Wyo. Code R. 037-0001-7
Engineers & Land Surveyors, Professional Licensing
Chapter 7: Practice and Procedure
Effective Date: 07/29/2010 to 12/30/2013
Rule Type: Repealed Rules & Regulations
Reference Number: 037.0001.7.07292010
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 registrants for proven violations.
Section 2. Complaint. 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 Procedures Act. The Board may initiate an investigation on its own motion. Any complaint against a registrant shall be submitted in writing to the Board office and should provide the following information, as may be applicable:
Section 3. Review of Complaint.
(a) If a 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 President of the Board will make recommendations to the Board concerning the findings of the investigator. The President 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 evaluation of the complaint.
(i) 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:
(v) Dismiss the complaint.
(d) The Board shall send appropriate notice to the registrant of its intent to take action.
(a) Upon the filing and initial review of a complaint, the IBM and/or Board President shall select a person(s) to investigate the complaint. The investigator may be a registered 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 registrant.
(c) The Executive Director shall contact the investigator and inform the investigator that a complaint has been filed and shall tell the investigator the name of the registrant and the allegations contained in the complaint. The Executive Director shall ask if the investigator has any conflict of interest that would prevent the investigator from fully and impartially investigating the complaint. The investigator may accept the investigation task only if the investigator can do so without a conflict of interest.
(d) The Board may reimburse the 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 investigator is empowered to conduct a full and complete investigation.
(b) In pursuit of the investigation, the investigator may review documents and interview the complainant and other witnesses, the investigator may interview the registrant only if the registrant voluntarily agrees and if the registrant has been furnished a copy of the complaint.
(a) Upon completing the investigation, the investigator shall submit a written report to the IBM(s) setting forth the facts discovered.
(b) Investigation files of any investigation which is pending are confidential and not public record.
(a) Upon notification of the findings of an investigation, a registrant may be asked to attend an informal compliance conference with the IBM(s), Executive Director and/or Board attorney(s). The registrant may appear either with or without counsel. The purpose of the compliance 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 registrant, the registrant may submit to the Board an offer of settlement whereby, in lieu of formal disciplinary action by the Board, the registrant agrees to accept certain sanctions such as suspension, civil penalties, enrolling in continuing education courses, limiting the scope of the registrant's practice, submitting the registrant's work product for professional peer review, or other sanctions. 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 registrant and incorporates the proposed settlement.
Section 8. Formal Hearing Procedures. Formal proceedings for Board disciplinary action on a Certificate of Registration 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:
(b) At any time following the expiration of the period in which the registrant 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 registrant 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 9. Default. The Board may enter an order based on the allegations of a complaint in any case where the registrant has not responded within the time limits contained in Section 8 (a) (vi) above or in any case in which the registrant or the registrant's representative has not appeared at a scheduled hearing of which the registrant had notice.
Section 10. Motions. All motions made to the Board shall be made in writing 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.
(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 12. Hearing Officer. The Board shall appoint a hearing officer to conduct the hearing.
(a) In all formal proceedings before the Board, discovery shall be afforded in accordance with the Wyoming Administrative Procedures Act.
(b) Requests for discovery from the Board shall be made in writing and directed to the Executive Director.
(a) The Board or its hearing officers may issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence, and shall have the power to administer oaths.
(b) Any party desiring the Board or its hearing officers to issue a subpoena to compel the appearance of a witness at any hearing shall make application, stating the substance of the testimony expected of the witness. If such testimony appears to be material and necessary, a subpoena will be supplied. The affixing of the seal of the Board and the signature of the Executive Director shall be sufficient attestation of the same.
(c) Service of a subpoena must be made at the expense of the party applying for it, and shall be made in the manner provided by law for service of subpoenas in civil actions.
(a) All persons testifying at any hearing before the Board shall stand and be administered a standard oath or affirmation.
(b) No testimony will be received from a witness except under oath or affirmation.
(c) The party calling a witness shall bear the costs associated with the witness' appearance.
(a) Any registrant may represent oneself or be represented by legal counsel, provided that such counsel is licensed to practice law in the state of Wyoming, or is associated at the hearing with one or more attorneys licensed to practice law in the state of Wyoming.
(b) A request for withdrawal from representation shall be made in writing to the Board by the attorney.
(c) In any case before the Board, an appearance in person or the filing of an answer by an attorney shall constitute an appearance of record by an attorney.
(d) A representative of the Attorney General's Office shall present to the Board all matters enumerated and described in the complaint.
(e) The Board may employ an attorney to advise the Board in conducting the hearing.
Section 17. Order of Procedure. As nearly as may be practicable, hearings shall be conducted in accordance with the following order of procedure:
(a) The hearing officer shall announce that the hearing is convened upon the call of the docket number and title of the matter and case to be heard, and thereupon the hearing officer shall direct the reading into the record of the notice of hearing given, and the complaint, together with appearance in the form of answers or other appearance made by the registrant, and shall note for the record all subpoenas issued and all appearances of record, including registrant and attorney.
(b) Opening statements may be made by each of the parties. The time allowed for oral argument may be limited by the hearing officer.
(c) The attorney or representative for the IBM shall then present all evidence in support of the complaint. Witnesses may be cross-examined by the registrant or the registrant's attorney. All exhibits offered by the IBM shall be marked by letters of the alphabet beginning with 'A'.
(d) The registrant shall be heard in the same manner. Any exhibits presented by the registrant shall be marked numerically, beginning with '1'.
(e) At the conclusion of the evidence, a closing statement may be made by each of the parties. The time allowed for this statement may be limited by the hearing officer.
(f) After all proceedings have been concluded, the hearing officer shall dismiss and excuse all witnesses and declare the hearing closed. Any party who may desire to tender written briefs to the Board may do so. The Board or hearing officer may require written briefs. The hearing officer shall take the case under advisement and shall declare that the decision of the Board shall be announced within due and proper time following consideration of all matters presented at the hearing.
Section 18. 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 registrant and the registrant's 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.
Section 19. Record of Proceedings.
(a) When the denial, revocation, or suspension of any license 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:
Section 20. Appeals.
(a) Appeals from decisions of the Board are governed by Section 16-3-114, W.S. 1977 of the Wyoming Administrative Procedures 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 21. 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.