22 Tex. Admin. Code § 367.20 - Informal Settlement Conference
(a) Purpose and
Reference to Applicable Law. It is the policy of the Board to resolve contested
cases efficiently by informally disposing of matters by agreement and voluntary
settlement whenever possible, to the extent such settlement is aligned with and
will advance the Board's regulatory functions. This section implements the
Board's processes and procedures for effectuating informal disposition of
contested cases, including procedures for conducting Informal Settlement
Conferences, pursuant to §1301.5071 of the PLL. For the foregoing reasons,
and in order to advance the State's policy goals expressed in Chapter 2009 of
the Government Code (Governmental Dispute Resolution Act) and Chapter 154 of
the Civil Practice and Remedies Code to resolve disputes as fairly and
expeditiously as possible, contested cases that the Board determines are
capable of being resolved by informal disposition and voluntary settlement will
be referred to an Informal Settlement Conference to seek such
resolution.
(b) Referral to
Informal Settlement Conference (ISC). In the event an individual makes a timely
request for an adjudicative hearing in accordance with §1301.704 of the
PLL and Board Rules, prior to the Board docketing the matter at SOAH and
setting such hearing, the Director of Enforcement will determine whether to
refer the matter to an Informal Settlement Conference in accordance with this
section. In making such determination, the Director of Enforcement will
consider:
(1) whether the complainant or the
respondent has requested an ISC in accordance with subsection (d) of this
section;
(2) if an ISC is requested
by the respondent, whether the request appears to have been brought in bad
faith or for purposes of delay rather than to resolve the matter;
(3) the extent to which the contested case
involves factual matters in dispute;
(4) the extent to which a complainant or
other party has suffered damages that may be compensated through the payment of
restitution, in accordance with §1301.5071 of PLL; and
(5) in cases in which the Board seeks to
suspend or revoke a license, registration or endorsement, the extent to which
probationary restrictions might present a viable alternative to suspension or
revocation.
(c)
Non-referral to Informal Settlement Conference. The following contested cases
are ineligible for and will not be referred to an ISC:
(1) cases in which the Board is seeking
denial of an application for a license, registration or endorsement, or to take
an examination; and
(2) cases
concerning a determination, following a request for preliminary review of an
individual's criminal background, that an individual is ineligible for
licensure.
(d) Request
for Informal Settlement Conference. A complainant or the respondent may request
to refer an eligible matter to an Informal Settlement Conference by making a
written request delivered to the Board. A request for an ISC is a factor to be
considered by the Director of Enforcement in determining whether to refer the
contested case to an ISC, but will not automatically result in referral to an
ISC.
(e) Notice of Informal
Settlement Conference. If a contested case is referred to an ISC, the
respondent will be provided with at least thirty (30) days' written notice of
the ISC. The Board will contact the respondent and any other party invited to
attend for purposes of attempting to set the date and time for the ISC by
agreement.
(f) Submission of
Informal Settlement Conference Materials. At least ten (10) days in advance of
the Informal Settlement Conference, the respondent must:
(1) submit all documentary evidence to be
considered by the Board at the Informal Settlement Conference not already
contained in the investigation report submitted by the Board's Field
Investigator and reviewed by the Board in initiating the contested
case;
(2) submit any written
accounts or witness statements of the respondent, or any third parties,
relevant to the matter, that the respondent would like the Board to consider,
signed and dated, and sworn under oath or made by unsworn declaration in
accordance with Chapter 132 of the Civil Practice and Remedies Code;
and
(3) to the extent respondent is
represented by an attorney, a letter of representation from the attorney
asserting said representation.
(g) Appearance at an Informal Settlement
Conference. Appearance at an Informal Settlement Conference may be in person or
by phone. The Board may conduct the Informal Settlement Conference by video
conferencing to the extent it is determined by the Executive Director or
Director of Enforcement to be technically feasible and allowable.
(h) Appearance by the Board. An Informal
Settlement Conference is not a meeting of the members of the Board, and will
not be attended by Board members. The Executive Director and/or the Director of
Enforcement will attend and will preside over the Informal Settlement
Conference. An attorney on the Board's staff will also attend the Informal
Settlement Conference. The Field Investigator who investigated the complaint
may attend, in addition to any other Board staff whose appearance may be
helpful, as determined by the Executive Director or the Director of
Enforcement.
(i) Invitation of the
Complainant or Third Parties. The Board may invite the complainant or a third
party with information relevant to the investigation to attend the Informal
Settlement Conference.
(j) Format;
Record. At the Informal Settlement Conference, members of Board staff will
review the materials submitted by the respondent in accordance with subsection
(f) of this section. Board staff will question the respondent concerning any
matters deemed relevant to investigating and resolving the matter. The
respondent will be given an opportunity to be heard by Board staff to present
their case. The Respondent should be prepared to identify any defenses or
mitigating factors weighing in favor of a lesser penalty or other form of
discipline sought by the Board. A record of the proceeding may be taken as
determined in the discretion of the Executive Director or Director of
Enforcement, including by audio or video recording. To the extent a record is
made, the Board will notify the respondent of that fact. A copy will be
provided to the respondent, upon written request. Admissions made by the
respondent at the ISC may be used at a formal adjudicative hearing at SOAH, if
applicable.
(k) Proposed
Settlement; Agreed Final Order. To the extent Board staff and the respondent
agree in principle to a proposed resolution of the contested case that includes
payment of restitution, action on the respondent's license or registration, the
payment of an administrative penalty or any other disciplinary action, or
combination of disciplinary actions, the Board will prepare an Agreed Final
Order capturing the terms of the proposed settlement, to be presented to the
Board for consideration and possible adoption. To the extent restitution
payments are proposed, the amount of the restitution will be included in the
Agreed Final Order, and the payee of the restitution payments will be
specifically named, and their last known address listed, in such Agreed Final
Order.
Notes
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