WASHINGTON STATE PATROL

(1) "Agency" means the Washington state patrol.

(2) "Board" wherever used in these rules shall mean the trial board constituted as provided in RCW 43.43.070.

(((2))) (3) "Chief" wherever used in these rules shall mean the chief of the Washington state patrol.

(((3))) (4) "Hearing officer" wherever used in these rules shall mean ((the chief of the Washington state patrol)) an administrative law judge as appointed by the chief administrative law judge under chapter 34.12 RCW, whose duty it is to preside over such hearings as are conducted by the trial board, as in RCW 43.43.090 provided.

A request for a trial board shall be made in writing by the commissioned officer complained of, or the officer's attorney, and must be received by the Washington state patrol headquarters within twenty days of the date the officer was served with the notice of discipline.

No person may appear in a representative capacity before a hearing officer or board other than ((the following:

(1))) attorneys ((at law)) duly qualified and entitled to practice ((before the supreme court of)) in the state of Washington((;

(2) Attorneys at law duly qualified and entitled to practice before the highest court of record of any other state, if the attorneys at law of the state of Washington are permitted to appear in a representative capacity before administrative agencies of such other state, and if not otherwise prohibited by our state law)).

All persons appearing in proceedings before a hearing officer or board in a representative capacity ((shall)) must conform to the standards of ethical conduct required of attorneys before the courts of Washington. If any such person does not conform to such standards, the hearing officer or board may decline to permit such person to appear in a representative capacity in any proceeding before the hearing officer or board.

No former employee of the agency shall, at any time after severing his or her employment with the state of Washington appear, except with the written permission of the agency, as an expert witness on behalf of other parties in a formal proceeding wherein ((he)) the former employee previously took an active part in the investigation as a representative of the agency.

In computing any period of time prescribed or allowed by this chapter or any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation.

In any contested case, all parties shall be served with a notice of trial board hearing within ((the statutory time as required by statute governing the agency or proceeding and in the absence of a statutory requirement, then a reasonable time)) ten calendar days before the date set for hearing. The notice shall state the time, place, and issues involved.

All hearings shall be recorded by stenographer or court reporter.

((The agency shall cause to be served all orders, notices, and other papers issued by it, together with any other papers which it is required by law to serve. Every other paper shall be served by the party filing it.)) (1) All notices, pleadings, and other papers filed with the hearing officer shall be served upon all counsel and representatives of record and upon unrepresented parties or upon their agents designated by them or by law.

Papers required to be filed with the agency shall be deemed filed upon actual receipt ((by the agency)) during office hours at the Washington state patrol headquarters ((accompanied by proof of service upon parties required to be served)).

(1) Every subpoena shall state the name of the agency and the title of the proceeding and shall command the person to whom it is directed to attend and give testimony, or produce designated books, documents or things under his or her control at a ((specified time and place)) hearing.

Witnesses summoned before the ((agency)) board shall be paid by the party at whose instance they appear the same fees and mileage that are paid to witnesses in the superior courts of the state of Washington: EXCEPT, if the witness works for the agency and is on duty at the time he or she appears as a witness on behalf of the agency.

((Upon motion made promptly, and in any event at or before the time specified in the subpoena for compliance, by the person to whom the subpoena is directed and upon notice to the party to whom the subpoena was issued, the board or the authorized agency)) (1) A party to the appeal or the person to whom the subpoena, or subpoena duces tecum, is directed may make a motion to quash. The motion must be made promptly and in any event at least five days before the time specified in the subpoena for compliance therewith.

(2) The hearing officer may (((1))):

(a) Quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue((,)); or

(((2))) (b) Condition denial of the motion upon just and reasonable conditions.

Upon application and for good cause shown the agency will seek judicial enforcement of subpoenas issued to parties and which have not been quashed. Enforcement of a subpoena shall be according to RCW 34.05.446 and 34.05.588(1).

((Except as may be otherwise provided, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for use as evidence in the proceeding. The attendance of witnesses may be compelled by the use of a subpoena. Depositions shall be taken only in accordance with this rule and the rule on subpoenas.)) There shall be no discovery allowed in the proceedings under this chapter. The record for hearing shall include:

The hearing officer or board, upon request made before or during a hearing, ((will officially notice:

(4) Agency organization. The department, commission or board organization, administration, officers, personnel, official publications, and practitioners before its bar)) may take official notice of facts pursuant to RCW 34.05.452(5).

(8) Evaluation of evidence.)) Nothing herein shall be construed to preclude the hearing officer or board from utilizing their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to them.

The employer bears the burden of proof in any disciplinary matter. Said proof shall be by a preponderance of the evidence.

Every decision((, order, or recommendation)) of the trial board shall contain only the following elements:

(1) Be correctly captioned as to name of agency and name of proceeding;

(2) Designate all parties and counsel ((to)) participating in the proceeding;

(3) Include a concise statement of the nature and background of the proceeding;

(4) ((Be accompanied by appropriate numbered findings of fact and conclusions of law;

(6) Whenever practical, the conclusions, recommendations, and/or order shall be referenced to specific provisions of the law and/or regulations appropriate thereto, together with reasons and precedents relied upon to support the same.)) Contain appropriate numbered findings of fact meeting the requirements of RCW 34.05.461;

Every final decision issued by the chief of the Washington state patrol shall:

(1) Name of the agency and name of proceeding;

(2) List all parties and counsel participating in the proceeding;

(3) Include a concise statement of the nature and background of the proceeding;

(4) Contain appropriate numbered findings of fact meeting the requirements of RCW 34.05.461 and 43.43.090:

(a) However, where the chief adopts, in whole or in part, the factual findings of the trial board, the chief may so state;

(b) Where the chief changes a finding of fact as allowed in RCW 43.43.090, the chief shall set forth the reasons for the different factual findings, as set forth in RCW 34.05.461.

(5) In the chief's findings and conclusions, the legal standard for determining whether the charges are sustained shall be the existence or nonexistence of cause as provided in RCW 43.43.070;

(6) Contain a statement of the discipline to be imposed and the basis of such discipline:

(a) The chief may review additional information contained in files maintained by the agency and relevant to determining the appropriate level of discipline, whether or not such evidence was before the trial board; and

(b) If the chief reviews additional information that is not contained in the trial board record when determining the appropriate level of discipline, such information shall be stated in the final order and placed in the administrative record.

In all proceedings the issues to be adjudicated ((shall)) must be made initially as precise as possible, in order that the hearing officer or board may proceed promptly to conduct the hearing on relevant and material matter only.

((In any proceeding the hearing officer or board upon its own motion, or upon the motion of one of the parties or their qualified representatives, may in its discretion direct the parties of their qualified representatives to appear at a specified time and place for a conference to consider)) (1) The hearing officer may direct the parties or their counsel to engage in a prehearing conference(s) to consider the following:

(((1))) (a) The simplification of issues;

(((2))) (b) The necessity of amendments to the pleading;

(((3))) (c) The possibility of obtaining stipulations, admissions of facts and ((of documents)) admissions of the genuineness of documents that will avoid unnecessary proof;

(((4))) (d) The limitation of the number of expert witnesses;

(((5))) (e) Number of witnesses expected to be called and their names when possible;

(i) Such other matters as may aid in the disposition of the proceeding.

(1) The hearing officer ((or board)) shall make an order or statement which recites the action taken at the conference, ((the amendments allowed to the pleadings, and the)) including agreements made by the parties ((or their qualified representatives)) as to any of the matters considered, including the settlement or simplification of issues, and which limits the issues for hearing to those not disposed of by admissions or agreements; and such order or statement shall control the subsequent course of the proceeding unless modified for good cause by subsequent order. If no objection to such order is filed within ten days after the date such order is mailed, it shall control the subsequent course of the proceeding unless modified for good cause by subsequent order.

Where practicable, the hearing officer or board may require:

(1) That all documentary evidence which is to be offered during the taking of evidence be submitted to the hearing officer or board and to the other parties to the proceeding sufficiently in advance of such taking of evidence to permit study and preparation of cross-examination and rebuttal evidence;

(2) That documentary evidence not submitted in advance, as may be required by subsection (1) of this section, ((be)) not be received in evidence in the absence of a clear showing that the offering party had good cause for ((his)) the failure to produce the evidence sooner;

(3) That the authenticity of all documents submitted in advance in a proceeding in which such submission is required, will be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed such written objection;

(4) When portions only of a document are to be relied upon, the offering party shall prepare the pertinent excerpts, adequately identified, and shall supply copies of such excerpts, together with a statement indicating the purpose for which such materials will be offered to the hearing officer or board and to the other parties. Only the excerpts, so prepared and submitted, shall be received in the record. However, the whole of the original document shall be made available for examination and for use by all parties to the proceeding.

((That)) The hearing officer ((or board in all classes of cases where practicable make an effort to have the interested parties agree upon the witness or witnesses who are to give expert or opinion testimony, either by selecting one or more to speak for all parties or by limiting the number for each party; and, if the interest parties cannot agree, require them to)) may require that the parties submit to the hearing officer or board and to the other parties written statements containing: The names, addresses and qualifications of their respective opinion or expert witnesses((,)): Any reports of the experts; and the nature of the testimony expected by the expert, by a date determined by the ((board)) hearing officer and fixed sufficiently in advance of the hearing to permit the other interested parties to investigate such qualifications.

((That)) The hearing officer or board, in its discretion but consistent with the rights of the parties, shall cause the parties to make available for inspection in advance of the hearing, and for purposes of cross-examination at the hearing, the data underlying statements and exhibits submitted in accordance with WAC ((446-08-480)) 446-08-470, but wherever practicable ((that he)) must restrict to a minimum the placing of such data in the record.

Whenever the manner of introduction of opinion or expert testimony ((or testimony based on economic or statistical data)) is governed by requirements fixed under the provisions of WAC ((3-08-470 or 3-08-480 [WAC 446-08-470 or 446-08-480])) 446-08-470 or 446-08-490, such testimony not submitted in accordance with the relevant requirements shall not be received in evidence in the absence of a clear showing that the offering party had good cause for his or her failure to conform to such requirements.

Any party who desires a continuance shall, immediately upon receipt of notice of a hearing, or as soon thereafter as facts requiring such continuance come to his or her knowledge, notify the hearing officer ((or)) and board of said desire, stating in detail the reasons why such continuance is necessary. The hearing officer ((or)) and board, in passing upon a request for continuance, shall consider whether such request was promptly and timely made. For good cause shown, the hearing officer ((or)) and board may grant such a continuance and may at any time order a continuance upon its own or ((his own)) a party's motion. During a hearing, if it appears in the public interest or in the interest of justice that further testimony or argument should be received, the hearing officer ((or)) and board may, in its discretion, continue the hearing and fix the date for introduction of additional evidence or presentation of argument. Such oral notice shall constitute final notice of such continued hearing.

(1) Subject to the other provisions of these rules, all relevant evidence is admissible which, in the opinion of the hearing officer or board, is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their business, or is the best evidence reasonably obtainable, having due regard for its necessity, availability, and trustworthiness. ((In passing upon the admissibility of evidence, the officer conducting the hearing shall give consideration to, but shall not be bound to follow the rules of evidence governing civil proceedings, in matters not involving trial by jury, in the superior court of the state of Washington.))

((When objection is made to the admissibility of evidence, such evidence may be received subject to a later ruling.)) The hearing officer or board may, in its discretion, either with or without object, exclude inadmissible evidence or order cumulative evidence discontinued. Parties objecting to the introduction of evidence shall state the precise grounds of such objection at the time such evidence is offered.

(1) Every person called as a witness in a hearing shall swear or affirm that the testimony he or she is about to give in the hearing shall be the truth according to the provisions of RCW 5.28.020 through 5.28.060.

(2) The hearing examiner or court reporter may administer the oath or affirmation to the witness.

(3) Testimony by affidavit is not admitted at a trial board except for good cause shown, or as otherwise permitted in these rules, as provided in a prehearing conference statement or by stipulation of the parties.

(4) The refusal of a witness to answer any question which has been ruled to be proper shall, in the discretion of the hearing officer or board, be grounds for striking all testimony previously given by such witness on a related matter.

The hearing officer shall have the authority to:

(1) Rule on evidentiary matters during the course of the hearing;

(2) Take official notice of facts pursuant to RCW 34.05.452(5);

(3) Regulate the course of the hearing and take any appropriate action necessary to maintain order during the hearing;

(4) Permit or require oral argument or briefs and determine the time limits for submission thereof; and

(5) Take any other action necessary and authorized by any applicable statute or rule.

The board may:

(1) Question witnesses called by the parties to develop any facts deemed necessary to fairly and adequately decide the matter; and

(2) Call additional witnesses and request additional exhibits deemed necessary to complete the record and receive such evidence subject to full opportunity for cross-examination and rebuttal by all parties.