Current through Register Vol. 51, No. 3, September 1, 2024
RELATES TO: KRS 11A.080, 11A.100, 13B.030 - 13B.050, 13B.070,
13B.090
NECESSITY, FUNCTION, AND CONFORMITY: KRS 11A.080(4)(b)
authorizes the commission to initiate an administrative hearing to determine
whether there has been a violation of KRS Chapter 11A. KRS 11A.100(1)(a)
exempts the commission from KRS 13B.030(2)(b). KRS 11A.100(1)(b) exempts the
commission from KRS 13B.050(1), (2), and (3) when a party fails to file an
answer or otherwise participate. KRS 11A.110(3) requires the commission to
promulgate administrative regulations to implement KRS Chapter 11A. This
administrative regulation establishes procedures to govern administrative
proceedings, the designation of hearing officers for the commission, and when a
party fails to participate in an administrative proceeding.
Section 1. Definitions.
(1) "Commission" means the Executive Branch
Ethics Commission established by KRS 11A.060.
(2) "Commission secretary" means the employee
of the commission designated pursuant to KRS 11A.070 to designate hearing
officers.
(3) "Executive director"
means the executive director appointed by the commission pursuant to KRS 11A.070.
(4) "Initiating order"
means the document issued by the commission to initiate an administrative
proceeding to determine whether there has been a violation as provided by KRS 11A.080(4)(b).
Section
2. Initiating Order.
(1) To
initiate an administrative proceeding, the commission shall issue an initiating
order to the alleged violator, who shall be referred to as the respondent
during the course of the administrative proceeding.
(2) The initiating order shall:
(a) Be served on the respondent by certified
mail, return receipt requested, or registered mail sent to the last known
address of the respondent, or by personal service. Service by certified or
registered mail shall be complete upon the date on which the commission
receives the return receipt or the returned notice;
(b) Include the information required by KRS 13B.050(3), except for the information required in KRS 13B.050(3)(a) and (b);
(c)State that all material
submitted to the commission by the respondent or his attorney shall be
addressed to the commission;
(d)
State the deadline for submitting an answer and the ramifications of failing to
file an answer as provided in Section 4 of this administrative regulation;
and
(e) State that the procedural
schedule for the proceedings will be set by a subsequent order after the
designation of a hearing officer.
Section 3. Answer.
(1) The respondent shall file a written
answer to the initiating order with the commission within twenty (20) days of
service of the initiating order.
(2) The answer shall be filed by the:
(a) Respondent, if he has not retained
counsel; or
(b) Respondent's
attorney, if he has retained counsel.
(3) The answer shall be signed by the
respondent or by counsel for respondent.
(4) The respondent may request additional
time in which to file an answer. The executive director may grant the
respondent an additional twenty (20) days in which to file an answer.
(5) If the respondent requests additional
time to file an answer beyond the additional twenty (20) days, the request
shall be reviewed by the commission at its next regularly scheduled meeting.
The commission may grant additional time to file an answer with good cause
shown.
Section 4.
Default. If the respondent fails to file a timely answer, then the commission
may:
(1) Accept the failure to answer as an
admission of the allegations in the initiating order;
(2) Find by clear and convincing evidence
pursuant to KRS 11A.100(3) that the respondent has engaged in the alleged
conduct in violation of KRS Chapter 11A;
(3) Enter a final order of default against
the respondent; and
(4) Levy the
appropriate possible penalty allowed under KRS 11A.100(3).
Section 5. Counsel.
(1) If a respondent has retained counsel, the
attorney shall file an entry of appearance with the commission.
(2) If a respondent has retained counsel,
notices, correspondence, and orders relating to the administrative proceeding
shall thereafter be transmitted to the attorney instead of the
respondent.
Section 6.
Assignment of a Hearing Officer.
(1) If the
respondent files a timely answer, then the commission shall designate a hearing
officer.
(2) The commission shall
designate a roster of hearing officers as provided by KRS 13B.030(2)(a) and as
dictated by KRS Chapter 45A.
(3) A
person qualified to serve as a hearing officer for the commission shall:
(a) Maintain the qualifications required by
KRS 13B.040;
(b) Be an attorney in
good standing with the Kentucky Bar Association or otherwise have approval by
the Kentucky Bar Association to practice law in the Commonwealth of
Kentucky;
(c) Demonstrate knowledge
of KRS Chapter 11A by having served as an ethics officer, having previously
served as a member or staff of the commission, or attending or participating in
trainings offered by the commission on the requirements of KRS Chapter
11A;
(d) Not be a current member or
staff of the commission; and
(e)
Not be under the jurisdiction of the commission.
(4) Once the roster of hearing officers is
established, the commission secretary shall randomly assign administrative
proceedings initiated by the commission pursuant to KRS 11A.080(4)(b) to a
hearing officer from the roster of hearing officers, unless otherwise directed
by the commission.
Section
7. Hearing Officer.
(1) After the
hearing officer is designated by the commission, the hearing officer shall
within ten (10) days of the designation send notice to the parties of the date
and time of the first telephonic prehearing conference.
(2) The hearing officer shall follow the
requirements of KRS Chapter 13B for the conduct of administrative hearings,
except as provided in KRS 11A.100 for the burden of proof where the higher
standard of proof is required as dictated by KRS 13B.090(7).
Section 8. Settlement.
(1) At any time during the proceedings, the
commission's counsel may enter into mediation or informal proceedings pursuant
to KRS 13B.070 with the respondent.
(2) An agreed order or settlement reached
through this process shall be reviewed by the commission and, upon approval by
the commission, shall be signed by the commission and the respondent.
(3) The commission shall not approve a
settlement that provides for the confidentiality of:
(a) The existence of the settlement;
or
(b) Any of the terms of the
settlement.
Section
9. Ex Parte Communications. Once an administrative proceeding has
commenced, the commission, its executive director, commission counsel, the
respondent, respondent counsel or other person acting on behalf of the
respondent shall not initiate, participate in, or consider ex parte
communications concerning the subject matter of a hearing or a related issue of
fact or law, except upon notice and opportunity for all parties to
participate.
Section 10. Record to
be Maintained.
(1) The hearing shall be
transcribed by a court stenographer or by means of electronic media, such as
videotaping.
(2) A transcript or
electronic media copy of the testimony taken during the hearing shall:
(a) Be kept by the commission;
(b) Be available to the respondent upon
request and payment of the appropriate fee; and
(c) Be available to all commission
members.
(3) Any
documents or exhibits introduced into evidence shall be kept with the
transcript or copy of the electronic media recording of the hearing or as
ordered by the hearing officer.
STATUTORY AUTHORITY: KRS 11A.080, 11A.100,
11A.110(3)
