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Utah Administrative Code (Current through November 1, 2019) |
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R23. Administrative Services, Facilities Construction and Management |
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R23-25. Administrative Rules Adjudicative Proceedings |
| R23-25-1. Purpose and Authority |
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(1) Under the authority of Section 63A-5-103(1)(e), this rule establishes procedures for adjudicative proceedings in accordance with the Utah Administrative Procedures Act, Section 63G-4-101 et seq., except as provided in Subsections (2) through (4). (2) This rule does not apply to an Agency action that is not governed by the Administrative Procedures Act and the laws of the State of Utah, including: (a) Subsection 63G-4-102, Administrative Procedures Act; (b) Title 63G, Chapter 6, Utah Procurement Code; (c) Title 63A, Chapter 5, Part 1, State Building Board; and (d) Title 63A, Chapter 5, Part 2, Division of Facilities Construction and Management. (3)(a) The provisions of this rule do not govern actions or proceedings that a federal statute or regulation requires be conducted solely in accordance with federal procedures. (b) If a federal statute or regulation requires a modification to these procedures, the federal procedures prevail. (4) To the extent that this rule conflicts with a similar rule governing the agency, the conflicting provisions of the other rule shall govern. |
| R23-25-2. Designation of Proceedings |
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The Agency designates all agency action subject to the scope and applicability of the Utah Administrative Procedures Act, Section 63G-4-101 et seq. as informal proceedings. |
| R23-25-3. Definitions |
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(1) The terms used in this rule are defined in Section 63G-4-103. (2) In addition: (a) "Agency" means the Utah State Building Board or the Division of Facilities Construction and Management. (b) "Presiding officer" means the director of the Division of Facilities Construction and Management, or the director's designee. |
| R23-25-4. Procedure |
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Pursuant to Section 63G-4-203, the procedure for informal adjudicative proceedings is as follows: (1)(a) The respondent to a notice of agency action or request for agency action shall file and serve a written response, signed by the respondent or the respondent's representative, within 30 days of mailing of the notice of agency action, or within 30 days of notice of the Agency setting the matter for an informal adjudicative proceeding. (b) The response shall be filed with the Agency and one copy shall be sent by mail to each party. (c) Failure to file a responsive pleading may result in a default pursuant to Section 63G-4-209. (2)(a) A hearing shall be provided to any party to the proceeding requesting a hearing. (b) The Agency shall hold a hearing if required by statute or rule. (c) A request for a hearing shall be in writing and filed at the same time the respondent submits a written response as provided in Subsection (1)(a). (3) In the hearing, the parties named in the notice of agency action or in the request for agency action may be represented by counsel and shall be permitted to testify, present evidence and comment on the issues. (4) Hearings will be held only after timely notice to all parties. (5)(a) Discovery is prohibited, but the agency may issue subpoenas or other orders to compel production of necessary evidence. (b) Each party to the proceeding is responsible for ensuring the appearance and associated costs of witnesses. (6) All parties shall have access to information contained in the agency's files and to all materials and information gathered in any investigation, to the extent permitted by law. (7) Intervention is prohibited, except that intervention is allowed where a Federal statute or rule requires that the state allow intervention. (8) All hearings are open to all parties, except the presiding officer may take appropriate measures to preserve the integrity of the hearing, including the exclusion of a witness if requested by a party, and the protection of confidentiality of records or other information protected by law. (9) Within a reasonable time after the close of the hearing, or after the party's failure to request a hearing, the presiding officer shall issue a signed order in accordance with Subsections 63G-4-203 (1) (i), (j), and (k). (10) All hearings shall be recorded at the agency's expense. (11) Nothing in this section restricts or precludes any investigative right or power given to the agency by statute. |
| R23-25-5. Agency Review or Reconsideration |
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(1)(a) If the agency director is the presiding officer, and not a designee, there is no agency review permitted pursuant to Section 63G-4-301. (b) If the agency director designates another person as the presiding officer, then a party may seek review of the presiding officer's order by filing a written request with the agency director. (c) The requirements provided in Section 63G-4-301 shall apply to any agency review. (2)(a) Nothing contained in this Rule prohibits a party from filing a petition for reconsideration pursuant to Utah Administrative Procedures Act, Section 63G-4-302. (b) The requirements provided in Section 63G-4-302 shall apply to any agency reconsideration. |
| R23-25-6. Public Petition for Declaratory Orders |
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Petitions for declaratory orders shall be made and processed in accordance with the Department of Administrative Services Rule R13-1. |
| R23-25-7. Emergency Orders |
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Emergency orders may be issued by the agency in accordance with Section 63G-4-502. |
| R23-25-8. Exhaustion of Administrative Remedies |
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(1) A person must exhaust their administrative remedies in accordance with Section 63G-4-401 prior to seeking judicial review. (2) In any adjudicative proceeding before the agency there shall be an opportunity for an affected party to respond and participate. (3) Only an aggrieved party that has exhausted the available and adequate remedies before the presiding officer, including any agency review or reconsideration by the agency director, may seek judicial review of the final decision of the agency director. |
| R23-25-9. Civil Enforcement |
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In addition to any other remedy provided by law or any other rule applicable to the agency, civil enforcement may be pursued as provided under Section 63G-4-501. |
| R23-25-10. Waivers |
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(1) In addition to any other waiver allowed by law or this rule, any procedural matter, including any right to notice or hearing, may be waived by the affected person by signing a written waiver in a form approved by the agency. (2) The waiver provision of this rule may not be construed to prohibit a finding of default as provided in Subsection R23-25-4(1)(c) or Section 63G-4-209. |
| R23-25-11. Agency Rights and Remedies |
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Agency reserves all rights, remedies and available procedures under the Utah Administrative Procedures Act, Section 63G-4-101, et seq., unless the reservation is in conflict with the provisions of this Rule. |