Effective Date of Rule: Thirty-one days after filing.

     Purpose: To incorporate legislative changes; to provide clarity on reasonable cause determinations; to require production of documents by a date certain; to clarify the role of an administrative law judge.

     Citation of Existing Rules Affected by this Order: Amending WAC 292-100-045, 292-100-050, 292-100-150, and 292-100-160.

     Statutory Authority for Adoption: RCW 42.52.360 (2)(b).

      Adopted under notice filed as WSR 06-20-039 on September 26, 2006, and WSR 06-22-096A on November 1, 2006.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 4, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 4, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: November 17, 2006.

Susan Harris

Executive Director

OTS-9236.2

AMENDATORY SECTION(Amending WSR 01-13-033, filed 6/13/01, effective 7/14/01)

WAC 292-100-045   ((Executive director's)) Dismissal of complaints.   (1) If after a preliminary review or investigation the board or the board staff determines that:

     (a) Any alleged violation that may have occurred is not within the jurisdiction of the board;

     (b) The complaint is obviously unfounded or frivolous; or

     (c) The complaint presents a violation of chapter 42.52 RCW, but any violation that may have occurred does not constitute a material violation because it was inadvertent and minor, or has been cured, and, after consideration of all of the circumstances, further proceedings would not serve the purposes of this chapter, the executive director may dismiss the complaint by issuing an order of dismissal.

     (2) If the executive director dismisses the complaint, the preliminary review or investigation report and a written notice of the executive director's order of dismissal shall be provided to the complainant, respondent, and the board and shall include a statement of the complainant's right to appeal to the board. (See RCW 42.52.425.)

     (3) If the board dismisses the complaint, written notice shall be provided to the complainant, respondent, and the board. (See RCW 42.52.425.)

[Statutory Authority: RCW 42.52.360 (2)(b) and 42.52.425. 01-13-033, § 292-100-045, filed 6/13/01, effective 7/14/01.]

     (2) Upon receipt of the board staff's investigation report and recommendation, the board shall determine whether or not there is reasonable cause to believe that a violation of chapter 42.52 RCW has occurred and whether any potential penalty should be greater than $500.

     (3) The board's reasonable cause determination shall be done in closed session.

     (4) If ((the board finds)) after determining reasonable cause, the board ((shall consider whether the penalty and costs for the alleged violation may be greater than $500. If the board may wish to impose)) further determines that the penalty and costs should be greater than $500, the respondent shall be given the option to have an administrative law judge conduct the hearing and rule on procedural and evidentiary matters. If the respondent is not given that option, the board may not impose penalty and costs greater than $500. The board may, on its own initiative, choose to retain an administrative law judge to conduct any hearing.

     (5) Upon receipt of an investigation report and recommendation on a complaint referred to the employing agency for investigation, the board shall either:

     (a) Reject the report and recommendation and initiate its own investigation; or

     (b) Concur with the report and recommendation and either initiate a hearing if the recommended penalty is a monetary fine or refer the matter to the employing agency for implementation of the recommendation if the recommendation is within the agency's authority to implement. The agency shall report implementation to the board and the board shall dismiss the complaint; or

     (c) Concur with the report and recommendation, enter a finding of no reasonable cause and dismiss the complaint; or

     (d) Concur with the report and recommendation, consider the report an investigative report, enter a finding of reasonable cause, and proceed under this section.

[Statutory Authority: RCW 42.52.360 (2)(b) and 42.52.425. 01-13-033, § 292-100-050, filed 6/13/01, effective 7/14/01. Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, § 292-100-050, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, § 292-100-050, filed 10/30/96, effective 11/30/96.]

     (2) ((When documents are to be offered into evidence at the hearing, the one offering the exhibit shall provide a minimum of ten copies.

     (3) If)) Upon agreement by both parties, additional documentary evidence ((has not been exchanged prior to)) may be presented at the hearing((,)). The parties shall arrive at the hearing location or make documents available in sufficient time before the time scheduled for the hearing for the purpose of exchanging ((and making copies of)) exhibits to be introduced. When documents are to be offered into evidence at the hearing, the one offering the exhibit shall provide a minimum of ten copies.

     (3) If the parties do not reach an agreement on the submission of additional documentary evidence, at the commencement of the hearing the presiding officer shall, after hearing argument, rule on the admissibility of the documents. The proponent of the documents proposed for submission must show good cause why the documents could not be submitted ten days prior to the hearing.

     (4) "Good cause" is a substantial reason or legal justification for failing to appear, to act, or respond to an action. To show good cause, the presiding officer must find that a party had a good reason for what they did or did not do, using the provisions of Superior Court Civil Rule 60 as a guideline.

[Statutory Authority: RCW 42.52.360 (2)(b) and 42.52.425. 01-13-033, § 292-100-150, filed 6/13/01, effective 7/14/01. Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, § 292-100-150, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, § 292-100-150, filed 10/30/96, effective 11/30/96.]

     (2) A hearing shall be conducted either by the board or by an administrative law judge. If an administrative law judge participates((, either)) by request of a respondent ((or by request of the board)), the board may choose to sit with the administrative law judge to hear the matter ((and to enter a final order at the conclusions of the proceedings; or to have the administrative law judge hear the matter alone and prepare an initial order for review by the board)). If an administrative law judge sits with the board, he or she shall rule on procedural and evidentiary matters. If an administrative law judge hears the matter at the request of the board, the board may choose to sit with the administrative law judge or the board may request that the administrative law judge hear the matter alone and prepare an initial order.

     (3) ((After the)) Following a hearing in which the board participates, the board may conclude that:

     (a) The respondent(s) did not violate the act, as alleged, and dismiss the case; or

     (b) The respondent(s) has (have) violated chapter 42.52 RCW; or

     (c) The respondent(s) is (are) in violation of chapter 42.52 RCW, the board's remedy would be inadequate and the matter should be referred to the appropriate law enforcement agency as provided in RCW 42.52.470.

     (4) Following a hearing in which the board participates, the board:

     (a) Shall set forth in writing its findings of fact, conclusions of law and decision on the merits of the case; and

     (b) Shall serve each party, the complainant and the employing agency, a copy of the findings of fact, conclusions of law and decision.

     (5) Following a hearing in which the board does not participate, the administrative law judge shall:

     (a) Set forth written findings of fact, conclusions of law and decision on the merits of the case in an initial order;

     (b) Shall serve each party and board staff a copy of the findings of fact, conclusions of law and decision, including a statement of the right to request review of the initial order by the board.

[Statutory Authority: RCW 42.52.360 (2)(b) and 42.52.425. 01-13-033, § 292-100-160, filed 6/13/01, effective 7/14/01. Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, § 292-100-160, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, § 292-100-160, filed 10/30/96, effective 11/30/96.]

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