Current through Register Vol. 51, No. 3, September 1, 2024
RELATES TO:
KRS
319A.190,
319A.200
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 319A and
KRS
319A.190 provide for promulgation of
administrative regulations governing the conduct of administrative hearings
authorized by the Act. This administrative regulation sets forth the procedure
by which such hearings are to be conducted.
Section
1. Composition of the Board for Purposes of a Hearing.
(1) Disciplinary actions may be heard by a
quorum of the board members eligible to hear that particular case, the board's
designated hearing officer, or both.
(2) The board may appoint a licensed attorney
as a hearing officer to preside over the hearing, conduct all prehearing
activities, prepare findings of fact and conclusions of law at the direction of
the board, and provide legal advice to the board.
(3) A board member who has participated in
the investigation of a disciplinary action or who has personal knowledge of the
facts giving rise to a disciplinary action shall not sit as a member of the
board hearing that particular action and shall not be considered an eligible
member for purposes of determining a quorum.
(4) Staff members of the board, legal counsel
for the board and a court stenographer may also be present for the
hearing.
Section 2.
Rights of the Licensee or Applicant. The licensee or applicant shall have the
right to be present and to be heard at the hearing, to be represented by legal
counsel, to present evidence, to cross-examine witnesses presented by the
board, and to make both opening and closing statements. The licensee or
applicant shall also have the right to have subpoenas issued in accordance with
KRS
319A.070(2).
Section 3. Prehearing Disclosure of Evidence.
(1) By the board. The names, addresses, and
phone numbers of witnesses expected to be called by the board shall be made
available upon request of the licensee or applicant. Copies of documentary
evidence may be obtained upon the payment of a reasonable charge therefor,
except documents protected from disclosure by state or federal law. Nothing in
this section shall be construed as giving the licensee or applicant the right
to examine or copy the personal notes, observations, or conclusions of the
board's investigators nor shall it be construed as allowing access to the work
product of legal counsel for the board. The licensee or applicant shall also be
permitted to examine any items of tangible evidence in the possession of the
board.
(2) By the licensee or
applicant. At least ten (10) days prior to the scheduled hearing date the
licensee or applicant shall furnish to the investigator or legal counsel for
the board copies of any documents which the licensee or applicant intends to
introduce at the hearing, and a list of the names, addresses, and home and work
telephone numbers of any witnesses to be presented to the board by the licensee
or applicant. The licensee or applicant shall also produce for inspection any
items of tangible evidence within his possession or control which he intends to
introduce at the hearing.
(3)
Written response. At least ten (10) days prior to the scheduled hearing date,
the licensee or applicant shall also file with the board a sworn (under oath)
written response to the specific allegations contained in the notice of
charges. Allegations not answered shall be deemed admitted. The board may for
good cause permit the late filing of a response.
(4) Sanctions for failure to comply with
prehearing disclosure. Should a party fail to comply with this section the
board hearing the disciplinary action may refuse to allow into evidence such
items or testimony as have not been disclosed, may continue the action to allow
the opposing party a fair opportunity to meet the new evidence, or may make
other orders as it deems appropriate.
(5) Continuing duty to disclose. After
disclosure has been completed, each party shall remain under an obligation to
disclose any new or additional items of evidence which the party intends to
introduce or witnesses the party intends to have testify. Additional disclosure
shall take place as soon as practicable. Failure to disclose may result in the
exclusion of the new evidence or testimony from the hearing.
Section 4. Order of Proceeding.
(1) The hearing officer or presiding officer
shall call the hearing to order and shall identify the parties to the action
and the persons present and shall read the letter of notice and charges. The
hearing officer shall then ask the parties to state any objections or motions.
The hearing officer shall rule upon any objections or motions, subject to being
overridden by a majority vote of the members of the board. Opening statements
shall then be made, with the attorney for the board proceeding first. Either
side may waive opening statement.
(2) The taking of proof shall commence with
the calling of witnesses on behalf of the board. Such witnesses shall be
examined first by the attorney for the board, then by the licensee or applicant
or that person's attorney, and finally by members of the board. Rebuttal
examination of witnesses shall proceed in the same order. Documents or other
items may be introduced into evidence as appropriate.
(3) Upon conclusion of the case for the
board, the licensee or applicant shall call its witnesses. The witnesses shall
be examined first by the licensee or applicant or that person's attorney, then
by the attorney for the board, and finally by the members of the board.
Rebuttal examination of those witnesses shall proceed in the same order. Again,
documents or other evidence may be introduced as appropriate.
(4) At the conclusion of the proof, the
parties shall be afforded the opportunity to make a closing statement, with the
attorney for the board always proceeding last. The hearing officer may impose
reasonable limitations upon the time allowed for opening and closing
statements.
(5) The hearing officer
shall also be responsible for enforcing the general rules of conduct and
decorum and expediting the hearing by keeping the testimony and exhibits
relevant to the case.
Section
5. Rules of Evidence.
(1) The
board shall not be bound by the technical rules of evidence. The board may
receive any evidence which it considers to be reliable, including testimony
which would be hearsay if presented in a court of law. Documentary evidence may
be admitted in the form of copies or excerpts, and need be authenticated only
to the extent that the board is satisfied of its genuineness and accuracy.
Tangible items may be received into evidence without the necessity of
establishing a technical legal chain of custody so long as the board is
satisfied that the item is what it is represented to be and that it is in
substantially the same condition as it was at the time of the events under
consideration.
(2) The board
retains the discretion to exclude any evidence which it considers to be
unreliable, incompetent, irrelevant, immaterial or unduly repetitious. Rulings
on objections to evidence shall be made by the hearing officer but may be
overridden by a majority vote of the eligible members of the board.
Section 6. Decisions by the Board.
(1) Upon the conclusion of the hearing, the
board shall retire into closed session for the purpose of
deliberations.
(2) At the
conclusion of the board's deliberations it shall propose an order based upon
the evidence presented. The hearing officer shall draft a proposed order
including findings of fact and conclusions of law consistent with the board's
deliberations as well as a recommended order to be submitted to the full
board.
Section 7. Final
Approval by the Board. The board, at its next meeting, or as soon thereafter as
may be arranged, shall review the proposed order and consider it for final
approval.
Section 8. Continuances;
Proceedings in Absentia. It is the policy of the board not to postpone cases
which have been scheduled for hearing absent good cause. A request by a
licensee or applicant for a continuance may be considered if communicated to
the staff reasonably in advance of the scheduled hearing date and based upon
good cause. The decision whether to grant a continuance shall be made by the
hearing officer or chairman of the board. However, the burden is upon the
licensee or applicant to be present at a scheduled hearing. Failure to appear
at a scheduled hearing for which a continuance has not been granted in advance
shall be deemed a waiver of the right to appear and the hearing shall be held
as scheduled.
STATUTORY AUTHORITY:
KRS
319A.070(3),
319A.190
