201 KAR 28:160.

Administrative hearings.

 

      RELATES TO: KRS

319A.190, 319A.200

      STATUTORY

AUTHORITY: KRS 319A.070(3), 319A.190

      NECESSITY,

FUNCTION, AND CONFORMITY: KRS Chapter 319A and KRS 319A.190 provide for

promulgation of administrative regulations governing the conduct of

administrative hearings authorized by the Act. This administrative regulation

sets forth the procedure by which such hearings are to be conducted.

 

      Section 1.

Composition of the Board for Purposes of a Hearing. (1) Disciplinary actions

may be heard by a quorum of the board members eligible to hear that particular

case, the board's designated hearing officer, or both.

      (2) The board

may appoint a licensed attorney as a hearing officer to preside over the

hearing, conduct all prehearing activities, prepare findings of fact and

conclusions of law at the direction of the board, and provide legal advice to

the board.

      (3) A board

member who has participated in the investigation of a disciplinary action or

who has personal knowledge of the facts giving rise to a disciplinary action

shall not sit as a member of the board hearing that particular action and shall

not be considered an eligible member for purposes of determining a quorum.

      (4) Staff

members of the board, legal counsel for the board and a court stenographer may

also be present for the hearing.

 

      Section 2.

Rights of the Licensee or Applicant. The licensee or applicant shall have the

right to be present and to be heard at the hearing, to be represented by legal

counsel, to present evidence, to cross-examine witnesses presented by the

board, and to make both opening and closing statements. The licensee or

applicant shall also have the right to have subpoenas issued in accordance with

KRS 319A.070(2).

 

      Section 3.

Prehearing Disclosure of Evidence. (1) By the board. The names, addresses, and

phone numbers of witnesses expected to be called by the board shall be made

available upon request of the licensee or applicant. Copies of documentary

evidence may be obtained upon the payment of a reasonable charge therefor,

except documents protected from disclosure by state or federal law. Nothing in

this section shall be construed as giving the licensee or applicant the right

to examine or copy the personal notes, observations, or conclusions of the

board's investigators nor shall it be construed as allowing access to the work

product of legal counsel for the board. The licensee or applicant shall also be

permitted to examine any items of tangible evidence in the possession of the

board.

      (2) By the

licensee or applicant. At least ten (10) days prior to the scheduled hearing

date the licensee or applicant shall furnish to the investigator or legal

counsel for the board copies of any documents which the licensee or applicant

intends to introduce at the hearing, and a list of the names, addresses, and

home and work telephone numbers of any witnesses to be presented to the board

by the licensee or applicant. The licensee or applicant shall also produce for

inspection any items of tangible evidence within his possession or control

which he intends to introduce at the hearing.

      (3) Written

response. At least ten (10) days prior to the scheduled hearing date, the

licensee or applicant shall also file with the board a sworn (under oath)

written response to the specific allegations contained in the notice of

charges. Allegations not answered shall be deemed admitted. The board may for

good cause permit the late filing of a response.

      (4) Sanctions

for failure to comply with prehearing disclosure. Should a party fail to comply

with this section the board hearing the disciplinary action may refuse to allow

into evidence such items or testimony as have not been disclosed, may continue

the action to allow the opposing party a fair opportunity to meet the new evidence,

or may make other orders as it deems appropriate.

      (5) Continuing

duty to disclose. After disclosure has been completed, each party shall remain

under an obligation to disclose any new or additional items of evidence which

the party intends to introduce or witnesses the party intends to have testify.

Additional disclosure shall take place as soon as practicable. Failure to

disclose may result in the exclusion of the new evidence or testimony from the

hearing.

 

      Section 4. Order

of Proceeding. (1) The hearing officer or presiding officer shall call the

hearing to order and shall identify the parties to the action and the persons

present and shall read the letter of notice and charges. The hearing officer

shall then ask the parties to state any objections or motions. The hearing

officer shall rule upon any objections or motions, subject to being overridden

by a majority vote of the members of the board. Opening statements shall then

be made, with the attorney for the board proceeding first. Either side may

waive opening statement.

      (2) The taking

of proof shall commence with the calling of witnesses on behalf of the board.

Such witnesses shall be examined first by the attorney for the board, then by

the licensee or applicant or that person's attorney, and finally by members of

the board. Rebuttal examination of witnesses shall proceed in the same order.

Documents or other items may be introduced into evidence as appropriate.

      (3) Upon

conclusion of the case for the board, the licensee or applicant shall call its

witnesses. The witnesses shall be examined first by the licensee or applicant

or that person's attorney, then by the attorney for the board, and finally by

the members of the board. Rebuttal examination of those witnesses shall proceed

in the same order. Again, documents or other evidence may be introduced as

appropriate.

      (4) At the

conclusion of the proof, the parties shall be afforded the opportunity to make

a closing statement, with the attorney for the board always proceeding last.

The hearing officer may impose reasonable limitations upon the time allowed for

opening and closing statements.

      (5) The hearing

officer shall also be responsible for enforcing the general rules of conduct

and decorum and expediting the hearing by keeping the testimony and exhibits

relevant to the case.

 

      Section 5. Rules

of Evidence. (1) The board shall not be bound by the technical rules of

evidence. The board may receive any evidence which it considers to be reliable,

including testimony which would be hearsay if presented in a court of law.

Documentary evidence may be admitted in the form of copies or excerpts, and

need be authenticated only to the extent that the board is satisfied of its

genuineness and accuracy. Tangible items may be received into evidence without

the necessity of establishing a technical legal chain of custody so long as the

board is satisfied that the item is what it is represented to be and that it is

in substantially the same condition as it was at the time of the events under

consideration.

      (2) The board

retains the discretion to exclude any evidence which it considers to be

unreliable, incompetent, irrelevant, immaterial or unduly repetitious. Rulings

on objections to evidence shall be made by the hearing officer but may be

overridden by a majority vote of the eligible members of the board.

 

      Section 6.

Decisions by the Board. (1) Upon the conclusion of the hearing, the board shall

retire into closed session for the purpose of deliberations.

      (2) At the

conclusion of the board's deliberations it shall propose an order based upon

the evidence presented. The hearing officer shall draft a proposed order

including findings of fact and conclusions of law consistent with the board's

deliberations as well as a recommended order to be submitted to the full board.

 

      Section 7. Final

Approval by the Board. The board, at its next meeting, or as soon thereafter as

may be arranged, shall review the proposed order and consider it for final

approval.

 

      Section 8.

Continuances; Proceedings in Absentia. It is the policy of the board not to

postpone cases which have been scheduled for hearing absent good cause. A

request by a licensee or applicant for a continuance may be considered if

communicated to the staff reasonably in advance of the scheduled hearing date

and based upon good cause. The decision whether to grant a continuance shall be

made by the hearing officer or chairman of the board. However, the burden is

upon the licensee or applicant to be present at a scheduled hearing. Failure to

appear at a scheduled hearing for which a continuance has not been granted in

advance shall be deemed a waiver of the right to appear and the hearing shall

be held as scheduled. (13 Ky.R. 1193; eff. 1-13-87; Am. 20 Ky.R. 1066; 1860;

2327; eff. 2-10-94.)