State Construction Department

School Facilities Commission

Effective Date: 05/09/2024 to Current

Rule Type: Current Rules & Regulations

Reference Number: 027.0002.2.05092024

Chapter 2

Rules of Practice and Procedure for Contested Case Proceedings; Exception Requests

Section 1. Authority. This Chapter is promulgated by the Commission under the authority of Wyoming Statutes 16-3-102(a)(i), 16-3-102(d), 21-15-114(a)(xv), 21-15-116(e) and 21-15-116(f).

Section 2. Application of Rules. This Chapter shall apply to district requests for exceptions from the Commission, contested case proceedings brought before the Commission, and informal reviews authorized by Wyoming Statutes and these Rules that are brought before the Department by a district.

Section 3. Exception Requests.

1. (a) The Commission may grant exceptions on a case-by-case basis to the following:
2. (i) Building capacity based on a most cost effective remedy study;
3. (ii) Budget recommendations;
4. (iii) Allowable square footage calculator;
5. (iv) A determination of the Department rejecting a request to use a non-Commission-approved contract as described in Chapter 9 Section 7(a)(ii);
6. (v) A determination of the Department rejecting a request for a value engineering waiver as described in Chapter 9 Section 8(a)(i);
7. (vi) Specific requirements of the Design Standards and Guidelines; and
8. (vii) A building's CRV, for use in the calculation of its FCI. Upon request of a district, the Commission may direct the Department to calculate a building's CRV using the maximum allowable square footage based on the higher of the District's current or eight-year projected enrollment.
9. (b) A district making an exception request shall include documentation explaining the exception request. Such documentation should include, at a minimum:
10. (i) The precise nature of the exception requested;
11. (ii) The justification for the exception request; and
12. (iii) Necessary supporting documentation as identified by the Department.

(c) The Department shall create a thorough written record supporting the granting or denial of every exception request. Exception requests shall be initially presented to the Department for its review. The Department shall then present the request to the Commission with a recommendation at the next meeting for which the submission of additional Commission matters is timely.

(d) The Commission shall at a minimum consider the reasons why the exception is being requested, the nature of the request, any cost implications of the request, whether granting the request comports with the Commission's statutory duties and authority, and whether alternative means exist to accomplish the purposes of the request.

Section 4. Informal Review Proceedings.

(a) When challenging a decision of the Department, or a most cost-effective remedy recommendation as set forth in Chapter 8 § 5 of these Rules, Districts shall request an informal review before the Department Director before pursuing a contested case proceeding. Challenges to the Department's recommended most cost-effective remedy shall be in accordance with this Section of this Chapter and Chapter 8 § 5.

(b) A district requesting an informal review shall do so, in writing, to the Director of the Department within thirty (30) days of the date of the administrative decision at issue. The request shall contain:

1. (i) The decision of the Department the district would like reviewed;
2. (ii) An explanation of why the decision should be reviewed;
3. (iii) Any additional facts the district would like to be considered; and
4. (iv) The legal authority upon which it is believed a decision was made in error.

(c) The Department may reject any request that lacks any of the required elements listed under Subsection (b) of this Section. Such rejection does not constitute a final administrative decision of the Department and is not a prejudicial decision with respect to the district's right to re-file its request for informal review.

(d) Within a reasonable time, the Director shall issue a written decision, in consultation with the Department's advising attorneys, laying forth the factual and legal basis for his or her decision.

(e) If, following the Department's review, the district is still unsatisfied with the actions of the Department, it may file a request for a contested case proceeding before the Commission, except in the case of a recommended most cost-effective remedy.

Section 5. Contested Case Proceedings.

(a) Applicability. This Section shall apply to requests for a contested case proceeding as provided in § 4(e) of this Chapter. This Section shall not apply to challenges to the Department’s recommended most cost-effective remedy, which shall be conducted in accordance with Chapter 8 § 5.

(b) A district aggrieved by a final administrative action taken by the Department after an informal review conducted under Section 4 of this chapter may file a request for a contested case proceeding within forty-five (45) days of the date of the final administrative decision at issue, or of the date of mailing of the final administrative decision as evidenced by a postmark, whichever is later. The request shall be in accordance with the provisions contained in this Section.

(c) To initiate a contested case proceeding, a district shall prepare and file with the Commission a request which includes the following:

(i) The name, telephone number, email, and mailing address of the district and the same information for the representing attorney, if applicable;

(ii) A statement, in ordinary and concise language, of the facts and of the errors alleged to have been committed and issues upon which the request is based, including particular references to statutory sections, contract provisions or rules, regulations, policies, and orders involved;

(iii) A copy of the Director’s decision and relevant material which relates to the decision at issue;

(iv) The specific relief sought; and

(v) The signature of the district and the representing attorney, if applicable.

(d) The request shall be served on the Commission and other necessary parties. Service shall be made to the Wyoming School Facilities Commission, care of the Department, at the location listed on the Department’s website. Service can be made in person, by mail, received by facsimile, 307-777-8711, or email at scd@wyo.gov during regular business hours. Any facsimile or email received after regular business hours will be treated as received during the regular business hours of the next working day.

(e) Contested case proceedings before the Commission shall be limited to the issues the district identified during the Department’s informal review.

(f) The Commission shall issue its written decision within a reasonable time.

Section 6. Incorporation by Reference. The Commission incorporates by reference the following uniform rule:

(a) Chapter 2 – Contested Case Proceedings adopted by the Office of Administrative

Hearings and effective on July 20, 2017, found at https://rules.wyo.gov;

(i) The Commission has determined that incorporation of the full text in this rule would be cumbersome or inefficient given the length or nature of the rule;

(ii) The incorporation by reference does not include any later amendments or edition of the incorporated matter beyond the applicable date identified in subsection (a) of this section; and

(iii) The incorporated rule is maintained at the Department office and is available for public inspection and copying at cost at the same location.

Section 7. Final Decision. At the request of the Commission, the hearing officer shall make a recommended decision to the Commission. The Commission shall issue the final decision, which shall constitute final agency action.