201 KAR 28:160.
RELATES TO: KRS
AUTHORITY: KRS 319A.070(3), 319A.190
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.
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
(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.
members of the board, legal counsel for the board and a court stenographer may
also be present for the hearing.
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
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
(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.
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.
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.
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
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.
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
(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
(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.
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
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.)