40 KAR 5:010.
Required training.
RELATES TO: KRS
13B.030(4)
STATUTORY AUTHORITY:
KRS 13B.030(4)
NECESSITY, FUNCTION,
AND CONFORMITY: This administrative regulation is necessary to comply with KRS
13B.030(4) which requires the division to establish by administrative
regulations minimum standards concerning length of training, course content and
instructor qualifications for initial training and continuing education of
hearing officers. The function of this administrative regulation is to
establish education requirements for hearing officers.
Section 1.
Definitions. (1) "Classroom hour" means fifty (50) minutes of actual
classroom instruction.
(2) "Hearing
officer" is defined by KRS 13B.010(7).
Section 2. A person
shall not serve as a hearing officer unless he has completed eighteen (18)
classroom hours, including agency specific training, of initial hearing officer
instruction, and six (6) classroom hours of continuing education instruction as
provided by Sections 3 and 5 of this administrative regulation.
Section 3. Approved
Instruction. Approved instruction for hearing officers shall be the
administrative hearings subjects established by this section.
(1) Instruction in
the conduct of administrative hearings in each of the following areas:
(a) Administrative
law and procedure. The course shall cover the:
1. History, origin,
source, and limitations of agency authority to act;
2. Role of hearing
officials;
3. Adjudicatory
function as opposed to and differentiated from the regulatory and enforcement
functions of an agency; and
4. Regulatory and
enforcement processes of agencies.
(b) Due process. The
course shall cover the fundamentals of constitutional due process concepts of
adequate notice and a reasonable opportunity to be heard, and shall emphasize
constitutional restrictions on notice and a hearing.
(c) Conduct and
control of hearings. The course shall cover the following items and include
applicable documentary samples:
1. The role of
prehearing conferences and discovery;
2. Opening a hearing;
3. The conduct of a
hearing;
4. The order of
proof;
5. Marking and
handling exhibits;
6. Ruling on
objections;
7. Swearing in of
witnesses;
8. Proper demeanor,
dress, formality, and decorum;
9. Making the
hearing accessible to handicapped persons; and
10. Closing a
hearing.
(d) Credibility. The
course shall cover:
1. Judging demeanor
and forthrightness of witnesses, appearance and body language;
2. Sexual, racial
and cultural bias, and prejudice; and
3. Judging common
sense of answers, consistency, context and flow.
(e) Ethics. The
course shall include:
1. The principles
of:
a. Conflict of
interest;
b. Ex parte contact;
2. Ethical standards
to which hearing officers, judges and lawyers are held; and
3. A review of the
ethical code applicable to hearing officers, judges and lawyers.
(f) Case file and
docket management. The course shall cover the principles of:
1. Case file
composition, handling, docketing and tracking;
2. Keeping exhibit
and witness lists;
3. Motion practice;
4. Setting discovery
deadlines;
5. Continuances;
6. Reviewing the
record, hearing decision time limitations and extensions thereof.
(g) Evidence in
administrative proceedings. The course shall include a review of the following
items, and applicable samples of documentary and testimonial evidence:
1. Competency;
2. Documentary
evidence;
3. Demonstrative
evidence;
4. Hearsay;
5. Privileges;
6. Work product
rule;
7. Oaths and
swearing;
8. Establishing a
foundation;
9. Cumulative,
proffered, and confidential evidence;
10. Official notice;
11. Handling
evidence; and
12. Standards and
burdens of proof applicable in administrative proceedings.
(h) Decision
writing. The course shall cover the following items and include written
samples:
1. The function and
purpose of the written decision;
2. The basic
administrative decision format;
3. How to
differentiate between factual findings and legal conclusions;
4. How to identify
and establish jurisdiction over subject matter and parties;
5. How to establish
the procedural history;
6. How to use an
appropriate format; and
7. A review of
writing style, tone and organization.
(2) The course shall
include training in the application of KRS Chapter 13B, and shall consist of
instruction in each of the following areas:
(a) Conflict of
interest. The course shall cover conflicts of interest as addressed in KRS
13B.040 including:
1. Who is governed;
2. What kind of
contact is prohibited;
3. Prohibited
actions or conduct, including serving as, or assisting or advising a hearing
officer;
4. The mechanics of
withdrawal;
5. Determination of
who is an investigator or prosecutor who acted in the same proceeding, or the
preadjudicative stage of an administrative hearing; and
6. The standard to
be applied.
(b) Ex parte
contact. The course shall cover improper ex parte contact as defined in KRS
13B.100 including:
1. The concept of
"substantive" as opposed to "procedural" inquiries and a
determination of the "merits" of an administrative action;
2. Who is prohibited
from making ex parte inquiries;
3. Under what
circumstances hearing officials and assistants may talk ex parte with
"parties" and other "interested persons";
4. Specific
instruction on how to handle ex parte contact, how to train support staff and
the method required to document ex parte contact in the record;
5. Contacts by
agency and outside counsel, contacts by the hearing officer and contacts with
the agency head or other agency personnel;
6. Case studies and
written materials, including ethical opinions from the Bar, relevant case
decisions, and the relevant judicial cannons and rules of professional conduct
applicable to judges and attorneys.
(c) Adequate notice.
The course shall cover the contents and effect of the notice of hearing
required by KRS 13B.050, including:
1. Scheduling and
time limits;
2. Improper mailing;
3. Incomplete or
improper notice content; and
4. The effect of
violation of KRS 13B.050 and remedies therefore.
(d) Intervention.
The course shall cover intervention under KRS 13B.060 and include sample
petitions and orders:
1. Mandatory and
permissive intervention;
2. Statutory rights
to intervention;
3. The standard for
permissive intervention;
4. The procedure for
petitioning to intervene;
5. Structuring the
intervention; and
6. Writing the order
permitting or denying intervention.
(e) Prehearing
conferences and discovery. The course shall cover the nature, scope and purpose
of a prehearing conference under KRS 13B.070 including:
1. Its relation to
settlement, alternative dispute resolution, discovery and the hearing process;
2. Methods of
managing and scheduling prehearing conferences that will promote the orderly
and prompt conduct of a hearing, including the filing of motions, prehearing
memorandums, witness and exhibit lists, briefs, proposed findings, conclusions,
and recommended orders;
3. Discovery
available under KRS 13B.050, 13B.080 and 13B.090;
4. Discovery orders
and problems;
5. Issuance,
quashing and enforcement of subpoenas and the standards therefore;
6. The obligation to
reveal documentary or tangible evidence and exculpatory evidence in the
agency’s possession, and the consequences of the failure to do so; and
7. Written samples
of prehearing conference orders, motions and subpoenas.
(f) Hearing procedures
and compiling the record. The course shall cover and include material relating
to the following items:
1. Methods to ensure
the orderly and prompt conduct of the hearing under KRS 13B.080;
2. The obligation to
have testimony given under oath, and the swearing of witnesses;
3. Briefs;
4. Argument;
5. Testimony;
6. Marking and
admission of evidence;
7. Granting
defaults, and the procedures and standards for rendering defaults;
8. The meaning and
composition of the record under KRS 13B.130; and
9. The method of
compiling the record for review, including submission in writing, and proffers
of evidence.
(g) Findings and
evidence. The admissibility of hearsay and standards therefor. The course
shall:
1. Cover the basic
evidentiary standard for all types of evidence;
2. Constitutional,
statutory grounds for exclusion and privileges recognized in Kentucky law;
3. Ruling on and
memorializing objections; and
4. Taking
"official notice" of facts.
(h) The recommended
order and writing for judicial review. The course shall cover the following
items and include samples of written findings, conclusions and recommended
orders:
1. The nature,
scope, and function of findings and conclusions under KRS 13B.110;
2. The interrelation
with evidentiary rulings under KRS 13B.050 and 13B.090;
3. Compilation of
the record under KRS 13B.130;
4. The standards for
judicial review under KRS 13B.150;
5. The obligation to
base findings only upon the evidence in the record, under KRS 13B.090(1); and
6. Time limits, extensions,
and the consequences of the failure to file a recommended order within
statutory time periods.
(3) Agency specific
training. Instruction shall include agency specific training that:
(a) Covers the
specific federal and state authorizing statutes and regulations under which a
hearing officer will conduct hearings; and
(b) Has been
approved by the agency head and the division.
Section 4. (1) An
initial hearing officer instruction or continuing education course shall:
(a) Comply with the
provisions of Sections 3 and 5 of this administrative regulation;
(b) Consist of
topics that will enable a hearing officer to:
1. Acquire,
maintain, and improve his skills as a hearing officer; and
2. Serve the public;
and
(c) Consist of a
minimum of two (2) hours.
(2)(a) Credit shall
be granted for completion of an initial hearing officer instruction or
continuing education course that has been approved by the division.
(b) A sponsor of an
education course shall submit for approval by the division:
1. An outline of the
course in sufficient detail to disclose the pertinent material that is to be
taught; and
2. The work
experience, credentials, and education background of the instructor of the
course.
Section 5.
Continuing Education. (1) An education year shall begin on July 1, and end on
June 30 of the next calendar year.
(2) Credit shall be
given for continuing education courses that have been completed on or before
June 30.
(3) For each
education year, a person certified as a qualified hearing officer pursuant to
KRS Chapter 13B shall complete a minimum of six (6) credit hours of continuing
education courses that have been approved by the division.
(4) A hearing
officer who earns more than six (6) credits of continuing education may carry
forward a total twelve (12) credits.
(5) A total of six
(6) of the continuing education credits earned in an education year may be
credited toward satisfaction of the continuing education requirement for each
of the two (2) continuing education years following the education year in which
they were earned.
(6) Continuing
education credits earned in an education year in excess of twelve (12) credits
shall:
(a) Not be carried
forward; and
(b) Remain on the
hearing officer's record.
(7) On or before
July 1 of each year, a person certified as a qualified hearing officer under
KRS Chapter 13B in this Commonwealth, shall certify to the director the number
of credit hours of continuing education hours completed.
(8)(a) Certification
may be submitted to the director upon completion of the continuing education
activity at any time during the education year.
(b) Certification
shall not be submitted later than the July 15th immediately following the
education year in which the activities were completed.
(9)(a) If a hearing officer
fails to comply with the provisions of this section, the division director
shall notify him as soon as practicable on or after August 1 of the same year
calendar year.
(b) The authority to
hear administrative actions under KRS Chapter 13B shall be suspended until such
time as the continuing education requirements are met. (22 Ky.R. 2189; Am. 23
Ky.R. 119; eff. 7-5-96.)
