RULE 203.00.12-002 - Rules Governing Appeals from Determinations of the Arkansas Division of Public School Academic Facilities and Transportation (ADPSAFT)

RULE 203.00.12-002. Rules Governing Appeals from Determinations of the Arkansas Division of Public School Academic Facilities and Transportation (ADPSAFT)

1.00 REGULATORY AUTHORITY

1.01 These Rules shall be known as the Commission for Arkansas Public School Academic Facilities and Transportation Rules Governing Appeals from Determinations of the Arkansas Division of Public School Academic Facilities and Transportation.

1.02 These Rules are promulgated pursuant to Ark. Code Ann. §§ 6-21-801 through 6-21-814, 6-20-2512, 6-20-2513, 6-20-2516, 25-15-201et seq., and Act 1006 of 2011.

2.00 PURPOSES OF RULES, BURDEN OF PROOF AND DEFINITION OF TERMS

2.01 The first purpose of these Rules is to implement the requirements of Ark. Code Ann. §§ 6-21-801 through 6-21-814 to provide a method by which school districts may appeal decisions made by the Arkansas Division of Public School Academic Facilities and Transportation (Division) to the Commission for Public School Academic Facilities and Transportation (Commission). Sections 3.00 through 5.00 of these Rules specifically address appeals arising under Ark. Code Ann. §§ 6-21-801 through 6-21-814.

2.02 The second purpose of these Rules is to implement the requirements of Ark. Code Ann. §§ 6-20-2512, 6-20-2513 and 6-20-2516 to provide a method by which school districts may appeal decisions made by the Division to the Academic Facilities Review Board (Review Board) and from decisions made by the Review Board to the Commission. Sections 6.00 through 9.00 of these rules specifically address appeals arising under Ark. Code Ann. §§ 6-20-2501 through 6-20-2516.

2.03 For the purposes of all appeals brought by a school district pursuant to these Rules, the school district shall have the burden of proving that the Division's written determination is not supported by substantial evidence or is outside the legal authority vested in the Division.

2.04 For the purposes of these Rules, the term "substantial evidence" means relevant evidence that a reasonable mind might accept to support a conclusion. Substantial evidence is not based upon speculation and conjecture. A review of substantial evidence is not based upon whether the facts would have supported a contrary finding by the Division, but whether the facts supported the finding made by the Division.

DIRECT APPEALS TO THE COMMISSION (ARK. CODE ANN. §§ 6-21-801 - 6-21-814)

3.00 APPEAL PROCESS: DIRECT APPEALS TO THE COMMISSION

3.01 Pursuant to Ark. Code Ann. § 6-21-814, a school district may appeal any final written determination of the Division made under the provisions of the Arkansas Public School Academic Facilities Program Act, Ark. Code Ann. § 6-21-801et seq., by following this process:

3.01.1 A school district may request in writing, and the Division shall provide within twenty (20) calendar days, a written determination concerning a matter directly affecting the school district that is covered under Ark. Code Ann. §§ 6-21-801 through 6-21-814.

3.01.1.1 A school district may not utilize the procedures outlined in this Section 3.00 to request a written determination that is in effect a request for reconsideration of an earlier written determination.

3.01.2 If the school district wishes to appeal the written determination of the Division, the school district must, within sixty (60) calendar days of receipt of the Division's written determination, submit to the Office of General Counsel, Arkansas Department of Education, with a copy to the Division, a written request for an appeal or an appeal and hearing with the Commission. With its written request, the school district must submit a brief written statement of no longer than fifteen (15) pages explaining, in clear and express terms, the facts of the case and how the Division's determination is not supported by substantial evidence or is outside the legal authority vested in the Division. At the time of submitting its initial brief, the school district shall indicate whether it requests a formal hearing before the Commission. If the appeal or appeal and request for hearing are not received within sixty (60) calendar days from the date of the Division's written determination, the Commission shall deny the appeal on the grounds that it is untimely.

3.01.3 Upon timely receipt of the school district's written request for an appeal or appeal and hearing, the Division may prepare a written statement in response. The Division's written response will be limited to fifteen (15) pages. The Division will provide its written response to the the Office of General Counsel, Arkansas Department of Education, with a copy to the school district, within thirty (30) calendar days of receipt of the school district's written request for an appeal.

3.01.4 Once the written statements from the school district and the Division are received by the Commission, the Commission will consider the appeal at the call of the chair of the Commission. Except for good cause shown, the chair of the Commission will schedule the meeting for consideration of the appeal within thirty (30) calendar days of receipt of the Division's written response. Notice of the date, time, and location of the meeting will be sent to the appealing school district and to the Division. If requested by the appealing school district or if the Commission determines that a hearing is necessary, a hearing concerning the appeal will be held during the meeting and in accordance with Section 4.00 of these Rules.

4.00 APPEAL HEARING PROCEDURES: DIRECT APPEALS TO THE COMMISSION

4.01 For each hearing, the appealing school district and the Division shall each have up to ten (10) minutes to present an opening statement, beginning with the appealing school district. The chair of the Commission may, only for good cause shown and upon request of either party, allow either party additional time to present an opening statement.

4.02 The appealing school district and the Division shall each have up to fifteen (15) minutes to present their cases-in-chief to the Commission, beginning with the appealing school district. The chair of the Commission may, only for good cause shown and upon request of either party, allow either party additional time to present their cases-in-chief.

4.03 After both parties have presented their cases-in-chief, the appealing school district and the Division shall each have up to five (5) minutes to present a closing statement, beginning with the appealing school district. The chair of the Commission may, only for good cause shown and upon request of either party, allow either party additional time to present a closing statement.

4.04 Members of the Commission may ask questions of either party at any time throughout the proceedings.

4.05 For the purposes of the record, documents offered during the hearing by the appealing school district shall be clearly marked in sequential, numeric order (1, 2, 3).

4.06 For the purposes of the record, documents offered during the hearing by the Division shall be clearly marked in sequential, alphabetic letters (A, B, C).

4.07 After hearing all testimony and evidence presented, the Commission shall deliberate and may announce its decision at the close of the hearing or may take the matter under advisement.

4.08 The Commission shall render a written decision to approve, deny or place in abeyance each appeal within thirty (30) calendar days of the hearing of the appeal by the Commission.

5.00 FINALITY OF COMMISSION DECISIONS

All decisions of the Commission resulting from a school district's appeal of a Division determination shall be final and shall not be subject to further appeal or request for rehearing to the Commission or petition for judicial review under the Arkansas Administrative Procedure Act, Ark. Code Ann. § 25-15-201et.seq.

APPEALS TO THE ACADEMIC FACILITIES REVIEW BOARD (ARK. CODE ANN. §§ 6-20-2501 - 6-20-2516)

6.00 REVIEW BOARD APPEAL PROCEDURES

6.01 Pursuant to Ark. Code Ann. § 6-20-2513, a school district may appeal any written determination of the Division made under the provisions of the Arkansas Public School Academic Facilities Funding Act (Ark. Code Ann. § 6-20-2501et seq.) to the Academic Facilities Review Board.

6.01.1 For the purpose of this Section 6.00, the phrase "Written Determination" includes the Division's notice of approval of construction projects eligible for state financial participation under Ark. Code Ann. § 6-20-2507.

6.02 A school district may request in writing, and the Division shall provide within twenty (20) calendar days, a written determination concerning a matter directly affecting the school district that is covered under Ark. Code Ann. §§ 6-20-2501 through 6-20-2516.

6.02.1 A school district may not utilize the procedures outlined in this Section 6.02 to request a written determination that is in effect a request for reconsideration of an earlier written determination.

6.03 If the school district wishes to appeal the written determination of the Division, the school district must, within sixty (60) calendar days of receipt of the Division's written determination, submit to the the Office of General Counsel, Arkansas Department of Education, with a copy to the Division, a written request for an appeal or an appeal and hearing with the Review Board. With its written request, the school district must submit a brief written statement of no longer than ten (10) pages explaining, in clear and express terms, the facts of the case and how the Division's determination is not supported by substantial evidence or is outside the legal authority vested in the Division. At the time of submitting its initial brief, the school district shall indicate whether it requests a formal hearing before the Review Board. If the appeal or appeal and request for hearing are not received within sixty (60) calendar days of the Division's written determination, the Review Board shall deny the appeal on the grounds that it is untimely.

6.04 Upon timely receipt of the school district's written request for an appeal or an appeal and hearing, the Division may prepare a written statement in response. The Division's written response will be limited to ten (10) pages. The Division will provide its written response to the Office of General Counsel, Arkansas Department of Education, with a copy to the school district, within thirty (30) calendar days of receipt of the school district's written request for an appeal.

6.05 If the school district does not request a hearing, the Review Board shall meet upon the call of the chair to consider the appeal. Except for good cause shown, the chair of the Review Board shall schedule the meeting within thirty (30) calendar days of receipt of the Division's written response. Notice of the date, time and location of the meeting will be sent to the appealing school district and to the Division.

6.06 If the school district requests a hearing or if the Review Board determines that a hearing is necessary, the Review Board shall meet upon the call of the chair. Except for good cause shown, the chair of the Review Board shall schedule the hearing within thirty (30) calendar days of receipt of the Division's written response. Notice of the date, time, and location of the hearing will be sent to the appealing school district and to the Division. Hearings shall be conducted pursuant to Section 6.08 of these Rules.

6.07 A majority of the members of the Review Board shall constitute a quorum, and all actions taken by the Review Board shall be by a majority of the quorum present.

6.08 For each hearing, the appealing school district and the Division will each have five (5) minutes to present an opening statement, beginning with the appealing school district. The chair of the Board may, only for good cause shown and upon request of either party, allow either party additional time to present an opening statement.

6.08.1 The appealing school district and the Division will each have fifteen (15) minutes to present their cases-in-chief to the Review Board, beginning with the appealing district, which bears the burden of proof. The chair of the Board may, only for good cause shown and upon request of either party, allow either party additional time to present their cases-in-chief.

6.08.2 The appealing school district and the Division will each have five (5) minutes to present a closing statement, beginning with the appealing school district. The chair of the Board may, only for good cause shown and upon request of either party, allow either party additional time to present a closing statement.

6.08.3 Members of the Review Board may, at any time during the proceedings, ask questions to representatives of either party.

6.08.4 For the purposes of the record, documents offered during the hearing by the appealing school district shall be clearly marked in sequential, numeric order (1, 2, 3).

6.08.5 For the purposes of the record, documents offered during the hearing by the Division shall be clearly marked in sequential, alphabetic letters (A, B, C).

6.08.6 Following a hearing, the Review Board shall make a final determination accepting, rejecting, or modifying the determination of the Division. The Review Board may deliberate and announce its determination at the close of the hearing, or the Review Board may take the matter under advisement. The Review Board shall provide to the school district and the Division its written final determination within ten (10) business days of the hearing.

7.00 APPEAL PROCESS: COMMISSION REVIEW OF DECISIONS OF THE REVIEW BOARD

7.01 If the school district wishes to appeal the final determination of the Review Board, the school district must, within thirty (30) calendar days of receipt of the Review Board's final determination, submit to the Office of General Counsel, Arkansas Department of Education, with a copy to the Division, a written request for an appeal or an appeal and hearing from the Review Board's final determination to the Commission. With its written request, the school district must submit a brief written statement of no longer than fifteen (15) pages explaining, in clear and express terms, the facts of the case and how the Division's determination is not supported by substantial evidence or is outside the legal authority vested in the Division. At the time of submitting its initial brief, the school district shall indicate whether it requests a formal hearing before the Commission. If the appeal or appeal and request for hearing are not received within thirty (30) calendar days from the date of the Review Board's written final determination, the Commission shall deny the appeal on the grounds that it is untimely.

7.02 Upon timely receipt of the school district's written request for an appeal or appeal and hearing, the Division may prepare a written statement in response. The Division's written response will be limited to fifteen (15) pages. The Division will provide its written response to the Office of General Counsel, Arkansas Department of Education, with a copy to the school district, within thirty (30) calendar days of receipt of the school district's written request for an appeal.

7.03 Once the written statements from the school district and the Division are received by the Commission, the Commission will consider the appeal at the call of the chair of the Commission. Except for good cause shown, the chair of the Commission will schedule the meeting for consideration of the appeal within thirty (30) calendar days of receipt of the Division's written response. Notice of the date, time, and location of the meeting will be sent to the appealing school district and to the Division. If requested by the appealing school district or if the Commission determines that a hearing is necessary, a hearing concerning the appeal will be held during the meeting and in accordance with Section 8.00 of these Rules.

7.04 If the Review Board's final determination will result in a greater level of state financial participation in a project than previously authorized by the Division, the Board's final determination shall be reviewed by the Commission at the call of the chair of the Commission.

7.04.1 When the chair of the Commission determines that a review is mandated by Section 7.04 of these Rules, the chair shall, within thirty (30) calendar days of the date of the Review Board's decision, give written notice to the appealing school district and the Division that the final determination will be reviewed by the Commission.

7.04.2 Within thirty (30) calendar days of receipt of notice from the chair of the Commission, the appealing school district shall submit to the the Office of General Counsel, Arkansas Department of Education, with a copy to the Division, a brief written statement of no longer than fifteen (15) pages explaining, in clear and express terms, the facts of the case and how the Division's determination is not supported by substantial evidence or is outside the legal authority vested in the Division. At the time of submitting its initial brief, the school district shall indicate whether it requests a formal hearing before the Commission.

7.04.3 Upon timely receipt of the school district's brief written statement, the Division may prepare a written statement in response. The Division's written response will be limited to fifteen (15) pages. The Division will provide its written response to the Office of General Counsel, Arkansas Department of Education, with a copy to the school district, within thirty (30) calendar days of receipt of the school district's brief written statement.

7.04.4 Once the written statements from the school district and the Division are received by the Commission, the Commission will consider the review at the call of the chair of the Commission. Except for good cause shown, the chair of the Commission will schedule the meeting for consideration of the review within thirty (30) calendar days of receipt of the Division's written response. Notice of the date, time, and location of the meeting will be sent to the appealing school district and to the Division. If requested by the appealing school district or if the Commission determines that a hearing is necessary, a hearing concerning the review will be held during the meeting and in accordance with Section 8.00 of these Rules

8.00 COMMISSION HEARING PROCEDURES: APPEALS FROM THE REVIEW BOARD

8.01 For each hearing, the appealing school district and the Division shall each have up to ten (10) minutes to present an opening statement, beginning with the appealing school district. The chair of the Commission may grant additional time to either or both parties, if necessary.

8.02 The appealing school district and the Division shall each have up to fifteen (15) minutes to present their cases-in-chief to the Commission, beginning with the appealing school district. The chair of the Commission may grant additional time to either or both parties, if necessary.

8.03 After both parties have presented their cases-in-chief, the appealing school district and the Division shall each have up to five (5) minutes to present a closing statement, beginning with the appealing school district. The chair of the Commission may grant additional time to either or both parties, if necessary.

8.04 Members of the Commission may ask questions of either party at any time throughout the proceedings.

8.05 After hearing all testimony and evidence presented, the Commission shall deliberate and may announce its decision at the close of the hearing or may take the matter under advisement.

8.06 The Commission shall provide to the school district and the division its final written determination within ten (10) business days of the hearing.

9.00 FINALITY OF COMMISSION DECISIONS

All decision of the Commission resulting from a school district's appeal of a determination of the Review Board, or resulting from the Commission's review of a determination of the Review Board, shall be final and shall not be subject to further appeal or request for rehearing to the Commission, or petition for judicial review under the Arkansas Administrative Procedure Act (Ark. Code Ann. § 25-15-201et. seq.).

(5/24/2012)

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