Current through Register Vol. 51, No. 3, September 1, 2024
RELATES TO: KRS Chapter 13B, 441
NECESSITY, FUNCTION, AND CONFORMITY: KRS 196.035 authorizes the
secretary to promulgate administrative regulations necessary or suitable for
the proper administration of the functions of the cabinet or any division in
the cabinet. The Commissioner of the Department of Corrections is authorized by
KRS 441.075(4) to hear matters covered by the order of the department
requesting jails, correctional or detention facilities to comply with the
minimum standards for local jails pursuant to KRS 441.055 and to issue, modify
or repeal the order at the conclusion of the hearing. This administrative
regulations establishes procedures and definitions for administrative
hearings.
Section 1. Definitions.
(1) "Day" means a calendar day.
(2) "Hearing officer" means a hearing officer
appointed by the commissioner pursuant to KRS 441.075.
(3) "Order" means the order of the
commissioner requiring the petitioner or petitioners to comply with the minimum
jail standards for local jails as specified in the order.
(4) "Petitioner" means the jailer or
county/judge executive who requests a hearing for review of the commissioner's
order.
(5) "Proceeding" means any
proceeding before the commissioner or before a hearing officer.
(6) "Standards" means the minimum jail
standards for local jails as established by the department in 501 KAR Chapters
3, 7, and 13.
Section 2.
Assignment of Hearing; Filings.
(1) Pursuant
to KRS 441.075(4), cases coming before the commissioner may be assigned to a
hearing officer within the discretion of the commissioner for a hearing and a
finding of facts, conclusions of law, and recommended order. Cases may be
withdrawn by agreement, dismissed for cause, or otherwise disposed of before
hearing in the discretion and judgment of the commissioner.
(2) A recommended order or adjudication by
the hearing officer or the initial order of the commissioner, if dismissed or
disposed of as provided in subsection (1) of this section, or any modification
or repeal of the initial order, shall become the final order of the
commissioner under the provisions of KRS 441.075(4), appealable to the Franklin
Circuit Court, thirty (30) days from the date of issue.
(3) Prior to the assignment of a case to a
hearing officer, the jailer or county judge/executive shall, within seventy-two
(72) hours of receipt of notification of the order, request in writing a public
hearing before the commissioner or his designee on the matters covered by the
order to the Commissioner of the Department of Corrections, Division of Local
Facilities, P.O. Box 2400, Frankfort, Kentucky 40602-2400. Subsequent to the
assignment of the case to a hearing officer and prior to the issuance of his
decision, all papers shall be filed with the hearing officer at the address
given in the notice of hearing.
(4)
All evidence and witnesses of both parties and interveners and all proof shall
be presented at the hearing. Additional evidence shall not be permitted after
the hearing except in unusual circumstances and within the discretion of the
commissioner or the hearing officer.
(5) All hearings shall be held in Frankfort,
Kentucky unless otherwise ordered by the commissioner.
(6) Unless otherwise ordered, all filing may
be accomplished by:
(a) First class mail;
or
(b) Sending to
Jail.Inspections@ky.gov and including "Hearing" in the subject line of the
message.
(7) Filing
shall be deemed effective when mailed, if sent by first class mail, or when the
email is received in the designated email account.
Section 3. Scope of Rules; Applicability of
Kentucky Rules of Civil Procedure.
(1) This
administrative regulation shall govern all proceedings before the department
and its hearing officers.
(2) In
the absence of a specific provision, procedure shall be in accordance with KRS
Chapter 13B and the Kentucky Rules of Civil Procedure.
Section 4. Computation of Time. If service of
a pleading or documents is by mail pursuant to Section 2 of this administrative
regulation, three (3) days shall be added to the time allowed by this
administrative regulation for the filing of a responsive pleading.
Section 5. Notice and Time of Hearing.
(1) Notice of hearings shall be given to all
parties and interveners within forty-five (45) days from the receipt of the
request for hearing unless otherwise ordered by the commissioner or his
designee. A hearing shall not be held later than ninety (90) days from the date
of request.
(2) The notice of
hearing shall comply with KRS 13B.050(3).
Section 6. Continuance of Hearing.
(1) Continuance of a hearing shall not be
allowed except in the case of an extreme emergency or in usual
circumstances.
(2) A request for a
continuance shall be provided to the department at least three (3) days in
advance of the time set for the hearing. The request for continuance shall
include the reasons for the continuance.
(3) The hearing officer may consider a
request for an extension during the hearing, if extenuating circumstances:
(a) Arise during the hearing; or
(b) Prevented compliance with the timing
provisions of subsection (2) of this section.
(4) Continuance of the hearing not in excess
of fifteen (15) days may be granted in the discretion of the hearing officer.
One (1) additional continuance not in excess of fifteen (15) days may be
granted by the hearing officer in extreme emergency or under unusual
circumstances. An additional continuance shall not be granted without approval
of the commissioner.
Section
7. Failure to Appear.
(1) Subject
to the provisions of subsection (3) of this section, the failure of a party to
appear at a hearing shall be deemed to be a waiver of all rights except the
right to be served with a copy of the decision of the hearing
officer.
(2) Requests for a newly
scheduled hearing shall be made in the absence of extraordinary circumstances
within five (5) days after the scheduled hearing date.
(3) The commissioner or the hearing officer,
upon a showing of good cause, may excuse a failure to appear. If the failure to
appear is excused, the hearing shall be rescheduled.
Section 8. Consolidation. Cases may be
consolidated on the motion of any party, on the hearing officer's own motion,
or on the commissioner's own motion, if there exist common parties, common
questions of law or fact, or both, or in other appropriate
circumstances.
Section 9.
Severance. Upon his or her own motion, or upon motion of any party or
intervener, the commissioner or the hearing officer may, for good cause, order
any proceeding severed with respect to some or all issues or parties.
Section 10. Intervention.
(1) A petition for leave to intervene may be
filed at any stage of a proceeding before commencement of the hearing, or in
the event of a settlement or dismissal, before issuance of a recommended
order.
(2) The petition shall set
forth the interest of the petitioner in the proceeding and show that
participation of the petitioner will assist in the determination of the issues
in question and that the intervention will not unnecessarily delay the
proceeding.
(3) The commissioner or
the hearing officer may grant a petition for intervention to the extent and
upon the terms determined by the commissioner or the hearing officer.
(4) The caption of all cases where
intervention is allowed shall reflect the intervention by adding to the caption
after the name of the respondent the name of the intervener, followed by the
designation "intervener."
Section
11. Service.
(1) If filing
pleadings or other documents, the filing party or intervenor shall serve a copy
on every other party or intervener.
(2) Service upon a party or intervener who
has appeared through a representative shall be made only upon the
representative.
(3) Unless
otherwise ordered, service may be accomplished by postage prepaid first-class
mail, by personal delivery, or by email to the email address provided by the
party. Service shall be deemed effected at the time of mailing (if by mail), at
the time of personal delivery (if by personal delivery), or at the time the
email is received in the email account.
(4) Proof of service shall be accomplished by
a written statement of service which sets forth the date and manner of service.
The statement shall be filed with the pleading or document.
Section 12. Statement of Position.
At any time prior to the commencement of the hearing before the hearing
officer, any person entitled to appear as a party, or any person who has been
granted leave to intervene, may file a statement of position with respect to
any or all issues to be heard.
Section
13. Response to Motions. Any party or intervener upon whom a
motion is served shall have ten (10) days from service of the motion to file a
response.
Section 14. Failure to
File. Failure to file any pleading pursuant to this administrative regulation
when due, may, in the discretion of the commissioner or the hearing officer,
constitute a waiver of right to further participation in the
proceedings.
Section 15. Withdrawal
of Notice of Hearing. At any stage of a proceeding, a party may withdraw his
notice of hearing, subject to the approval of the commissioner.
Section 16. Prehearing Conference.
(1) At any time before a hearing, the
commissioner or the hearing officer, on his or her own motion or on motion of a
party, may direct the parties or their representatives to exchange information
or to participate in a prehearing conference for the purpose of considering
matters which will tend to simplify the issues or expedite the proceedings, or
for any other matter in accordance with KRS 13B.070(1).
(2) The commissioner or the hearing officer
may issue a prehearing order in accordance with KRS 13B.070(2). The order shall
be served on all parties and shall be a part of the record.
Section 17. Requests for
Admissions.
(1) At any time after the filing
of responsive pleadings, any party may request of any other party admissions of
facts to be made under oath. Each admission requested shall be set forth
separately. The matter shall be deemed admitted unless, within fifteen (15)
days after service of the request, or within a shorter or longer time as the
commissioner or the hearing officer may prescribe, the party to whom the
request is directed serves upon the party requesting the admission of a
specific written response.
(2)
Copies of all requests and responses shall be served on all parties in
accordance with this administrative regulation and filed with the commissioner
within the time allotted and shall be a part of the record.
Section 18. Discovery Depositions
and Interrogatories.
(1) Except by special
order of the commissioner or the hearing officer, discovery depositions of
parties, interveners, or witnesses, and interrogatories directed to parties,
interveners, or witnesses shall not be allowed.
(2) If the commissioner or the hearing
officer grants an application to conduct discovery depositions or
interrogatories, the order shall set forth appropriate time limits governing
the discovery.
Section
19. Failure to Comply with Orders for Discovery. If any party or
intervener fails to comply with an order of the commissioner or the hearing
officer to permit discovery in accordance with the provisions of this
administrative regulation, the commissioner or the hearing officer may issue
appropriate orders.
Section 20.
Duties and Powers of Hearing Officers. It shall be the duty of the hearing
officer to conduct a fair and impartial hearing, ensure that the facts are
fully elicited, adjudicate all issues, and avoid delay. The hearing officer, in
cases assigned to him, between the time he is designated and the time he issues
his decision, subject to the administrative regulations of the department, may:
(1) Administer oaths and
affirmations;
(2) Rule upon offers
of proof and receive relevant evidence;
(3) Regulate the course of the hearing and,
if appropriate or necessary, exclude persons or counsel from the hearing for
contemptuous conduct and strike all related testimony of witnesses refusing to
answer any proper questions;
(4)
Hold conferences for the settlement or simplification of the issues;
(5) Dispose of procedural requests or similar
matters including motions referred to the hearing officer by the commissioner
and motions to amend pleadings; also to dismiss complaints or portions thereof,
and to order hearings reopened or, upon motion, consolidated;
(6) Examine witnesses and to introduce into
the record documentary or other evidence;
(7) Request the parties at any time during
the hearing to state their respective positions concerning any issue in the
case or theory in support thereof; and
(8) Adjourn the hearing as the needs of
justice and good administration require.
Section 21. Exhibits.
(1) All exhibits offered in evidence shall be
marked with a designation identifying the party or intervener by whom the
exhibit is offered.
(2) In the
absence of objection by another party or intervener, exhibits shall be numbered
and admitted into evidence as a part of the record, unless excluded by the
hearing officer pursuant to this administrative regulation.
(3) Unless the hearing officer finds it
impractical, a copy of each exhibit shall be given to the other parties and
interveners.
(4) All exhibits
offered, but denied admission into evidence, shall be identified as required by
subsection (1) of this section and shall be placed in a separate file designed
for rejected exhibits.
Section
22. Objections.
(1) Any objection
with respect to the conduct of the hearing, including any objection to the
introduction of evidence or a ruling of the hearing officer, may be stated
orally or in writing, accompanied by a short statement of the grounds for the
objection, and shall be included in the record. An objection shall not be
deemed waived by further participation in the hearing.
(2) If evidence is excluded from the record,
the party offering the evidence may make an offer of proof, which shall be
included in the record of the proceeding.
Section 23. Recommendations of Hearing
Officer; Exceptions; Final Order.
(1) The
decision of the hearing officer shall include findings of fact, conclusions of
law, and a recommended order to the commissioner disposing of all issues before
him in accordance with KRS 13B.110.
(2) Any party may file exceptions to the
hearing officer's findings of fact, conclusions of law, and recommended order
in accordance with KRS 13B.110(4).
(3) The commissioner shall issue a final
order in accordance with KRS 13B.120.
STATUTORY AUTHORITY: KRS 13B.170, 196.035,
441.075
