4 AAC 31.026 - Requests for reconsideration and appeals
(a) By November 5
of each year the department will provide to each school district submitting a
grant application notice of its proposed revised grant schedule that commences
in the next fiscal year and of its priority ranking under
4
AAC 31.022(b) of all proposed
projects for the first year of the six-year capital improvement plan. No later
than December 1, with notice provided no later than November 15, the department
will conduct a public hearing under
AS
14.11.013(e) to receive oral
and written comments on its priority ranking of proposed projects. A school
district aggrieved by the priority ranking assigned to a project, its scope as
approved by the department, the denial of a waiver of all or a portion of the
required local contribution to the cost of the project or the project's budget
shall file, no later than the public hearing, a written request for
reconsideration that states
(1) its specific
objections;
(2) a summary of the
evidence that the department erred in its priority ranking of the project, the
scope of the project allowed, the denial of a waiver of all or a portion of the
required local contribution to the cost of the project, or the amount of the
project budget approved; and
(3)
the relief it requests, which may include a higher priority, a broader scope of
project, a waiver of all or a portion of the required local contribution to the
cost of the project, or a larger project budget.
(b) A request for reconsideration filed by an
aggrieved school district under (a) of this section will be considered by the
department, and a written decision will be issued not later than 15 working
days after the last day of the public hearing conducted under (a) of this
section. In reaching its decision, the department will consider
(1) the school district's updated capital
improvement plan submitted under
4
AAC 31.011;
(2) the grant application, and supporting
documentation submitted by the school district under
4
AAC 31.021(c);
(3) oral and written comments received at the
public hearing conducted under (a) of this section; and
(4) the protest filed by the aggrieved school
district.
(c) A school
district dissatisfied by the department's reconsideration decision under (b) of
this section regarding a project's priority ranking, scope of the project, a
denial of a waiver of all or a portion of the required local contribution to
the cost of the project, or its budget, may file an appeal with the
commissioner within 15 calendar days after the receipt of that decision. The
notice of appeal must state the factual and legal basis of the appeal and the
specific relief sought. Any issue not raised by the notice of appeal is
considered waived in the subsequent proceedings.
(d) Within 10 working days after the filing
of an appeal under (c) of this section, the chief administrative law judge of
the office of administrative hearings (AS
44.64.010) shall appoint a hearing officer to
hear the case. The hearing officer shall consider the issues raised in the
appeal on the basis of
(1) the school
district's updated capital improvement plan submitted under
4
AAC 31.011;
(2) the grant application, and supporting
documentation submitted by the school district under
4
AAC 31.020(c);
(3) the comments received at the public
hearing conducted under (a) of this section;
(4) the decision rendered by the department
on the request for reconsideration under (b) of this section; and
(5) the appeal filed by the school district
under (c) of this section.
(e) Within five working days after
appointment, the hearing officer shall determine whether the appeal raises
issues of law or fact. If the hearing officer determines that the appeal does
not raise an issue of law or fact, the hearing officer shall render a written
decision that denies the appeal. This decision is a final decision under
AS
14.11.015(b) and Alaska
Rules of Appellate Procedure 601 - 611.
(f) If the hearing officer determines, under
(e) of this section, that the appeal presents questions of law or fact, the
hearing officer shall establish the date, time, and place of the hearing, which
shall occur not more than 15 working days after appointment of the hearing
officer, to supplement the record.
(g) The hearing shall be recorded and shall
be conducted according to the following rules of evidence:
(1) oral evidence may be taken only on oath
or affirmation;
(2) each party or
party's counsel, but not both, may call and examine witnesses, introduce
exhibits, cross-examine opposing witnesses on matters relevant to the issues
even though those matters were not covered in the direct examination, impeach a
witness regardless of which party first called the witness to testify, and
rebut the evidence against the party;
(3) the hearing need not be conducted
according to technical rules relating to evidence and witnesses; however,
relevant evidence may be admitted if it is the sort of evidence on which
responsible persons are accustomed to rely in the conduct of serious affairs,
regardless of the existence of a court rule that makes improper the admission
of the evidence over objection in a civil action; hearsay evidence may be used
to supplement or explain direct evidence but is not sufficient by itself to
support a finding unless it would be admissible over objection in a civil
action; the rules of privilege are effective to the same extent that they are
recognized in a civil action; irrelevant and unduly repetitious evidence may be
excluded;
(4) the burden of proof
is on the district; the burden of persuasion is by a preponderance of the
evidence.
(h) The
hearing officer shall determine whether the department had a reasonable basis
for deciding as it did. Using "reasonable basis" as a standard of review, the
hearing officer shall decide the issues in the appeal on the basis of the
record specified in (d) of this section and the evidence taken at the hearing.
The hearing officer shall prepare proposed findings of fact and conclusions of
law. Within 60 calendar days after the filing of the school district's appeal
under (c) of this section, the hearing officer shall deliver the proposed
findings of fact, conclusions of law, and proposed decision to the state Board
of Education, with copies to the aggrieved school district and the department.
Either party may file a response to the proposed decision not later than five
working days after receipt of the copy of the proposed decision.
(i) At its next regularly scheduled meeting
after receipt of the proposed findings of fact and conclusions of law, the
state Board of Education will, in its discretion, adopt all, part, or none of
the recommended decision, or remand the issue back to the hearing officer for
further hearing. The board's decision will be in writing. The decision is the
final decision on the issues presented in the appeal under the provisions of
AS
14.11.015 and Alaska Rules of Appellate
Procedure 601 - 611.
(j) A school
district may not
(1) challenge the award of
points to another district's projects except to show application of an
arbitrary standard of evaluation; and
(2) raise in any appeal filed under (c) of
this section an issue not raised by the written request for reconsideration;
and issue not raised is considered waived in the subsequent
proceedings.
Notes
Authority:AS 14.11.013
AS 14.11.015
AS 14.11.016
AS 14.11.132
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