJ may deny a request for an evidentiary hearing and issue a recommended decision without a hearing. There is no disputed issue of fact if the aggrieved person submits facts that do not conflict with the facts that the agency relies upon in taking action or seeking relief.

(3) The Office may deny or dismiss a request for a hearing if the aggrieved person:

(a) withdraws the request in writing;

(b) verbally withdraws the hearing request at a prehearing conference;

(c) fails to appear or participate in a scheduled proceeding without good cause;

(d) prolongs the hearing process without good cause;

(e) cannot be located or agency mail is returned without a forwarding address; or

(f) does not respond to any correspondence from the ALJ.

(4) If the aggrieved person objects to the hearing denial, the person may raise that objection as grounds for relief in a request for reconsideration with the Agency board in accordance with Section 63G-4-302.

 

R849-1-8. Administrative Law Judge.

(1) The Board shall appoint an impartial ALJ to conduct any hearing provided under these rules. Previous involvement in the initial determination of the action precludes an ALJ from appointment.

(2) The ALJ shall maintain order and may recess the hearing to regain order if a person engages in disrespectful, disorderly or disruptive conduct. The ALJ may remove any person, including a participant, from the hearing to maintain order. If a person shows persistent disregard for order and procedure, the ALJ may:

(a) restrict the person's participation in the hearing;

(b) strike pleadings or evidence; or

(c) issue an order of default.

 

R849-1-9. Modifying Requirements of Rules.

(1) Except as provided in this paragraph, the requirements of these rules may be modified by order of the ALJ for good cause.

(2) The requirements for timely filing a Request for Hearing under Section R849-1-4 may not be modified.

 

R849-1-10. Ex Parte Communications.

(1) Ex parte communications are prohibited.

(2) The ALJ may not listen to or accept any ex parte communication. If a party attempts ex parte communication, the ALJ shall inform the offeror that any communication that the ALJ receives off the record will become part of the record and furnished to all parties.

(3) Ex parte communications do not apply to communications on the status of the hearing and uncontested procedural matters.

 

R849-1-11. The Informal Hearing.

(1) Unless otherwise provided in this section, informal hearings shall be conducted in accordance with Section 63G-4-202 and 203.

(2) As set forth in R849-1-7, all request for hearings/agency action shall be set for initial hearing within 30 days, only after at least 10-day notice of all parties.

(3) The Office shall notify the respondent and Office representative of the date, time and place of the hearing at least ten days in advance of the hearing. Continuances of scheduled hearings are not favored, but may be granted by the president officer for good cause shown. Failure by a respondent to appear at the hearing after notice has been given shall be grounds for default and shall waive both the right to contest the allegations and the right to the hearing.

(4) The respondent named in the notice of agency action and the Office shall be permitted to testify, present evidence, and comment on the issues. Formal rules of evidence shall not apply.

(5) Testimony may be taken under oath at the ALJ's discretion.

(6) All hearings are open to all parties.

(7) Discovery is prohibited; informal disclosures will be ruled on at the pre-hearing conference.

(8) Subpoenas and orders to secure the attendance of witnesses or the production of evidence shall be issued by the ALJ when requested by a respondent or the Office, or may be issued by the ALJ on his/her own motion.

(9) A respondent shall have access to relevant information contained in the Office's files and to material gathered in the investigation of respondent to the extent permitted by law.

(10) The ALJ may cause an official record of the hearing to be made, at the Office's expense.

(11) Disposition of the ALJ's Order:

(a) Within a reasonable time after the close of the informal proceeding, the ALJ shall issue a signed order in writing that includes the following: the decision, the reasons for the decision, the Order, a notice of any right to administrative or judicial review of the order available to aggrieved parties and the time limits applicable to any reconsideration or review.

(b) The order shall be based on the facts appearing in the Office's files and on the facts presented in evidence at the informal hearing.

(c) A copy of the ALJ order shall be promptly mailed to each party.

 

R849-1-12. Proposed Decision and Final Agency Review.

(1) At the conclusion of the hearing, the ALJ shall take the matter under advisement and submit a recommended decision to the Board. The recommended decision is based on the testimony and evidence entered at the hearing and legal precedent.

(2) The recommended decision must contain findings of fact and conclusions of law.

(3) The Board may:

(a) adopt the recommended decision or any portion of the decision;

(b) reject the recommended decision or any portion of the decision, and make an independent determination based upon the record; or

(c) remand the matter to the ALJ for further proceeding, and the ALJ thereafter shall submit to the Board a new recommended decision.

(4) The Board's decision constitutes final administrative action and is subject to judicial review.

(5) The Board shall send a copy of the final administrative action to each party or representative and notify them of their right to judicial review.

(6) The parties shall comply with a final decision from the Board reversing the agency's decision within ten calendar days.

 

R849-1-13. Declaratory Orders.

(1) Any person may file a request for Office action, requesting that the Office issue a declaratory order determine the applicability of a statute, rule, or order within the primary jurisdiction of the Office in accordance with 63G-4-503.

(2) Petition Form. The petition shall:

(a) Be clearly designated as a request for a declaratory order;

(b) identify the statute, rule, or order to be reviewed;

(c) describe the situation or circumstances giving rise to the need for the declaratory order or in which applicability of the statute, rule, or order is to be reviewed;

(d) describe the reason or need for the applicability review;

(e) identify the person or agency directly affected by the statute, rule, or order;

(f) include an address and telephone where the petitioner can be reached during regular work days; and

(g) be signed by the petitioner.

(3) The provisions of Sections 63G-4-202 through 63G-4-302 apply to declaratory proceedings.

(4) The Office will not issue a declaratory order that deals with a question or request that the ALJ determines is:

(a) not within the jurisdiction and competence of the Office;

(b) trivial, irrelevant, or immaterial;

(c) not one that is ripe or appropriate for determination;

(d) currently pending or will be determined in an on-going judicial proceeding;

(e) prohibited by state or federal law; or

(f) challenge the validity of a federal statute or regulation.

 

KEY: adjudicative proceedings, appeals, hearings

Date of Enactment or Last Substantive Amendment: 2015

Authorizing and Implemented or Interpreted Law: 53D-1-702

 

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