A. Consolidation.
The State Board may consolidate complaints if they relate to the
same actions or events, or if they raise common questions of law or
fact.
B. Record.
(1) The State Board shall compile and
maintain an official record in connection with each complaint filed in
accordance with §§
402 and
403 of this rule.
(2) The official record shall contain:
a) A copy of the complaint, including any
amendments made with the permission of the State Board;
b) A copy of any written submission by the
Complainant;
c) A copy of any
written response by any Respondent or other interested person;
d) A written report of any investigation
conducted by members or employees of the State Board or of any local board of
election commissioners, who may not be directly involved in the actions or
events complained of and may not directly supervise or be directly supervised
by any Respondent;
e) Copies of all
notices and correspondence to or from the State Board in connection with the
complaint;
f) Originals or copies
of any tangible evidence produced at any hearing conducted under § C of
this rule;
g) The original tape
recording produced at any hearing conducted under § C of this rule, and a
copy of any transcript obtained by the State Board, any local board of election
commissioners, or other party; and
h) A copy of any final determination made by
the State Board under § D or § E of this rule.
C. Hearing
(1) At the request of the Complainant, there
shall be a hearing on the record.
(2) The Complainant must submit within thirty
(30) days of filing the complaint, a written request for a hearing.
(3) The hearing shall be conducted no later
than sixty (60) days after the State Board receives the complaint.
(4) The Director of the State Board shall
give at least five (5) business days' advance notice of the date, time, and
place of the hearing:
a) By mail to the
Complainant, each named Respondent, and any other interested person who has
asked in writing to be advised of the hearing;
b) By posting in a prominent place, available
to the general public, at the office of the State Board.
(5) The Director of the State Board or the
Director's designee shall act as hearing officer.
(6) The Complainant, any Respondent, or any
other interested member of the public may appear at the hearing and testify or
present tangible evidence in connection with the complaint.
a) Each witness shall be sworn.
b) The hearing officer may limit the
testimony, if necessary, to ensure that all interested participants are able to
present their views.
c) The hearing
officer may recess the hearing and reconvene at a later date, time, and place
announced publicly at the hearing.
(7) A Complainant, Respondent, or other
person who testifies or presents evidence at the hearing may, but need not, be
represented by an attorney.
(8)
There shall be no right of cross-examination.
a) A person may testify or present evidence
to contradict any other testimony or evidence.
b) If a person has already testified or
presented evidence at the hearing and wishes to contradict testimony or
evidence subsequently presented, that person is not entitled to be heard again,
but may make a written presentation to the hearing officer.
(9) The proceedings shall be
tape-recorded by the Director of the State Board.
a) The recording shall not be transcribed as
a matter of course, but the State Board, a local board of election
commissioners, or any party may obtain a transcript at its own
expense.
b) If a local board of
election commissioners or other party obtains a transcript, the board or party
shall file a copy as part of the record, and any other interested person may
examine the record copy.
(10) Any party to the proceedings may file a
written brief or memorandum within five (5) business days after the conclusion
of the hearing. No responsive or reply memoranda will be accepted, except with
the specific authorization of the hearing officer.
D. Final Determination
(1) If the complaint is not filed timely or
in proper form, the State Board, acting through the Director or the Director's
designee, shall dismiss the complaint.
(2) If there has been no hearing under §
C of this rule, the Director of the State Board or the Director's designee
shall review the record and determine whether, under a preponderance of the
evidence standard, a violation of Title III has been established. The
determination of the Director or the Director's designee shall be the
determination of the State Board.
(3) At the conclusion of any hearing under
§ C of this rule, the hearing officer shall determine, under a
preponderance of the evidence standard, whether a violation of Title III has
been established. The determination of the hearing officer shall be the
determination of the State Board.
(4) If the Director of the State Board or the
Director's designee, whether acting as hearing officer or otherwise, determines
that a violation has occurred, the State Board, acting through the Director or
Director's designee, shall provide the appropriate remedy.
a) The remedy may include, but is not limited
to, a determination directing the Respondent to take specified action with
respect to a past or future election.
b) The remedy may not include an award of
money damages or attorney's fees.
(5) If the Director of the State Board or the
Director's designee, whether acting as hearing officer or otherwise, determines
that a violation has not occurred or that there is insufficient evidence to
establish a violation, the State Board, acting through the Director or
Director's designee, shall dismiss the complaint.
(6) The Director of the State Board or the
Director's designee shall explain in a written decision the reasons for the
determination and for any remedy selected.
(7) Either the Complainant or the Respondent
may appeal the decision of the Director of the State Board or the Director's
designee by submitting a written request to the Director within three (3) days
of receipt of the decision. The members of the State Board may review the
record compiled in connection with the complaint, including the tape recording
or any transcript of a hearing and any briefs or memoranda, but shall not
receive additional testimony or evidence. In exceptional cases, the State Board
may request that the parties present additional briefs or memoranda. The State
Board shall issue a written decision affirming, reversing, or modifying the
decision being appealed within five (5) days of the State Board's
review.
(8) Except as specified in
subsection (9) of this section, the final determination shall be issued within
ninety (90) days after the complaint was filed, unless the Complainant consents
in writing to an extension.
a) The final
determination shall be mailed to the Complainant, each Respondent, and any
other interested person who has asked in writing to be advised of the final
determination.
b) The final
determination shall be published on the State Board's website and made
available on request to any interested person.
(9) If a final determination is not made
within ninety (90) days after the complaint was filed, or within any extension
to which the Complainant consents, the complaint shall be referred for final
resolution under § E of this rule. The record compiled under § B of
this rule shall be made available for use under § E of this
rule.
E. Alternate
Dispute Resolution
If, for any reason, the Director of the State Board or the
Director's designee does not render a final determination within ninety (90)
days after the complaint was filed, or within any extension to which the
Complainant consents, the complaint shall be resolved under this
section.
(1) On or before the fifth
business day after a final State Board determination was due, the State Board
shall designate in writing to the Complainant the name of an arbitrator to
serve on a panel to resolve the complaint.
a)
Within three (3) business days after the Complainant receives this designation,
the Complainant shall designate in writing to the State Board the name of a
second arbitrator.
b) Within three
(3) business days after the Complainant's designation, the two (2) arbitrators
so designated shall select a third arbitrator to complete the panel.
(2) The arbitrator shall be
selected from the certified list published by the Arkansas Alternative Dispute
Resolution Commission.
(3) The
arbitration panel may review the record compiled in connection with the
complaint, including the tape recording or any transcript of a hearing and any
briefs or memoranda, but shall not receive additional testimony or evidence. In
exceptional cases, the panel may request that the parties present additional
briefs or memoranda.
(4) The
arbitrators shall determine the appropriate resolution of the complaint by a
majority vote.
(5) The arbitration
panel must issue a written resolution within sixty (60) days after the final
State Board determination was due under § D of this rule.
a) This sixty (60) day period may not be
extended.
b) The final resolution
of the panel shall be transmitted to the State Board and shall be the final
resolution of the complaint.
c) The
final resolution shall be mailed to the Complainant, each Respondent, and any
other interested person who has asked in writing to be advised of the final
resolution.
d) The final resolution
shall be published on the State Board's website and made available on request
to any interested person.