Arkansas Administrative Code
Agency 088 - Arkansas Teacher Retirement System
Division 01 - Legal Department
Rule 088.01.23-021 - Rule 13-1 Administration Adjudications: Staff Determinations and Appeals
Universal Citation: AR Admin Rules 088.01.23-021
Current through Register Vol. 49, No. 9, September, 2024
§ 13-101. Definitions.
As used in this rule:
(1) "Manifest injustice" has the same meaning
as provided in Arkansas Code §
24-7-202; and
(2) "Member" for the purposes of the staff
determination and appeal process means any member of the Arkansas Teacher
Retirement System as defined in Arkansas Code §
24-7-202 and includes:
(A) A beneficiary of a member;
(B) A retiree of the system;
(C) A guardian, an administrator, or an
executor of a member, retiree, or beneficiary; or
(D) A public school.
§ 13-102. Staff determinations - Scope and purpose.
(a) This rule governs the practice and
procedures of the Arkansas Teacher Retirement System concerning the
adjudication of a claim that concerns any retirement plan or program
administered by the system and arises as a result of a determination made by
the staff or administration of the system.
(b)
(1) The
system's staff is responsible for administering the accounts of members of the
system and may make determinations based on the law and rules applicable to the
system that may be adverse to a member's claim.
(2) This rule outlines the procedure for a
member to appeal the determination of the system's staff or administration
concerning a claim of the member.
(c)
(1) The
rules concerning the staff determination and appeal process should be read in
conjunction with the Arkansas Administrative Procedures Act, §
25-15-201 et seq.
(2) To the extent that the rules concerning
the staff determination and appeal process conflict with the Arkansas
Administrative Procedures Act, the terms and provisions of the Arkansas
Administrative Procedures Act shall supersede the rules concerning the staff
determination appeal process and control.
(d) The rules concerning the staff
determination and appeal process do not apply to claims or causes of action
that the system or the Board of Trustees of the Arkansas Teacher Retirement
System may have against a member or any other person or entity, regardless of
the origin or nature of the claim.
§ 13-103. Staff determinations - Extension of deadlines.
(a)
(1) The
Board of Trustees of the Arkansas Teacher Retirement System and the Executive
Director of the Arkansas Teacher Retirement System may extend any deadline
applicable to a member's appeal upon a showing of good cause unless a Hearing
Officer has been assigned.
(2) Only
the board may extend a deadline after the deadline has passed.
(3) If a hearing officer has been assigned,
until the completion of the hearing, only the hearing office may extend a
deadline applicable to a member's appeal upon a showing of good
cause.
(b) When
compliance with the rules concerning the staff determination and appeal process
is based on delivery having occurred, delivery shall be considered to have
occurred on the earlier of either the:
(1)
Date of the postmark, if posted with the United States Postal
Service;
(2) Date of actual
delivery by one of the following methods:
(A)
Hand delivery;
(B) Electronic
transmission; or
(C) Delivery
service other than USPS.
§ 13-104. Staff determinations - Informal resolutions.
(a)
(1) A
member's claim may be resolved informally through correspondence or conference
between the member and the staff of the Arkansas Teacher Retirement
System.
(2) All reasonable efforts
shall be made to informally resolve a member's claim with the member.
(b)
(1) The executive director may implement a
resolution of a member's claim that has a direct impact to the system of up to
five thousand dollars ($5,000).
(2)
Board approval shall be required to implement a resolution that has a direct
financial impact to the system in excess of five thousand dollars
($5,000).
(c)
(1) The system's staff and the member are
strongly encouraged to engage in a good faith attempt to resolve claims
informally based upon the proper application of the law, rules, and policies
applicable to the system and to the specific facts of the member's
claim.
(2) A member's claim shall
not be resolved in a manner that contravenes the law, rules, and policies
applicable to the system.
(d) If a claim is not resolved informally and
a staff determination letter adverse to the member's claim is issued to the
member, the member may request a review of the staff determination by the
Executive Director of the Arkansas Teacher Retirement System.
(e) The manifest injustice referral process
shall not be used with regard to a member if the manifest injustice referral
concerns the same questions of the law and fact that are at issue in a claim
concerning the member that is resolved through the staff determination and
appeals process.
§ 13-105. Staff determinations - Notice of adverse determination.
(a)
(1) If the staff of the Arkansas Teacher
Retirement System make a determination that is adverse to a member's claim, the
system shall send a staff determination letter to the member if the claim
involves:
(A) An ambiguity in the
interpretation of the specific facts of the member's claim that would impact
the manner in which the law, rules, or policy applicable to the system are
applied to the member's claim;
(B)
An ambiguity in the interpretation of the law, rules, or policy applicable to
the system; or
(C) An ambiguity
concerning the proper application of the law, rules, or policy applicable to
the system to the specific facts of the member's claim.
(2) A staff determination letter shall not be
issued to a member unless the staff determination letter has been reviewed and
approved by an attorney for the system.
(b) A staff determination letter that is
issued to a member shall:
(1) Advise the
member of the determination and the reasons for the determination;
and
(2) Advise the member of the
procedure for requesting a review of the staff determination by the Executive
Director of the Arkansas Teacher Retirement System;
(3) Advise the member of the deadline to
request a review by the executive director; and
(4) Not include findings of fact and
conclusions of law, separately stated.
(c) The written determination of system staff
concerning an overpayment collection dispute or the applicability of a salary
limitation to a plan or payment shall be treated as a staff determination
letter.
(d) A staff determination
letter is not and shall not be construed as a final decision or order of the
system that may be appealed under the Arkansas Administrative Procedures Act,
§
25-15-201 etseq.
(e) The system shall consider a member's
claim as closed if the member does not request a review of the staff
determination by the executive director within thirty (30) calendar days of the
date of the staff determination letter.
§ 13-106. Staff determinations - Review by executive director.
(a)
(1) A
member shall submit a request for a review of a staff determination by the
Executive Director of the Arkansas Teacher Retirement System in
writing.
(2) A member shall not be
required to resubmit any documents or information with his or her request for a
review.
(b)
(1) Unless an extension is granted by the
Board of Trustees of the Arkansas Teacher Retirement System or the executive
director, a member shall not be permitted to request a review of a staff
determination by the executive director unless the member's request is received
by the Arkansas Teacher Retirement System within thirty (30) calendar days of
the date of the staff determination letter.
(2) If the last day to request a review of a
staff determination by the executive director falls on an official state
holiday or weekend, the member shall have until the next business day to
request a review.
(c)
(1) The executive director shall promptly
send a letter to the member acknowledging the member's request for a
review.
(2)
(A) The member may submit for review by the
executive director any additional relevant documents or information not
previously submitted by the member to the system.
(B) The member shall submit the additional
documents and information to the executive director within thirty-five (35)
calendar days of the date of the executive director's acknowledgement
letter.
(d)
(1) Upon receiving a member's request for a
review of a staff determination, the executive director shall independently
review the facts and the law, rules, and policy applicable to the member's
claim.
(2) The executive director
shall consider the staff determination as well as any relevant documents and
information provided by the member.
(3) The executive director may affirm,
reverse, or modify the staff determination before a final determination on the
member's claim is made by the board.
(e)
(1) The
executive director shall send a review determination letter to the member
within ninety (90) calendar days from the date on which the member's request
for a review was received by the system.
(2) A review determination letter shall:
(A) Advise the member of the determination
and the applicable law, rules, and policy used by the executive director to
reach his or her determination;
(B)
Advise the member of the procedure for appealing the review determination
letter to the board;
(C) Advise the
member of the deadline to appeal the review determination letter to the board;
and
(D) Not include findings of
fact and conclusions of law, separately stated.
(f) A review determination letter is not and
shall not be construed as a final decision or order of the system that may be
appealed under the Arkansas Administrative Procedures Act, §
25-15-201 etseq.
(g) The system shall consider a member's
claim as closed if the member does not appeal the executive director's review
determination within thirty (30) calendar days of the date of the review
determination letter.
§ 13-107. Staff determinations - Appeals - Initiation of appeal to the Board of Trustees of the Arkansas Teacher Retirement System.
(a) A
review determination of the Executive Director of the Arkansas Teacher
Retirement System may be appealed by the member to the Board of Trustees of the
Arkansas Teacher Retirement System.
(b)
(1) A
member shall appeal a review determination of the executive director in writing
by filing a signed notice of appeal with the Arkansas Teacher Retirement System
in the manner required by the system.
(2) A member shall file his or her signed
notice of appeal with the system within thirty (30) calendar days of the date
of the review determination letter.
(c) A member shall address and deliver his or
her signed notice of appeal to the Board of Trustees of the Arkansas Teacher
Retirement System, Member Appeals, ATTN: Legal Department, 1400 West Third
Street, Little Rock, Arkansas, 72201.
§ 13-108. Staff determinations - Appeals - Assignment of hearing officer.
(a)
(1) All
member appeals of a review determination shall be assigned to a hearing
officer.
(2) The executive director
or his or her designee shall appoint a hearing officer from a list of qualified
individuals approved by the executive director.
(3) The hearing officer shall conduct an
administrative hearing, recommend factual and legal determinations, and prepare
a proposed order for the board that includes findings of fact and conclusions
of law, separately stated.
(b)
(1)
Following appointment, the hearing officer shall issue a written scheduling
order to the member, executive director, and legal counsel for the
system.
(2) The scheduling order
shall contain include all information required under the Arkansas
Administrative Procedures Act, § 25-19-201 et seq.
(3) The hearing officer, at his or her
discretion, may include in the scheduling order reasonable deadlines for the
submission and exchange of exhibits, witness lists, and related materials
before the hearing, including without limitation, any requested proposed
findings of fact and conclusions of law.
(4) The hearing officer may continue any
scheduled matter at his or her discretion for good cause shown by any party or
counsel of record.
(c)
Unless otherwise ordered, hearings shall be held at the Arkansas Teacher
Retirement System, 1400 West Third Street, Little Rock, Arkansas
72201.
§ 13-109. Staff determinations - Appeals - Filing documents.
(a) Following
the appointment of a hearing officer, all correspondence, documents, requests,
submissions, filings and other documents relating to an appeal shall be mailed
or hand delivered to the Arkansas Teacher Retirement System, Member Appeals,
ATTN: Legal Department, 1400 West Third Street, Little Rock, Arkansas,
72201.
(b) Any party submitting or
filing a document relating to an appeal shall simultaneously deliver a copy of
the filing or document to the opposing party or, if applicable, opposing
counsel.
(c) The Arkansas Teacher
Retirement System shall be the responsible for ensuring that:
(1) Copies of all correspondence, documents,
requests, submissions, filings, and other documents relating to an appeal are
provided in a timely manner to the hearing ffficer; and
(2) A complete record of each appellate
proceeding before a hearing officer and the Board of Trustees of the Arkansas
Teacher Retirement System is prepared and maintained in a single, centralized
location.
§ 13-110. Staff determinations - Appeals - Hearings.
(a) The hearing
is an administrative hearing before the hearing officer and is not a hearing
before the Board of Trustees of the Arkansas Teacher Retirement
System.
(b)
(1) All hearings shall be conducted according
to the rules concerning the staff determination appeal process and the
corresponding procedural provisions of the Arkansas Administrative Procedures
Act, §
25-15-201 et seq.
(2) The hearing shall be informal and the
formal rules of evidence shall not apply.
(3) In conducting a hearing, the hearing
officer shall not be bound by the formal rules of evidence, and no informality
in any proceedings or in the manner of taking of testimony shall invalidate any
order or decision of the board.
(c) A member shall at all times have the
right to counsel, provided that such counsel:
(1) Is duly licensed to practice law in the
State of Arkansas; or
(2) Has been
granted permission to appear pro hac vice by the hearing
officer.
(d)
(1) All hearings shall be conducted in an
orderly manner.
(2) The hearing
officer shall have the authority to maintain the decorum of the hearing and may
clear the hearing room of witnesses who are not under examination.
(e) If a member fails to appear at
the hearing, the member waives his or her right to present evidence and
arguments to the hearing officer and the hearing officer may proceed with the
hearing and prepare a proposed order for the board's consideration based on the
evidence presented.
(f) The hearing
officer shall have the authority to administer oaths and
affirmations.
(g)
(1) Each party shall be entitled to examine
and cross-examine witnesses, present evidence, make arguments, and generally
participate in the conduct of the proceeding.
(2) The hearing officer may question a
witness during any portion of the direct or cross-examination of the
witness.
(3)
(A) Before giving testimony, each witness
shall swear or affirm that the testimony about to be given shall be the truth,
the whole truth, and nothing but the truth.
(B) All testimony considered by the hearing
officer, except for matters officially noticed or entered by stipulation, shall
be sworn testimony.
(h)
(1) The
hearing officer may admit into the record any evidence that in his or her
judgment:
(A) Has a reasonable degree of
probative value and trustworthiness; or
(B) Is of a type or nature commonly relied
upon by reasonably prudent people in the conduct of their affairs.
(2) The hearing officer may
exclude evidence that is irrelevant, immaterial, or unduly
repetitious.
(3) Objections to
evidentiary offers may be made and shall be noted of record.
(4) Documents received into evidence by the
hearing officer shall be marked and filed as part of the record.
(i) Following the close of
evidentiary submissions and witness testimony, the hearing officer may in his
or her discretion allow summations and closing arguments by the
parties.
(j)
(1) The Arkansas Teacher Retirement System
shall arrange for a court reporter to attend and record all hearings.
(2)
(A) The
system shall pay the cost for preparing a transcript of the hearing.
(B) Upon receiving the hearing transcript,
the system shall promptly forward a copy of the transcript to the hearing
officer and the member or, if applicable, the member's counsel.
§ 13-111. Staff determinations - Appeals - Post-hearing briefs.
(a)
(1) Upon the completion of the hearing, the
hearing officer may allow the parties to submit post-hearing briefs to be
included as part of the record on appeal.
(2) The decision on whether or not to allow
the submission of post-hearing briefs is within the sole discretion of the
hearing officer.
(3) A hearing
officer's decision to not allow post-hearing briefs shall have no effect on the
validity of any order or decision issued by the Board of Trustees of the
Arkansas Teacher Retirement System.
(b) If a hearing officer grants the member or
the Arkansas Teacher Retirement System an opportunity to submit a post-hearing
brief, the hearing officer shall provide the opposing party an opportunity to
submit a response.
(c) The hearing
officer shall have discretion to set reasonable deadlines for the parties to
submit post-hearing briefs and responses, provided that the parties shall be
allowed a minimum of fourteen (14) calendar days from the date of receipt of
the hearing transcript before any initial post-hearing brief shall be due for
filing.
§ 13-112. Staff determinations - Appeals - Proposed orders.
(a) After the
hearing officer receives all evidence, arguments, and, if applicable,
post-hearing briefs, the record before the hearing officer shall be officially
closed.
(b)
(1) After the record before the hearing
officer is closed and the hearing officer has considered all of the evidence,
the hearing officer shall, as soon as practical, prepare a proposed order to be
delivered to the Board of Trustees of the Arkansas Teacher Retirement
System.
(2) The proposed order
shall include:
(A) Findings of fact based
exclusively on the evidence and testimony in the record of the
hearing;
(B) Conclusions of law
that shall be separately stated from the findings of fact; and
(C) A recommendation to the board.
(3)
(A) The hearing officer shall provide the
proposed order to the board via e-mail and via United States mail addressed to
the Arkansas Teacher Retirement System, Member Appeals, ATTN: Legal Department,
1400 West Third Street, Little Rock, Arkansas, 72201.
(B) Upon receiving the proposed order, the
system shall mail a copy of the proposed order to the member and, if
applicable, the member's counsel via Certified, First Class, United States
mail, with a copy to the Executive Director of the Arkansas Teacher Retirement
System.
§ 13-113. Staff determinations - Appeals - Objections to proposed orders.
(a)
(1) The
member shall have the right to file a written statement of objections outlining
any objections, exceptions, and arguments that the member determines should be
considered by the Board of Trustees of the Arkansas Teacher Retirement System
during the board's evaluation of the hearing officer's proposed
order.
(2) A member shall not be
permitted to introduce additional evidence or testimony in his or her statement
of objections.
(b) A
member's written statement of objections shall be delivered to the Arkansas
Teacher Retirement System within twenty-one (21) calendar days of the member's
receipt of the hearing officer's proposed order.
(c)
(1)
Counsel for the system may prepare a written response to any written statement
of objections filed by the member.
(2) A copy of any response by the system
shall be provided to the board and the member and, if applicable, the member's
counsel, before the board meeting at which the hearing officer's proposed order
is scheduled to be considered by the board.
§ 13-114. Staff determinations - Appeals - Consideration of proposed orders by the Board of Trustees of the Arkansas Teacher Retirement System.
(a) The Board of Trustees of the Arkansas
Teacher Retirement System shall render a final determination on the hearing
officer's proposed order.
(b)
(1) The board's consideration of the hearing
officer's proposed order shall be scheduled within a reasonable time to be
heard, at a regular meeting of the board after the issuance of the proposed
order.
(2) The board may call an
emergency meeting to consider the hearing officer's proposed order if the
situation warrants.
(3) The
Arkansas Teacher Retirement System shall notify the member and, if applicable,
the member's counsel in writing of the date, time, and location of the board
meeting at which the board intends to consider the hearing officer's proposed
order.
(c)
(1) Before rendering a decision on the
hearing officer's proposed order, the board may request that the member and, if
applicable, the member's counsel make a brief statement to the board concerning
facts and any arguments that the member wishes to present and respond to any
questions from the board.
(2) The
board's consideration of a brief statement and any responses to questions made
by the member or, if applicable, the member's counsel shall not require the
board to conduct another hearing and shall be based on the hearing previously
conducted before the hearing officer.
(2) The chairman of the board shall have the
final authority to set the amount of time any party may have to make a
statement to the board.
(d)
(1)
Failure of a member to appear at the meeting of the board without prior
notification shall result in the member waiving his or her right to be heard by
the board.
(2)
(A) A member may petition the board for
another opportunity to address the board.
(B) The board may grant a member's petition
for another opportunity to address the board if the board determines that the
member's absence was for good cause.
(e)
(1)
After the board's consideration of the hearing officer's proposed order, the
board shall either accept or reject all or part of the hearing officer's
proposed order.
(2) The board may
either accept the proposed order, reject the proposed order, or accept the
proposed order as modified by the board.
(3) If the board rejects the proposed order
or accepts the proposed order as modified by the board, the board may:
(A) Prepare its own written findings of fact
and conclusions of law, separately state, and issue its own order based upon
those findings and conclusions;
(B)
Consider manifest injustice as a basis for any remedy; or
(C) Remand the matter in whole or in part to
the hearing officer for reconsideration of additional findings of fact or
conclusions of law or both additional findings of fact and conclusions of
law.
(f) A
quorum of votes of the board is necessary to approve any motion, resolution, or
order under the board's consideration.
(g)
(1)
Following the board's decision on the hearing officer's proposed order, the
board shall prepare a written final order on the member's appeal.
(2) The board's final order shall include
findings of fact and conclusions of law, separately stated, that were relied
upon by the board in formulating the final order.
(3) The board's final order shall be a final
decision or order of the system that may be appealed under the Arkansas
Administrative Procedures Act, §
25-15-201 et seq.
(4) A copy of the board's final order,
including the board's findings of fact and conclusions of law, separately
stated, shall be delivered by the Executive Director of the Arkansas Teacher
Retirement System to the member and, if applicable, the member's counsel via
Certified, First Class, United States.
§ 13-115. Staff determinations - Appeals - Settlement authority.
(a) With the member's written consent or, if
applicable, the written consent of the member's counsel, the Executive Director
the Arkansas Teacher Retirement System may suspend his or her review of a
member's claim being considered under the rules concerning the staff
determination and appeal process if the member's claim may be more expediently
resolved using the manifest injustice process.
(b) The executive director may settle any
claim in a manner mutually agreeable to the Arkansas Teacher Retirement System
and the member at any time before the Board of Trustees of the Arkansas Teacher
Retirement System issues its final order on the member's appeal.
(c) In settling any claim, the executive
director shall not exceed the authority previously granted to him or her by the
board.
(d) The executive director
shall report any settlement that occurs after the hearing officer issues a
proposed order to the board.
§ 13-116. Staff determinations - Appeals - Rights of members under the Arkansas Administrative Procedures Act.
(a) A member who
receives an adverse final order from the Board of Trustees of the Arkansas
Teacher Retirement System retains certain rights under the Arkansas
Administrative Procedures Act, §
25-15-201 et seq.
(b)
(1) A
member may file a petition for judicial review under the Arkansas
Administrative Procedures Act, §
25-15-201 et seq.
(2) A petition for judicial review of a final
or of the board shall be filed by the member within thirty (30) days after
service of the board's final order on the member.
(3) A member shall file the petition for
judicial review in Pulaski County Circuit Court or the circuit court of any
county in which the member resides or does business.
§ 13-117. Staff determinations -Appeals - Ex parte communications.
(a) The
Arkansas Administrative Procedures Act, §
25-15-201 et seq., prohibits
direct or indirect communications between the members and staff of the Arkansas
Teacher Retirement System and a hearing officer or a member of the Board of
Trustees of the Arkansas Teacher Retirement System concerning any issue of fact
or law at issue in a member's appeal unless there has been notice providing all
parties with an opportunity to participate in the communication.
(b) A hearing officer and a member of the
board shall not consider any ex-parte or off-the-record evidence or statements
made to them by the member or a staff member of the system in connection with a
pending appeal.
(c) This section
does not preclude communications by and between the hearing officer, system
staff, and the board concerning minor scheduling and procedural matters
necessary to timely and efficiently process and handle member appeals under the
rules concerning the staff determination and appeal process.
§ 13-118. Manifest injustice.
(a) The Board of Trustees of the Arkansas
Teacher Retirement System may waive or modify the impact of a rule, provision,
or law applicable to the Arkansas Teacher Retirement System that does not
violate a federal law or jeopardize the tax qualified status of the system in
order to prevent a manifest injustice to a member, benefit participant, covered
employer, or the system.
(b)
(1) The process of declaring a manifest
injustice is a rare and extraordinary remedy that shall not be used as a
routine method of addressing error, oversight, or simple mistake.
(2) As an extraordinary remedy, manifest
injustice shall be cautiously and carefully used to prevent unfairness, to
preserve the integrity of the system, and to avoid or correct unduly harsh or
unconscionable outcomes.
(c) In determining whether or not a manifest
injustice exists, the system may consider:
(1)
The degree of fault of the system, benefit participant, or employer;
(2) An ambiguity in the interpretation of the
circumstances, rule, or law;
(3)
The cost to the system of correcting the error that is far outweighed by the
benefit afforded to the system, benefit participant, or employer;
(4) Whether or not an expedited decision is
in the public interest;
(5) The
fundamental fairness of a remedy in a particular situation; and
(6) Whether or not the status quo would
result in an unconscionable outcome.
(d)
(1) The
manifest injustice process shall not be used to address a change, omission, or
error in the records of the system that may be corrected within the look-back
period.
(2) The manifest injustice
process may be used to correct a change, omission, or error in the records of
the system discovered after the look-back period if the board determines that
the time limitation imposed by the look-back period would cause a manifest
injustice.
§ 13-119. Manifest injustice - Referrals.
(a) A manifest
injustice referral shall be made to the Executive Director of the Arkansas
Teacher Retirement System.
(b)
(1) The following persons or entities may
submit a manifest injustice referral to the executive director:
(A) A member of the Board of Trustees of the
Arkansas Teacher Retirement System;
(B) A staff member of the system, including
without limitation the executive director;
(C) A benefit participant as defined by
Arkansas Code §
24-7-202;
(D) A covered employer; or
(E) A guardian, fiduciary, or other
interested party.
(2) A
member of the Manifest Injustice Committee shall not be permitted to make a
manifest injustice referral to the executive director.
(c)
(1) The
Arkansas Teacher Retirement System shall create and maintain a record of each
manifest injustice referral submitted to the executive director and the
resolution of the manifest injustice referral.
(2) The executive director shall submit all
manifest injustice referrals to the committee.
(3) Each referral shall be given a number and
a year designation by the committee.
§ 13-120. Manifest injustice - Authority of executive director.
(a) With the member's written consent or, if
applicable, the written consent of the member's counsel, the Executive Director
the Arkansas Teacher Retirement System may suspend his or her review of a
member's claim being considered under the rules concerning the staff
determination and appeal process if the member's claim may be more expediently
resolved using the manifest injustice process.
(b)
(1) The
executive director is authorized to implement a resolution of a manifest
injustice after a determination is made that a manifest injustice exists using
the rules concerning the manifest injustice process.
(2)
(A) The
executive director may implement a resolution of a manifest injustice of up to
five thousand dollars ($5,000) of direct financial impact to the Arkansas
Teacher Retirement System.
(B) The
executive director shall provide the chair of the Board of Trustees of the
Arkansas Teacher Retirement System with written notice of a manifest injustice
determination and the proposed resolution before implementing the resolution if
a resolution has a direct financial impact on the system in an amount exceeding
five thousand dollars ($5,000).
(c)
(1) The
executive director shall not waive a deadline that may apply in the law or
rules applicable to the system.
(2)
Only the Board of Trustees of the Arkansas Teacher Retirement System may waive
a deadline.
(d)
(1) The executive director shall provide a
report to the board at least biannually that:
(A) Outlines the facts and circumstances of
each manifest injustice referral;
(B) Describes findings and recommendations of
the manifest injustice committee; and
(C) Provides and explains the resolution of
the manifest injustice referral if a manifest injustice is found.
(2) The names of members or other
information that is not material to the findings shall not be required in the
report to the board.
§ 13-121. Manifest injustice - Manifest Injustice Committee.
(a) The Arkansas Teacher Retirement System's
General Counsel and two (2) members of senior management designated by the
Executive Director shall be the sole members of the Manifest Injustice
Committee.
(b)
(1) The committee shall review all manifest
injustice referrals and shall meet on a reasonable schedule or as needed to
review manifest injustice referrals.
(2) If a committee member has a conflict or
otherwise cannot review or act on a manifest injustice referral due to absence,
sickness, or work load, the committee member may appoint a representative from
his or her supervised staff to review or act on the manifest injustice referral
on the committee member's behalf.
(3) A majority vote of the committee shall
constitute a recommendation on a manifest injustice referral.
(c)
(1) The committee may request that a party to
the manifest injustice referral provide information or input concerning the
manifest injustice referral.
(2) A
party to the manifest injustice referral is not required to provide any
information or input requested by the committee.
(d)
(1) The
committee shall make a recommendation on the existence of a manifest injustice
to the Executive Director of the Arkansas Teacher Retirement System based upon
the committee's review of the manifest injustice referral.
(2) If the committee finds that a manifest
injustice exists, then the committee shall propose and include in its
recommendation a resolution of the manifest injustice.
§ 13-122. Manifest injustice - Review of recommendation.
(a)
(1) The Executive Director of the Arkansas
Teacher Retirement System shall review the manifest injustice referral and the
Manifest Injustice Committee's basis for the recommendation.
(2)
(A) The
executive director may request that a party to the manifest injustice referral
provide information or input concerning the manifest injustice
referral.
(B) A party to the
manifest injustice referral is not required to provide any information or input
requested by the executive director.
(b)
(1) The
executive director may either accept the committee's recommendation or return
the manifest injustice referral to the committee for further consideration if
the executive director disagrees with the committee's recommendation.
(2)
(A) The
manifest injustice referral shall be considered reviewed and closed if the
committee recommends that a manifest injustice exists and the executive
director accepts the recommendation.
(B) If the committee recommends that a
manifest injustice exists and the executive director accepts the
recommendation, the executive director may either adopt the resolution
suggested by the committee or an alternative resolution that the executive
director is authorized to implement.
(C) A committee's recommendation that is
accepted by the executive director and finds that a manifest injustice exists
is not appealable under the rules concerning the staff determination appeal
process or the Arkansas Administrative Procedures Act, §
25-15-201 et seq.
(3)
(A) The manifest injustice referral shall be
considered reviewed and closed if the committee recommends that a manifest
injustice does not exist, the executive director accepts the recommendation,
and the recommendation is not appealed to the Board of Trustees of the Arkansas
Teacher Retirement System using the rules concerning the staff determination
appeal process.
(B)
(i) A committee's recommendation that is
accepted by the executive director and finds that a manifest injustice does not
exist may be appealed to the board using the rules concerning the staff
determination appeal process if the manifest injustice referral involves:
(a) An ambiguity in the interpretation of the
specific facts of the member's claim that would impact the manner in which the
law, rules, or policy applicable to the system are applied to the member's
claim;
(b) An ambiguity in the
interpretation of the law, rules, or policy applicable to the system;
or
(c) An ambiguity concerning the
proper application of the law, rules, or policy applicable to the system to the
specific facts of the member's claim.
(ii) A board member or staff member of the
system shall not be permitted to appeal a committee's recommendation that is
accepted by the executive director.
(iii) A committee's written recommendation
shall not be considered a final decision or order of the system that may be
appealed under the Arkansas Administrative Procedures Act, §
25-15-201 et seq.
(4)
(A) If a manifest injustice referral is
returned to the committee by the executive director, the manifest injustice
committee shall reconsider the manifest injustice referral and take into
consideration any addition information provided by the executive
director.
(B) The committee may
maintain or amend its original recommendation after reconsidering a manifest
injustice referral that is returned by the executive director.
(C)
(i) If
the committee maintains its original recommendation and the executive director
does not accept the recommendation, the executive director may include the
manifest injustice referral as an action item on the agenda of the board's next
scheduled meeting for consideration and resolution by board.
(ii) If the manifest injustice referral was
submitted by a person or entity who is not a board or staff member of the
Arkansas Teacher Retirement System, the system shall send the person or entity
written notice that:
(a) Provides the time and
date on which the board intends to consider the manifest injustice
referral;
(b) Advises the person or
entity that the person or entity may present arguments to the board concerning
the manifest injustice referral;
(c) Advises the person or entity that the
system will send the person or entity a written final order of the board after
the board meeting; and
(d) Advises
that the board's final order shall be a final decision or order of the system
that may be appealed by the person or entity under the Arkansas Administrative
Procedures Act, §
25-15-201 et seq.
(D) If the board finds
that a manifest injustice does exist, the board may implement a resolution
suggested by the system's staff or an alternative resolution.
(E) A final order of the board concerning a
manifest injustice referral shall be considered the final decision or order of
the system that may be appealed under the Arkansas Administrative Procedures
Act, §
25-15-201 et seq.
Authority: Arkansas Code §§ 24-7-202, 24-7-205, and 25-15-201 - 24-15-219.
History
|
Approved: |
February 1, 2010 |
(Emergency), 13-1 |
|
Approved: |
June 7, 2010 |
Permanent, 13-1 |
|
Approved by Board: |
July 26, 2013 |
13-1, 17-1 |
|
Amended: |
October 9, 2013 |
13-1 |
|
Adopted: |
October 9, 2013 |
17-1 |
|
Effective: |
November 8, 2013 |
13-1, 17-1 |
|
Final Approval bv Board: |
February 5, 2018 |
13-1 |
|
Effective: |
February 16, 2018 |
13-1 |
|
Effective: |
TBD |
Rule 13-1 |
Disclaimer: These regulations may not be the most recent version. Arkansas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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