Current through Register Vol. 50, No. 3, March 20, 2024
A.
Initiating the Process
1. The board initiates
a formal hearing by issuing full written notice of the hearing. A formal
hearing may be the result of a complaint made by any manner specified in the
informal procedures.
2. Once full
written notice of the hearing has been served, no board member or officially
designated hearing officer may communicate with any party to a formal hearing
or to that party's representative concerning any issue of fact or law involved
in that formal hearing.
3. Full
Notice. The written notice shall recite specific acts which the licensee is
alleged to have committed and shall assert that those acts violate a Louisiana
Statute or other ordinances or rules of the board.
a. Notice shall include:
i. a statement of the date, time, place and
nature of the hearing;
ii. a
statement of the legal authority and jurisdiction under which the hearing is to
be held;
iii. a reference to the
particular sections of the statutes, rules or ethical standards
involved;
iv. a short and plain
statement of the matters asserted which shall be the subject of the hearing;
and
v. a statement of the rights of
the parties.
b. Notice
shall be given to all parties 30 days in advance of the proceedings to allow a
reasonable opportunity for preparation.
c. The notice shall be delivered by
registered or certified mail, return receipt requested. If the licensee cannot
be found by this or other reasonable methods, the board may hold a hearing in
the licensee's absence through a contradictory proceeding with a curator
appointed to represent the absentee licensee.
NOTE: It is the licensee's obligation to keep the board
informed of his whereabouts.
d. The content of the notice limits the scope
of the hearing and of the evidence which may be introduced.
e. If the agency or other party is unable to
state the matters in detail at the time the notice is served, the initial
notice may be limited to a statement of the issues involved. Thereafter, upon
application, a more definite and detailed statement shall be
furnished.
4.
Designation of Hearing Officer
a. The hearing
officer is responsible for ensuring that the hearing is orderly, fair and that
it progresses in an expeditious manner. This officer is empowered to prepare
written findings of fact and conclusions which shall be recommended to the
board.
b. The board shall designate
a hearing officer by affirmative vote of a simple majority of its
members.
c. The hearing officer
shall be unbiased and qualified to preside over the case. A designated hearing
officer shall withdraw when that officer cannot afford a fair, just and
impartial hearing or consideration.
d. Any party may request the disqualification
of a hearing officer on the grounds of inability to give fair, just and
impartial hearing by filing an affidavit (which states the specific grounds)
within three days of receipt of notice of the designation of the hearing
officer. The issue shall be determined by the board.
e. The hearing officer shall not be a present
or former member of the board.
B. Discovery
1. Depositions and interrogatories of
witnesses may be taken and shall be admissible in the proceedings.
2. Evidence which was not made available to
both parties at least 10 days in advance may be barred from
introduction.
3. Evidence not
within the scope of the notice may be excluded.
4. When the interest of their parties will
not be substantially prejudiced, any part of the evidence may be received in
written form.
5. Documentary
evidence in possession of the board may be received in the form of copies of
excerpts, or by incorporation by reference.
6. Official notice may be taken of recognized
technical or scientific facts. However, parties shall be offered an opportunity
to contest any material so noticed.
C. Subpoenas. The Louisiana Department of
Justice Disciplinary Action Manual for Occupational Licensing Boards by William
J. Guste, Jr., Attorney General, Section 10.2
Subpoena Authority. Boards are empowered by statute to issue
subpoenas, and in Louisiana, the statutes allow the board to issue a subpoena
when requested in writing by any party in a contested case.
Either side in a contested hearing may request that a
subpoena be issued. It is generally required that the information called for by
a subpoena must be reasonable in terms of the amount required and that it must
relate to the matter under consideration. A subpoena duces tecum should be
reasonable in scope and should be limited to documentary material that is
relevant to the proceeding.
1. The
board, or its designated hearing officer, may sign and issue subpoenas when
requested in writing by any party to a contested case.
2. The information called for by subpoena
shall be responsive and shall relate to the matter under
consideration.
3. Investigative
subpoenas are issued at the discretion of the hearing officer.
4. If the person fails to comply with a
subpoena, the board may apply to the judge of the appropriate district court
for a contempt attachment or other appropriate order.
D. Motions
1. A request to the board or the hearing
officer by a party for a particular action should be made in the form of a
motion.
2. A motion may be made at
any time after proceedings have been filed and before its commencement, during
the hearing, or after the hearing.
3. All motion must be made at an appropriate
time.
4. Motions made before or
after the hearing shall be made in writing. Motions made during the course of
the hearing may be written or oral.
5. Motions are directed to the hearing
officer who shall appropriately and lawfully dispose of them.
6. A party may not submit written proposed
findings of fact.
7. The hearing
officer may refer a motion to the board for determination.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.37:3051.