Wyo. Code R. 037-0001-6
Engineers & Land Surveyors, Professional Licensing
Chapter 6: Application Review, Complaints and Hearing Procedures
Effective Date: 10/25/2013 to 12/20/2013
Rule Type: Expired Emergency Rules & Regulations
Reference Number: 037.0001.6.10252013
Section 1. Statement of Purpose. These rules and regulations are adopted to implement the Board's authority to conduct investigations, hearing and proceedings, concerning alleged violations, and to determine and administer appropriate disciplinary action against licensees for proven violations. These rules are also adopted to implement the Board's authority to conduct investigations, hearings and proceedings concerning action related to an application for a license, including granting or denial of licensure.
(a) Upon receipt of a completed application, the Board office shall review the application and, if it is complete and there are no known grounds for denial of the license or certificate requested, issue the license or certificate. If there are known grounds for denial, the Board office shall forward the application to the Application Review Committee (ARC).
(b) The ARC shall review the application and all other information available and following the review may:
(i) Approve the application if the applicant meets all requirements; or
(ii) If there are questions as to whether denial is appropriate, forward the application and the ARC report to the Assistant Attorney General assigned to the Board for prosecution of hearing matters for review.
(c) If, after review, and following consultation with the assigned Assistant Attorney General, the ARC concludes that grounds exist to recommend denial of an application:
(i) A preliminary denial letter shall be sent to applicant, which shall:
(A) State the basis for the denial including relevant statutes and rules; and
(B) Advise the applicant of the right to request reconsideration.
(ii) If the applicant fails to request reconsideration in writing within thirty (30) days of the date of the preliminary denial letter, the preliminary denial becomes final.
(iii) If the applicant requests reconsideration within thirty (30) days, a reconsideration conference shall be held with the ARC, the Assistant Attorney General, and the applicant.
(iv) Following a reconsideration conference, the ARC shall either approve or deny the application and notify the applicant.
(v) If denied, the applicant must submit a written request for a hearing before the Board within thirty (30) days of the date of the denial letter or the denial is final.
(a) If a written request for hearing is received by the Board office from the applicant within the thirty (30) day period, the Board office, on behalf of the ARC shall serve a Notice of Hearing by certified or regular mail at least thirty (30) days prior to the date set for hearing. Such service shall be made to the last address provided to the Board by the applicant.
(b) There shall be a presumption of lawful service when the Notice of Hearing is sent to the last address of the applicant by certified or regular mail.
(c) The Notice of Hearing shall contain:
(i) The name and last address of the applicant;
(ii) A statement in ordinary and concise language, of the matters asserted, which shall contain the nature of the issues relating to the denial of the application, the facts upon which the denial is based, the specific statutory provisions, and the specific Board rules and regulations the applicant is alleged to have violated or with which the applicant has failed to comply;
(iii) The time, place, and nature of the hearing;
(iv) The legal authority and jurisdiction under which the hearing is being held;
(d) ARC members shall not take part in the consideration or deliberation of any contested case if they have participated in the investigation of or denied the application. ARC members and Board staff may testify at a contested case hearing.
(e) Members of the ARC or Board staff may attend a contested case hearing.
(f) The Board may enter an order dismissing an applicant's hearing and denying the application in any case where the applicant or the applicant's representative has not appeared at a scheduled, properly noticed hearing.
(a) An application denial hearing is a formal contested case hearing conducted pursuant to the Wyoming Administrative Procedure Act and applicable provisions of the formal hearing procedures established later in this Chapter.
(b) The hearing is to be conducted in the presence of a quorum of the Board, with a hearing officer presiding.
(c) The applicant has the burden of proving that he/she meets all requirements for the license requested.
(a) An incomplete application requires no action by the ARC or the Board, until such time as the application is deemed "complete" by Board staff on behalf of the Board, and has been reviewed for recommendations by the ARC. Any new application, which remains incomplete, one year from the date of its original receipt by the Board office, shall expire.
(b) An application is “incomplete” when material and requisite information has not been provided as part of the application process. Such information, may include, but is not limited to:
(i) Failure by the applicant to complete or answer any information requested on the application form;
(ii) Failure by the applicant to demonstrate lawful presence in accordance with Federal Law;
(iii) Failure by the applicant to respond to any Board staff or ARC inquiry or to produce any documents or information requested by Board staff or the ARC;
(iv) Failure by the applicant to provide payment for application fees. If any payment is made by the applicant, processed, and rejected or returned to the Board, regardless of the reason, the applicant has failed to provide proper payment for application fees.
(a) A renewal applicant is an individual who currently holds a license, and has timely and sufficiently submitted an application for renewal of the license. A renewal applicant also is an individual who has submitted a renewal application no later than two (2) years following the prior license expiration.
(b) If the renewal application of a licensee reveals any information which merits further investigation, the matter shall be assigned to the ARC, and the investigative process shall apply as if a written complaint form had been filed against the licensee, subject to procedures for contested case hearing in application matters.
(c) If the license was current when the renewal application was submitted, the licensee may continue to practice on the license subject to renewal pending investigation or further action of the Board.
(d) Practice after failure to timely renew, resulting in an expired license, shall constitute the unauthorized practice of professional engineering or professional surveying in violation of the Act and further may constitute an independent ground for denial of an application or discipline of a licensee.
Section 7. Reinstatement Applications. Any application for reinstatement by a licensee who was the subject of prior disciplinary action shall be subject to investigation by the ARC to determine satisfaction of any conditions previously imposed by the Board. The investigative process shall apply as if a written complaint form had been filed against the licensee and also shall apply to a person whose license was subject to restrictions, or was suspended, surrendered or revoked.
(a) To the extent possible, if the licensee was subject to prior disciplinary action, the ARC should consist of the same Board member(s) who originally participated in the disciplinary matter;
(b) The ARC shall make a preliminary determination to recommend or deny reinstatement, which may also include recommended restrictions or other sanctions authorized by the Board or these rules;
(c) A licensee who disagrees with or disputes the recommendation by the ARC shall be entitled to a contested case hearing as in other application matters.
Section 8. Administrative Complaint in Discipline Matters. If any information concerning a possible violation of the Act or these rules is received or obtained by a Board member or members of the staff, the Board shall investigate that information in accordance with the Wyoming Administrative Procedure Act. The Board may initiate an investigation on its own motion. Any administrative complaint against a licensee shall be submitted in writing to or initiated by the Board office and should provide the following information, as may be applicable:
(a) Name, address, place of employment, and position of the individual alleged to have violated the Act or Board rules and regulations.
(b) The nature of the complaint and a description of the incident(s) involved including date(s), time(s), location(s) and any observed behavior of the licensee or intern.
(c) The name and address of other witnesses, if any.
(d) The signature and address of the person(s) making the complaint.
Section 9. Review of Administrative Complaint.
(a) If an administrative complaint is filed or if any information concerning a possible violation of the Act or these rules is received or obtained by the Board, an investigation may be conducted prior to the initiation of formal proceedings.
(b) One or more Board members, known as the Investigative Board Member(s) (IBM), appointed by the Chairperson of the Board will make recommendations to the Board concerning the findings of the investigation. The Chairperson of the Board may also appoint one or more past Board members or other professionals to a committee to assist the IBM(s) in the investigation of the administrative complaint. The IBM(s) appointed shall not take part in the consideration of any contested case in which they participated in the investigation of the complaint, although they may attend any disciplinary hearing.
(c) Following review and/or investigation of a complaint, the IBM(s) may bring to the Board a recommendation for any appropriate action, including but not necessarily limited to the following:
(i) Forward the complaint filed by the complainant to the Board attorney assigned for prosecution purposes with a recommendation that formal disciplinary proceedings commence;
(ii) Send a written letter of warning to the individual listed in the complaint;
(iii) Accept the voluntary surrender of a certificate or license;
(iv) Recommend terms for a conditional certificate or license; or
(v) Dismiss the complaint.
(d) The IBM(s) shall send appropriate notice to the licensee or intern of its intent to take action as provided in these rules.
(a) Upon the filing and initial review of an administrative complaint, the IBM(s) shall be responsible for investigation, or the IBM(s) may select a retained investigator to assist in the investigation of the administrative complaint. The retained investigator may be a licensed professional engineer and/or professional land surveyor in good standing in the profession.
(b) The purpose of the investigation shall be to determine if there is sufficient evidence to warrant any action against the licensee or intern.
(c) The Executive Director shall contact the retained investigator and inform the investigator that a complaint has been filed and shall tell the retained investigator the name of the licensee and the allegations contained in the complaint. The Executive Director shall ask if the retained investigator has any conflict of interest that would prevent the investigator from fully and impartially investigating the complaint. The retained investigator may accept the investigation task only if the investigator can do so without a conflict of interest.
(d) The Board may reimburse the retained investigator for all necessary and reasonable expenses incurred conducting an investigation and shall pay for services under the terms of a Contract to be entered into by and between the investigator and the Board.
(a) The IBM(s) or retained investigator are empowered to conduct a full and complete investigation.
(b) In pursuit of the investigation, the IBM(s) or retained investigator may review documents and interview the complainant and other witnesses, the IBM(s) or retained investigator may interview the licensee or intern only if the licensee or intern voluntarily agrees and if the licensee or intern has been furnished a copy of the complaint.
(c) As part of the investigation, the IBM(s) or retained investigator shall be authorized to serve an administrative subpoena on any person who is in possession of any documents or records relevant to the allegations in the administrative complaint or from facts discovered in investigation.
(a) Upon completing the investigation, the retained investigator shall submit a written report to the IBM(s) setting forth the facts discovered.
(b) The IBM(s) may prepare an investigative report as part of the investigation, which may be provided to the assigned Assistant Attorney General for review if a recommendation is made that formal disciplinary proceedings commence.
(c) Investigation files of any investigation which is pending are confidential and not subject to public inspection until a formal hearing is concluded or until final disciplinary action is taken if no hearing is commenced.
(a) Upon notification of the findings of an investigation, a licensee or intern may be asked to attend an informal conference with the IBM(s), Executive Director and/or the Board attorney assigned for prosecution purposes. The licensee or intern may appear either with or without counsel. The purpose of the informal conference will be to discuss formal or informal settlement of the investigative matter.
(b) At any time either before or after formal disciplinary proceedings have been instituted against a licensee or intern, the licensee or intern and IBM(s) may submit to the Board an offer of settlement whereby, in lieu of formal disciplinary action by the Board, the licensee or intern agrees to accept certain sanctions such as suspension, civil penalties, enrolling in continuing education courses, limiting the scope of the licensee's practice, submitting the licensee's work product for professional peer review, or other sanctions authorized by the Act or these rules. If the Board determines that the proposed settlement will adequately protect the public welfare, the Board may accept the offer and enter a decision that is consented to by the licensee or intern and incorporates the proposed settlement.
(a) Prior to commencing formal proceedings for discipline of a licensee, the Executive Director, on behalf of the IBM(s), shall send a notice of intent to initiate formal disciplinary action by regular or certified mail to the last address provided by the licensee to the Board. The notice of intent shall include a brief description of the facts or conduct which warrant the intended action, and provide the licensee or intern, an opportunity to show compliance with all lawful requirements for the retention of the license or certificate without any disciplinary action against the licensee or intern.
(b) The opportunity to show compliance shall expire fifteen (15) days from the date of mailing the notice of intent.
Section 15. Formal Hearing Procedures. Formal proceedings for Board disciplinary action against a Licensee or intern shall be commenced by notice issued by the Board.
(a) The complaint and/or notice shall be served pursuant to the Wyoming Rules of Civil Procedure, and by any traceable delivery method of mail. The complaint shall, at a minimum, contain the following information:
(i) The name and license number of the licensee or certificate number of the intern.
(ii) The name, address, and phone number of the Board's attorney assigned to assist in prosecution of the complaint.
(iii) A statement of the legal authority and jurisdiction of the Board.
(iv) A statement of the particular sections of the statutes and rules involved.
(v) A statement, in ordinary and concise language, of the nature of the complaint and the facts upon which the complaint is based.
(vi) The time in which the licensee or intern must respond to the complaint.
(vii) A statement that failure to respond may result in entry of judgment by default for the relief demanded in the complaint.
(b) At any time following the expiration of the period in which the licensee or intern must respond to the complaint, the Board or the Executive Director may set the matter for hearing. The Complaint and Notice of Hearing shall be mailed to the licensee or intern at least thirty (30) calendar days prior to the date set for the hearing, or such shorter time as may be agreed to by the parties.
Section 16. Default. The Board may enter an order based on the allegations of a complaint in any case where the licensee or intern has not responded within the time limits contained in Section 15 (a) (vi) above or in any case in which the licensee or intern or the his/her representative has not appeared at a scheduled hearing of which the he/she had notice.
Section 17. Motions. All motions made to the Board shall be made in writing and submitted at least ten (10) business days prior to the date set for hearing.
(a) The Board may, within its discretion and upon good cause shown, allow a motion to be filed at any time.
(b) For purposes of this rule, any request for settlement of a contested case shall be considered a motion before the Board.
Section 18. Docket.
(a) When formal proceedings are initiated and notice has been provided, the case shall be assigned a number and entered upon a docket provided for such purpose.
(b) A separate file shall be established for each docketed case, in which all papers and evidence shall be systematically placed.
Section 19. Contested Case Hearings. The Office of Administrative Hearings shall act as the hearing officer and shall preside over the formal contested case hearing which shall be conducted pursuant to the Wyoming Administrative Procedure Act and the Office of Administrative Hearings' rules concerning contested case proceedings. Requests for discovery from the Board shall be made in writing and directed to the Executive Director. Requests for discovery from the ARC or IBM shall be made in writing and served upon the assigned Assistant Attorney General with a copy to the Executive Director.
(a) At the Board's discretion, contested case hearings shall either be conducted in the presence of a quorum of Board Members or a committee of one (1) or more Board Members.
(b) During the formal contested case hearing, Board Members may ask questions of the witnesses and/or the parties including their attorneys.
(c) A court reporter shall be present during the hearing and report the entire proceeding.
Section 20. Decision and Order. The Board shall, following the hearing, make and enter a written decision and order containing findings of fact and conclusions of law, stated separately.
(a) The decision and order shall be sent by United States mail to the licensee or intern and the his/her attorney of record as required by the Administrative Procedures Act.
(b) This rule does not preclude the Board from giving preliminary, non-binding notice to the parties prior to the issuance of the Board's written decision and order.
(c) Unless otherwise ordered by the Board, all decisions of the Board shall be effective as of the date of issuance of the written decision and order.
(a) When the denial, nonrenewal, revocation, or suspension of any license or certificate, as well as any other sanction authorized by the Act, is the subject for hearing, it shall be regarded as a contested case and the proceedings, including all testimony, shall be recorded verbatim by a competent reporter or by electronic recording devices. If the written transcript is prepared at the request of a party, the cost of the transcript shall be paid by the party making the request, unless the Board for good cause shown waives assessment of such costs.
(b) The Board records in a contested case shall include the following:
(i) All pleadings, motions, interlocutory rulings;
(ii) Evidence received or considered;
(iii) Statement of matters officially noticed;
(iv) Objections and offers of proof and rulings thereon;
(v) Proposed findings and exceptions;
(vi) Decision, opinion, or report by the Board or presiding officer; and
(vii) All staff memoranda, other than privileged communications, of data submitted to the Board.
(a) Appeals from decisions of the Board are governed by the Wyoming Administrative Procedure Act and the Wyoming Rules of Appellate Procedure.
(b) Costs of transcripts and any reasonable costs assessed by the Board regarding the record on appeal shall be borne by the party making the appeal. A party making an appeal shall reimburse the Board for the cost of any Hearing transcripts the Board has purchased.
Section 23. Applicability of the Rules of Civil Procedure. The Wyoming Rules of Civil Procedure, insofar as they may be applicable and not inconsistent with the laws of the state and these rules and regulations, shall apply to cases before the Board.