Wyo. Code R. 053-0014-6
OSHA - Practice & Procedure
Chapter 6: Informal Conferences, Hearings & Contested Cases
Effective Date: 01/07/2004 to Current
Rule Type: Current Rules & Regulations
Reference Number: 053.0014.6.01072004
(a) The purpose of this Chapter is to prescribe rules and set forth policies for informal conferences, hearings, and contested cases.
(a) At the request of an affected employer, employee or representative of employees, the Program Manager may hold an informal conference for the purpose of discussing issues raised by an inspection.
(i) If the informal conference is requested by the employer, the issues may include the inspection, violations, proposed penalties, abatement dates or his intent to file a Notice of Contest. An affected employee or his representative may be afforded an opportunity to participate, at the discretion of the Program Manager.
(ii) If the informal conference is requested by an employee or his representative, the issues may include the inspection, violations, the abatement dates or his intent to file a Notice of Contest. The employer may be afforded an opportunity to participate, at the discretion of the Program Manager.
(iii) Any party may be represented by counsel at the informal conference.
(iv) The informal conference or a request for an informal conference shall not operate as a stay of the 15 working day period allowed for filing a Notice of Contest.
(v) Disposition of an issue may be effected at or following an informal conference if the specific issue is not under contest at the time of disposition.
(vi) An informal conference may be held at any time prior to a formal hearing.
(a) Employer and employee contests to the Commission.
(i) Any employer to whom a Citation and Notification of Penalty has been issued may, notify the Program Manager in writing that he intends to contest a violation, abatement period or proposed penalty written in the Citation and Notification of Penalty. A notice of contest shall be postmarked within fifteen (15) working days of receipt of the Citation and Notification of Penalty by the employer. Every notice of contest shall specify whether it concerns the violation, the abatement period or the proposed penalty for a violation or all inclusive.
(ii) Any employee or representative of employees of an employer to whom a Citation and Notification of Penalty has been received may, file a written notice with the Program Manager alleging that the period of time fixed in the Citation and Notification of Penalty for the abatement of the violation is unreasonable. Such notice shall be postmarked within fifteen (15) working days of the receipt by the employer of the Citation and Notification of Penalty. In discrimination cases, the employee shall have the right to contest the terms of the abatement as well as the time allowed for abatement. The employee shall also have the right to appeal a decision of the Commission for judicial review.
(A) The procedures for employee contest or appeal of the above cited cases shall be the same as that provided the employer.
(iii) The Chairman of the Commission shall require that action be taken to provide for an independent hearing officer to hear the contested case.
(b) The Program Manager shall contract with an independent hearing officer to hear all contests of violations, proposed penalty or abatement periods for violations. The hearing officer shall be a qualified member of the bar of Wyoming and may not be an employee of the office of the attorney general or the Department or a member of the Commission.
(i) The employer shall have the right to contest the alleged violation, abatement period or proposed penalty for violation as written in the Citation and Notification of Penalty.
(ii) The employee or the employee representative shall have the right to contest the abatement period as stated in the notice of violation Citation and Notification of Penalty and to participate in any hearings concerning such abatement period.
(iii) The hearing shall be held as soon after receiving the letter of contest and in a city as near the site of occurrence as practicable.
(iv) All hearings shall be conducted pursuant to the Wyoming Administrative Procedure Act. The hearing officers have the powers specified in W.S. 16-3-112(b). The hearing officer shall make written findings of fact and conclusions of law in each contested case.
(v) The hearing officer shall recommend a decision to the Commission. The decision of the Commission is the final administrative decision. A party adversely affected by a decision of the Commission may appeal to the district court in the county where the violation occurred.
(c) The hearing officer shall be governed by the provisions of the Act, the Wyoming Administrative Procedure Act and shall have the powers specified in W.S. 16-3-112(b).
(d) Nothing contained in these Rules of Practice and Procedure, the Administrative Procedure Act, or the Act shall be construed as requiring any party (including a corporation) to be represented by an attorney-at-law.
(e) The hearing officer shall hear all contested cases referred by the Program Manager.
(i) The hearing officer shall, within thirty (30) calendar days after closing each contested case, submit written findings of fact, conclusions of law and a recommended decision to the Commission.
(f) At the next regularly scheduled meeting, or any special meeting of the Commission, the Commission shall consider each contested case file as listed on the meeting agenda.
(i) Each contested case file shall contain a record of the hearing and the hearing officer's findings of fact, conclusions of law and recommended decision.
(ii) The Commission shall have the power to accept, amend or overturn the recommended decision of the hearing officer.
(g) After due and proper consideration of the contested case, the Commission shall render its decision. The decision of the Commission shall be the final administrative decision.
(i) Each party shall receive written notice of the decision of the Commission. (ii) A party adversely affected by a decision of the Commission may appeal to the district court in the county where the violation allegedly occurred.
(iii) When the Department's findings are upheld by the Commission or where modification is made by the Commission, the Program Manager shall wait for a period of thirty (30) calendar days, during which time the employer may appeal the decision of the Commission. When at the end of the thirty (30) calendar day period no notice of appeal is received, and when no letter of abatement or notification of settlement of the proposed penalty is received, the Program Manager shall forward the case to the Attorney General or his representative.
(A) In cases where the Citation and Notification of Penalty alleges a criminal violation and proposed penalty, the Attorney General or his representative shall forward the case to the appropriate County Attorney for prosecution.
(B) In cases where the Citation and Notification of Penalty alleges a civil violation and proposed penalty, the Attorney General or his representative shall take appropriate action.
(iv) When the Commission determines that the employer has in fact not violated the Act, these Rules of Practice and Procedure, or any rule, regulation or order of the Commission, the Program Manager may consult with the Attorney General or his representative to determine if the Department should appeal the decision of the Commission to the District Court.
(h) In the event the employer or the Department desires to appeal the decision of the Commission to the district court, the employer or the Department may appeal said Commission decision within thirty (30) calendar days of the receipt of the decision of the Commission.
(a) As provided for in W.S. 27-11-106(c), 'In contested cases where no appeal has been taken from the decision of the commission within the time provided for such an appeal, the Commission shall adopt the decision and order the department and employer to act in accordance with the decision. Any state district court may enforce Commission orders issued in that county after a hearing where no appeal has been taken. The United States district court for Wyoming (if it otherwise has jurisdiction) may also enforce any Commission order.'
(b) When a violation of the Act, or any rule or regulation promulgated under the Act, is found to exist, a Citation and Notification of Penalty shall be issued.
(c) When the employer does not contest the violation, the proposed penalty or the abatement period, within the fifteen (15) working days, the employer may abate the violation and enter into a stipulation and consent agreement with the Compliance Supervisor or the Attorney General or his representative for payment of any penalties to the County Treasurer of the county in which the violation occurred.
(d) At the end of the fifteen (15) working day period, when no letter of contest, no letter of abatement or intent to abate, or no notification of settlement of the proposed penalty is received, the Program Manager shall notify the Chairman of the Commission. The Chairman or his designee shall issue a motion for final order to the employer advising the employer that the case file will be forwarded to the court for the institution of legal proceedings to enforce the commission orders unless the employer shall appear at the hearing, and show cause.
(i) In these cases, and in cases where no letter of abatement is received, a follow-up inspection shall be scheduled as necessary to assure compliance with the Act.
(e) The Commission shall then docket the case for action at the next regular Commission meeting or at a special meeting if called by the Chairman.
(f) Any response of the employer to the Commission motion for final order shall be limited to showing cause why the Commission should not forward the order to the appropriate court for enforcement action.
(g) Upon good cause shown by the employer at the hearing in response to the Commission motion for final order, the Commission may enter an appropriate amended order.
(h) When, upon response of the employer, at the hearing provided for such response and after hearing arguments of the employer, the Commission finds that good cause has not been shown, the Commission shall so notify the employer and shall cause the order to be forwarded to the appropriate court for enforcement action.
(i) When the employer does not respond to the Commission motion for final order, and takes no action to abate the violation and/or make settlement of the proposed penalty to the appropriate authority, and after the Commission has held the hearing of the case on the date and at the Commission meeting for which the case was docketed, the order shall be forwarded to the Attorney General for appropriate action.
(a) Any company, labor organization, association, person or persons who is entitled to a hearing under the Act shall file a request for hearing with the Program Manager.
(b) A request for hearing shall be in writing and contain the following:
(iv) Type of hearing requested (variance, rule, regulation or standard, or contest of notice of violation, proposed penalty and/or abatement period) and relevant facts to show cause for requesting the hearing.
(c) The letter of request for hearing, and any attachments thereto shall be sent to the Program Manager Workers' Safety and Compensation Division, Cheyenne, Wyoming 82002.
(a) The authority to hold a hearing in a contested case is found at W.S. 27-11-104(g).
(b) The authority to hold a hearing on rules, regulations and standards is in W.S. 27-11-106(a).
(c) The authority to hold a hearing on variance requests is in W.S. 27-11-111(c).
(a.) Service. Upon request for a hearing the Program Manager shall serve, or cause to be served, a notice of hearing.
(b) Contents. The notice of hearing shall include:
(c) Referral to the presiding officer. A copy of the notice of hearing shall be sent to the presiding officer designated or contracted with by the Program Manager.
Service of any document upon any party may be made by personal delivery or by certified mailing a copy of the document to the last known address of the party. The individual serving the document shall certify to the manner and the date of service.
(a) Powers. The person retained by the Department to preside over a hearing shall have all powers necessary or appropriate to conduct a fair, full and impartial hearing, including the following:
(v) To regulate the course of the hearing and the conduct of the parties and their counsel;
(vi) To hold conferences for the settlement or simplification of the issues by consent of the parties;
(vii) To consider and rule upon procedural requests;
(viii) To make, or cause to be made, an inspection of the employment or place of employment involved;
(ix) To take, or cause to be taken, depositions;
(x) To make recommended decisions to the Commission; and
(xi) To take any other appropriate action authorized by the Act, this chapter, or the Administrative Procedure Act (W.S. 16- 3-101 through 16-3-115).
(b) Private consultation. Except to the extent required for the disposition of ex parte matters, the hearing officer may not consult an individual or a party on any fact at issue, unless upon notice and opportunity for all parties to participate.
(c) Disqualification.
(i) When the hearing officer deems himself disqualified to preside over the particular hearing, he shall withdraw therefrom by written notice to all parties and the Chairman of the Commission.
(ii) Any party who deems the hearing officer for any reason to be disqualified to preside or to continue to preside, over a particular hearing may file with the Chairman of the Commission a motion to disqualify and remove the hearing officer. Such motion to be supported by affidavits setting forth the specific grounds for disqualification. The Chairman of the Commission shall rule upon the motion.
(d) Contumacious conduct; failure or refusal to appear or obey the rulings of the hearing officer.
(i) Contumacious conduct at any hearing before the hearing officer shall be grounds for exclusion from the hearing.
(a) Convening a prehearing conference. Upon his own motion or the motion of a party, the hearing officer may direct the parties or their counsel to meet to consider:
(i) Simplification of the issues:
(ii) Necessity or desirability of amendments to documents for purposes of clarification, simplification or limitation;
(iii) Stipulations, admissions of fact, and contents and authenticity of documents:
(iv) Limitation of the number of parties and witnesses; and
(v) Such other matters as may tend to expedite the proceeding.
(b) Record of conference. The hearing officer shall make an order which recites the action taken at the conference, the amendments allowed to any documents which have been filed, the agreements made between the parties as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admissions and agreements; and such order when entered controls the subsequent course of the hearing.
(a) General. At any time before the introduction of evidence in any contested case hearing, or during any such hearing, a reasonable opportunity may be afforded to permit negotiation by the parties of an agreement containing consent findings and a rule or order disposing of the whole or any part of the proceeding. Such opportunity and the duration thereof shall be at the discretion of the hearing officer, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement which will result in a just disposition of the issues involved.
(b) Contents. Any agreement containing consent findings or orders disposing of a proceeding shall also provide:
(i) That the finding or order shall have the same force and effect as if made after a full hearing;
(ii) That the entire record on which any finding or order may be based shall consist solely of the application and agreement;
(iii) A waiver of any further administrative procedural steps; and
(iv) A waiver of any right to challenge or contest the validity of the findings and of the rule or order made in accordance with the agreement.
(c) Submission. On or before the expiration time granted for negotiations, the parties or their counsel may:
(i) Submit the proposed agreement to the hearing officer for his consideration; or
(ii) Inform the hearing officer that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent findings and rule or order is submitted within the time allowed therefore, the hearing officer may accept such agreement by issuing his decision based upon the agreed findings.
(a) Discovery rights. Discovery rights under this chapter shall be as provided in W.S. 16.3.107.
(a) The Department shall have the burden of proof in all cases in which Department action is contested. The employer shall have the burden to produce evidence of any affirmative defense it may have to any Department action. Department action includes, but is not limited to, issuance of a Citation and Notification of Penalty and amendments to a Citation and Notification of Penalty.
(b) Evidence.
(i) Admissibility. A party shall be entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct cross-examination. Any oral or documentary evidence may be received, but the hearing officer shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.
(ii) Objections. If a party objects to the admission or rejection of any evidence, or to the limitation of the scope of any examination or cross-examination, or to the failure to limit such scope, he shall state briefly the grounds for such objection. Rulings on all objections shall appear in the record. Only objections made before the hearing officer may be relied upon subsequently in a proceeding.
(iii) Exceptions. Formal exception to an adverse ruling is not required.
(c) Official notice. The hearing officer may take official notice of judicially cognizable facts including technical or scientific facts within the agency's specialized knowledge or of information, data and material included within the agency's files. The parties shall be given adequate notice, either before, during, or after the hearing, but before the agency decision, of material facts noticed and shall be afforded an opportunity to contest the facts noticed.
(d) Order of procedure at hearing. Hearings should be conducted in the following order or procedure:
(i) The hearing officer shall announce that the hearing is open and call by docket number and title the case to be heard.
(ii) The department will be allowed an opening statement.
(iii) The contestant will be allowed an opening statement.
(iv) Any additional parties will be allowed an opening statement.
(v) The Department's evidence will be heard. Witnesses may be cross-examined by the contestant or his attorney. The Department's exhibits will be marked by letters of the alphabet beginning with 'A'.
(vi) The evidence of the contestant will be heard, and exhibits of such contestant will be marked with numbers beginning with '1'. The Department shall have the right to cross-examine all witnesses presented by the contestant.
(vii) The Department may offer rebuttal evidence.
(viii) The hearing officer, in his discretion, may allow evidence to be offered out of order.
(ix) Closing statements will be made in the following sequence:
(A) Department
(B) Contestant
(C) Department in rebuttal
(D) Time for oral argument may be limited by the hearing officer.
(x) The hearing officer may recess the hearing as required. (xi) After all interested parties have been offered an opportunity to be heard, the hearing officer shall excuse all witnesses and declare the evidence closed. The evidence of the case may be reopened at a later date, for good cause shown, by order of the hearing officer upon motion of any party to the proceeding.
(xii) Parties may tender briefs, or the hearing officer may call for such briefs as may be desirable.
(xiii) The hearing officer may take the matter under advisement with the final decision and order of the Commission to be announced at a later date.
(e) Witnesses to be sworn. All individuals testifying at any contested case hearings before the hearing officer shall stand and be administered the following oath by the hearing officer: "Do you swear (or affirm) to tell the truth, the whole truth, and nothing but the truth, so help you God?" No testimony will be received from a witness except under such oath or affirmation.
(f) Applicable rules of civil procedure. The rules of practice and procedure contained in the Rules of Civil Procedure of the State of Wyoming, as applicable, shall apply in all hearings before the hearing officer.
(g) Attorneys. The filing of a pleading or other appearance by an attorney constitutes his appearance for the party for whom made. The hearing officer must be notified in writing of the attorney's withdrawal from any matter. Only an individual appearing before the hearing officer or Commission in a representative capacity or his attorney, if licensed to practice law in the State of Wyoming, or a non-resident attorney associated with a Wyoming attorney, shall be allowed to examine or cross-examine any witness. The hearing officer shall determine if a representative capacity exists.
(h) Transcript. Hearings shall be electronically recorded or stenographically reported. Copies of the transcript may be obtained by the parties upon written application filed with the Department, and upon payment of fees at the rate provided by the Department, or, where stenographically reported, upon written application filed with the reporter and upon payment of fees at the rate provided in the agreement with the reporter. At the request of either party, a reproduction of the electronic recording may be purchased from the Department in lieu of a transcript of the hearing, upon payment of fees at the rate provided by the Department.
The record of the hearing shall contain:
(a) Proposed findings of fact. Within ten calendar days after close of the hearing or such other time as the hearing officer may direct, each party may file with the hearing officer proposed findings of fact, conclusions of law and recommended rule or order, together with a supporting brief expressing the reasons for such proposals. Such proposals and brief shall be served on all other parties, and shall refer to all portions of the record and to all authorities relied upon in support of each proposal.
(b) Recommended decision. The hearing officer will submit to the Commission his recommended findings of fact, conclusions of law and order within thirty (30) days of the close of the contested case hearing. The decision shall include:
(i) A statement of findings and conclusions of law, with reasons and basis therefore, upon each material issue of fact, law or discretion presented on the record, and
(ii) The appropriate recommended rule, order, relief, or denial thereof. The recommended decision shall be based upon a consideration of the whole record and shall state all facts and conclusions officially noticed and relied upon. It shall be made on the basis of a preponderance of reliable and probative evidence.
(c) Decision by the Commission. The Commission shall render its final decision and order in contested cases.
(a) The final decision of the Commission shall be sent to all parties by certified mail.
(b) Time limitation for appeal. The time limitation for appeal of the Commission's final decision shall be in accordance with the requirements of the Wyoming Rules of Appellate Procedure.
(a) Decision of the Commission. The decision of the Commission appealed to the district court shall be held in abeyance pending a decision by the court.
(a) Show cause hearing. Any case which is not contested and which has not been closed by virtue of the correction of the alleged violations or by the voluntary payment of proposed penalties within 30 days of the final abatement date, shall be set for a show cause hearing before the Commission.
(b) Time of hearing. The show cause hearing will be held at the next regularly scheduled Commission meeting, or at a special Commission meeting, if called by the Chairman of the Commission.
(c) Scope of hearing. The scope of the show cause hearing shall be limited to a showing of good cause why the Commission should not enter an order of final disposition which may be enforced by any district court. Upon completion of the hearing, the Commission shall prepare an appropriate order to the Department.