WSR 05-24-060



[ Filed December 2, 2005, 11:31 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-19-077.

Title of Rule and Other Identifying Information: WAC 390-37-136 relating to production of documents and use at hearing (adjudicative proceeding).

Hearing Location(s): Public Disclosure Commission, 711 Capitol Way, Room 206, Olympia, WA 98504, on January 24, 2006, at 9:30 a.m.

Date of Intended Adoption: January 24, 2006.

Submit Written Comments to: Doug Ellis, Assistant Director, 711 Capitol Way, Room 206, Olympia, WA 98504, e-mail, fax (206) [(360)] 753-1112, by January 20, 2006.

Assistance for Persons with Disabilities: Contact Chip Beatty by phone (360) 586-0544.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To incorporate modifications for the submission of hearing materials to include timing, electronic format, spacing, page limits, etc.

Reasons Supporting Proposal: To update outdated rule in light of current technology and clarify the process for submission of hearing materials.

Statutory Authority for Adoption: RCW 42.17.370.

Statute Being Implemented: RCW 42.17.370.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The rule amendment is designed to update procedures for the production and use of documents at hearings of the Public Disclosure Commission (PDC).

Name of Proponent: Public Disclosure Commission, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Doug Ellis, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-2735; and Enforcement: Phil Stutzman, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-8853.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of this rule amendment has minimal impact on small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. The PDC is not an agency listed in subsection (5)(a)(i) of section 201. Further, the PDC does not voluntarily make section 201 applicable to this rule adoption pursuant to subsection (5)(a)(i) of section 201, and, to date, the Joint Administrative Rules Review Committee has not made section 201 application [applicable] to this rule adoption.

December 2, 2005

Vicki Rippie

Executive Director


AMENDATORY SECTION(Amending WSR 03-22-065, filed 11/4/03, effective 12/5/03)

WAC 390-37-136   Production of documents and use at hearing and other hearing procedures (adjudicative proceedings).   (1) ((Upon request by either the agency or its legal representative, or the party against whom the enforcement action is being taken or his/her representative, copies of all materials to be presented at the adjudicative proceeding shall be provided to the requester within seven calendar days of the request but, for good cause shown, not less than three business days prior to the date of the hearing.

(2) When exhibits of a documentary character are to be offered into evidence at the adjudicative proceeding, the party offering the exhibit shall provide a minimum of ten copies.

(3) If documentary evidence has not been exchanged prior to the hearing under subsection (1) of this section, the parties shall arrive at the hearing location in sufficient time before the time scheduled for the adjudicative proceeding for the purpose of exchanging copies of exhibits to be introduced.)) Unless a prehearing order states otherwise, the provisions of this rule apply to evidence and written argument (legal briefs) filed and served in hearings (adjudicative proceedings). Parties or the executive director may request a prehearing conference if provisions of this rule need to be adjusted or if the provisions are not adhered to by the parties.

(2) The parties are encouraged to exchange copies of proposed exhibits, exhibit lists and witness lists, at least eight calendar days prior to the date of the hearing. The parties are encouraged to exchange documents by e-mail. The parties are encouraged to confer and determine whether there are any objections to the evidence and whether any agreements or stipulations can be reached regarding proposed exhibits, witnesses, and legal and factual issues.

(3)(a) Unless the commission determines otherwise, when evidence is to be offered at the adjudicative proceeding or when briefs are to be submitted at the adjudicative proceeding, the party offering the evidence or brief shall file a copy of proposed exhibits, exhibit lists, witness lists, and briefs with the commission via an e-mail to the executive director or his or her designee by the date and time designated by the executive director or designee, which is typically by 1:00 p.m. Pacific Time at least eight calendar days prior to the hearing. The e-mail shall provide the name of the party submitting the documents, the total number of pages, the software used to prepare the document, and the name, address, telephone number and e-mail address of the person sending the e-mail message.

(b) In the event electronic submission is not readily available to a pro se respondent or the evidence is not suited to e-mail transmission, other means of providing these materials to the commission may be approved by the chair or the executive director, or their designees if requested in advance of the date and time in (a) of this subsection.

(c) On the day the parties provide these materials electronically to the commission, they shall also mail or otherwise deliver a paper (or hard copy) set of the materials to the commission.

(d) The parties shall confirm in advance with the executive director that any documents provided electronically are able to be accessed by software available at the agency. If they are not accessible, the executive director shall direct how the documents are to be submitted.

(e) The documents are considered filed when received during actual business hours at the commission office. If received after actual business hours, they will be deemed filed the next business day.

(4) Respondent's exhibits shall be numbered R-1, R-2, etc. Commission staff exhibits shall be numbered S-1, S-2, etc. Jointly submitted exhibits shall be numbered J-1, J-2, etc. If an exhibit is not jointly submitted but there is no objection to it by the responding party, the party offering the exhibit shall designate agreed-to exhibits on the party's exhibit list.

(5) Briefs shall contain the name of the respondent in the caption and the cause number. Briefs shall be no more than twenty-five pages, double-spaced, excluding attachments or exhibits.

(6) The parties shall inform the executive director of any special equipment necessary for the adjudicative proceeding at the time documents are filed with the commission.

[Statutory Authority: RCW 42.17.370. 03-22-065, 390-37-136, filed 11/4/03, effective 12/5/03; 91-16-072, 390-37-136, filed 8/2/91, effective 9/2/91.]