Wyo. Code R. 041-0001-7
Effective Date: 06/13/2011 to Current
Rule Type: Current Rules & Regulations
Reference Number: 041.0001.7.06132011
HEARING PROCEDURES
Section 1. Authority. These rules are promulgated by authority of W.S. 16-3-102, and W.S. 35-9-124.
Section 2. Definitions. The following definitions will apply under these rules:
(a) Respondent – A person(s), against whom an action has been brought to fine, revoke, or suspend his electrician's license, or the Department in case of an appeal of an action or decision of the Chief Electrical Inspector. (b) Department - Wyoming Department of Fire Prevention and Electrical Safety. (c) Board - The Wyoming Electrical Board. (d) Petitioner - The party who requests and is granted a hearing before the Board to hear an action to fine, suspend or revoke an electrician's license or an appeal of an action or decision of the Chief Electrical Inspector.
Section 3. Purpose. These rules are established to provide a fair and efficient method for administrative hearings relative to civil penalties, suspension or revocation of licenses by the Board brought under W.S. 35-9-124.
(a) If a hearing is sought by the Department as petitioner, the respondent shall be accorded the rights as set forth below. However, when a serious threat to the public safety exists, due to code violations or other cause, the Board may shorten the time allowed between notice and hearing to not less than 5 days. (b) When a party outside the Department requests and is granted a hearing, that party, as petitioner, shall also be accorded the rights of a respondent as set forth below. However, when the petitioner is outside the Department, in requesting the hearing he shall provide the Department with the written information required in Section 4(b) below. Also, during the hearing, the petitioner rather than the Department shall proceed first and may briefly rebut the Department's case in response. (c) These hearing procedures shall not alter the practice of holding informal hearings whenever possible.
Section 4. Commencement of Action. Commencement of action shall be by one of the following methods:
(a) Upon an appropriate showing of violation of W.S. 35-9-101 through 35-9-130 or the Rules and Regulations, the Department may commence proceedings to fine, suspend or revoke the license of the alleged offender or take other disciplinary action. In a Petition to fine, suspend or revoke a license, the Department shall notify the respondent of the:
(i) The legal authority and jurisdiction under which the hearing is to be held;
(ii) The particular Section of the statutes and rules, regulations or codes involved; and
(iii) A short and plain statement of the violations alleged. No answer is required, and at the hearing, the respondent may appear and show why he should not be fined or his license should not be suspended or revoked.
(b) Any party aggrieved by an action or decision of the Chief Electrical Inspector made pursuant to W.S. 35-9-124 may appeal the action or decision by filing a written appeal at the office of the Chief Electrical Inspector within 30 days from the date of Action or decision. The written appeal shall contain:
(i) A heading in the words: "Electrical Board, State of Wyoming."
(ii) A caption reading: "Appeal of ______," giving the names of all respondents participating in the appeal.
(iii) A brief statement setting forth the legal interest of each of the appellants in the decision of the Chief Electrical Inspector involved in the order.
(iv) A brief statement of the specific order or action protested, in ordinary and concise language, together with any material facts claimed to support the contentions of the appellant.
(v) A brief statement of the relief sought, in ordinary and concise language, and the reasons why it is claimed that the protested order or action should be reversed, modified or otherwise set aside.
(vi) The signatures of all parties named as appellants, and their official mailing addresses.
(vii) The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.
Section 5. Time and Place of Hearing. Time and place of hearings shall be determined as follows:
(a) Upon receiving a Petition or notice of an appeal, the Board shall set the matter for hearing. The hearing may be held no less than twenty (20) days after service of the Petition upon the respondent, so that he may have adequate time for preparation. Upon motion and for good cause, the hearing may be postponed by the Board until a later date. However, when a serious threat to the public safety exists, due to code violations or other cause, the Board may shorten the time allowed between notice and hearing to not less than five days.
(b) As soon as practical after receiving the written Petition or notice of appeal, the Board shall fix a date, time, and place for the hearing of the matter by the Board. Such date shall be not less than five (5) days no more than ninety (90) days from the date the appeal was filed with the Board.
(c) Hearings shall be conducted in a location determined by the Board.
Section 6. Service. The notice of hearing by the Board shall be served personally or by mail, to the place of business of the petitioner and respondent, or to the most recent residence address of the respondent filed with the Department, or to the respondent at his address shown on the appeal.
Section 7. Matters to be Considered. Only those matters or issues specifically raised by the respondent shall be considered in the hearing of an appeal.
Section 8. Enforcement to be Stayed. Except for orders to abate or vacate immediate hazards, used under W.S. 35-9-116, enforcement of any notice and order of the Chief Electrical Inspector shall be stayed while the matter is before the Board.
Section 9. Hearing Officer. The Board may request the Office of Administrative Hearings to designate an attorney from the Office of Administrative Hearings to conduct the hearing, or it may appoint one or more hearing examiners to conduct the hearings. If a hearing examiner is appointed, the hearing examiner shall be responsible for scheduling and setting the matter for hearing as specified in Section 5 and 6 above. The examiner hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted by him to the Board for final decision.
(a) A party may move to disqualify a hearing officer by filing written motion and supporting affidavits of personal bias with the Board. After careful consideration of the evidence presented, the Chairman of the Board shall rule upon the motion.
Section 10. Authority of Hearing Officers. The hearing officer or the Chairman of the Board [hereafter Chairman], if there is no hearing officer, has the authority to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas; (c) Rule upon offers of proof and receive relevant evidence; (d) Take or cause depositions to be taken in accordance with the provisions of the Administrative Procedure Act, W.S. 16-3-101 through 16-3-115; (e) Regulate the course of the hearing; (f) Hold conference for the settlement or simplification of the issues; (g) Dispose of procedural requests or similar matters; (h) Make recommended decisions when directed to do so by the Board; and (i) Take any action authorized by agency rules, the Administrative Procedure Act, or W.S. 35-9-101 et seq.
Section 11. Counsel. All parties may appear at the hearing with or without counsel. No attorney from any other state shall be entitled to enter his appearance in, prosecute or defend any action or proceeding pending before the Board unless he is either licensed to practice in the State of Wyoming or associated with a Wyoming licensed attorney. The filing of a pleading or other appearance by an attorney constitutes his appearance for the party for whom made. In accordance with the Wyoming Administrative Procedures Act.
(a) An individual may appear and be heard in his own behalf. (b) A partnership may appear and be represented by a partner. (c) A corporation may appear and be represented by a corporate officer or a full time employee of the corporation.
Section 12. Inspection of File. Each party, or his authorized representative, shall be permitted to inspect and copy, at his own expense at the offices of the Department, all documents filed in the civil penalty or license suspension or revocation proceedings, all documents filed in appeals or orders or actions and all documents regarding the subject of the hearing contained in the Department's files permitted by law to be inspected and copied.
Section 13. Record of Proceedings. The hearing shall be reported verbatim, stenographically, or by any other appropriate means determined by the Board or hearing officer. A copy will be furnished to any party upon written request to the Board and payment of a reasonable fee. If one or more parties desires the hearing transcribed by a certified court reporter, he must make the necessary arrangements and bear the cost.
Section 14. Continuances. The Board or hearing officer may grant continuances for good cause shown.
Section 15. Reasonable Dispatch. The Board and its representatives shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties or their representatives.
Section 16. Notice to Respondent. The notice to respondent shall be substantially in the following form, but may include other information: "You are hereby notified that a hearing will be held before (the Board or name of hearing examiner) at __ on the _ day of ___ at the hour of ______. You may be present at the hearing. You may be represented by counsel. You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents, or other things by filing an affidavit therefore with the Board or the hearing examiner."
Section 17. Evidence. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.
(a) Oral evidence shall be taken only on oath or affirmation. (b) Each party shall have these rights, among others:
(i) To call and examine witnesses on any matter relevant to the issues of the hearing.
(ii) To introduce documentary and physical evidence. (iii) To cross-examine opposing witnesses on any matter relevant to the issues of the hearing. (iv) To impeach any witness regardless of which party first called him to testify. (v) To rebut the evidence against him. (vi) To represent himself or to be represented by anyone of his choice.
Section 18. Order of Procedure at Hearing. Hearings shall be conducted substantially as follows:
(a) The hearing officer or Chairman shall announce that the hearing is called to order and announce the matter to be heard, briefly summarizing the case and issues.
(b) The hearing officer or Chairman shall take up any preliminary motions or matters to be discussed. (c) The Department may present a brief opening statement of the charges, explain the theory of the case and what the evidence will show. (d) The respondent may present his opening statement in the same manner. (e) The Department shall then present the evidence of the Electrical Safety Division, subject to cross examination by the respondent and the hearing officer or Board. (f) The respondent shall present his evidence, subject to cross examination by the Department and the hearing officer or Board. (g) Closing statements may be made at the conclusion of the evidence by both parties. These statements may include summaries of the evidence and legal arguments. The Department shall precede the respondent and may also briefly rebut respondent's closing statement. (h) The hearing officer or Chairman may ask for proposed findings of fact and conclusions of law from both parties, to be submitted within a reasonable time.
Section 19. Official Notice may be Taken. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state or of official record of the Board and laws of the State of Wyoming or rules and regulations of the Board. Parties present at the hearing shall be informed of the matters to be noticed and these matters shall be noted in the record, referred to therein, or appended thereto.
Section 20. Opportunity to Refute the Officially Noticed Matters. Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation's to be determined by the Board or hearing examiner.
Section 21. Voting Limitation. Where a contested case is heard before the Board itself, no member thereof who did not hear the evidence or has not read the entire record of the proceedings shall vote on or take part in the decision.
(a) If a hearing officer is appointed, the hearing officer shall prepare proposed findings of fact and conclusions of law for submittal to the Board. In addition parties have the right to submit findings of fact and conclusions of law and order.
(b) After the hearing, or after submittal of proposed findings of fact and conclusions of law from the hearing officer, if any, the Board shall enter a decision and final order signed by the Chairman. In its decision the Board may adopt or reject the proposed decision in its entirety, or may modify the proposed decision.
(c) The decision shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to be complied with. A copy of the decision shall be delivered to the respondent personally, with written receipt, or sent to him by certified mail, postage paid, return receipt requested.
Section 23. Re-assignment. If the proposed decision is not adopted as provided in Section 22 of this chapter, the Board may decide the case upon the evidence; or may refer the case to the same or another hearing examiner to take additional evidence. If the case is re-assigned to a hearing examiner, he shall prepare a report and proposed decision as provided in Section 22 hereof after any additional evidence is submitted.
Section 24. Appeals to District Court. A respondent may appeal a Board decision to district court as provided in W.S. 16-3-114 and W.S. 35-9-124.