CHAPTER V

PROCEDURES FOR THE CONDUCT OF CONTESTED CASE HEARINGS

  Section 1. Purpose. This Section has been adopted to provide uniform procedures for the conduct of all contested case hearings resulting from these rules.

  Section 2. Applicability. Contested case hearings on any of these rules shall be conducted in accordance with this Section unless specifically provided otherwise by statute, unless this procedure would conflict with federal regulations.

  Section 3. Definitions. The definitions set forth in the Wyoming Administrative Procedures Act, W.S. 16-3-101, are incorporated by reference and, for the purposes of a contested case hearing, the following definitions shall apply:

  (a) "Affidavit" means a written notarized statement of facts made voluntarily under oath.

  (b) "Contestant" refers to the person or person's representative bringing the complaint against the Division.

  (c) "Contested case" means a proceeding by the Division in which legal rights, duties or privileges of a party are required by law or regulation to be determined by the Division.

  (d) "Division" refers to the Division of Public Assistance and Social Services of the Department of Health and Social Services.

  (e) "Administrator" refers to the Administrator of the Division of Public Assistance and Social Services.

  (f) "Ex parte matter" refers to matters that may be heard by the hearing officer in the absence of and without notice to the adverse party.

  (g) "Hearing officer" means any employee of the Attorney General's office or other individual designated by the Administrator to serve as the presiding officer at a hearing held under these rules.

  (h) "Indispensable party" means any person whose joinder as a party is so important to a just resolution of the contested case that if he cannot be joined, the action should not be allowed to proceed. The hearing officer will determine who is an "indispensable party".

  (i) "Person" means any individual, partnership, corporation, association, municipality, governmental subdivision, public or private organization of any character, other than an agency.

  (j) "Respondent" refers to the Division of Public Assistance and Social Services and/or the state Department of Education.

  (k) "WAPA" refers to the Wyoming Administrative Procedures Act, W.S. 16-3-101 through 16-3- 115.

  Section 4. Request for Hearing. Any person or his representative may make a request to the Division, either orally or in writing, for a hearing in a contested case. Any hearing made orally shall be reduced to writing by the Division and entered in the contestant's record.

  (a) The request shall contain at least:

    (i) Name, address and telephone number of the person requesting the hearing; and

    (ii) The reason for the request, including the nature of the Division's action, order or determination being contested.

  (b) The request shall be directed to the Division within 20 days of the date of the action that is the basis of the contested case.

    (i) The Division shall evaluate the request and, within 20 days of receipt of the request:

      (A) Notify the requesting party that a determination in his or her favor has been made and specify the action to be taken by the agency; or

      (B) Give notice to the requesting party that a hearing will be held; or

      (C) Notify the requesting party of the denial of the hearing as requested and the reasons for the denial. A hearing may be denied if the request for a hearing does not meet the definition of contested case. A denial of a request for a hearing is a final decision of the Division that may be appealed to the district court pursuant to the Wyoming Administrative Procedures Act.

  Section 5. Notice of Hearing.

  (a) In any contested case, the Administrator shall afford reasonable notice of the hearing to all parties.

    (i) Reasonable notice, as used in this Section, shall be not less than 20 days prior to the hearing date. The time period specified herein may be waived by the contestant upon written or oral notification to the Administrator. Where notification of waiver is made orally, it shall be reduced to writing by the Administrator and entered in the contestant's record.

    (ii) Notice shall be served personally or by certified mail to the last known address of the party.

    (iii) Where the necessary and indispensable parties are composed of a large class, notice shall be:

      (A) Served upon a reasonable number of representatives of the class; or

      (B) Published in newspaper(s) of the state in reasonable numbers and times, and at minimum in the county in which the contestant resides, and in at least one newspaper with statewide circulation. In any county in which more than one newspaper is published, notice shall be published in the official paper of the county designated pursuant to W.S. 18-3-517.

  (b) A notice of the hearing shall contain, at least: the time, place and nature of the hearing; the legal authority and jurisdiction under which the hearing is being held; the particular sections of the statutes or rules involved; a short and plain statement of the matters asserted; the docket number assigned to the case; and the right to be represented by an attorney.

    (i) If the respondent is unable to state the matters in detail at the time notice is served, the initial notice may be limited to a statement of the issues involved and thereafter, upon request of any party, a more definite and detailed statement shall be furnished within 10 days of receipt of that request by the party.

    (ii) Upon request by the party served, the Administrator or his/her designee shall, upon showing of good cause, allow the party an alternative time and place for the hearing, provided such request is made within 10 days of the receipt of the notice of hearing. When such a request is granted, the Administrator or his/her designee shall reissue the notice in accordance with these rules, except that reasonable notice as used in this subsection shall be five days prior to the hearing date.

      (A) Only one request for rescheduling of a hearing shall be honored unless, in the Administrator's judgment, additional changes must be allowed to avoid manifest injustice. Notice shall be issued as provided above.

      (B) A hearing shall be held within 90 days of the agency action that gives rise to the complaint, unless otherwise provided by law.

  Section 6. Failure to Appear. If a contestant fails to appear at the place, date and time specified in notice, the hearing officer may, within his discretion:

  (a) Continue the hearing to a later date and provide notice as prescribed herein; or

  (b) Proceed to conduct the hearing without the contestant and dispose of the contested case as provided herein; or

  (c) Dismiss the request.

  Section 7. Discovery. All discovery in a contested case shall be governed by the Wyoming Rules of Civil Procedure, as described in the WAPA, W.S. 16-3-107(g) and (h). The party for whom any depositions are taken will ensure that the original transcripts are placed in the record by filing them with the Administrator or his/her designee. All other records of discovery shall likewise be filed with the Administrator or his/her designee by the party originating such discovery.

  Section 8. Prehearing Conference.

  (a) At a time on or before the day of the hearing, the hearing officer, on his own or either party's motion, may meet with the parties for a conference to consider simplification of the issues, stipulations and admissions of fact, clarification or limitation of evidence, and any other matters that may expedite the proceeding and assure a just conclusion of the case.

  (b) Any stipulations, limitations or agreements made at a prehearing conference shall be recited in the record and shall control the course of the proceedings, unless modified during the hearing to prevent manifest injustice.

  Section 9. Informal Disposition. Settlement of a contested case by any informal means (i.e., stipulation, agreed settlement or consent order) shall be allowed at any time, unless precluded by law.

  Such settlements shall be in writing by both parties and included as a part of the record. The Administra- tor or his/her designee shall enter an order dismissing the contested case proceeding upon such settle- ment, and such order shall be considered a final order of the Division.

  Section 10. Hearing Officer.

  (a) The Administrator or his/her designee shall appoint a hearing officer to preside over con- tested case hearings on a case-by-case basis, or for a scheduled period of time, as he/she sees fit.

  (b) The hearing officer shall be an employee of the Attorney General's staff, or other individual determined by the Administrator to be qualified to serve in such a capacity, who has not taken part in the investigation, preparation or earlier disposition of the case to be heard.

    (i) The hearing officer shall withdraw himself from consideration of a case at any time he deems himself disqualified, providing there are other qualified presiding officers available to act. Withdrawal shall be made in writing to the Administrator.

    (ii) Any party may request in writing that the Administrator remove and replace the hearing officer in a contested case. This request must be accompanied by a statement and affidavits, if appropriate, setting forth the alleged grounds for disqualification. The Administrator may deny a party's request for removal and shall issue a written statement explaining the grounds for his denial, which shall be made part of the record. If the request is granted, the Administrator shall appoint a new hearing officer as soon as is practicable.

    (iii) The contestant may object to the appointment of the hearing officer in the record at the hearing. The objection shall set forth the alleged grounds for disqualification.

  (c) The hearing officer shall have all powers necessary to conduct a fair and impartial hearing including, but not necessarily limited to, the following authority:

    (i) To administer oaths and affirmations;

    (ii) To subpoena witnesses and require the production of any books, papers or other documents relevant or material to the inquiry;

    (iii) To rule upon offers of proof and relevant evidence;

    (iv) To provide for discovery and determine its scope;

    (v) To regulate the course of the hearing;

    (vi) To hold conferences for the settlement or simplification of the issues;

    (vii) To dispose of procedural requests or similar matters; and

    (viii) To take any other action authorized by the Division's rules.

  (d) Failure or refusal to appear or obey orders of the hearing officer may result in the sanctions provided in W.S. 16-3-107(c) and (f).

  (e) Except to the extent required for the disposition of ex parte matters authorized by law, the hearing officer shall not consult with any individual or party on any fact at issue except as allowed in W.S. 16-3-111.

  Section 11. Evidence and Testimony.

  (a) Except as may be otherwise ordered by the hearing officer, the contestant bears the burden of proof.

  (b) Admissibility of evidence:

    (i) The parties shall be entitled to present any oral or documentary evidence, submit rebuttal evidence and conduct cross-examinations as may be required for a full disclosure of the facts. All documentary or physical evidence submitted for consideration shall be marked by letters of the alphabet beginning with "A". Contestant's exhibits will be marked by numbers beginning with "1".

    (ii) The hearing officer shall allow any oral or documentary evidence, except that he may exclude irrelevant, immaterial or unduly repetitious evidence.

  (c) Objections:

    (i) The grounds for objection to any evidentiary ruling by the hearing officer shall be briefly stated. Rulings on all objections shall appear in the record. Only those objections made before the hearing officer or specifically stipulated to by both parties may be relied on in a subsequent proceed- ing.

    (ii) Formal exception to an adverse ruling is not required.

  (d) Privileged and confidential information:

    (i) Privilege at law shall be recognized by the hearing office in considering evidence.

    (ii) No employee of the Division shall be compelled to testify or to divulge informa- tion that is confidential or privileged at law and that is contained within the records of the Division or acquired within the scope of his employment, except as provided in W.S. 16-3-107.

  (e) Judicial notice may be taken of any material fact not appearing in evidence in the record that is of the nature of traditional matter of judicial notice or within the special technical knowledge or files of the Division. Parties shall be given an opportunity to contest matters judicially noticed prior to a final decision by the Division, in accordance with W.S. 16-3-108.

  (f) Each witness who is present to give testimony will identify himself or herself by stating his/ her name and address, by indicating on whose behalf he/she will testify, and will be administered the following oath by the hearing officer: "Do you swear (or affirm) to tell the truth, the whole truth and nothing but the truth?"

  Section 12. Representation.

  (a) All parties have a right to represent themselves, or to be represented by an attorney licensed to practice law in Wyoming or any other person chosen by the contestant to appear on his/her behalf. If the contestant is represented by an attorney, payment of attorney's fees and cost are the responsibility of the contestant. The contestant may be eligible for legal services available through the Legal Services Corporation if he/she meets the applicable guidelines of that agency.

    (i) Only the individual party, his/her attorney or his/her representative may examine or cross-examine witnesses.

    (ii) The hearing officer may examine witnesses.

  (b) Respondent may request the Attorney General to assist in contested case hearings to the extent required by W.S. 16-3-112(c).

  Section 13. Order of Procedure.

  (a) As nearly as practicable, the following order of procedure shall be followed:

    (i) The hearing officer shall announce the hearing is open and call, by docket number and title, the case to be heard. The hearing officer shall ask if parties are ready to proceed and will allow parties an opportunity to dispose of any preliminary matters.

    (ii) The hearing officer shall administer the oath to all witnesses who will present testimony.

    (iii) The hearing officer may, in his discretion, allow evidence to be heard in an order other than that prescribed here, and shift the burden of proof accordingly.

    (iv) Opening statements will be made by contestant first, then respondent.

    (v) Evidence will be heard for contestant first, then respondent. The contestant may then offer rebuttal evidence. Parties may each exercise the right to crossexamine.

    (vi) No testimony shall be received by the hearing officer unless given under oath/ affirmation administered by the hearing officer.

    (vii) Closing statements will be made by the contestant first, then respondent, then the contestant in rebuttal.

    (viii) The hearing officer may limit the time for opening and closing statements.

    (ix) The hearing officer may recess the proceedings as appropriate.

    (x) After all parties have had an opportunity to be heard, the hearing officer shall excuse all witnesses and close the evidence. Evidence may be reopened only upon a motion by a party to the proceeding on a showing of good cause.

  (b) Upon their own motion, all parties or other interested persons may submit legal briefs after the close of the hearing. The hearing officer shall allow a reasonable time, not less than 10 working days from the date of the hearing, for preparation of the briefs. The time may be extended upon agreement between the parties, with the approval of the hearing officer.

  Section 14. Decisions.

  (a) The hearing officer shall make proposed findings of fact and conclusions of law within 20 working days of the close of the hearing and forward them to the Administrator for final determination.This time may be extended if the parties or other interested persons are to submit briefs; but in no event may this time be extended by more than 10 working days, unless a later date is stipulated, in writing, by the contestant and respondent.

  (i) Within 10 working days of the close of the hearing or such additional time as the hearing officer may allow, each party shall be allowed to file with the hearing officer any proposed findings of fact and conclusions of law, together with a supporting brief. Such proposals and briefs shall be served on all other parties.

  (b) Within 10 working days of receipt of the hearing officer's proposed findings of fact and conclusions of law, the Administrator or his/her designee will make and enter in the record the final decision in the case. This decision shall be made and served on all parties to the proceeding. The deci- sion shall include:

    (i) A statement of the findings of fact and conclusions of law, stated separately, with a concise and explicit statement of the underlying facts supporting the findings; and

    (ii) The appropriate rule, order, relief or denial thereof. The decision shall be based upon a consideration of the whole contested case record or any portion stipulated to by the parties. The decision shall state all facts judicially noticed and relied upon as provided by W.S. 16-3-108(d). It shall be made on the basis of a preponderance of reliable and probative evidence contained in the record.

  Section 15. Appeals. Appeals from a final decision of the Division shall be taken in accordance with W.S. 16-3-114 and Rule 12 of the Wyoming Rules of Appellate Procedure.

  Section 16. Transcripts and Record.

  (a) When a contested case is set for hearing, the Administrator or his/her designee shall assign a docket number to each case and enter the case with its number and date of filing in a docket book main- tained by the Administrator or his/her designee. The Administrator or his/her designee shall maintain a separate file for each docketed case in which all pleadings, transcripts, correspondence, papers and exhibits for that case shall be maintained. All such items shall have noted thereon the assigned docket number and the date of filing.

  (b) The Division shall record all contested case proceedings electronically, through the use of a qualified court reporter or any other appropriate means determined by the agency or the hearing officer. Transcriptions of oral proceedings or written transcripts of a witness' testimony may be obtained by the contestant upon payment of the cost.

    (i) In a nonpublic investigatory proceeding, requests for copies or transcripts may be limited to testimony of the requesting party.

    (ii) Where the contestant can demonstrate that he/she is indigent and cannot effectively perfect his/her appeal without such transcription, the Division may waive the payment of the fee.

  (c) The record of the hearing shall contain:

    (i) All formal or informal notices, pleadings, motions, intermediate rulings;

    (ii) Evidence received or considered, including matters judicially noticed;

    (iii) Questions and offers of proof, objections and rulings;

    (iv) Any proposed findings and exceptions thereto; and

    (v) The report of the hearing officer to the Administrator and the final decision of the Administrator.

  Section 17. Severability. If any portion of these rules is found to be invalid or unenforceable, the remainder shall continue in effect.