Wyo. Code R. 037-0001-7
Engineers & Land Surveyors, Professional Licensing
Chapter 7: Practice and Procedure
Effective Date: 03/11/1996 to 07/15/1998
Rule Type: Superceded Rules & Regulations
Reference Number: 037.0001.7.03111996
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. Any complaint made against a registrant shall be made in writing and should provide at least the following information:
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) A committee of one or two Board members, appointed by the President of the Board, shall review the complaint, review the investigative materials, conduct interviews, and make recommendations to the Board concerning its findings:
(i) The committee so 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 investigation of a complaint, the committee may take any appropriate action, including but not necessarily limited to the following:
(i) Forward the complaint filed by the complainant to the Board attorney with a recommendation that formal disciplinary proceedings commence;
(ii) File a complaint with the Board on its own behalf;
(iii) Send a written letter of warning to the individual listed in the complaint;
(iv) Accept the voluntary surrender of a certificate of registration;
(v) Recommend terms for a conditional certificate of registration; or
(vi) Dismiss the complaint.
Section 4. Investigation.
(a) Upon the filing of a complaint, the Board President may select a person to investigate the complaint. The investigator may be a registered professional engineer and/or professional land surveyor in good standing in the profession. Members of the Board may be investigators.
(b) The purpose of the investigation shall be to determine if there is sufficient evidence to warrant a hearing.
(c) The Board President or 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 Board President or 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 by the investigator conducting an investigation.
Section 5. Conduct of Investigation.
(a) The investigator is empowered to conduct a full and complete investigation of a scope necessary to determine whether or not the charges in the complaint are substantial enough to warrant further action on the complaint.
(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.
Section 6. Investigator's Report.
(a) Upon completing the investigation, the investigator shall make a written report to the committee setting forth the facts discovered. The investigator may make a recommendation to the committee as to whether, in the investigator's opinion, there is sufficient evidence to warrant a hearing. The committee is not bound by the investigator's recommendation.
(b) The investigator's report shall be submitted to the committee within forty-five (45) calendar days of appointment of the investigator, unless the time is extended by the committee for good cause.
(c) Investigation files of any investigation which is pending are confidential and not public record.
(d) When the investigation is complete, the registrant and complainant shall be given copies of the investigative report.
(a) Upon notification of the findings of an investigation, a registrant may be asked to attend an informal compliance conference with the committee. 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 shall be served pursuant to the Wyoming Rules of Civil Procedure, or by Certified Mail. The complaint shall, at a minimum, contain the following information:
(i) The name and registration number of the registrant.
(ii) The name, address, and phone number of the Board’s attorney.
(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 registrant must respond to the complaint. Said time shall be twenty (20) calendar days from date of service for in-state registrants and thirty (30) calendar days from date of service for out-of-state registrants.
(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 registrant must respond to the complaint, the Board or the Executive Director may set the matter for hearing. Notice of the 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) There shall be established a separate file for each docketed case, in which shall be systematically placed all papers, pleadings, documents, transcripts, evidence, and exhibits pertaining thereto, and all such items shall have noted thereon the docket number assigned, and the date of filing.
Section 12. Hearing Officer. The Board may appoint a hearing officer to take evidence at the hearing. A Board member may be the hearing officer. If the case is heard before the Board, the president may preside.
(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.
(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.
As nearly as may be practicable, hearings shall be conducted in accordance with the following order of procedure:
(a) The presiding 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 presiding 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 presiding officer.
(c) The attorney or representative of the state of Wyoming 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 state 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 of the 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, nonbinding 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:
(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 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.
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.