40 Kar 5:010. Required Training

Link to law: http://www.lrc.ky.gov/kar/040/005/010.htm
Published: 2015

      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.)
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