II.
GENERAL ORGANIZATION
A. The Commission is composed of seven
members appointed by the Governor for a term of seven (7) years. The officers
of the Commission will be chairman, vice-chairman and secretary. Election of
officers will be held annually at the January commission meeting. These
officers shall perform the duties prescribed by applicable law, this rule, and
the parliamentary authority adopted by the agency.
Each member of the
Commission may serve as Chairman of the Commission during the last year of that
Commissioner's seven-year term. The member second in seniority on the
Commission may serve as Vice-Chairman during the sixth year of that
Commissioner's seven-year term. In the event a Commissioner is reappointed by
the Governor to serve a subsequent term, that Commissioner shall drop to the
bottom of the seniority list upon his reappointment.
B. The business of the Commission will be
conducted in public meetings pursuant to Robert's Rules of Order. All meetings
will be conducted in conformity with the Arkansas Freedom of Information Act.
Regular meetings will be held monthly. Special meetings will be held on the
call of the Chairman or three Board members.
C. A quorum for the transaction of business
is four (4) Commissioners. A majority of Commissioners present is required to
transact business.
D. The
Commission may create standing and ad hoc committees. The Commission Chairman
will appoint members of committees. A quorum for the transaction of committee
business is a majority of the number of voting members of the
committee.
E. The Commission
Executive Secretary will prepare the agenda for regular and special meetings.
The agenda will be distributed to agency members and Commissioners and made
available to the public in advance of the meeting. The agenda will state with
specificity the items that will be considered at a meeting, hearing, or
workshop. The agenda will include the following topics as applicable:
1. The call to order;
2. Approval of minutes;
3. Old business;
4. New business;
5. Other business; and
6. Appeal hearings.
The order of the
agenda items is intended to be flexible and may be adjusted to meet the needs
of the Commission. Additionally, the agenda may be amended by appropriate
motion.
III.
RULE-MAKING
A.
AUTHORITY
The Commission
has been authorized by the Legislature to promulgate rules. Ark. Code Ann.
§§
12-8-103,
12-8-210,
12-8-214 and
12-8-305. The Commission follows
the procedural requirements of the Arkansas Administrative Procedure Act, in
particular Ark. Code Ann. §
25-15-203 and §
25-15-204. Additionally, the
Commission is required to abide by the provisions of Ark. Code Ann. §
10-3-309.
B.
INITIATION OF
RULE-MAKING
The process of adopting a new rule or amending or
repealing an existing rule (hereinafter referred to "rule-making") may be
initiated by request of the Commission that the staff submit proposed drafts.
Additionally, staff of the ASP may request permission of the Commission to
initiate rule-making. Third persons outside the ASP may petition for the
issuance, amendment, or repeal of any rule.
C.
PETITION TO INITIATE
RULE-MAKING
Third parties may initiate rule-making to adopt, amend,
or repeal a rule by filing a petition with the Commission to initiate
rule-making. The petition must contain the name, address, and telephone number
of the petitioner, the specific rule or action requested, the reasons for the
rule or action requested, and facts showing that the petitioner is regulated by
the ASP or has a substantial interest in the rule or action requested.
The petition to initiate rule-making shall be filed with the
ASP Executive Secretary.
Within sixty (60) days after submission of the petition, the
ASP will either deny the petition, stating its reasons in writing, or will
initiate rule-making. A special meeting will be called if necessary to meet
this time frame.
D.
PRE-FILING WITH THE BUREAU OF LEGISLATIVE RESEARCH
Thirty
(30) days before the public-comment period ends, the ASP will file with the
Bureau of Legislative Research the text of the proposed rule or amendment as
well as a financial impact statement and a Bureau of Legislative Research
questionnaire as provided by Ark. Code Ann. §
10-3-309.
E.
PUBLIC INPUT
1. Before finalizing language of a proposed
new rule or an amendment to, or repeal of, an existing rule, the Commission
will receive public input through written comments and/or oral submissions. The
Commission will designate in its public notice the format and timing of public
comment.
2. Any public hearing will
provide affected persons and other members of the public a reasonable
opportunity for presentation of evidence, arguments, and oral statements within
reasonable conditions and limitations imposed by the ASP to avoid duplication,
irrelevant comments, unnecessary delay, or disruption of the
proceedings.
3. The Commission
chair or any person designated by the Commission may preside at the public
hearing. The Commission will ensure that the ASP personnel responsible for
preparing the proposed rule or amendment are available, and will notify third
parties initiating rule changes to be available to explain the proposal and to
respond to questions or comments regarding the proposed rule.
4. The Executive Secretary will preserve the
comments made at the public hearing by a certified court reporter or by
recording instruments.
5. Any
person may submit written statements within the specified period of time. All
timely, written statements will be considered by the Commission and be made a
part of the rule-making record.
F.
NOTICE OF
RULE-MAKING
The Commission will give notice of proposed rule-making
to be published pursuant to Ark. Code Ann. §
25-15-204. The notice will set any
written comment period and will specify the time, date, and place of any public
hearing.
G.
THE
DECISION TO ADOPT A RULE
1. The
Commission will not finalize language of the rule or decide whether to adopt a
rule until the period for public comment has expired.
2. Before acting on a proposed rule, the
Commission will consider all of the written submissions and/or oral submissions
received in the rule-making proceeding or any memorandum summarizing such oral
submissions, and any regulatory analysis or fiscal impact statement issued in
the rule-making proceedings.
3. The
Commission may use its own experience, specialized knowledge, and judgment or
that of the ASP staff in the adoption of a rule.
H.
VARIANCE BETWEEN ADOPTED RULE AND
PUBLISHED NOTICE OF PROPOSED RULE
1.
The Commission may not adopt a rule that differs from the rule proposed in the
published notice of the intended rule-making on which the rule is based unless:
a. The final rule is in character with the
original scheme and was a logical outgrowth of the notice and comments stemming
from the proposed rule, or
b. The
notice fairly apprised interested persons of the subject and the issues that
would be considered so that those persons had an opportunity to
comment.
2. In
determining whether the final rule is in character with the original scheme and
was a logical outgrowth of the notice and comments, and that the notice of
intended rule-making provided fair warning that the outcome of that rule-making
proceeding could be the rule in question, the Commission must consider the
following factors:
a. The extent to which
persons who will be affected by the rule should have understood that the
rule-making proceeding on which it is based could affect their interests; and
b. The extent to which the subject
matter of the rule or issues determined by the rule are different from the
subject matter or issues contained in the notice of intended rule-making; and
c. The extent to which the effects
of the rule differ from the effects of the proposed rule contained in the
notice of intended rule-making.
I.
CONCISE STATEMENT OF REASONS
1. When requested by an interested person,
either prior to the adoption of a rule or within thirty (30) days after its
adoption, the Commission shall issue a concise statement of the principal
reasons for and against its adoption of the rule. Requests for such a statement
must be in writing and be delivered to Executive Secretary. The request should
indicate whether the statement is sought for all or only a specified part of a
rule. A request will be considered to have been submitted on the date on which
it is received by the Executive Secretary.
2. The concise statement of reasons will
contain:
a. The Commission's reasons for
adopting the rule;
b. An indication
of any change between the text of the proposed rule and the text of the rule as
finally adopted, with explanations for any such change; and
c. The principal reasons urged in the
rule-making procedure for and against the rule, and the Commission's reasons
for overruling the arguments made against the rule.
J.
CONTENTS
The
Commission shall cause its rules to be published and made available to
interested persons. The publication must include:
1. The text of the rule; and
2. A note containing the following:
(a) The date(s) the Commission adopted or
amended the rule;
(b) The effective
date(s) of the rule;
(c) Any
findings required by any provisions of law as a prerequisite to adoption for
effectiveness of the rule; and
(d)
Citation to the entire specific statutory or other authority authorizing the
adoption of the rule;
3.
The publication of the rule(s) will state the date of publication.
K.
INCORPORATION BY
REFERENCE
By reference in a rule, the Commission may incorporate
all or any part of a statute, standard, rule, or other matter if the Commission
finds that copying the matter in the Commission's rule would be unduly
cumbersome, expensive, or otherwise inexpedient. The reference in the
Commission rule must fully and precisely identify the incorporated matter by
title, citation, date, and edition, if any; briefly indicate the precise
subject and general contents of the incorporated matter; and state that the
rule does not include any later amendments or editions of the incorporated
matter. The Commission may incorporate such a matter by reference in a proposed
or adopted rule and will make copies of the incorporated matter readily
available to the public. The rules will state how and where copies of the
incorporated matter may be obtained at cost from the ASP, and how and where
copies may be obtained from an agency of the United States, this state, another
state, or the organization, association, or persons originally issuing that
matter. The Commission will retain permanently a copy of any materials
incorporated by reference in a rule of the Commission.
L.
FILING
1. After the Commission formally adopts a new
rule or amends a current rule or repeals an existing rule, and after the rule
change has been reviewed by the Legislative Counsel, the staff will file final
copies of the rule with the Secretary of State, the Arkansas State Library, and
the Bureau of Legislative Research, or as otherwise provided by Ark. Code Ann.
§
25-15-204(d).
2. Proof of filing a copy of the rule,
amendment, or repeal with the Secretary of State, the Arkansas State Library,
and the Bureau of Legislative Research or otherwise as provided by Ark. Code
Ann. §
25-15-204(d) will
be kept in a file maintained by the Executive Secretary.
VI.
APPEAL HEARINGS
A.
SCOPE OF THIS
CHAPTER
This chapter applies in all appeal hearings conducted by
the Commission. This procedure is developed to provide a process
by which the Commission hears appeals of removal, demotion, suspension,
discharge and disciplinary transfer of ASP officers pursuant to Ark. Code. Ann.
§§
12-8-103,
12-8-104.
B.
HEARING OFFICER
The
Commission Chairman shall preside at the hearing and may designate one or more
hearing officers to conduct the hearing.
C.
APPEARANCES
1. Any party appearing in any Commission
hearing proceeding has the right, at his or her own expense, to be represented
by counsel.
2. The petitioner may
appear on his or her own behalf.
3.
Any attorney representing a petitioner in an appeal hearing must file notice of
appearance as soon as possible.
4.
Service on counsel of record is the equivalent of service on the party
represented.
5. On written motion
served on the party represented and all other parties of record, the hearing
officer may grant counsel of record leave to withdraw for good cause
shown.
D.
CONSOLIDATION
If there are separate matters that involve
similar issues of law or fact, or identical parties, the matters may be
consolidated if it appears that consolidation would promote the just, speedy,
and inexpensive resolution of the proceedings, and would not unduly prejudice
the rights of a party.
E.
NOTICE TO INTERESTED PARTIES
If it appears that the
determination of the rights of parties in a proceeding will necessarily involve
a determination of the substantial interests of persons who are not parties,
the hearing officer may enter an order requiring that an absent person be
notified of the proceeding and be given an opportunity to be joined as a party
of record.
F.
SERVICE
OF PAPERS
Unless the hearing officer otherwise orders, every
pleading and every other paper filed for the proceeding, except applications
for witness subpoenas and the subpoenas, shall be served on each party or the
party's representative at the last address of record.
G.
INITIATION & NOTICE OF
HEARING
1. An appeal hearing is
initiated by the filing of a notice of appeal pursuant to Ark. Code Ann. §
12-8-204(c).
Filing with the Director shall be considered service of the notice on the
Commission. The Commission shall set a hearing date to be held within a
reasonable time.
2. The notice of
time and place of the hearing will be sent by U.S. mail to the petitioner's
latest address on file with the ASP or by personal delivery.
3. Notice will be mailed at least twenty (20)
days before the scheduled hearing.
H.
MOTIONS
All requests for
relief will be by motion. Motions must be in writing or made on the record
during a hearing. A motion must fully state the action requested and the
grounds relied upon. The original written motion will be filed with the
Commission by service on the Executive Secretary. When time allows, the other
parties may, within seven (7) days of the service of the written motion, file a
response in opposition. The hearing officer may conduct such proceedings and
enter such orders as are deemed necessary to address issues raised by the
motion. However, a hearing officer, other than the Commission, will not enter a
dispositive order unless expressly authorized to do so by the
Commission.
I.
EX
PARTE COMMUNICATIONS
Prior to the hearing, Commissioners will not
communicate, directly or indirectly, in connection with any issue of fact with
any person or party nor, in connection with any issue of law with any party or
his representative.
J.
DISCOVERY
1. Upon written
request, the Director will provide the information designated in A.C.A §
25-15-208(a)(3)
or any evidence which was the basis for the Director's decision. The Arkansas
Rules of Civil Procedure and its discovery procedures do not apply to appeal
hearings.
2. Such requests should
be received by the Director at least 10 days before the scheduled
hearing.
K.
CONTINUANCES
1. The Commission or
hearing officer may grant a continuance of hearing for good cause shown.
Requests for continuances will be made in writing. The request must state the
grounds to be considered and be made as soon as practicable and, except in
cases of emergencies, no later than five (5) days prior to the date noticed for
the hearing. In determining whether to grant a continuance, the Commission may
consider:
(a) prior continuances;
(b) the interests of all parties;
(c) the likelihood of informal
settlement;
(d) the existence of an
emergency;
(e) any
objection;
(f) any applicable time
requirement;
(g) the existence of a
conflict of the schedules of counsel, parties, or witnesses;
(h) the time limits of the request;
and,
(i) other relevant
factors.
2. The
Commission or hearing officer may require documentation of any grounds for
continuance.
L.
HEARING PROCEDURES
1. The hearing
officer presides at the hearing and may rule on motions, require briefs, and
issue such orders as will ensure the orderly conduct of the proceedings;
provided, however, any hearing officer other than the Commission shall not
enter a dispositive order or proposed decision unless expressly authorized in
writing to do so.
2. All objections
must be made in a timely manner and stated on the record.
3. Parties have the right to participate or
to be represented by counsel in all hearings or pre-hearing conferences related
to their case.
4. Subject to terms
and conditions prescribed by the Administrative Procedure Act, parties have the
right to introduce evidence on issues of material fact, cross-examine witnesses
as necessary for a full an true disclosure of the facts, present evidence in
rebuttal, and, upon request by the Commission, may submit briefs and engage in
oral argument.
5. The hearing
officer is charged with maintaining the decorum of the hearing and may refuse
to admit, or may expel, anyone whose conduct is disorderly.
6. The standard of review before the
Commission shall be de novo. The Director shall prove
the basis for disciplinary action by a preponderance of the evidence.
M.
ORDER OF
PROCEEDINGS
The hearing officer will conduct the hearing in the
following manner:
1. Counsel for the
Director and counsel for Petitioner will give opening statements, briefly
describing the nature of the proceedings.
2. The case for the Director's disciplinary
action will be presented first, followed by the case for Petitioner.
3. The parties will otherwise be allowed to
present their cases in the sequence determined by the hearing
officer.
4. Each witness must be
sworn or affirmed by the hearing officer, or the court reporter, and be subject
to examination and cross-examination as well as questioning by the
Commission. The hearing officer may limit questioning in a manner
consistent with the law.
5. When
all parties and witnesses have been heard, parties may be given the opportunity
to present final arguments.
N.
EVIDENCE
1. The hearing officer shall rule on the
admissibility of evidence and may, when appropriate, take official notice of
facts in accordance with all applicable requirements of law.
2. Stipulation of facts is encouraged. The
Commission may make a decision based on stipulated facts.
3. Evidence in the proceeding will be
confined to the issues regarding the decision appealed from, unless the parties
waive their right to such notice or the hearing officer determines that good
cause justifies expansion of the issues. If the hearing officer decides to
admit evidence outside the scope of the notice, over the objection of a party
who did not have actual notice of those issues, that party, upon timely
request, will receive a continuance sufficient to prepare for the additional
issue and to permit amendment of pleadings.
4. A party seeking admission of an exhibit
shall provide ten (10) copies of each exhibit at the hearing. The hearing
officer will provide the opposing parties with an opportunity to examine the
exhibit prior to the ruling on its admissibility. All exhibits admitted into
evidence must be appropriately marked and be made part of the record.
5. Any party may object to specific evidence
or may request limits on the scope of the examination or cross-examination. A
brief statement of the grounds upon which it is based shall accompany such an
objection. The objection, the ruling on the objection, and the reasons for the
ruling will be noted in the record. The hearing officer may rule on the
objection at the time it is made or may reserve the ruling until the written
decision.
6. Whenever evidence is
ruled inadmissible, the party offering that evidence may submit an offer of
proof on the record. The party making the offer of proof for excluded oral
testimony will briefly summarize the testimony or, with permission of the
hearing officer, present the testimony. If the excluded evidence consists of a
document or exhibit, it shall be marked as part of an offer of proof and
inserted in the record.
7.
Irrelevant, immaterial, and unduly repetitive evidence will be excluded. Any
other oral or documentary evidence, not privileged, may be received if it is of
a type commonly relied upon by reasonably prudent men and women in the conduct
of their affairs.
8. Reasonable
inferences. The Commission may base its findings of fact upon reasonable
inferences derived from other evidence received.
O.
DEFAULT
If the
Petitioner fails to appear or participate in an appeal hearing after proper
service of notice, the Director's decision shall stand.
P.
SUBPOENAS
1. At the written request of any party, the
Chairman or member authorized by the Commission may issue subpoenas for the
attendance of witnesses at the hearing. The requesting party shall specify
whether the witness is also requested to bring documents and reasonably
identify said documents. The Executive Secretary may prepare the
subpoena.
2. A subpoena may be
served by any person specified by law to serve process or by any person who is
not a party and who is eighteen (18) years of age or older. Delivering a copy
to the person named in the subpoena shall make service. Proof of service may be
made by affidavit of the person making service. The party seeking the subpoena
shall have the burden of obtaining service of the process and shall be charged
with the responsibility of tendering a witness fee of $30.00 per witness and
mileage fees at the current state mileage rate. The witness must be served at
least two days prior to the hearing. For good cause, the Commission may
authorize the subpoena to be served fewer than two days before the
hearing.
3. Any motion to quash or
limit the subpoena shall be filed with the Commission and shall state the
grounds relied upon.
Q.
RECORDING THE PROCEEDINGS
The responsibility to provide a
certified court reporter to record the testimony heard at a hearing is borne by
the Commission. Upon the filing of a petition for judicial review, the
Commission will file a transcript of testimony taken before the agency.
R.
DELIBERATIONS
The Commission's deliberations will be held in
executive session. The Commission's vote will be taken in public and on the
record.
S.
FINAL
ORDER
1. The Commission will serve on
the Petitioner a written order that reflects the action taken by the
Commission. The order will include a recitation of facts found based on
testimony and other evidence presented and reasonable inferences derived from
the evidence pertinent to the issues of the case. It will also state
conclusions of law and directives or other disposition entered against or in
favor of the Petitioner. The order will be served personally or by mail on the
Petitioner. If counsel represents Petitioner, service of the order on
Petitioner's counsel shall be deemed service on the Petitioner.
2. The Commission may approve the
disciplinary action taken by the Director or may enhance or diminish the action
taken by the Director.
