Wyo. Code R. 018-0001-2
Effective Date: 07/19/1990 to 10/31/1996
Rule Type: Superceded Rules & Regulations
Reference Number: 018.0001.2.07191990
Section 1. AUTHORITY. These Rules are promulgated in accordance with the Administrative Procedure Act (W.S. 16-3-101 through 16-3-115; the APA) and under authority of W.S. 33-39-101 through 33-39-130.
Section 2. Applicability. These Rules apply to all certified real estate appraiser permit application denial and disciplinary actions before the certified real estate appraiser board, except that they do not apply to investigations by the board or commission staff or Attorney General's Office for the board.
Section 3. Definitions. The following definitions will apply under these Rules:
(a) 'Action' means a denial action or disciplinary action.
(b) 'Allegations' or 'factual allegations' mean the facts claimed to be accurate in the charges.
(c) 'Applicant' means a person seeking a permit, including for renewal or activation of an inactive permit.
(d) 'Attorney' means a person admitted to practice law in at least one jurisdiction in the United States. However, only attorneys who are admitted to practice law in Wyoming, or who are associated with a Wyoming attorney, may make statements, examine or cross-examine witnesses on behalf of any party under these Rules.
(e) 'Board' means the Wyoming certified real estate appraiser board.
(f) 'Caption' means the heading for all pleadings and other legal documents filed in a contested case. Suggested forms are provided at the end of these Rules.
(g) 'Charges' mean the factual allegations and legal violations in an action.
(h) 'Commission' means the Wyoming real estate commission.
(i) 'Complaint' or 'verified complaint' means the sworn statement of a complainant against a permittee in a disciplinary action.
(j) 'Complainant' means the person, including the director or a member of the board, who signs a complaint.
(k) 'Contested case' means an action in which an applicant or permittee has requested a hearing.
(l) 'Default' means an action in which the applicant or permittee has failed to respond to the charges or to request a hearing in a timely manner.
(m) 'Denial' means that an applicant has been refused a permit, including by renewal or the activation of an inactive status permit.
(n) 'Denial action' means the administrative proceeding in which a permit denial by the director (initially) or the board (in a contested case) is at issue.
(o) 'Director' means the director of the commission.
(p) 'Disciplinary action' means the administrative proceeding in which the board's imposition of a penalty upon a permittee is at issue.
(q) 'Filed' means that a document has been served upon the board by sending or delivering the original to the director, and copies to the presiding officer, all other parties, and any intervenors.
(r) 'Hearing' or 'administrative hearing' means a contested case hearing.
(s) 'Hearing officer' means an independent person who is appointed by the director on behalf of the board to serve as an independent presiding officer, and who is not a board member, commission staff member or employee, employee of the Attorney General's Office or otherwise an attorney for the board.
(t) 'Hearing opportunity' means that an applicant or permittee in an action has been served notice and the statement of charges and had the opportunity to request a hearing before the board.
(u) 'Inactive status' means a permit which has been temporarily surrendered to the board by a permittee, who then can no longer function as a certified real estate appraiser, but who may reactivate his permit without having to take an examination. An inactive status permittee may be subject to disciplinary action and activation of an inactive permit may be subject to a denial action.
(v) 'Interested person' means a person whose legal rights, obligations or privileges may be legally affected by a contested case in which the person is a party, intervenor, or seeks to intervene.
(w) 'Intervenor' means an interested person who is not a party and who is allowed by the hearing officer, board chairman, or board to participate in a contested case, including as a friend of the court (amicus curiae).
(x) 'Notice' means the director's letter to an applicant or permittee in an action, advising him of the charges, board and hearing jurisdiction, the potential penalties, his hearing opportunity, hearing procedures, the opportunity for informal resolution, and with the statement of charges attached.
(y) 'Party' means an interested person or agency who is named or admitted as an applicant, permittee, complainant, or the board in an action.
(z) 'Penalty' means suspension or revocation of a permit, reprimand or censure of a permittee, or requiring a permittee to complete education coursework in a disciplinary action, any portion of which may be conditionally or unconditionally suspended by the board.
(aa) 'Permit' means the document issued by the board certifying that the person named thereon has fulfilled all requirements for obtaining a permit to practice as a certified real estate appraiser or trainee.
(bb) 'Permittee' means an individual who has been issued a permit to practice as a certified real estate appraiser.
(cc) 'Person' means an individual, partnership, corporation or association.
(dd) 'Pleadings' mean the complaint, hearing request, statement of charges, responses, and any other legal document filed in an action and which include charges, denials and admissions of the charges.
(ee) 'Presiding officer' means the hearing officer or, if none, the board chairman, who presides over a hearing.
(ff) 'Proposed decision' means the suggested findings of fact, conclusions of law, decision and order filed by a party in a contested case.
(gg) 'Recommended decision' means the suggested findings of fact, conclusions of law, decision and order filed by the presiding officer in a contested case.
(hh) 'Record' means, as filed in an action, the complaint, statement of charges, response, other pleadings, notice, motions, motion rulings and other intermediate rulings and orders, evidence and matters officially noticed, questions and offers of proof, objections and rulings, exhibits, proposed decisions and responses, recommended decision and responses, legal memoranda by parties and intervenors, requests for intervention and rulings, board decisions and orders, board minutes of its consideration of an action, a copy of the involved statutes and rule sections, and, in a disciplinary action, a copy of the permittee's permit.
(ii) 'Response' means the party's or intervenor's filed answer to a complaint, statement of charges, pleading, proposed decision or recommended decision.
(jj) 'Return' means a short written statement by the person serving a pleading, subpoena or other document in an action and which states the date, place, manner and recipient of the service and, for subpoenas served in person, the time of service. A suggested certificate of service form for pleadings and for subpoenas is provided at the end of these Rules.
(kk) 'Service' or 'serve' means providing the original or an exact copy of a document upon a party or intervenor (their attorney, when one has made an appearance) in an action, in person, by depositing it in the United States mail postage prepaid, or, where permitted under the Wyoming Rules of Civil Procedure, by publication.
(ll) 'State' means the State of Wyoming, as represented by the advocate presenting the case against the applicant or permittee.
(mm) 'Statement of charges' means the charges document which is sent by the director to an applicant or permittee in an action with the notice.
(nn) 'Violations' or 'legal violations' mean the breach of statutory or regulatory requirements claimed in the charges to have occurred.
Section 4. General provisions. The following will apply to all actions:
(a) Document size. All pleadings, documents and other materials filed in an action must be clearly legible and on 8 1/2 by 11 inch paper, except for exhibits which cannot reasonably be fit or depicted on paper that size.
(b) Computation of time. Any time deadline in these Rules begins the day after the starting act or event. The deadline will end on the last calendar day of the period, which will be counted. If the last day falls on a weekend or legal holiday, the next working day will be deemed to be the ending day.
(c) Additional time for service by mail. Whenever a person has the right or is required to take some action within a deadline after service upon him, or whenever service is required to be made within a deadline, and the service is made by mail, it will be deemed filed when mailed and three days will be allowed for mail delivery before a default may be declared.
(d) Informal resolution. These Rules will be construed to encourage informal resolution of disputes and issues presented. The board may dispose of any action by entering an order incorporating a stipulation, settlement or consent of the parties.
(e) Liberal construction. These Rules will be construed to provide fair, prompt, efficient and inexpensive determination of the disputes and issues presented.
(f) Appearances. All parties or intervenors in an action may represent themselves or be represented by an attorney. Service upon a party will be made upon the party's attorney, if one has entered an appearance in an action with the director. Once an attorney has entered an appearance, he may not withdraw without serving written notice. An attorney may exercise any hearing procedural right of a party.
(g) Assistance of Attorney General. The board chairman, the board or the director may request assistance from the Attorney General's Office for the investigation and preparation of any action. The director normally will request the board's attorney to present the State's case in an action. Consistent with the APA's limits on ex parte contacts with the board (W.S. 16-3-111), the Attorney General's Office may be requested to provide additional advice to the board at a hearing and/or in its deliberations on a contested case, if the office has not been involved in investigating, preparing or presenting the action. The Attorney General's Office will not provide the hearing officer.
(h) Intervention. At the discretion of the hearing officer or board chairman, an interested person may be allowed to intervene in a contested case. The interested person should seek intervention permission by filing and serving a petition which explains how the petitioner's legal rights, duties or privileges may be determined or affected by the contested case and not otherwise represented by the parties, the grounds and purposes for which intervention is sought, any legal basis for the intervention, the party with whom the prospective intervenor's interests are most closely aligned, and the extent and manner in which the prospective intervenor wishes to participate in the case. Any party may file and serve written objections to the petition, stating the basis for the objections, within 10 days of the petition's service. The presiding officer or board chairman will issue a decision which states whether, to what extent and in what manner any intervention will be allowed.
(i) Application of the Wyoming Rules of Civil Pro- cedure (W.R.C.P.) and Wyoming Rules of Evidence (W.R.E.). To the extent consistent with state law and the board's rules and regulations, the W.R.C.P. and W.R.E., will apply under these Rules, except that hearsay may be allowed. Questions about procedure and evidence, or the application of W.R.C.P. or W.R.E., will be finally resolved by the presiding officer. All references to 'Court' will be deemed to refer to 'board' and all references to 'trial' will be deemed to refer to 'hearing' in applying W.R.C.P. and W.R.E. under these Rules. The presiding officer may exercise all board procedural authority under these Rules or provided for in applying the W.R.C.P. or W.R.E..
(j) Conflict of interest. Consistent with the necessity for the board to decide contested cases, these Rules will be construed to provide due process and fairness to all applicants or permittees. In any action in which a board member or the presiding officer is alleged by a party to have a legal conflict of interest, the presiding officer or board chairman may choose to allow the examination of the alleged conflict and involved person by any means (voir dire), will give the involved person the opportunity to respond on the record and to recuse himself, and may take any appropriate action authorized by law to resolve the issue.
(k) Access to files and open meetings. Following law and board policies and guidelines, the presiding officer, director or board chairman will decide all questions of access to case hearings, meetings and files. In doing so, he will balance the parties', intervenor's and public's right to know and principles of open government with the guarding of individual privacy rights and protection of the board's need for effective investigations and enforcement of the Certified Real Estate Appraiser Act (W.S. 33-39-101 through 33-39-130). Keeping in mind the Wyoming Open Meetings Law (W.S. 16-4-401 through 16-4-407) and considering the need to conduct effective and efficient investigations, case files (except the docket book) will normally be kept confidential (closed) to parties, intervenors and the public until after the hearing or case conclusion, whichever occurs first, and then all non-privileged or exempt documents will be open to everyone. Normally, the docket book, case-closing documents (e.g. board decision and any stipulation, settlement or consent documents), and any board multi-case analyses or reports, will always be open to parties, intervenors and the public. Normally, pleadings will be open to parties and intervenors at all times, but closed to the public until three days before any hearing or case conclusion, after which they will always be open while in the possession and under the jurisdiction of the board. Normally, the investigation file, interagency memoranda on an action, the action summary sheet, the board's attorney-client communications and documents, and the board's attorney's work product will be kept confidential. Hearings will be closed to the public only upon order of the presiding officer or board chairman. The presiding officer or board chairman may close portions of a hearing and may exclude witnesses from hearing other witnesses' testimony at a hearing, but may not exclude parties who are also witnesses, except to maintain hearing order.
(l) Hearing officer. Following law, these Rules and board policy and guidelines, the director normally will appoint and contract with a hearing officer for each contested case. Once a hearing officer is appointed, he will assume the functions of presiding officer and the board chairman or director will exercise their alternative authority under these Rules only in the absence or upon the request of the hearing officer.
(m) Discovery. The availability, extent and enforcement of discovery of evidence, testimony and documents by any party will be controlled by the APA (W.S. 16-3-107(c)). Any discovery disputes will be resolved by the presiding officer or board chairman.
(n) Subpoenas. The presiding officer or director will issue any subpoenas, including in blank, requested by a party, to require any person subject to board jurisdiction to appear at a hearing or to provide discovery information by giving testimony or producing documents or other evidentiary materials.
(o) Witness fees. Each party will pay the costs for its own witnesses to appear at a hearing. No witness may collect more than the amount provided by this rule. When a witness is listed or subpoenaed by more than one party, the first listing or subpoenaing party will be responsible for the witness's costs, unless the parties agree otherwise. Hearing witnesses will be entitled to receive the same statutory fees as if appearing before a county court ($10.00 per day or $5.00 per half day; W.S. 1-4-102(a)). They also will be entitled to the same statutory mileage travel costs (see W.S. 9-3-103). Expert witnesses will be entitled to their separate statutory witness fee rate ($25.00 per day; W.S. 1-14-102(b)).
(p) Expert witnesses. No witness will be regarded as an expert unless so designated on the record by a party, the presiding officer or the board. Any witness possessing specialized knowledge, skill, experience, training or education may be qualified as an expert (see W.R.E. 702). Expert witness designation may be made at any time during the hearing, during the prehearing process, or during discovery proceedings. The opposing party may explore the witness's expertise by questioning (voir dire) or discovery and may challenge the witness's designation as an expert. The presiding officer or board chairman will rule on any expert designation dispute.
(q) Appearance by listed witnesses. If a party lists a witness in a prehearing conference document or other pleading (excluding the complaint and statement of charges), the other parties may rely upon that witness being present at the hearing at the listing party's expense, unless the listing party provides written or personal notice otherwise. The costs of obtaining the presence of any listed witness who does not appear at the hearing, as required by this rule, and whose presence is shown to be necessary by another party, may be collected from the listing party by the board.
(r) Continuances. Continuances of contested cases will be discouraged and will not be granted except for good cause shown reasonably in advance of a scheduled hearing. Continuances may be granted only by the presiding officer or board chairman.
(s) Prehearing conference. Upon request or his own motion, the presiding officer or the board chairman may hold one or more prehearing conferences to resolve discovery disputes, focus the issues in a contested case, stipulate to evidence and/or exhibits, encourage settlement or informal dispute resolution, or any other appropriate purpose. Matters resolved in prehearing conference will be documented on the record by the presiding officer or board chairman.
(t) Swearing of witnesses. All persons testifying in a contested case must do so under oath. They will be sworn by the presiding officer or anyone else authorized to administer oaths. The following oath (with optional deletions) may be used: 'Do you swear (or affirm) to tell the truth, the whole truth and nothing but the truth in this matter now before the board (so help you God)?'
(u) Summary disposition motions. If supported by adequate grounds and at the discretion of the board, motions to dismiss, to strike, for partial or total summary judgment, or for a directed decision, may be granted. If granted, the board will enter an order which complies with the APA requirements for a final administrative decision.
(v) Transcript. Once an action becomes a contested case, the director will arrange for the preparation of a verbatim record of the hearing to be made at board expense. The record may be made by a reporter or by electronic audio or audiovisual means. No transcript will be made of the verbatim record unless requested by the presiding officer, board, a party or an intervenor. The board chairman will order, at board expense, the original or a copy of the transcript, upon request by the presiding officer, board, or the person presenting the State's case. Any other party will have to pay their own transcript costs, unless the board is legally required to provide a copy or decides to do so in its discretion.
(w) Publication of results. The results of any action after it is completed as an administrative proceeding normally will be published in the next issue of the commission's newsletter, may be distributed to other states' real estate commissions/appraisal boards, and may be published or released by the director in any other manner which is appropriate, legal and consistent with the purposes of the Certified Real Estate Appraiser Act (W.S. 33-39-101 through 33-39-130) and any rule of the board. The published information normally will identify the applicant or permittee involved, the city involved and provide a brief summary of any specific violations found and board action taken (including any penalty). Dismissals normally will be published in the same manner, unless the applicant or permittee requests that no publication occur and the director, board chairman, presiding officer or board decide otherwise. Publication may be delayed pending litigation or events involving the same parties and charges that were at issue in the board action.
(x) Contacts with board members. It is inappropriate for any person to contact a board member about a pending action, including one that is under investigation and which has not yet been brought before the board for preliminary consideration. Such contacts are off the record, likely a violation of the ex parte prohibitions of the APA (W.S. 16-3-111), may threaten the due process provided under these Rules, and may lead to the contacted board member recusing himself from consideration of the matter. Whenever an action is considered by the board, the presiding officer or board chairman will inquire about such contacts and any contacts will be mentioned by the contacted member on the record and noted in the record of the action.
(y) Joinder and severance of parties and actions. Upon motion by a party or himself, and in the interests of justice, the presiding officer may direct that actions or parties be joined or severed.
(z) Burden and standard of proof. Unless otherwise provided by law, the applicant in a denial action must prove his entitlement to the permit by a preponderance of the evidence and the State in a disciplinary action must prove the statement of charges by a preponderance of the evidence.
Section 5. Docketing. The director will assign docket numbers to all cases, at least by the time a contested case is set for hearing. The director will maintain a docket book for all cases, and a separate docket sheet for each case. The docket book will identify each case by docket number, type of permit involved, involved applicant(s) or permittee(s) and his city, any other parties besides the commission or State, the date and manner the case was initiated, involved statutory and rules sections, provide a very brief summary of the charges, identify any hearing officer, and state the case outcome. The docket sheet will be kept in the case file and contain all docket book information, plus the parties' address, phone number and attorney identification, and identification in a systematic manner of all documents in the case file. Once a case has been docketed, the parties will be advised of the docket number and caption , and all later-filed documents will include the docket number. The director will insure that the filing date (date received by the director on behalf of the board) is indicated on all documents in an action.
Section 6. Preliminary events. The following will occur for all actions: (a) Case initiation and investigation. Once an action has begun, the director will have the matter investigated and seek advice and counsel from the board's attorney. Once an action has begun, the investigation or other events may expand, restrict or change the nature of the action, the charges or the parties. In all cases in which the responsible permittee is not the involved permittee, the investigation will examine whether that person should also be included in the action. Once an action is begun, the withdrawing of the initiating complaint or event, or settlement of the matter between any involved private parties, will not end the action. Any party may move for dismissal of an action at any time; however, the granting of the motion is at the discretion of the board.
(b) Statement of charges. When the director is satisfied that an action has been adequately investigated and that he has sufficient legal advice to take the matter to the board for preliminary consideration, he will prepare the statement of charges, based upon the staff investigation and attorney's advice, and list the involved parties. The director normally will also prepare an action summary sheet for the board. The action summary sheet normally will include a summary of the involved facts and law, attorney's comments, director's recommended action, and suggested board motion(s). The statement of charges will be attached to the action summary sheet, and additional supporting information may also be attached. The director will try to provide the board with sufficient information upon which to base its preliminary decision, while limiting other information and documents which the board need not be aware of prior to a hearing or its final consideration of the case.
(c) Preliminary Board consideration. Based upon the statement of charges and any action summary sheet, with any additional attached supporting information, the board will preliminarily consider whether an action should be investigated further, tabled pending connected litigation or negotiations, set for hearing, a settlement urged or accepted, dismissed, a reprimand or other appropriate and authorized summary action taken, other appropriate and authorized action taken, or a combination of these options be taken. The board will discuss and preliminarily decide all actions in open session on the record, but may go into executive session for consideration of any sensitive matters if permitted under the Wyoming Open Meetings Law (W.S. 16-4-401 through 16-4-407). No person or party other than the director, commission staff, or board attorney normally will be permitted to address the board on a preliminary consideration action, except that the chairman may permit comments from anyone on the matter as a normal meeting agenda item. The director will implement the board's preliminary decision and make any necessary hearing arrangements, and advise the complainant in a disciplinary action of the preliminary decision and any hearing set for the action.
Section 7. Hearing opportunity and notice. The following will apply to all actions:
(a) Hearing Opportunity. No permit application will be finally denied by the board, no permit will be suspended or revoked, and no permittee will be censured without the applicant or permittee having an opportunity to request a hearing before the board on the matter. Other board actions against individual permittees, and the director's initial denial decision, need not be preceded by a hearing opportunity. A hearing opportunity does not mean that a hearing must be held for the proposed denial or penalty to be imposed, since the board may decide a contested case after a default, when a hearing has not been timely requested, or when additional information has been submitted in lieu of a hearing, so long as the hearing opportunity has been provided. The board also may decide actions without a hearing, based upon informal resolution. The board also may set a hearing on its own motion, without regard for party desires. When a hearing opportunity is required, the director will provide it to the involved applicant or permittee(s) by serving the notice and statement of charges upon the involved applicant or permittee(s).
(b) Notice. The notice will contain the following, plus any additional information required for denial or disciplinary actions:
(i) The board's jurisdiction and legal authority over the action;
(ii) The involved statute and rules sections;
(iii) A short and clear summary of the allegations;
(iv) The proposed or potential denial or penalties;
(v) The time, place and nature of any hearing which has been set and whether the hearing will be held if not requested by a specified date. If no specific hearing has yet been set, the notice will contain information on the conditions and date for it being set and supplemental notice will be sent by the director when the hearing is later set. For example, a hearing may not be initially set in actions involving default; (vi) The presiding officer's name, address, phone number and occupation. If no presiding officer has yet been appointed, the notice will contain information on the conditions and date for it being set. Supplemental notice will be sent by the director when the presiding officer is later appointed or the appointed officer changes;
(vii) The right of parties to represent themselves or be represented by an attorney;
(viii) A summary of the default and submission of additional information in lieu of hearing provisions of these Rules;
(ix) That the action is controlled by the Administrative Procedure Act and these Rules;
(x) That a copy of the Certified Real Estate Appraiser Act, the APA and these Rules will be made available upon request and at no cost;
(xi) Explanation and encouragement of any appropriate informal resolution opportunities; and
(xii) As an attachment to the notice, a copy of the statement of charges.
Section 8. Summary action. At any time in an action, and after motion by a party or itself, the board may find that the public health, safety or welfare imperatively requires emergency action against an applicant or permittee, before a hearing opportunity is provided. If so, the board will make such finding in an order and direct the summary denial of an application or suspension of a permit pending non-summary proceedings under these Rules. The director will serve the summary order upon all involved parties and take all necessary and legal actions to insure its compliance. At the same time, the director will promptly start a non-summary hearing opportunity by serving the notice and statement of charges. Board consideration will be expedited for any action in which summary action has been taken.
Section 9. Default. The following will apply to any action:
(a) Waiver of right to a hearing. If the involved applicant or permittee has been served notice and statement of charges by the director and fails to request a hearing before the stated deadline, or submits additional information in lieu of a hearing before the stated deadline, the involved person may be held by the presiding officer, board chairman or board to have waived by default his right to a hearing.
(b) Other defaults. If the involved applicant or permittee cannot be located after reasonable effort, fails to cooperate with a staff investigation, fails to enter an appearance, fails to file and serve a response, or fails to comply with an order of the director, presiding officer, board chairman or board to these Rules, he may be held by the presiding officer, board chairman or board to be in default.
(c) Board action after default. Once an applicant or licensee has been declared to be in default, the statement of charges may be taken as true, no hearing need be held, and the board may act and decide the matter without further notice to the defaulting party. Or the board may set a hearing and hold it without the presence of the defaulting party. Any board action or decision based upon a default will contain a statement of the default declaration and its circumstances.
Section 10. Additional information in lieu of hearing. After being served notice and the statement of charges, an applicant or permittee may elect within the stated deadline to submit written information in lieu of a hearing. The information will be submitted within the same deadline. Submitted information will be of the type that would be admissible evidence at a hearing. Submitted testimonial information will be made under oath. Submitted arguments should include an explanation of how and why the person has met all lawful requirements for issuance or retention without penalty of the involved permittee. Submitted information may include an explanation of any mitigating factors, aggravating factors, relationship of the charged conduct to the person's permittee responsibilities, recency of the conduct, and rehabilitation after the conduct, including remedial education coursework. Normally, actions considered by the board in lieu of a hearing will not include oral presentations or argument by the applicant, permittee or any intervenor. If a personal presentation is desired, it must be requested. The presiding officer, board chairman or board will determine whether and in what manner the request is granted. Even if allowed, the presentation cannot include any evidence not directly contained in the written submission. The State's case will be presented, in writing or in person, without regard for whether the involved applicant or permittee and chosen to submit information in lieu of hearing. Board consideration of actions under this section will otherwise proceed in accordance with these Rules.
(a) Grounds for denial. A permit may be denied for any of the following grounds:
(i) New applications: For failure to meet the requirements of the Certified Real Estate Appraiser Act, the board's rules and regulations, noncompliance with a board order, noncompliance with these Rules, or any other lawful ground reasonably known by applicant.
(ii) Renewal applications: For failure to meet the requirements of the Certified Real Estate Appraiser Act, the board's rules and regulations, non-compliance with a board order, noncompliance with these Rules, or any other lawful ground reasonably known by applicant.
( i i i )
For activation of an inactive status permit: For failure to meet the requirements of the Certified Real Estate Appraiser Act, the board's rules and regulations, noncompliance with a board order, noncompliance with these Rules, or any other lawful ground reasonably known by applicant.
(b) Factors modifying grounds. The board will consider any of the following factors which appear in the record in determining whether an application should be denied:
(i) Mitigating information;
(ii) Aggravating information;
(iii) Relationship of the charged conduct to the applicant's certified appraiser permit responsibilities;
(iv) Recency of the conduct;
(v) Rehabilitation of the applicant after the conduct, including remedial education coursework; and
(vi) Other disciplinary or denial actions involving permittee in this or any other state and which occurred within the previous three years, and, if occurring in this state, which are on file with the board.
(c) Initial denial by Director. An application will be denied initially by the director when any of the denial grounds appear in the application. This initial denial decision will comply with the final decision requirements of the APA and be served upon the applicant, by certified mail with proof of receipt returned, along with the notice and statement of charges, by the director. It will become the final administrative decision if the applicant does not begin a denial action before the deadline stated in the notice. The notice in a denial action also will include an explanation of how the applicant may begin a denial action.
(d) Applicant begins denial action. No further board action will be taken after the director denies an application unless the applicant timely requests board consideration of the matter at a hearing or based upon written information submitted in lieu of a hearing. Any denial consideration by the board will give appropriate deference to the director's initial denial decision; however, the matter will be considered by the board as a new case, with the applicant having full opportunity to present evidence and argument under these Rules.
(e) Further denial action proceedings. Once begun, a denial action will proceed as generally provided under these Rules.
(a) Grounds for disciplinary action. A permittee may be subject to any penalty under these Rules for any of the following grounds:
(i) For a violation of any requirement of the Certified Real Estate Appraiser Act;
(ii) For a violation of any requirement of the board's rules and regulations;
(iii) For noncompliance with a board order;
(iv) For noncompliance with these Rules;
(v) For any other lawful ground reasonably known by the permittee.
(b) Factors modifying grounds. The board will consider any of the following factors which appear in the record in determining whether a permittee should be disciplined:
(i) Mitigating information;
(ii) Aggravating information;
(iii) Relationship of the charged conduct to the permittee's appraiser responsibilities;
(iv) Recency of the conduct; (v) Rehabilitation of the permittee after the conduct, including remedial education coursework; and
(vi) Other disciplinary or denial actions involving permittee in this or any other state and which occurred within the previous three years and, if occurring in this state, which are on file with the board.
(c) Complaint begins disciplinary action.
(i) Complaint filed. Any person, including the director or a board member, may begin a disciplinary action by filing a written complaint with the director, using forms available from the director. Complaints received or submitted in any other form normally will not be considered.
(ii) Complaint contents. Before a complaint normally will be considered by the director or board, it must be verified (sworn to by the complainant and notarized) and contain as much of the following information as the complainant knows or can discover with reasonable effort:
(a) The complainant's name, home address and telephone number, occupation, office address and telephone number;
(b) The name, address and telephone number of complainant's attorney for this or any related matter, and whether the attorney should be contacted by the board's investigator or attorney;
(c) For each involved permittee, the name, office name, office address and telephone number, and type of permit held;
(d) For each involved permittee, his responsible permittee's name, office name, office address and telephone number;
(e) The name, address and telephone number of any attorney known to represent each permittee and responsible permittee in this or any related matter;
(f) The name, address and telephone number of any law enforcement or consumer protection agency which has been notified about the matters charged in the complaint;
(g) Identification of any prior or pending civil actions, criminal actions, or other board complaints or actions involving or closely related to the charges in the complaint;
(h) A short and concise statement of the permittee's conduct upon which the complaint is based;
(i) Any specific statutory or regulatory violations being invoked by the complainant;
(j) The name, address and telephone number of any persons who were witnesses to the complained-of conduct and of other persons who likely have first hand knowledge of it;
(k) Whether the involved permittee(s) are aware that this complaint is being made;
(l) Any efforts at informal resolution of the dispute;
(m) Whether the complainant is willing to testify concerning the complaint and its allegations (the failure of a complainant to agree to testify may be grounds for the director recommending initial consideration dismissal of the action by the board); and
(n) As attachments, clear and legible copies of all available documents related to its charges and the permittee's conduct.
(iii) Notice that complaint complete. No investigation or board consideration of a complaint normally will be made until the complaint is reasonably complete to the satisfaction of the director. Once a complaint is complete, the director will advise the complainant and indicate that the matter is under investigation, that the complainant is likely to be contacted during the investigation, that the matter will be considered confidential at least until presented to the board for preliminary consideration, and that the complainant will be advised of the board's preliminary and final decisions in the action.
(d) Permittee response to complaint. The director will serve a copy of the complaint on each involved permittee, including any additional permittees which the director preliminarily determines may be parties in the disciplinary action. The director will request each involved permittee to submit a response to the charges to the staff investigator, attaching a copy of all relevant documents and completing or correcting information in the complaint as appropriate. The permittee's response should also include the name, address and telephone number of any attorney who will represent him in this action; the name, address and telephone number of any persons who were witnesses to the charged conduct or who likely have first hand knowledge of it; and any efforts at informal dispute resolution.
(e) Further disciplinary action proceedings. Once begun, a disciplinary action will proceed as generally provided under these Rules.
Section 13. Hearing procedures. The following will apply to any contested case:
(a) Prehearing procedures. Prehearing conferences may be held as generally provided under these rules.
(b) Hearing procedures and sequence. As nearly as feasible, and subject to the discretion of the presiding officer, the sequence and procedures for hearings under these Rules will be:
(i) Opening announcements. The presiding officer will announce the hearing is convened and state the docket number and case caption. The statement of charges and its receipt by the applicant or permittee will be read into the record, unless waived by stipulation of the parties and so ordered by the presiding officer. The parties present and their counsel will be noted on the record. All case appearances by persons not present at the hearing will be noted on the record. All subpoenas served will be noted on the record and whether the subpoenaed person is present. The parties' procedural rights at the hearing will be summarized. The hearing sequence and procedures will be stated. The anticipated hearing schedule of case presentation, recesses and continuation into later days will be stated. Prior orders and rulings in the case will be noted on the record. All present will be cautioned not to discuss the case with board members.
(ii) Swearing, exclusion and release of witnesses. All subpoenaed witnesses and others present who anticipate testifying will arise, identify themselves, indicate on whose behalf their testimony will be given, and be sworn in. Then non-party witnesses may be excluded or temporarily released as appropriate. Witnesses not sworn in at this time will be sworn later before being allowed to testify.
(iii) Preliminary matters. Any request for voir dire (questioning for bias) of the board members or presiding officer will be handled by the presiding officer or board chairman on the record. Any new or renewed motions may be made and handled. Any other preliminary matters will be considered.
(iv) Opening statements. The party with the burden of proof may make an opening statement. Opening statements will be non-argumentative, summarizing the party's statement of facts, issues, evidence and witnesses. Then the other party may make his opening statement, or reserve doing so until the beginning of his case presentation. Any intervenor may be allowed to make a brief statement. Unless otherwise arranged for and announced on the record, opening statements will not be recorded.
(v) Denial case presentation. For denial action contested cases, the applicant will proceed to present his case. Applicant exhibits will be marked with consecutive numbers (e.g. 'Exhibit 1'). Applicant witnesses may be cross-examined by the State. State exhibits will be marked with consecutive numbers preceded by the letter 'S' (e.g. 'Exhibit S-1'). After the applicant has closed his case presentation, the State will present its case and its witnesses may be cross-examined by the applicant. After the State has closed its case presentation, the applicant may present a rebuttal case, limited to new matters raised in the State's case, and subject to cross-examination by the State. When the applicant has closed any rebuttal case, the presiding officer will close the hearing evidence.
(vi) Disciplinary case presentation. For disciplinary action contested cases, the State will proceed to present its case. State exhibits will be marked with consecutive numbers preceded by the letter 'S' (e.g.
'Exhibit S-1'). State witnesses may be cross-examined by the permittee. Permittee exhibits will be marked with consecutive numbers (e. g. 'Exhibit 1'). After the State has closed its case presentation, the permittee will present his case and his witnesses may be cross-examined by the State. After the permittee has closed his case presentation, the State may present a rebuttal case, limited to new matters raised in the permittee's case, and subject to cross-examination by the permittee. When the State has closed any rebuttal case, the presiding officer will close the hearing evidence.
(vii) Participation by other parties. Intervenors will not be allowed to present evidence or argument, or to cross-examine witnesses, at a hearing. Their only opportunity to participate is if they request and are allowed to make a brief statement at the end of the time for opening statements. Normally, joined or multiple applicants or permittees in the same case will be regarded as the same party and cannot have more than one person present any witness examination, cross-examination or argument. However, if joined or multiple parties make an adequate showing to establish a conflict in their interests or combined representation during or before the time for preliminary matters, the presiding officer may permit separate representation and direct the manner in which their separate representation will be carried out during the hearing. The presiding officer will also establish any necessary separate exhibit identification systems.
(viii) Participation by the presiding officer. For purposes of clarifying evidence and issues, the presiding officer may impartially question witnesses at any time while they are testifying. He may enter onto the record any relevant, material and non-repetitious document which the parties do not intend to offer. Presiding officer exhibits will be marked with consecutive numbers preceded by the letter 'P' (e.g. 'Exhibit P-1').
(ix) Participation by the Board. Just prior to any witness being released at the end of his testimony, board members may impartially question any witness. Normally, Board member questioning will be very limited. The board chairman may enter onto the record any relevant, material and non-repetitious document which the parties do not intend to offer. Board exhibits will be marked with consecutive numbers preceeded by the letter 'C' (e.g. 'Exhibit C-1').
(x) Sequence changes. The presiding officer may allow evidence and witnesses to be offered out of order.
(xi) Motions and objections. Supported motions and objections may be made by a party at any appropriate time. They may be ruled upon immediately or taken under advisement for later determination on the record.
(xii) Official notice. Where permitted by law (e.g. W.S. 16-3-108(d)), official notice may be taken of judicially cognizable facts, technical or scientific facts within the board's specialized knowledge or information, or data and material within the board's files. Any taking of official notice will be on the record, with the parties given a chance to contest the noticed information.
(xiii) Legal memoranda. The presiding officer, board chairman or board may request the parties, or they may decide upon their own, to file and serve legal memoranda at any time before, during, or before the deadline announced in the closing announcements after the hearing.
(xiv) Closing arguments. The party with the burden of proof may make a brief closing argument, based upon the evidence on record. Then the opposing party may make a similar closing argument. Then the party with the burden of proof may make a very brief rebuttal closing argument, limited to arguments raised in the opponent's closing argument which were not mentioned in his first closing argument. Closing arguments cannot include the presentation of any evidence. Unless otherwise arranged for and announced on the record, closing arguments will not be recorded.
(xv) Control of evidence, witnesses and hearing. The presiding officer will control the evidence, witnesses and hearing to insure that these Rules are followed and hearing order is maintained. He may limit testimony, exhibits and argument as authorized under the APA, these Rules, the W.R.C.P. or the W.R.E.. He may exclude uncooperative or disruptive witnesses and, in flagrant cases, parties. He may recess, continue or otherwise order any authorized, necessary and appropriate action to maintain control over the hearing.
(xvi) Closing announcements. After the evidence is closed and any closing arguments are presented, all remaining witnesses may be released and the hearing will be closed. Unless specifically reserved, all pending motion and objection rulings normally will now be made by the presiding officer. Any transcript orders will be announced. Posthearing procedures and deadlines will be announced. The presiding officer normally will announce that the case is taken under advisement and explain how and when the decision will be reached and issued.
(xvii) Reopening case or evidence. For good cause shown, the case or evidence may be reopened at a later time, upon notice to all parties. After being reopened, the case or additional evidence-taking will proceed under these Rules to the extent feasible.
(c) Posthearing procedures.
(i) Proposed decisions. At the discretion of the parties, or upon request of the presiding officer or board, parties may file and serve proposed decisions after the hearing and before the deadline announced in the hearing's closing announcements. The parties may request, and the presiding officer or board chairman may allow, parties to file and serve responses to each other's proposed decisions within the announced response deadline. Proposed decisions will follow the requirements for a final administrative decision under the APA and these Rules.
(ii) Recommended decision. Unless otherwise directed by the board chairman or board, the presiding officer will file and serve a recommended decision. He will also file and serve an order for any remaining reserved motion or objection rulings. Parties may file and serve a response to the recommended decision, so long as they are submitted prior to the deadline announced in the hearing's closing announcements. The recommended decision will follow the requirements for a final administrative decision under the APA and these Rules. The recommended decision will be given serious consideration, but is not binding upon the board.
(a) Decision basis and contents. All decisions will be based exclusively upon the evidence in the record and matters officially noticed. Final decisions will be in writing, entered onto the record, and comply with the APA requirement for a final administrative decision. Each will contain findings of fact and conclusions of law separately stated for each disputed issue and as necessary to support the decision and order. Each will contain a separate decision section which makes ultimate findings and conclusions. Each will contain a separate order section to resolve the case and implement the decision. Once filed and served, the board's decision will, without further action, become the final administrative decision and conclude the contested case, except for enforcement of the decision.
(b) Issuance of decision. The director will file and serve all board decisions by personal service with return documented in the case file, or by certified mail with proof of receipt documented in the case file. A copy of the decision in a disciplinary action will be sent to the complainant.
(c) Enforcement of decision and stays. Once a decision becomes final and is filed and served, the director will take all appropriate steps to enforce it. There is no automatic stay of enforcement when or because an appeal is taken. Enforcement of the decision will be stayed only upon order of the board or the district court in which the appeal is filed.
(a) Taking an appeal. Appeals from final board decisions in contested cases are controlled by W.S. 16-3-114 in the APA and by Rule 12 of the Wyoming Rules of Appellate Procedure. The board's final decision (its final decision or the director's initial denial decision if no denial action is begun) may be appealed by any person who is a party aggrieved or adversely affected in fact by the decision. The State or board may not appeal a board decision, although it may respond to and counter-appeal any other party's appeal. Appeal may be made to the state district court in Laramie County, the county in which the applicant or permittee resides or has his principal place of business, or, if real estate is affected by the decision, in the county where the real property is located. Any appeal petition must be filed within 30 days after the director issues and serves the decision.
(b) Appeal transcript. The party taking the appeal will order, and arrange for payment at his own expense, the hearing transcript concurrently with filing and serving his petition of appeal. Documentation that this has been done will be filed and served. The transcript will be verified as accurate by the reporter (under oath) or by the tape transcriber. The appealing party is responsible for the timely filing of the transcript with the Director by the reporter or transcriber.
(c) Appeal record. The director will prepare and certify the record for any case appeal. The record will be sent to the clerk of the involved district court. It will contain a table of contents and everything required under these Rules to be included, the case docket sheet, the hearing transcript, a list of hearing exhibits, the hearing exhibits, and any additional documents, including depositions, designated by a party to the appeal. The parties may timely stipulate to a shortened record or exhibits to be omitted from the appeal record. The pages of the record will be numbered consecutively, at the bottom of each page. The director will advise the parties when the record is sent and provide each party with the table of contents for the record, which will indicate the page number for each document.
(d) Jurisdiction after appeal or on remand.
(i) Jurisdiction after appeal. Once a board final decision has been filed and served, an appeal taken, and the record sent to the district court, the board will retain jurisdiction over the matter only to enforce the decision. Jurisdiction over all other aspects of the case will lie in the involved district court.
(ii) Jurisdiction upon remand. The district court considering an appeal may remand the case to the board to take additional evidence or to provide additional documentation. If so, the board will regain jurisdiction over the matter to the extent necessary to carry out the remand order. Any remand proceedings will follow these Rules to the extent feasible.
(a) Severability. If any provision of these Rules is held invalid, the rest of the Rules will remain valid and be construed to maintain their validity and effectiveness.
(b) Amendment of rules. Any amendments to these Rules will be promulgated under the APA.