PURPOSE: This rule provider a uniform sysrern for administrative review of departmew determinations as to the eligibility for relocation assistance paymen& the anwunf of relocarion assismace payments, 01 both.

1. (1) Request for Administrative Review. Any person aggrieved by a final district determination as t” eligibility for, the am”unt of a relocation assistance payment, or both, shall be entitled to administrative review of the determination by filing a written request for hearing with the district engineer. The request for hearing must be received by the district engineer within sixty (60) days after receipt by the applicant of the written nodce of relocation claim rejection from the district engineer. The applicant’s written requesr for hearing should be filed on a form furnished by the district engineer, but any written request for hearing sufficient t” identify the person requesting the hearing and to indicate the reas”” for the request for hearing shall be deemed a sufficient request for hearing. No other formalities shall be required in the request. No answer or response by the commissi”” shall be required. Upon receipt of a request for hearing, the district engineer immediately shall forward the request along with a copy of the district engineer’s written notice of relocafi”n claim rejection t” the commission’s hearing examiner who shall acknowledge receipt of the request for hearing. Upon receipt of a timely request for administrative review, the hearing examiner shall notify the chief counsel in order that s/he may assign an assistant counsel t” represent the commission.
2. (2) Untimely Request for Administrative Review. Untimely requests for hearing shall he deemed to be denied by the commission and the hearing examiner shall so notify the applicant or counsel for applicant in wiring by certified mail, return receipt requested. This decision shall be subject t” judicial review under section 536.150, RSMo.

3. (3) Bias. If the hearing examiner determines at any stage of the proceeding that s/he has prior knowledge of specific facts of a case that s/he deems would prevent him/her from rendering an objective report and order. s/he immediately shall cease t” act and the com-

   Rebecca McDowell Cook (113194)

mission shall provide an alternate hearing examiner.

1. (4) Notice of Hearing. The hearing examiner shall give written notice of hearing t” the applicant or counsel for applicant, the district engineer and the assistant counsel for the commission fining a time and place determined by the hearing examiner for a hearing. Such ““lice shall be mailed by the hearing examiner not less than fifteen (15) days before the date of hearing. In instances where more than one (1) request for hearing is received from the same applicant, the hearing examiner may consolidate the cases. If eirher party requests a continuance. the hearing examiner shall hear and determine the reasonableness of the request. If the request is granted, the hearing examiner shall give written notice fixing a time and place for hearing.
2. (5) Discovery. Any party may have discovery under section 536.073, RSMo. The hearing examiner shall rule on all disputes between the parties concerning discovery.
3. (6) Subpoenas. Witnesses may be summoned to appear f” give testimony or to give testimony and produce documents under section 536.W7, RSMo. At the request of any party, the hearing examiner shall issue a subpoena; provided that subpoenas duces fecum shall be issued only by order of the commission or any member of the commission. The hearing examiner shall rule on all disputes berween the parties concerning subpoenas.
4. (7) Hearing. There are only tvf” (2) ultimate issues in a relocation assistance case-eligibility of the applicant for a relocation assistance payment and the amount of the payment. The applicant shall present evidence first at the hearing in support of the claim for relocation assistance benefits. Then the commission shall present its evidence in support of fhc denial of benefits. Any parry shall have the right of cross-examination. Oral or written evidence must be received in the record t” be considered by the appeal board in reaching its final decision. Any party shall be entitled t” present oral argument al the hearing which, if presented, shall be preserved in the record. Any party may file a written brief and the hearing examiner may require any party to tile a written brief, suggested findings of fact and conclusions of law, or both, within the time set by the hearing examiner. The hearing examiner may rule on all objections and motions to facilitate submission of the case for a decision by the appeal board.
5. (8) Record. At the conclusion of the hearing, the hearing examiner shall cause the entire record to be transcribed in sufficient quantities to satisfy the needs of the applicant and the appeal board. The original shall be retained as a permanent record of the com- 7 CSR 10-4

mission. The applicant may obtain a copy of the transcript and exhibits at the applicant’s expense.

1. (9) Report and Order. As soon as practical after receipt of the transcript and briefs, suggestions of the parties, if any, or both. the hearing examiner shall submit t” the other members of the appeal board a copy of the record along with a suggested repon and order.
2. (IO) Final Decision of the Appeal Board. Final authority r” determine relocati”n assistance claims shall be vested in the appeal board which shall consist of the chief engineer or a designated assistant, the chief of the right-of-way division or a designated assistant and the hearing examiner. Each member of the appeal board shall have one (I) vote. The board, after each member reads the record, shall render a final decision by a majority vote. If briefs or oral arguments are submitted, the members of the board, in lieu of reading the entire record, may consider those portions of the record cited or referred t” in the arguments or briefs t” arrive at a final decision. The appeal board shall render its final decision in wiring which shall be based upon competent and substantial evidence upon the whole record. The appeal board’s decision shall he the final decision of the agency as though entered by rhe commission and it shall be subject t” judicial review under section 536.100. RSMo. The hearing examiner shall forward, as SO”” as practical after the board’s decision, a copy of the decision t” the applicant or his/her attorney by certified mail, return receipt requested.

3. (II) Conflict With Other Administrative Rules. The rules and provisions of this rule shall supersede any inconsistent rules or pr”. visions in 7 CSR IO-4.020.

   Auth: seaions 226.150 and 523.210. RSMo (1986): 42 U.S.C. 4630: 42 U.S.C. 4633: 23 CFR 740.8: and 23 CFR 740.37. * Original rule pled June 9, 1975, effective June 19, 1975. Amended: Filed Nov. 24, 1975. effeclive Dec. 4, 1975. Rejiled March 17. 1976. Rescinded and readopted: Filed March 4, 1983. effective June 15, 1983. Amended: Filed May 17, 1993, @feedive Jan. 31, 1994.

   Smith v. Missouri State Highway Commission, 488 SW2d 230 (MO. App. 1972). Court of Appea1.s had jurisdiction to review an appeal of Stare Highway Commission’s denial of acsist(2nce under the Federal Highway Relocation Assisrance Act of 1968. 7CSRlO-44iIGHWAYSANDTRANSPORTATlON

Court held commission’s rulings were quasijud;cial and affecred “pr;v”le rights ” of appellam, thus making judicial review possible by Arlicle 5, Seaion 22, Constitution of Missouri, 1945. (“Contested case. “1

Davis Construction Co. v. State Highway Commission. I41 SW2d 214 (MO. App. 1940). By the fei-ms of section 8106 (now secrion 226.150, RSMo (1969)) it was the dury of rhe State Highway Commission when federal funds were made available for use on lhe prf~jccts (road pr~jecrs), in this case within the limirs of the Ciry of Sedali”, to comply with all rules and conditiuns, fhnf is f” say, requiremems made by lhe Bureau of Public Roads. ro obtain the payment to lhe sfafe of Missouri of the allo~nenr made by the federal governmull.

Logan v. Mailhews 330 MO. 1213, 52 SW2d 989 (MO. bane 1932). Section 8106 (now secrion 226.150, RSMo (1969)) direcct lhe Srare Highway Commission f” comply with the rules and conditions made by rhe federal government, which can include authorizing a change of the location of u highway so as to deviate from the lows through which the srarute says the road shall n.m.

Op. Atty. Gen. No. 218, Hyder (3-22-71). The State Highway Commission cannot include in conw”c~s for highway consrruction involvin,q federal aid a provision as f” wage dererminarion by the Missouri Department of Labor and Industrial Relarions during the period of the suspension of the Davis-Bacon Acf and relared federal acfs pursunnr N) the pre.~idential proclamation of February 23, 1971.