Idaho Admin. Code r. 11.11.01.112 - DECERTIFICATION PROCEEDINGS-DUE PROCESS PROCEDURES

If the Division Administrator determines through investigation (which constitutes the complaint for the purpose of a contested case proceeding before the agency) that the allegations of misconduct by a person, which if proven, are cause for decertification, the person shall be provided with notice and an opportunity to respond before a decision regarding decertification is made.

01. Notice of Intent to Decertify. The Division Administrator shall provide the person who is the subject of the proceeding with a notice of the intent to decertify, which shall include:

a. The basis for the contemplated decertification and an explanation of the evidence supporting the intended action.

b. That the person has a right to be represented by a person of their own choosing.

c. That the person may file a written response to object to the notice of intent to decertify. Said response shall be made within fourteen (14) days from the date of service of the notice of intent to decertify. The written response shall be made to the Division Administrator, setting forth any reasons why the intended action should not be taken. Concurrent with the written response, a written request may also be made for a conference with the Division Administrator to provide reasons why the intended action should not be taken.

d. That the person may waive a response by submitting a written waiver to the Division Administrator.

e. That, if the person waives a response or fails to respond within the designated time, signs an agreement to decertification or relinquishes their certificates; the Division Administrator will enter an order of decertification.

02. Stipulation or Relinquishment. A person may stipulate to decertification or otherwise relinquish their certifications, and the Division Administrator shall enter an order of decertification.

03. Decision - Request for Hearing. After the person who is the subject of the decertification proceeding has responded or waived a response, or the period to respond has expired, the Division Administrator shall, within twenty-eight (28) days, issue a decision on decertification.

a. The decision shall include findings of fact and conclusions of law and becomes a final order unless the person files a request for a hearing on the decision with the Council within fourteen (14) days of the date of service of the Division Administrator's decision.

b. A request for hearing shall include a brief statement of the issues upon which the person contends a hearing is required.

04. Hearing and Order. Upon receipt of a request for hearing, the Council shall assign the matter to a hearing officer for hearing. IDAPA Rules 04.11.01.410 through 04.11.01.417 apply to hearing officers.

a. The hearing officer shall have the power to subpoena witnesses, administer oaths, examine evidence and witnesses and request additional information from the parties.

b. The person who is the subject of the proceeding shall have the right to be represented at the hearing by a person of their own choosing and the right to conduct discovery.

c. Prior to submitting testimonial evidence, the person shall receive an administrative warning requiring that he provide testimony truthfully, and to acknowledge his understanding that no statements provided shall be used against him in criminal proceedings, based on Garrity v. New Jersey, 385 U.S. 493 (1967).

d. The hearing shall be recorded at the Council's expense. The recording will be the official record of the hearing. Any party to the action may, at their expense, request that a transcript of the hearing be prepared or that additional recordings be made. Such a request shall be approved if the additional recording does not distract from or disrupt the hearing.

e. Pursuant to Idaho Code Section 19-5113, the Division Administrator shall have the authority to compel the attendance and testimony of witnesses and production and examination of books, papers, and records.

f. At the conclusion of proceedings, the hearing officer shall issue a decision in writing consisting of findings of fact, conclusions of law and an order that the person be decertified or that POST failed to show grounds for decertification and that the person be reinstated as an officer. The decision and the record of the proceedings, shall be filed with the Council.

g. The decision shall become a final order unless a petition for review by the full Council is filed with the Council within twenty-eight (28) days of the date of the decision. A petition for review shall include a brief statement of the basis upon which review is requested.

h. Where the decision directs the reinstatement of the person's certification, the Division Administrator shall reinstate certification upon the expiration of the time for filing a petition for review.

05. Petition for Agency Review.

a. Upon receipt of a petition for agency review, the Council shall issue a briefing schedule allowing the petitioner an opening brief, the respondent a response brief and the petitioner a reply brief. The Council shall review the record, briefs submitted and may allow oral argument. The petitioner may be represented by a person of their own choosing.

b. The Council may affirm, reverse, or modify the decision of the hearing officer, or may hold additional hearings or remand the matter. The Council's decision shall be a final order and may be appealed to district court by filing a petition for judicial review within twenty-eight (28) days of the date of service of the Council's decision.

06. Service. Service of all notices to be given, orders or other documents under Section 092 shall be by personal service, facsimile, other electronic means, or by U.S. mail, regular or certified, with postage prepaid, addressed to a party's last known address.

07. Public Notice. The names, agency and violation(s) of those persons whose certifications have been revoked are publicly available.

Notes

Idaho Admin. Code r. 11.11.01.112

Effective March 31, 2022