RULES FOR CONTESTED CASE PRACTICE AND
PROCEDURE BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
GENERAL PROVISIONS AND DEFINITIONS
Section 1. Authority. These rules of practice and procedure are promulgated by authority of Wyo. Stat. Ann. '' 16‑3‑102 and 9-2-2203.
Section 2. Purpose. These rules are intended to set forth clear and comprehensive procedures for the conduct of contested cases pursuant to the Wyoming Administrative Procedure Act, Wyo. Stat. Ann. '' 16-3-101 through 16-3-115.
Section 3. Citation. Citation to these rules shall be "Rules for Contested Case Practice and Procedure Before the Office of Administrative Hearings," or more simply "OAH Rules."
Section 4. Applicability. These rules shall apply to the conduct of administrative contested cases before the Office of Administrative Hearings, regardless of the identity of the particular agency whose action or inaction is being contested. These rules shall take precedence over all referring agency hearing rules and shall supersede all prior rules of the Office of Administrative Hearings. Wyo. Stat. Ann. '' 9-2-2202 and 9-2-2203.
Section 5. Construction. These rules are to be liberally construed to assure the unbiased, fair, expeditious and impartial conduct of contested case proceedings before the Office. Any procedural rule may be relaxed or modified by the presiding officer only in the interest of fairness or justice. In the absence of rule, the presiding officer may proceed in any manner consistent with the intent of these rules.
Section 6. General Course of Contested Case Proceedings. Unless otherwise provided by law, proceedings before the Office are governed by the contested case provisions of the Wyoming Administrative Procedure Act and, to the extent their application is not inconsistent with the particular administrative contested case proceeding, the Wyoming Rules of Civil Procedure and other court rules may be looked to for guidance.
Section 7. Definitions. In addition to those definitions found in Wyo. Stat. Ann. ' 16-3-101, the following terms are defined as follows:
(a) "Office" means the Office of Administrative Hearings created by Wyo. Stat. Ann. ' 9-2-2201; and
(b) "Referring agency" means any agency which, to the extent legally authorized, requests the Office to conduct the contested case, and includes those agencies which by law must utilize the Office to conduct the contested case. Wyo. Stat. Ann. ' 9‑2-2202.
Section 8. Severability. If any portion of these rules is found to be invalid or unenforceable, the remainder shall remain in effect.
CONTESTED CASE PROCEEDINGS
Section 1. Referral to Office of Administrative Hearings.
(a) In any contested case where the agency is legally required to refer the contested case to the Office, or where the Office accepts an agency request to refer the contested case to the Office, referral shall be made as soon as practical after initiation of the contested case or as otherwise provided by law.
(b) The referring agency shall transmit to the Office copies of appropriate agency documents reflecting the disputed agency action or inaction and the basis thereof, including any written challenge(s) which initiated the contested case.
(c) The referring agency shall affix a transmittal sheet, on a form provided by the Office, sufficiently identifying the contested case, such as:
(i) The name of the referring agency;
(ii) The name of the known parties and their attorneys;
(iii) A concise statement of the nature of the contested case;
(iv) Notification of any statutory time limits, such as for the setting of hearings or the entry of decision;
(v) Anticipated special features or unique requirements, such as a party's request for interim, expedited or emergency relief; and,
(vi) Certification by an authorized officer of the referring agency that all parties have been properly served with a true and complete copy of the transmittal form.
Section 2. Filing and Service of Papers.
(a) In all contested cases, the parties shall file all original documents, pleadings and motions with the agency whose action or inaction is disputed, with true and complete copies of the particular document, pleading or motion properly served on all other parties and the Office. Thus with proper filing and service, the referring agency will maintain the complete official file, and all parties and the Office will have copies of all contested case documents, pleadings and motions contained therein. The Office, in its discretion, may make provision for other filing arrangements in individual cases.
(b) If a party is represented, service of contested case documents, pleadings and motions shall be made upon that party's attorney or other representative of record.
(c) Filing and service under this rule may be made either by hand delivery, by mail transmittal to the last known address, or by facsimile transmission.
Section 3. Docketing.
(a) The Office shall assign a docket number to each contested case. All papers, pleadings, motions and orders filed thereafter shall be signed and contain:
(i) Conspicuous reference to the assigned docket number;
(ii) A caption setting forth the title of the contested case proceeding and a brief designation describing the document filed; and,
(iii) The name, address and telephone number of the person who prepared the document.
Section 4. Scheduling.
(a) Upon docketing, the Office shall take appropriate action towards the ultimate decision, which may include but is not limited to scheduling informal conferences, pretrial hearings, motion hearings, settlement conferences and the contested case evidentiary hearing.
(b) As is provided by Chapter 3, Section 4 of these rules, telephone conference calls may be used to conduct any hearing or other proceeding.
Section 5. Continuances and Extensions of Time.
(a) Unless time does not permit, a request for a continuance of any scheduled hearing shall be in writing, shall state the reasons therefore and shall be filed and served on all parties and the Office. Continuances will be sparingly granted, only upon a substantial showing of good cause, or when necessary to assure fairness and otherwise avoid manifest injustice. Continuances will not ordinarily be granted ex parte. Opposing counsel or the opposing party, if not represented, should be contacted before a request for continuance is submitted to the Office.
(b) A request for an extension of time for the doing of any act prescribed or allowed by these rules or by order of the Office, shall be filed and served on all parties and the Office, prior to the expiration of the applicable time period. An extension of time will be granted only upon a showing of good cause, or when necessary to avoid manifest injustice.
(c) The presiding officer may relax the requirements for granting continuances and extensions of time so long as no party objects.
Section 6. Computation of Time. The computation of any period of time prescribed or allowed by these rules or any applicable statutes shall be in accordance with the provisions of Rule 6 (a) and (d), Wyoming Rules of Civil Procedure.
Section 7. Designation and Authority of Presiding Officer.
(a) A presiding officer of the Office may be designated to preside over the contested case and will provide the parties with either a recommended or final decision, whichever is appropriate under the applicable law, except in those cases where a referring agency does not wish to receive a recommended decision. In resolving a contested case, the presiding officers shall have that authority provided by law, including but not limited to regulating the course of the contested case proceeding.
(b) The presiding officer may, at any time while a contested case is pending, recuse himself or herself from presiding over the contested case by filing written notice of recusal with the agency and serving all parties. From and after the date the written notice of recusal is entered, that presiding officer shall not participate in resolution of the contested case.
(c) Upon motion of any party, recusal of the presiding officer shall be for cause as provided in rule 40.1(b)(2), Wyoming Rules of Civil Procedure.
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Section 8. Ex parte Communications. Except to the extent authorized by law, a party or that party's attorney shall not communicate, directly or indirectly, in connection with any issue of fact or law with the presiding officer concerning any pending case, except upon notice and opportunity for all parties to participate. Should ex parte communication occur, the presiding officer shall advise all parties of the communication as soon as possible thereafter, and if requested, allow any party an opportunity to respond.
Section 9. Discovery. Unless otherwise prohibited by law, discovery shall be available to the parties in accordance with the provisions of Rules 26, 28 through 37 [excepting Rule 37(b)(1) and 37(b)(2)(D)] of the Wyoming Rules of Civil Procedure. Discovery requests, answers and deposition notices are not to be sent to this Office.
Section 10. Subpoenas. Any party may request the Office issue a subpoena so as to compel the attendance of a witness. Request for the issuance of a subpoena shall be accompanied by a completed subpoena which should substantially conform to Rule 45 of the Wyoming Rules of Civil Procedure.
Section 11. Expedited Contested Case.
(a) Upon request of the parties, made prior to the date set for evidentiary hearing, any case may be heard as an expedited case.
(b) Expedited cases will be decided on written argument, evidence and stipulations submitted by the parties. Oral argument will be permitted upon the request of any party.
(c) The Office, at its discretion, may require an evidentiary hearing in any case in which it appears that facts material to a decision in the case cannot be properly determined without an evidentiary hearing.
Section 12. Limited Assignment for Alternative Dispute Resolution. The Office may, or at the request of all parties shall, assign the contested case to another presiding officer or other qualified person on limited assignment for the purpose of invoking non-binding alternative dispute resolution methods, including settlement conference and mediation. Such settlement conference or mediation may be conducted in accordance with the procedures prescribed by the person conducting the settlement conference or mediation. Rule 40, Wyoming Rules of Civil Procedure, shall not control alternative dispute resolution proceedings under this section, but may be used for guidance.
EVIDENTIARY HEARING AND DECISION
Section 1. Evidence.
(a) Generally, the taking of evidence at the evidentiary contested case hearing shall be governed by Wyo. Stat. Ann. ' 16-3-108 and case law thereunder.
(b) Evidence may be received in written form, yet if such written evidence would not be admissible under the Wyoming Rules of Evidence, all parties should be afforded a reasonable opportunity to confront and cross-examine the author of the written evidence. Generally, such a reasonable opportunity is afforded by giving all parties written notice of the intent to introduce and rely upon the written evidence a reasonable period of time prior to the scheduled evidentiary hearing.
(c) Irrelevant, immaterial or unduly repetitious evidence shall be excluded.
(d) Effect shall be given to the rules of privilege as recognized by Wyoming law.
(e) Administrative notice may be taken of judicially cognizable facts, provided the parties are properly notified of any material facts noticed.
(f) Unless otherwise provided by law, the party generally with the burden of proof will be the first to present evidence, all other parties being allowed to cross-examine in an orderly fashion. When that party rests, other parties will then be allowed to present their evidence, again allowing for orderly cross-examination. Rebuttal and surrebuttal evidence will be allowed only in the discretion of the presiding officer.
Section 2. Record of Proceedings. The referring agency shall make appropriate arrangements to assure that a record of the proceeding is kept pursuant to Wyo. Stat. Ann. ' 16-3-107.
Section 3. Briefs. If a party desires to submit a written brief, a request shall be made to the presiding officer. If approved, a date shall be set by which such brief is due. Briefs should set forth the factual and legal position of the party and be filed and served on all parties to the contested case.
Section 4. Telephone Conferences. At the discretion of the presiding officer, telephone conference calls may be used to conduct any hearing or other proceeding. At the discretion of the presiding officer, parties or their witnesses may be allowed to participate in hearings by telephone.
Section 5. Recommended Decision. In those instances where the Office makes a recommended decision, the presiding officer shall file the recommended decision with the referring agency and serve copies of the recommended decision on all parties to the contested case.
Section 6. Final Decision.
(a) Any final decision entered by the Office shall be in writing, filed with the referring agency and served upon all parties to the contested case. A final decision entered by the referring agency rather than this Office, should be served upon the Office.
(b) The final decision shall include findings of fact and conclusions of law on all material issues in the contested case. Final decisions may be in either order or decision letter form. When the Office requests that counsel draft a proposed final order, counsel may forward the original to the Office, concurrently serving copies of the proposed order on all other parties along with notice that any objections to the form of the proposed order must be made within ten (10) days.
(c) Within ten (10) days of the date of the final decision, any party may file a motion for reconsideration or rehearing for any of the reasons identified in Rule 59(a), Wyoming Rules of Civil Procedure. The Office shall issue a written order in response to the motion.
(d) Clerical mistakes in final decisions or other parts of the record may be corrected by the Office at any time, of its own initiative, or on the motion of any party and upon notice to all parties. During the pendency of judicial review, such mistakes may be corrected only with leave of the court having jurisdiction.
JUDICIAL REVIEW
Section 1. Judicial Review. Unless otherwise provided by law, any party aggrieved or adversely affected by a final decision in a contested case is entitled to judicial review in the appropriate district court pursuant to Wyo. Stat. Ann. ' 16‑3‑114 and Rule 12, Wyoming Rules of Appellate Procedure.
SPECIAL RULES RELATING TO WORKERS' COMPENSATION
Section 1. General Construction. These special rules relating to workers' compensation contested case proceedings before the Office are intended to supplement the foregoing provisions of Chapters 1 through 4. To the extent that any difference exists, the special rule takes precedence over any foregoing provision.
Section 2. Filing and Service of Papers. In all workers' compensation contested cases, the parties shall file all original documents, pleadings and motions with the Division of Workers' Safety and Compensation, with true and complete copies of the particular document, pleading or motion properly served on all other parties or their attorneys, and this Office. Wyo. Stat. Ann. '' 27-14-601(n) and 27-14-602.
Section 3. Appointed Attorney.
(a) The presiding officer may appoint an attorney to represent an employee or claimant and allow a reasonable fee upon entry of a final order. All requests for fees shall be in detail showing time spent and work performed and shall be verified. Attorney's fees allowed by the presiding officer shall be at an hourly rate of one hundred twenty dollars ($120.00) per hour. Paralegal fees allowed by the presiding officer shall be at an hourly rate not to exceed forty dollars ($40.00) per hour. Appointed attorneys shall be reimbursed for actual expenses reasonably incurred (e.g. deposition costs, expert witness fees, costs to obtain pertinent medical records, subpoena costs, telephone, postage and fax charges). If found compensable, copying costs shall be paid at no more than fifteen cents (154) per copy. If found to be reasonably incurred, attorneys' travel time shall be paid at one-half the hourly rate for attorney's fees or sixty dollars ($60.00) per hour. All requests for fees and costs shall be submitted within ninety (90) days of the final order unless good cause is otherwise shown.
(b) Requests for fees and expenses of appointed attorneys shall include the attorney's certification that he has reviewed the fee statement and that it is true and correct. The request shall additionally indicate the source (that is, from the worker=s compensation account, from amounts awarded to the employee or claimants, or from the employer) from which the fees and expenses have been proposed to be ordered paid. Requests shall be properly served on all parties or their attorneys.
(c) No fee shall be awarded in any case in which the presiding officer determines the claim to be frivolous and without legal or factual justification.
Section 4. Record of Proceedings. The presiding officer shall assure that a record of the proceeding is kept pursuant to Wyo. Stat. Ann. ' 16-3-107(p). The cost of reporting the contested case evidentiary hearing shall be paid in accordance with Wyo. Stat. Ann. ' 27-14-602(c).
Section 5. Referral to the Workers' Compensation Medical Commission.
(a) Upon agreement of all the parties to a case, the presiding officer may refer a medically contested case to the Medical Commission for hearing and final decision of all issues in the case.
(b) Upon agreement of all the parties to a case, the presiding officer may refer a case to the Medical Commission for advice on specified medical issues. The Office will make the final decision on all issues in the case and referrals for advice will be made only after the evidence in the case is closed. The parties shall have an opportunity to file written exceptions to the advice received from the Medical Commission and any exceptions, along with the advice received, shall become part of the record in the case.
SPECIAL RULES RELATING TO DRIVER'S LICENSES
Section 1. General Construction. These special rules relating to driver's license contested case proceedings before the Office, are intended to supplement the foregoing provisions of Chapters 1 through 4. To the extent that any difference exists, the special rule takes precedence over any foregoing provision.
Section 2. Evidence.
(a) In addition to other evidence properly received in all driver's license contested cases, the presiding officer shall admit into evidence the Wyoming Department of Transportation's certified record prepared in accordance with Wyo. Stat. Ann. ' 31-7-120.
(b) For any contested case hearing concerning Implied Consent - Administrative Per Se suspension (Wyo. Stat. Ann. '' 31-6-101 through 31-6-107), or Commercial Driver's License Implied Consent disqualification - blood alcohol concentration of four one-hundredths of one percent (0.04%) or more (Wyo. Stat. Ann. ' 31-7-307), the Wyoming Department of Transportation's certified record shall consist of:
(i) The peace officer's signed statement of probable cause;
(ii) The notice of suspension or disqualification;
(iii) A copy of the temporary license, if issued;
(iv) The operational checklist or chemical test result provided by the Wyoming Chemical Testing Program, Division of Health and Medical Services;
(v) A copy of the peace officer's certification, if applicable; and,
(vi) All other evidence which is material to the matter.
(c) For those contested case hearings referenced in subsection (b) above, when the Wyoming Department of Transportation presents evidence establishing that the chemical testing was conducted using methods approved under Wyo. Stat. Ann. ' 31-6-105, it shall be presumed that the test result is accurate. This presumption may be rebutted by evidence establishing that the specific test result is inaccurate as a result of equipment malfunction or improper administration.
(d) For any contested case hearing concerning Implied Consent - Refusal suspension (Wyo. Stat. Ann. '' 31-6-101 through 31-6-107), or Implied Consent - Refusal disqualification (Wyo. Stat. Ann. ' 31-7-307), the Wyoming Department of Transportation's certified record shall consist of:
(i) The peace officer's signed statement of probable cause;
(ii) The notice of suspension or disqualification;
(iii) A copy of the temporary license, if issued; and,
(iv) All other evidence which is material to the matter.
SPECIAL RULES RELATING TO SETTLEMENT
OR ALTERNATIVE DISPUTE RESOLUTION SERVICES
Section 1. Referrals to the Office of Administrative Hearings. Any state agency may request the Office provide hearing services consisting of non-binding settlement conferences or other alternative dispute resolution. Any such request shall be in writing and properly served by the agency on all parties to the particular matter, shall define the scope of the requested hearing services, and shall indicate that all parties agree to the limited assignment. Wyo. Stat. Ann. '' 9-2-2202(b) and 16-3-112(b).
Section 2. Conduct of Settlement Conferences. Settlement conferences or other alternative dispute resolution conducted before the Office shall be in accordance with any appropriate procedures prescribed by the presiding officer designated by the Office.
Section 3. Reporting Results of Settlement Conferences. No later than fifteen (15) days after the conclusion of settlement or other alternative dispute resolution proceedings before the Office, the presiding officer shall notify the agency, in writing, and with proper notice to all parties, whether settlement appears to have resulted. The presiding officer shall not disclose the terms of any settlement, but shall instead rely upon the parties properly submitting settlement documents to the other agency.