WSR 05-03-024

PROPOSED RULES

CRIMINAL JUSTICE

TRAINING COMMISSION

[ Filed January 7, 2005, 2:03 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-23-015.

Title of Rule and Other Identifying Information: Chapter 139-03 WAC, Procedures.

Hearing Location(s): Washington State Criminal Justice Training Commission, 19010 1st Avenue South, Burien, WA 98148, on Wednesday, March 9, 2005, at 10:00 a.m.

Date of Intended Adoption: March 9, 2005.

Submit Written Comments to: Sharon M. Tolton, Deputy Director, 19010 1st Avenue South, Burien, WA 98148, e-mail stolton@cjtc.state.wa.us, fax (206) 439-3860, by March 2, 2005.

Assistance for Persons with Disabilities: Contact Sonja Hirsch, Confidential Secretary, by March 2, 2005, TTY (206) 835-7300.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To clarify, streamline, and reform agency procedures.

Reasons Supporting Proposal: Per Executive Order 97-02, each state agency shall begin a review of its rules that have significant effects on business, labor, consumers, and the environment. Agencies shall determine if their rules should be (a) retained in their current for [form] or (b) amended or repealed, if they do not meet the review criteria specified in the executive order.

Statutory Authority for Adoption: RCW 43.101.080.

Statute Being Implemented: Not applicable.

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

Name of Proponent: Staff and Executive Order 97-02.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Sharon M. Tolton, Burien, (206) 835-7345.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Proposal is exempt under RCW 19.85.025(2); therefore, a small business economic impact statement is not required.

A cost-benefit analysis is not required under RCW 34.05.328.

December 14, 2004

Sharon M. Tolton

Deputy Director

OTS-7643.2


AMENDATORY SECTION(Amending WSR 00-17-017, filed 8/4/00, effective 9/4/00)

WAC 139-03-010   Adoption of model rules of procedure.   ((In those contested cases, declaratory proceedings, and requests for rule making in which the commission has authority to conduct hearings,)) Practice and procedure before the commission shall be in accordance with the model rules of procedure adopted by the chief administrative law judge pursuant to RCW 34.05.250, as now or hereafter amended. The model rules hereby adopted are found in chapter 10-08 WAC. Other procedural rules adopted in this title are supplementary to the model rules of procedure. In the case of a conflict between the model rules of procedure and the procedural rules adopted in this title, the procedural rules adopted in this title shall govern.

Peace officer certification proceedings before the commission are governed by chapter 139-06 WAC.

[Statutory Authority: RCW 43.101.080. 00-17-017, 139-03-010, filed 8/4/00, effective 9/4/00.]


AMENDATORY SECTION(Amending WSR 00-17-017, filed 8/4/00, effective 9/4/00)

WAC 139-03-020   ((Review and appeal of action.)) Request for adjudicative proceedings.   (1) ((Except as otherwise provided in this section or in WAC 139-03-030, a person aggrieved by a commission "action" as defined under the Administrative Procedure Act may appeal that action by filing a notice of appeal to the commission on an appeal form provided by the commission. Notice of appeal forms are available from the commission at the following address: 621 Woodland Square Loop, P.O. Box 40905, Olympia, WA 98504. This section shall not apply to a request for a variance or exemption pursuant to WAC 139-03-030.

(2) Unless otherwise provided in this title, student dismissal for academic or disciplinary reasons may be reviewed at the request of such individual, or the head of such individual's employing agency, and shall be considered in accordance with the process hereinafter provided.

(3) An individual requesting review shall submit a request in writing to the executive director and shall therein specify and include, where applicable:)) All applications requesting that the commission conduct an adjudicative proceeding shall be made on a form provided by the commission for that purpose. The application must specify the issue to be brought before the commission, including:

(a) The action for which review is requested, identified by date and description of action;

(b) The direct and adverse effects of such action;

(c) The corrective or remedial action or other relief sought;

(d) The name and mailing address of the requesting party((, any witness to be called by the requesting party, and any person who will personally appear in support of the requesting party, including legal counsel)); and

(e) A statement that the person signing the request for review has read it and that to the best of ((his or her)) their knowledge or information and belief the contents thereof are true.

(2) Applications for adjudicative proceedings shall be made within thirty calendar days of:

(a) Service upon the applicant of the proposed commission action giving rise to the application; or

(b) Notice to the applicant from any source of action by the commission or commission staff which the applicant believes will adversely affect the applicant.

(3) Failure of an applicant to file an application for an adjudicative proceeding within the time limits set forth in subsection (2) of this section, constitutes a default and results in the loss of the applicant's right to an adjudicative proceeding. The commission may proceed to resolve the matter pursuant to RCW 34.05.440(1).

(4) ((A request)) An application for ((review)) adjudicative proceeding must be ((mailed to or)) served personally ((served)) or delivered by certified mail upon the director of the commission ((within thirty days of the date of written communication of commission staff action. "Mailing" for purposes of this regulation means posting in the United States mail, properly addressed, postage prepaid)).

(5) ((A requesting party may notify the director of the commission within seven days of filing the request for a hearing that the requesting party chooses to first meet with the executive director and ask him or her to informally review the staff action. The executive director will conduct such informal review within thirty days of such request for informal review or within such additional period as is agreed to between the requesting party and the executive director. If the executive director then affirms staff action, or if the requesting party elects to forgo this informal review step, the matter will proceed to a formal hearing by an administrative law judge from the state office of administrative hearings.)) The commission will process applications for adjudicative proceedings in accordance with RCW 34.05.416 and 34.05.419.

(6) If the commission decides to proceed with an adjudicative proceeding, the director will designate a presiding officer, which may be an administrative law judge from the state office of administrative hearings. The ((administrative law judge)) presiding officer will:

(((a))) Schedule and conduct an adjudicative proceeding under chapter 34.05 RCW; and

(((b) Issue an initial decision of the commission in the matter.

The commission staff or the requesting party may then pursue review by the commission subject to the time limits and any other jurisdictional requirements of chapter 34.05 RCW and of this section.

(6) A petition for review of the initial decision must be filed with the commission within thirty days of mailing of the initial decision to the parties. Extensions of the time for filing petitions for review may be granted for good cause shown in the discretion of the chairperson of the commission on timely written request of a party. The petition for review shall set forth in detail the grounds for review, and the party filing the petition shall be deemed to have waived all objections or claims of irregularities not specifically set forth therein. At the next succeeding regularly scheduled meeting of the commission at which review can practicably be conducted, the commission shall consider the whole record, or such portions of it as are cited by the parties. The commission shall afford the parties an opportunity to present written argument, and may, as a matter of discretion, allow oral argument. Thereafter, a final decision shall be entered within thirty days of the meeting, either finally disposing of the action or remanding the matter for further proceedings before the initial reviewer.)) (7) Upon receiving a request for adjudicative proceeding, the commission may at the request of the applicant, or on its own initiative, schedule an informal settlement conference that shall be without prejudice to the rights of the parties.

(8) This section shall not apply to a request for a variance or exemption pursuant to WAC 139-03-030.

[Statutory Authority: RCW 43.101.080. 00-17-017, 139-03-020, filed 8/4/00, effective 9/4/00.]


NEW SECTION
WAC 139-03-045   Prehearing conferences.   The presiding officer shall hold one or more prehearing conferences in each case, which may be held telephonically and shall be attended by the parties or their attorneys. The parties shall be prepared to discuss the timing and filing of any motions, and witness and exhibit lists, as well as the need for discovery, in addition to those matters identified in WAC 10-08-130(1). A prehearing order shall be issued at the conclusion of the conference.

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NEW SECTION
WAC 139-03-075   Review of initial orders.   The initial order will become final unless, within thirty days of mailing of the initial order to the parties, the commission determines that the initial order should be reviewed or a party to the proceedings files a petition for review of the initial order. A petition for review shall set forth in detail the grounds for review and the party filing the petition shall be deemed to have waived all objections or claims of irregularities not specifically set forth therein. The initial order will be considered by the commission at the next succeeding regularly scheduled meeting of the commission at which review can practicably be conducted. The commission shall thereafter enter a final order.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 139-03-040 Method of recording.
WAC 139-03-050 Discovery.
WAC 139-03-060 Procedure for closing parts of hearings.

Washington State Code Reviser's Office