Current through Reg. 49, No. 38; September 20, 2024
(a)
Purpose. In accordance with Tex. Gov't Code, §
RSA 2306.082, and as
authorized by Tex. Gov't Code, §
RSA 2009.051(c), the
Department encourages the use of appropriate Alternative Dispute Resolution
("ADR") procedures under Tex. Gov't Code, Chapter 2009 to assist in the fair
and expeditious resolution of internal and external disputes under the
Department's jurisdiction. These ADR procedures are intended to work in
conjunction with the guidelines and rules of the State Office of Administrative
Hearings found at Tex. Gov't Code, Chapter 2001; 1 TAC Part 7, Chapter 155; and
with Chapter 154, Civil Practice and Remedies Code.
(b) Definitions. For purposes of this rule,
terms used herein shall have the following meaning:
(1) Alternative Dispute Resolution ("ADR")--a
procedure or combination of procedures described in Chapter 154, Civil Practice
and Remedies Code.
(2) Dispute
Resolution Coordinator--One or more trained persons employed by the Department,
who may not be in the Legal Division, designated by the Executive Director to
coordinate and process requests for the ADR procedures.
(3) Mediation--a dispute resolution procedure
in which an impartial person, the mediator, facilitates communication between
the parties to promote reconciliation, settlement, or understanding among them.
The mediator may not impose his or her own judgment on the issues for that of
the parties (§RSA
154.023(a) and (b), Texas Civil Practice and
Remedies Code).
(4) Impartial third
party--A person who meets the qualifications and conditions of Tex. Gov't Code
§
RSA 2009.053. An
Impartial Third Party must possess the qualifications required under the Texas
Civil Practice and Remedies Code §
RSA
154.052 (a minimum of 40 classroom hours of
training in dispute resolution techniques), is subject to the standards and
duties prescribed by Texas Civil Practice and Remedies Code §
RSA
154.053 and has the qualified immunity
prescribed by Texas Civil Practice and Remedies Code §
RSA
154.055 for volunteer third parties not
receiving compensation in excess of expenses, if applicable. (Tex. Gov't Code
§
RSA
2009.053(d)).
(c) Preliminary Considerations.
(1) The Department encourages communication
between Department staff and applicants to the Department programs, and other
interested persons, to exchange information and informally resolve
disputes.
(2) The Department has
appeal procedures found at 10 TAC §
RSA
1.7, and at 10 TAC §RSA
10.902. ADR procedures supplement and do not
limit any available procedure for the resolution of disputes (Tex. Gov't Code
§
RSA 2009.052(a)).
Pursuing an ADR procedure does not suspend or delay application, appeal, or
other deadlines. For example, if a tax credit applicant desires to appeal a
Department decision using the procedures promulgated under §RSA
2306.6715 and also desires to pursue an ADR
procedure, the applicant may independently pursue the two procedures. Each
procedure will proceed independently of the other. However, ADR does not
suspend any statutory deadlines or grant any additional authority to resolve
issues beyond statute.
(3)
Consistent with Tex. Gov't Code §
RSA 2306.082(e), the
ADR procedure must be requested before the Department's Board makes a final
decision on an issue.
(4)
Consistent with Tex. Gov't Code §
RSA 2306.082(f), the
ADR procedure may not be used to unnecessarily delay an appeal proceeding, or
other deadline.
(d)
Appropriateness of ADR.
(1) Assessment of the
Dispute. In determining whether an ADR procedure is appropriate, the parties to
the dispute, including the Department, should consider the following factors:
(A) whether direct discussions and
negotiations between the parties have been unsuccessful and/or the parties
believe there is a misunderstanding involving the facts or interpretations that
could be improved with the assistance of an Impartial Third Party;
(B) whether the use of ADR potentially could
use fewer resources and take less time than other available procedures, and
that there is a reasonable likelihood that the use of ADR will result in an
agreement to resolve the dispute;
(C) whether there is a reasonable likelihood
that the use of ADR will result in an agreement to resolve the dispute, and
there are potential remedies or solutions that are only available through ADR;
and/or
(D) whether the need for a
final decision with precedential value is less important than other
considerations. (Nothing herein should be construed as creating a presumption
that a final decision establishes binding precedent in any given
manner).
(2) The parties
may also consider additional factors found in the State Office of
Administrative Hearings' ADR Model Guidelines for assessing whether a dispute
is appropriate for mediation.
(3)
Independent of any proposal from interested parties outside the Department, the
Department may propose using ADR procedures to interested parties to try to
resolve a dispute.
(e)
ADR Process.
(1) Any applicant for Department
programs or other interested person may request the use of an ADR procedure to
attempt to resolve a dispute with the Department. The ADR request must be
submitted in writing to the Department's Dispute Resolution Coordinator at the
mailing address or email address listed on the Department's website. The
request for ADR must state the nature of the dispute, the parties involved, any
pertinent or impending deadlines, whether all parties agree to refer the
dispute to ADR, proposed times and locations, and the preferred type of ADR
procedure.
(2) If an applicant or
other interested person is uncertain whether to propose the possible use of ADR
or is uncertain about any particular aspect of a possible proposal, they should
contact the Department's Dispute Resolution Coordinator to discuss the
matter.
(3) The ADR Coordinator
will notify the person requesting the ADR procedure that an ADR decision is not
binding on the state and that the Department will mediate in good
faith.
(4) The ADR Coordinator will
provide copies of the request received, and all other materials received, to
any other parties to the dispute.
(5) The Dispute Resolution Coordinator shall
provide a copy of the ADR request to the Executive Director and General Counsel
and other applicable internal parties.
(6) The Dispute Resolution Coordinator will
assess whether ADR would assist in fairly and expeditiously resolving the
dispute and will notify all affected parties within seven calendar days of
receiving an ADR request of one of the following determinations:
(A) If the parties, including the Department,
cannot agree on whether an ADR procedure should be used or on the particulars
of the ADR procedure, the Dispute Resolution Coordinator will notify both
parties that agreement to utilize ADR could not be reached;
(B) If the Dispute Resolution Coordinator
determines not to refer the dispute to ADR, the Dispute Resolution Coordinator
shall state the reasons in writing; or
(C) If the Dispute Resolution Coordinator
decides to refer the dispute to ADR, the date for the selected ADR process will
be included in the notice.
(f) Selection of Mediator or Impartial Third
Party.
(1) The Department designates the
State Office of Administrative Hearings ("SOAH") as the primary mediator for
Department ADR requests as required by Tex. Gov't Code §
RSA
2306.082(b).
(2) If the Department and SOAH agree to
utilize an Impartial Third Party other than one so designated through SOAH, an
Impartial Third Party will be identified.
(3) The selection of an Impartial Third Party
is subject to the approval of the parties to the dispute. If the parties do not
suggest potential third parties, the Dispute Resolution Coordinator will
provide a list of potential third parties from which to choose. If all parties
agree to use an Impartial Third Party who charges for ADR services, then the
costs for the Impartial Third Party shall be apportioned equally among all
parties, unless otherwise agreed by the parties.
(g) Voluntary Agreement. All parties
participating must have the authority to reach an agreement to make a final
recommendation to resolve the dispute. The Executive Director will abide by an
agreed upon solution to the dispute and either approve that agreement or offer
that recommendation to the Board, if Board authorization is needed. The
decision to reach agreement is voluntary. If the parties reach a resolution and
execute a written agreement, the agreement is enforceable in the same manner as
any other written agreement of the same nature with the State. A written
agreement to which the Department is a signatory resulting from an ADR
procedure must be approved by the appropriate authority.
(h) A written agreement to which the
Department is a signatory resulting from an ADR procedure is subject to Tex.
Gov't Code Chapter 552 concerning open records.
(i) Confidentiality of Records and
Communications. The confidentiality of the communications, records, conduct,
and demeanor of an impartial third party and parties in an ADR procedure are
governed by Tex. Gov't Code §
RSA
2009.054.
(j) The Department may share the results of
its ADR process with other governmental bodies, and with the Center for Public
Policy Dispute Resolution at the University of Texas School of Law, which may
collect and analyze the information and report its conclusions and useful
information to governmental bodies and the legislature.
