Current through Register Vol. 49, No. 6, March 15, 2024
(1) The debarment and suspension process
shall be conducted as informally as practicable, consistent with the
fundamental principles of fairness, using the procedures outlined as follows:
(A) When the commission subcommittee
determines that grounds for suspension or debarment as described in
4 CSR
170-8.060 exist, the executive director shall notify
the person by personal delivery or in writing by certified mail, return receipt
requested, that suspension or debarment is under consideration. All such
notices shall be sent via a traceable form of delivery service, such as Federal
Express, UPS, certified mail, etc. Such notice shall provide the following
information:
1. What action is being
considered (i.e., suspension or debarment);
2. The basis upon which suspension or
debarment is being considered;
3.
The proposed scope of the suspension or debarment;
4. The proposed time period of the suspension
or debarment;
5. Notice of the
person's right to request an informal hearing with the commission subcommittee,
which request must be made in writing; and
6. The time period within which the written
request for a hearing must be received by the commission subcommittee. The time
period provided in the notice shall be thirty (30) calendar days from the date
of receipt by the executive director;
(B) If the person fails to respond to the
notice within the time provided, the opportunity to exercise the rights
provided in this section shall be deemed waived, and the executive director
shall make the determination on whether to suspend or debar the person based on
all the information germane to the issue and available to him. The person shall
then be notified of the final decision in writing by certified mail, return
receipt requested;
(C) If the
person provides a timely response to the notice and exercises its right to a
hearing with the commission subcommittee, the commission subcommittee shall
hold a hearing with the person within thirty (30) days of the date the request
for a hearing is received. The deadline for conducting the hearing may be
extended for an additional thirty (30) days upon written request of the
commission subcommittee or of the person for whom suspension or debarment is
being considered, provided that notice of the extension is provided to all
parties;
(D) The following
guidelines and rules shall apply to a hearing held under this section:
1. The hearing shall not be considered a
contested case;
2. The hearing
shall be informal and no formal rules of evidence or procedure shall
apply;
3. The person may be
represented by counsel at the hearing and shall have the right to present
evidence or arguments relevant to the grounds upon which the proposed
suspension or debarment is based. If the person elects to be represented by
counsel, the person shall notify the commission subcommittee of this intent at
least five (5) days prior to the scheduled hearing;
4. The commission subcommittee, in reaching a
decision, may consider information from any source which is relevant to the
proposed suspension or debarment and shall consider all facts and circumstances
upon which the proposed suspension or debarment is based, including, but not
limited to:
A. The nature of the acts
involved;
B. The duration of the
person's involvement in the acts;
C. The extent of the damage caused to the
state of Missouri and the commission by the person's acts;
D. Whether and to what extent the person
subsequently cooperated with the appropriate authorities;
E. The conditions under which the person
cooperated;
F. The degree to which
the person made restitution;
G. The
time when the acts occurred and the conduct of the person since that time;
and/or
H. Where the proposed
suspension or debarment is based on a conviction or civil judgment or upon
debarment by another local, state, or federal agency, the record of the court
or agency rendering the decision;
5. The chairperson of the commission
subcommittee may limit the hearing in time and substance in a manner which is
reasonable to the present matter;
6. All hearings under this section shall be
transcribed; and
7. The person or
anyone acting on the behalf of or under the control of the person shall be
prohibited from ex parte communication with any member of the Missouri Housing
Development Commission (commission) or the commission subcommittee;
(E) Within thirty (30) days of the
date on which the hearing is held, the commission subcommittee shall issue a
decision in writing to the person.
1. If the
commission subcommittee determines that suspension or debarment is not
warranted, the decision shall notify the person that they will not be suspended
or debarred for the grounds on which the hearing was held. Further, if the
person was suspended pending the outcome of the hearing, the decision shall
state that the person's suspension has been rescinded as of the date of the
decision.
2. If the commission
subcommittee determines that suspension or debarment is warranted, the decision
shall notify the person of the following:
A.
Whether the person is suspended or debarred;
B. The grounds upon which the suspension or
debarment is being based;
C. The
scope and duration of the suspension or debarment;
D. Any requirements the person must fulfill
in order to be eligible to participate in programs and/or contracts
administered by the commission following the termination of the suspension or
debarment period;
E. Notice of the
person's right to appeal the commission subcommittee's decision to the
commission;
F. The time period
within which a written appeal must be submitted to and received by the
commission subcommittee and the commission. The time period for such appeal
provided in the notice shall be thirty (30) days; and
G. Whether or not the person may continue
with any covered transaction already in progress;
(F) If the person submits an
appeal to the commission, a hearing for the appeal shall be held within sixty
(60) days of the date upon which the request for an appeal hearing is received
by the commission. The deadline for conducting the hearing may be extended for
an additional thirty (30) days upon written request of the commission or of the
person filing the appeal, provided that notice of the extension is provided to
all parties;
(G) The following
guidelines and rules shall apply to an appeal hearing held by the commission:
1. The appeal hearing shall not be considered
a contested case;
2. The hearing
shall be informal and no formal rules of evidence or procedure shall
apply;
3. The person may be
represented by counsel at the hearing and shall have the right to present
evidence or arguments relevant to the grounds upon which the decision to
suspend or debar the person was based. If the person elects to be represented
by counsel, the person shall notify the commission of this intent at least five
(5) days prior to the scheduled hearing;
4. The chairperson of the commission may
limit the hearing in time and substance in a manner which is reasonable to the
present matter;
5. The commission,
in reaching a decision, may only consider items in the record of the hearing
held by the commission subcommittee; however, the commission may consider
evidence that was not available at the initial hearing, but only if the person
providing the additional evidence can show good cause for why it was not
presented at the initial hearing. The commission shall uphold the commission
subcommittee's decision(s) unless it determines that the commission
subcommittee's decision was not based on competent and substantial
evidence;
(H) Within
thirty (30) days of the date upon which the appeal hearing is held, the
commission shall issue a decision in writing to the person. This decision shall
be considered the final decision of the commission on the matter. However, the
commission's decision shall not be considered final if the commission finds
appropriate grounds to remand the issue back to the commission subcommittee for
further investigation and fact gathering. If the commission does remand the
issue back to the commission subcommittee, the same procedures spelled out in
this rule shall apply to all further proceedings with the commission
subcommittee and/or commission until a final decision is reached; and
(I) Any appeal of the final determination of
the commission under subsections
4 CSR
170-8.140(1)(F)-(H) shall be
rightfully appealed only to a court of competent jurisdiction in Jackson
County, Missouri.
(2) A
person may be temporarily suspended pending the conclusion of all procedures
set forth in section (1) of this rule. If a person is to be temporarily
suspended, the initial notice described in subsection (1)(A) of this rule
shall, in addition to containing the information required under that
subsection, include a statement that the person is being temporarily suspended
pending a resolution of the issue and shall inform the person that the
temporary suspension shall be effective as of the date the notice was mailed or
personally delivered.
(3) In order
to be granted reinstatement to good standing with the commission, and thereby
be allowed to participate in programs and/or contracts administered by the
commission, the suspended or debarred person must apply to the commission
subcommittee for reinstatement upon completion of the term of suspension or
debarment. Such application shall include any and all relevant documentation
showing how the person has complied with all terms of the suspension or
debarment and how the person has complied with all requirements stipulated in
the original decision rendered by the commission subcommittee. The commission
subcommittee may request additional information or documentation from the
suspended or debarred person as they may deem reasonably necessary in order to
render a determination on whether the application for reinstatement should be
granted or denied. The executive director shall respond in writing to the
person's application for reinstatement within thirty (30) days of the date all
requested information is received. However, the commission subcommittee may
extend the response period for an additional thirty (30) days when deemed
necessary at the commission subcommittee's sole discretion, provided that the
commission subcommittee provides written notice to the person submitting the
application of the extension. If the commission subcommittee denies the
application for reinstatement, the written response shall specify the reasons
why the application has been denied and apprise the person of their right to
request a hearing with the commission subcommittee. In the event a hearing is
so requested, the same procedures set forth in section (1) shall be used to
reach a final determination by the commission on the application for
reinstatement.
*Original authority: 215.030, RSMo 1969, amended 1974,
1982, 1985, 1989, 1993, 1995, 1998.
