Wyoming Secretary of State Rules for State-Based Administrative Complaint Procedure

CHAPTER 1

  Section 1. Authority. These Complaint Procedures are established as required by the Help America Vote Act of 2002 [hereafter referred to as HAVA], P.L. 107-252, Section 402, and W.S. 22-2-121(b) and (d) and in accordance with the Wyoming State Plan created pursuant to HAVA.

  Section 2. Purpose. These rules are promulgated to establish State-based uniform, nondiscriminatory administrative complaint procedures under which all complaints alleging violations of Title III of HAVA, Sections 301 through 312, may be promptly and efficiently resolved and all complaints of merit will be appropriately remedied by the State of Wyoming.

  Section 3. Applicability.

  (a) Any person who believes there is a violation of any provision of Title III of HAVA (including a violation which has occurred, is occurring, or is about to occur) may file a complaint.

  (b) These procedures shall apply only to complaints raised under Title III of HAVA.

  (c) Other complaints related to the conduct of elections shall be raised with the responsible public official(s), United States or Wyoming prosecutors, the Wyoming Secretary of State, or the Wyoming Attorney General as appropriate under W.S. 22-26-101 through 121; 42 U.S.C. § 1973 et seq.; 42 U.S.C. § 12101 et seq.; 42 U.S.C. § 701; and other applicable laws.

  Section 4. Form of Complaint.

  (a) The Secretary of State shall establish a Complaint Form to be used, although complaints received in substantially the same form and meeting all the legal requirements of subsection (b) below shall be accepted.

  (b) At a minimum, the complaint shall be in writing and notarized, and signed and sworn to by the person making the complaint. The complaint shall also state who is making the complaint, his address and telephone number, the alleged violation(s) of Title III of HAVA, and the facts supporting the allegations.

  (c) The complaint may name witnesses to the alleged violation and attach their written statements; may attach documentary evidence supporting the allegations; and may also identify the sections, subsections, and paragraphs of HAVA alleged to have been violated.

  Section 5. Place and Method of Filing Complaints. All complaints filed under this chapter shall be filed with the Wyoming Secretary of State, Elections Division, Wyoming State Capitol, 200 West 24th Street, Cheyenne, Wyoming 82002- 0200. Telephonic, electronic, and facsimile complaints will not be accepted under this chapter. There is no fee for filing a complaint.

  Section 6. Maintenance and Confidentiality of Official Agency Record.

  (a) The Secretary of State shall be the official custodian of the agency record of each complaint.

  (b) The record consists of all papers filed by the Complainant; the results of any investigation conducted; submissions made by the election officials in response to the allegations; correspondence between the Complainant or the involved election official(s) and the Secretary of State or his designee; all evidence received; and other documents received or generated by the Secretary of State, his designee, or the hearing officer, concerning the substance and/or procedure applied to resolution of the complaint.

  (c) All records are confidential until completion of the informal investigation and entry of decision and order as authorized by Section 10, Administrative Resolution, of this chapter. Thereafter they are public records.

  Section 7. Service of Papers on all Parties.

  (a) When a complaint alleges violations by a County Clerk or his staff, the designee of the Secretary of State shall promptly transmit a copy of the complaint to the County Clerk and permit him to respond on his own behalf.

  (b) A copy of each piece of correspondence between the Complainant or the County Clerk and the Secretary of State, his designee, or the hearing officer, shall be filed with the Secretary of State. Copies of the correspondence and filings shall simultaneously be mailed to the hearing officer, if his identity and address are known, and to the opposing party, if any.

  Section 8. Initial Screening.

  (a) The complaint shall be screened by a designee of the Secretary of State to determine if it meets the criteria in HAVA and these rules.

  (b) If the complaint does not meet the criteria in HAVA and these rules as stated in Section 4(b), it shall be dismissed, although it may also be referred to other appropriate authorities.

  (c) If the complaint is dismissed, a designee of the Secretary of State shall send notice of the dismissal and a copy of these rules to the Complainant. The notice shall advise the Complainant that he is not precluded from refiling a complaint which conforms to the legal requirements.

  Section 9. Consolidation of Complaints. The designee of the Secretary of State may consolidate complaints and resolve them together as he deems appropriate.

  Section 10. Administrative Resolution.

  (a) Following the initial screening, complaints shall be resolved informally if possible.

  (b) The designee of the Secretary of State shall consider all information filed, and he shall conduct an informal investigation of the complaint as appropriate, including contacting the people alleged to have violated HAVA or alleged to be about to violate HAVA.

  (c) Based on the agency record, the designee of the Secretary of State may enter a decision and order, which may include an appropriate remedy. When the decision is that no violation of HAVA, Title III, has or is about to occur, the complaint shall be dismissed and the results of the procedures published on the website of the Secretary of State.

  (d) The designee of the Secretary of State shall send the decision and order to the Complainant by appropriate means including proof of delivery to the address provided by the Complainant.

  (e) Simultaneously the designee of the Secretary of State shall send a copy of the decision and order to the chief election official, if any, who was alleged, directly or indirectly, to have violated or be about to violate Title III of HAVA.

  (f) Along with the decision and order, the designee of the Secretary of State shall notify the Complainant of his right to request a hearing on the record if not satisfied. The request shall be in writing and received within ten (10) calendar days after the Complainant's receipt of the decision and order. Such requests may be submitted by facsimile or e-mail as well.

  Section 11. Administrative Hearing.

  (a) An informal administrative hearing shall be conducted following timely receipt of a written request for a hearing on the record.

  (b) The Secretary of State or his designee shall promptly set the matter for hearing.

  (c) The Secretary of State may preside over the hearing or designate a hearing officer to conduct the matter and to prepare a recommended decision and order.

  (d) The hearing shall occur within a reasonable period of time but in no case more than eighty (80) calendar days after the initial complaint was filed.

  (e) The Wyoming Administrative Procedure Act, the Wyoming Rules of Civil Procedure, the Wyoming Rules of Evidence, and the Wyoming Rules of Appellate Procedure shall not apply to these proceedings.

  Section 12. Location and Recording of Administrative Hearing. The hearing shall be conducted at a site convenient to the parties and selected by the Secretary of State or his designee, or it may be conducted by telephone. An audio recording shall be made of the proceedings. If any party prefers to have a court reporter record the proceedings, he may do so at his own expense.

  Section 13. Special Accommodations and Persons Present at the Administrative Hearing.

  (a) Individuals with disabilities shall inform the Secretary of State or his designee at least five (5) business days before the informal hearing of any special accommodations they require. They may have people assist them and speak for them as desired.

  (b) All parties may be accompanied by persons to assist them in their presentations and provide additional factual information.

  (c) The hearing shall be open to the public.

  Section 14. Objectives and Procedure of Administrative Hearing.

  (a) The Secretary of State or the hearing officer has considerable discretion in how the hearing is conducted, although the overriding consideration is to provide a speedy, fair, and efficient method by which the parties may be heard and the matter decided in order to support and effectuate the letter and spirit of HAVA.

    (i) The Secretary of State or the hearing officer shall introduce the matter on the record and explain the procedures to be followed.

    (ii) The Complainant shall then explain his case.

    (iii) The County Clerk or other election official, if any, shall then be permitted to explain his view of the case.

    (iv) The Complainant shall have the final opportunity to speak.

  (b) The Secretary of State or the hearing officer shall have a copy of the agency record of the complaint(s) to be heard.

  (c) The Secretary of State or the hearing officer may participate during the presentations of the parties at any time.

  (d) At the conclusion of the hearing, the Secretary of State or the hearing officer shall take the matter under advisement and promptly prepare or recommend a decision and order for the Secretary of State

  Section 15. Final Decision.

  (a) The Secretary of State retains authority on behalf of the State of Wyoming to make the final decision in each instance from the initial screening through a hearing on the record.

  (b) Upon deciding a meritorious complaint, the Secretary of State shall order an appropriate remedy.

  (c) Upon the Secretary of State's entry of the final decision and order into the record, he shall also deliver the decision and order to the Complainant by appropriate means, including proof of delivery, to the address provided by the Complainant and to the other parties, if any.

  (d) If the final decision and order result in the dismissal of the complaint, the result of the procedures shall be published on the website of the Secretary of State.

  Section 16. Appropriate Remedies.

  (a) The Secretary of State has discretion to determine the nature of an appropriate remedy.

  (b) An appropriate remedy may detail actions to be taken or procedures to be followed by election officials, and it may include a corrective action plan.

  (c) The officials required to take the corrective action shall report to the Secretary of State or his designee the steps taken in accordance with the requirements and schedule provided in the decision and order.

  (d) Appropriate remedies are limited to those which are designed to assure compliance with Title III of HAVA. They shall never include an award of monetary damages to a Complainant nor any punitive remedy.

  Section 17. Time Allowed for Entire Process.

  (a) The State has ninety (90) days within which to make a final determination with respect to a complaint. The period begins with the date of the filing of the complaint.

  (b) The time limit may be extended only with consent of the Complainant and all opposing parties, if there are any.

  (c) When multiple complaints that have been consolidated, all deadlines in these rules shall be determined by the date the last complaint was filed.

  (d) When multiple complaints have been consolidated, an extension of time shall apply only to those Complainants who have consented to the extension of time.

  (e) Consent for an extension of time shall be in writing and filed with the Secretary of State before the ninety (90) day period expires.

  (f) The Secretary of State or the hearing officer is authorized to grant reasonable extensions of time at the request of the parties as qualified above.

  Section 18. Results of Failure to Conclude the Hearing Process within the Time Allowed.

  (a) When a complaint has not been finally resolved within the ninety (90) day period, the complaint shall be referred by the Secretary of State to the Wyoming Attorney General or other qualified individual for alternative dispute resolution procedures.

  (b) When complaints have been consolidated and some Complainants have not consented to an extension of the ninety (90) day deadline, their complaints shall be subject to separation from the others and treatment under this section.

  (c) The person designated to provide the alternate dispute resolution, hereafter referred to as the ADR hearing officer, shall have a copy of the agency record of the proceedings.

  (d) With one exception, the ADR hearing officer shall adhere to the Complaint Procedures established in this chapter in resolving the complaint. The exception is that the ADR hearing officer may conduct an administrative hearing in accordance with the hearing procedures of the Wyoming Administrative Procedure Act, W.S. 16-3-107 through 112, with time lines adjusted to fit the time limits below. Conduct of the hearing in accordance with these procedures does not alter the authority of the Secretary of State as the final decision maker.

  (e) The ADR hearing officer shall conclude the matter as expeditiously as possible and forward to the Secretary of State his recommended decision and order within the time allowed by the Secretary of State in his designation or appointment of the ADR hearing officer.

  (f) The Secretary of State shall enter the final decision and order no later than sixty (60) calendar days after the expiration of the ninety (90) day period.