RULE
901.
ADMINISTRATIVE PROCEEDINGS
These rules should be read in conjunction with the Administrative
Procedures Act ("APA"), Ark. Code Ann. §
25-15-201
-219.
RULE 901.1.
LOCATION OF
OFFICE, CONTACT INFORMATION AND BUSINESS HOURS
Address or deliver all communications and inquiries to:
(a) Arkansas Securities Department, 201 East
Markham, Heritage West Building, Suite 300, Little Rock, Arkansas
72201.
(b) The general information
number for the Department is (501) 324-9260 and the toll free number is (800)
981-4429.
(c) The Department's
web-site is located at http://www.securities.arkansas.gov.
(d) The business hours of the Department are
8:00 a.m. to 4:30 p.m. each day except Saturdays, Sundays and legally declared
state holidays.
RULE
901.2.
SUBMISSIONS AND FILINGS
(a) Motions, requests, petitions, requests
for advisory opinions or interpretations and other materials submitted to the
Department shall be filed with the Commissioner at the office of the Department
or with any person authorized or designated by the Commissioner to receive a
filing.
(b) A filing may be made by
personal delivery, first-class, registered or certified mail or any express
delivery service. Where permitted by the Commissioner, a filing may be made by
facsimile or any other electronic means provided the Department can print such
filing. The Commissioner may require that a signed original of any document
filed by electronic means be filed with the Department.
(c) All petitions, correspondence, motions or
other documents shall be deemed filed when received by the Commissioner or any
person authorized or designated by the Commissioner to receive a
filing.
RULE 901.3.
ADVISORY OPINIONS OR OTHER LEGAL INTERPRETATIONS
The Commissioner or his designee may issue advisory opinions or
other legal interpretations regarding the Act, these rules, or any order issued
under the Act or these rules. Requests for written opinions or interpretations
of the laws or rules shall be in writing. The request must state or
contain:
(a) An original and one copy
of each request.
(b) The specific
section or subsection of the particular statute, rule, or order to which the
request pertains must be indicated in the request.
(c) The names of each person and entity
involved in the underlying facts. Requests relating to unnamed persons or
entities, or to hypothetical situations, will not be answered.
(d) Requests should be limited to the
particular situation involving the problem at hand and must not attempt to
include every possible type of situation that may arise in the future. The
facts and representations must be specific, not general.
(e) While it is essential that the request
contain all of the facts necessary to reach a conclusion in the matter, the
request should be concise and to the point.
(f) An indication why the requesting party
thinks a problem exists, his own opinion in the matter, and the basis for his
opinion.
(g) If the requesting
party seeks confidential treatment, a separate letter requesting confidential
treatment and stating the basis for confidential treatment must be submitted
with the request for informal advice.
RULE 901.4.
COMPUTATIONS OF TIME
In computing any period of time prescribed or allowed by the Act
or these rules, 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
legally declared state holiday, in which event the period runs until the end of
the next day which is neither a Saturday, Sunday, nor a legally declared state
holiday. When the period of time prescribed or allowed is less than seven (7)
days, intermediate Saturdays, Sundays, and legally declared state holidays
shall be excluded in the computation.
RULE
901.5.
EXTENSIONS OF TIME
Except as otherwise provided by law, the Commissioner may, for
good cause shown, extend any time limit prescribed or allowed by the rules or
by any notice or order issued in a contested case or other proceeding. The
Commissioner may grant extensions upon motion of a party or the Staff, after
notice and opportunity to respond is afforded to all non-moving parties and the
Staff, if the Staff is not the movant, or on the Commissioner's own motion. All
motions for extensions shall be made before the expiration of the period
prescribed.
RULE 901.6.
EFFECT OF FILING
The filing with the Commissioner of any motion, petition, request
for declaratory ruling or any other document shall not relieve any person of
the obligation to comply with any statute, rule, or order of the Commissioner.
Acceptance of such filing by the Commissioner shall not constitute a waiver of
any failure to comply with the Act or these rules. Where appropriate, the
Commissioner may require the amendment of any filing.
RULE 901.7.
SERVICE
(a) Service of all documents shall be by
personal service, first-class, registered or certified mail, or any express
delivery service.
(b) A copy of any
document served by any party showing the addresses to which the document or
other paper was served shall be placed in the Commissioner's files and shall be
prima facie evidence of such service and the date of such service.
(c) A party, intervenor, or the Staff filing
documents with the Commissioner in a contested case shall serve a copy of such
documents upon the counsel of record for all parties or intervenors that are
represented by counsel, upon any party or intervenor not represented and upon
counsel for the Department. Certification of such service shall be endorsed on
all documents when filed with the Commissioner.
RULE 901.8.
RIGHTS OF WITNESSES
(a) Any person who appears and testifies in a
deposition or a contested case may be accompanied, represented and advised by
counsel. The right to be accompanied, represented and advised by counsel means
the right of a person testifying to have counsel present at all times while
testifying and to have counsel:
(1) Advise the
person before and after the conclusion of testimony;
(2) Question the person briefly at the
conclusion of testimony to clarify any of the answers given; and
(3) Make summary notes during the testimony
solely for the use of the person.
(b) The Commissioner may take such action as
the circumstances warrant against a person who engages in dilatory or
obstructionist conduct during the course of a deposition, including exclusion
of the offending person from participation in the deposition or contested
case.
RULE
902.
COMMENCEMENT OF CONTESTED CASE
A matter that is a contested case by operation of law commences
when the Department so designates, but in no event not later than the date when
the Commissioner issues a notice of hearing.
RULE
902.1.
NOTICE OF HEARINGS
(a) Unless otherwise provided by statute,
notice of a hearing shall be given at least fourteen (14) days prior to the
hearing.
(b) The Commissioner may
issue a notice that sets the date and time of the hearing.
(c) The Commissioner may amend the notice of
hearing at any stage of the contested case prior to the close of evidence. The
Commissioner shall provide parties and intervenors with notice of the amendment
and shall provide them with sufficient time to prepare their case in light of
the amendment. A party that has requested a hearing on the original notice need
not request a hearing on the amended notice and any such hearing shall proceed
on the amended notice as if it were the original notice.
RULE 902.2.
HEARING LOCATION
Unless by direction of the Commissioner a different place is
designated, all hearings of the Department shall be held at the office of the
Department.
RULE 902.3.
POWERS OF THE COMMISSIONER
The Commissioner shall have all the powers necessary to conduct
the proceeding in a fair and impartial manner and to avoid unnecessary delay.
The powers of the Commissioner include, but are not limited to, the
following:
(a) Administering oaths and
affirmations;
(b) Regulating the
course of the hearing and the conduct of the parties and their counsel,
including the power to receive relevant, material and nonrepetitious evidence,
rule upon the admissibility of evidence and offers of proof, and exclude or
suspend a party's counsel from the proceedings for dilatory, obstructionist,
egregious, contemptuous, or contumacious conduct;
(c) Scheduling and holding prehearing
conferences and conferences prior to and during the course of a
hearing;
(d) Considering and ruling
upon all procedural and other motions appropriate in a proceeding, including
petitions to add a party or intervenor;
(e) Recusing for bias or conflict of interest
himself or herself on a motion made by a party or the Staff and appointing a
new hearing officer in his place;
(f) Performing all other functions necessary
and appropriate to discharge the duties of Commissioner.
RULE 902.4.
CONSOLIDATION AND
SEVERANCE
(a) The Commissioner may,
for good cause, upon the Commissioner's own motion or upon motion by a party or
the Department, consolidate proceedings involving related questions of law or
fact.
(b) The Commissioner may, for
good cause, upon the Commissioner's own motion or upon motion by a party or the
Department, sever the proceeding for separate resolution of the matter as to
any party or issue. In determining whether to sever the proceeding, the
Commissioner shall consider whether any undue prejudice or injustice that would
result from not severing the proceeding outweighs the interests of judicial
economy and expeditiousness in the complete and final resolution of the
proceeding.
RULE 902.5.
MOTIONS
(a)
(1) A motion may be made in writing or
orally, unless the Commissioner directs that such motion be reduced to
writing.
(2) All written motions
shall state with particularity the relief sought and may be accompanied by a
proposed order.
(3) No oral
arguments may be held on written motions except as otherwise directed by the
Commissioner. Written memoranda, briefs, affidavits or other relevant materials
or documents may be filed in support of or in opposition to a
motion.
(b) Motions shall
be filed with the Commissioner. There shall be filed an original and 2 copies
of each pleading and each exhibit.
(c)
(1) Not
more than seven (7) days after service of any motion, or such longer period of
time as may be permitted by the Commissioner for good cause, any party or the
Staff may file a written response to a written motion.
(2) The Commissioner shall not rule on any
oral or written motion before each party and the Staff have had an opportunity
to respond.
(3) The failure of a
party or the Staff to oppose a motion is deemed consent by that party or the
Staff to the entry of an order granting the relief
sought.
RULE
902.6.
CONTINUANCES
The Commissioner may continue the hearing on his or her own
motion or on the motion of any party or the Department on such terms as the
Commissioner may require. The Commissioner may grant any additional requests
for a continuance for settlement purposes or in the event that the denial of a
continuance request would substantially prejudice a party's or the Department's
case.
RULE 902.7.
FAILURE TO REQUEST OR APPEAR AT A HEARING
(a) When a party fails to request a hearing
within the time specified in the cease and desist order or other administrative
order, the allegations against the party may be deemed admitted.
(b) When a party fails to appear at a
scheduled hearing, the allegations against the party may be deemed admitted.
Without further proceedings or notice to the party, the Commissioner shall
issue a final decision. The Commissioner may, if deemed necessary, receive
evidence from the Staff, as part of the record, concerning the appropriateness
of the amount of any civil penalty sought in the request.
(c) A party that failed to request or appear
at a hearing may file a petition for reconsideration of a final
decision.
RULE 902.8.
APPEARANCES AND WITHDRAWALS
(a)
Attorneys duly admitted to practice law in the State of Arkansas and in good
standing may represent others before the Department.
(b) Attorneys in good standing from other
jurisdictions may request and, for good cause shown, be allowed to appear in a
contested case, provided an attorney admitted to practice in Arkansas is
present during the entire proceeding, signs all pleadings and other papers
filed in the proceeding and agrees to take full responsibility for supervising
the conduct of the attorney.
(c) An
individual may appear on his or her own behalf in a contested case; a partner,
member or manager of a partnership or limited liability company may appear and
represent the partnership or limited liability company; and a duly authorized
officer, director or employee of any agency, institution, corporation or
authority may appear and represent the agency, institution, corporation or
authority.
(d) Each person making
an appearance before the Commissioner as counsel or representative in
connection with any contested case shall promptly notify the Commissioner in
writing by filing a notice of appearance at or before the time such person
submits papers or otherwise appears on behalf of a party in the contested case.
The notice of appearance shall include a declaration that the individual is
currently qualified as provided in this section and is authorized to represent
and accept service on behalf of the represented party.
(e) Any party acting pro se shall so notify
the Commissioner in writing by filing a notice of appearance with the
Commissioner.
(f) After a notice of
appearance is filed by a party or counsel, copies of all subsequent pleadings,
notices, rulings, or decisions shall be provided to the person named in the
notice of appearance and person designated to represent the
Department.
(g) A person that has
filed a notice of appearance may withdraw the notice of appearance by filing a
written notice of withdrawal with the Commissioner and by providing a copy to
all parties, intervenors, and the Department.
RULE 902.09.
CONFERENCES
(a) Prior to the hearing, the parties, the
Department, and their counsel may meet with the Commissioner, at the direction
of the Commissioner or by mutual consent, in person at a specified time and
place or confer with the Commissioner by telephone for the purpose of
scheduling the course and conduct of the proceeding. The identification of
potential witnesses, the time for and manner of inspecting and copying
documents, and the exchange of any prehearing materials including witness
lists, exhibits, and any other materials may also be determined at the
scheduling conference.
(b) The
Commissioner may, in addition to the scheduling conference, upon motion by any
party or the Department, order the parties, the Staff, and their counsel to
meet with the Commissioner in person or by telephone at a prehearing conference
or may recess the hearing to address any or all of the following:
(1) Simplification and clarification of the
issues;
(2) Exchange of witness and
exhibit lists and copies of exhibits;
(3) Stipulations, admissions of fact, and the
contents, authenticity, and admissibility into evidence of documents;
(4) Matters of which official notice may be
taken;
(5) Issues relating to
witnesses and exhibits;
(6) Summary
disposition of any and all issues;
(7) Resolution of document production issues
or disputes;
(8) Amendments to
pleadings; and
(9) Such other
matters as may aid in the orderly disposition of the
proceeding.
(c) At or
within a reasonable time following the conclusion of the scheduling conference
or any prehearing conference, the Commissioner may serve on each party and the
Staff an order setting forth any agreements reached and any procedural
determinations made. If the Commissioner has ordered a party to disclose all
witnesses or exhibits, no witness may testify and no exhibit may be introduced
at the hearing if such witness or exhibit was not disclosed pursuant to such
order, unless the Commissioner allows a party or the Staff sufficient time to
prepare in light of the undisclosed witness or exhibit.
(d) Following any discussion among the
Commissioner, the parties, and the Staff addressing any issues in a contested
case that occurs during a hearing recess, the Commissioner shall place the
substance of the communication on the record including any action taken and any
agreements made by the parties and the Staff as to any matters that were
discussed.
RULE 902.10.
CONDUCT OF HEARINGS
(a) Hearings
shall be conducted so as to provide a fair and expeditious presentation of the
relevant disputed issues. The Department and each party has the right to
present its case or defense by oral examination and documentary evidence and to
conduct such cross-examination as may be required for full disclosure of the
facts.
(b) The Department shall
present its case-in-chief first, unless otherwise ordered by the Commissioner
or expressly specified by law. The Department shall be the first to present an
opening statement and a closing statement, and may make a rebuttal statement
after the other party's closing statement or, in the case of multiple parties,
after the closing statements of all parties.
(c) The Commissioner may, at any time prior
to the rendering of a final decision, reopen the hearing upon the motion of the
Commissioner, any party, or the Department for good cause shown. The parties,
intervenors, and the Staff shall be notified of the reopening and the hearing
shall be convened not less than five (5) days after the sending of such notice
unless waived by the parties and the Staff.
RULE 902.11.
RECORDING OF
HEARINGS
All hearings shall be recorded either stenographically or
electronically. The Commissioner shall serve notice upon the Department and all
parties of receipt of the certified transcript. Any party may request a copy of
the transcript from the court reporter and such copy shall be made available to
any party upon payment of the cost of the transcript.
RULE 902.12.
TRANSCRIPT
CORRECTIONS
The Commissioner shall have the authority to order the transcript
corrected upon a motion to correct, upon stipulation of the Department and the
parties, or upon the Commissioner's own motion following notice to the Staff
and the parties. The Commissioner may call for the submission of proposed
corrections and may order the corrections at appropriate times during the
course of the proceedings. Corrections in the official transcript may be made
only to make it conform to the evidence presented at the hearing. Transcript
corrections may be incorporated into the record at any time during the hearing
or after the close of evidence, but not more than ten (10) days from the date
of receipt of the transcript by the Commissioner.
RULE 902.13.
EVIDENCE
(a) The Commissioner may allow witnesses to
use existing or newly created charts, exhibits, calendars, calculations,
outlines, or other graphic material to summarize, illustrate, or simplify the
presentation of testimony, provided that upon request by the Commissioner, a
party or the Staff, the witness shall provide the books, papers, documents, or
sources from which the information contained in such materials is derived prior
to its use or admission as evidence.
(b) Formal exceptions to rulings on evidence
and procedure are unnecessary. It is sufficient that a party or the Staff, at
the time a ruling of the Commissioner is made or sought, makes known to the
Commissioner the action that the party or the Staff desires taken or the
objections to such action and the grounds for such action or objection. Failure
to object to the admission of evidence or any ruling constitutes a waiver of
the objection.
(c) Any offer of
proof made in connection with an objection taken to a ruling of the
Commissioner rejecting or excluding proffered oral testimony shall consist of a
statement of the substance of the evidence that would be adduced by such
testimony. If the excluded evidence consists of evidence in documentary or
written form or refers to documents or records, a copy of such evidence shall
be marked for identification and shall constitute the offer of proof.
(d) The Commissioner may take administrative
notice of judicially cognizable facts and generally recognized technical or
scientific facts within the Staff's specialized knowledge.
(e) The Commissioner shall afford the parties
and the Staff an opportunity to contest the material noticed before or during
the hearing.
(f) The Commissioner
shall have the authority to employ the Staff's experience, technical competence
and specialized knowledge in evaluating the evidence presented at the hearing
for the purpose of making findings of fact and arriving at a decision in any
contested case.
(g) The parties and
the Staff may stipulate as to any relevant matters of fact or the
authentication of any relevant documents that may be entered as evidence at the
commencement of or during the hearing.
RULE 902.14.
FILING OF ADDITIONAL
EVIDENCE
At any stage of the hearing, the Commissioner may call for
further evidence upon any issue and require that such evidence be produced by
the party or parties concerned or by the Staff, or may authorize any party or
the Staff to file specific documentary evidence as part of the record, either
at the hearing or within a specified time, provided every other party and the
Staff shall be afforded a reasonable opportunity to review and rebut or object
to such evidence.
RULE
902.15.
BRIEFS
Briefs may be filed by a party or the Department either before or
during the course of a hearing or within such time as the Commissioner
designates. Failure to file a brief shall in no way prejudice the rights of any
party or the Department. The order of filing briefs or reply briefs shall be
designated by Commissioner. The Commissioner shall provide the parties and the
Department at least fourteen (14) days to file a brief after it is requested. A
party or the Department may request an extension of the briefing schedule set
by the Commissioner prior to the due date. Late briefs may not be considered by
the Commissioner.
RULE
902.16.
FINAL DECISION
All decisions and orders of the Commissioner concluding a
contested case shall be in writing. If a final decision is adverse to a party,
the decision shall include all findings of fact and conclusions of law relied
upon by the Commissioner in arriving at the decision, the findings of fact and
conclusions of law to be separately stated. The findings of fact shall also set
forth a concise and explicit statement of the underlying facts supporting the
findings of fact, where appropriate.
RULE
902.17.
RIGHT TO APPEAL
A person who is aggrieved by the final decision of the
Commissioner may seek judicial review of the decision in accordance with the
provisions of Ark. Code Ann. §
25-15-212.
RULE 903.1.
FORM
The form to be followed in the filing of pleadings pursuant to
these rules will vary to the extent necessary to provide for the nature of the
legal rights, duties, or privileges involved therein. Except as otherwise
provided by law or the Commissioner otherwise determines, the petitions and
requests shall include the following:
(a) Each pleading shall incorporate a
statement setting forth clearly and concisely the authorization or other relief
sought. The pleading shall set forth:
(1)
Unless the pleading is filed by the Staff, the exact legal name of each person
seeking the authorization or relief and the address or principal place of
business of each such person. If any applicant or petitioner is a corporation,
limited liability company, partnership, trust, association, or other organized
group, it shall also specify the state under the laws of which it was created
or organized.
(2) The name, title,
address, and telephone number of the attorney to whom correspondence or
communications in regard to the petition or application are to be addressed.
Notice, orders and other papers may be served upon the person so named and such
service shall be deemed to be service upon the petitioner or
applicant.
(3) A concise and
explicit statement of the facts on which the Commissioner is expected to rely
in granting the authorization or other relief sought.
(4) An explanation of any unusual
circumstances involved in the petition or request to which the Commissioner
will be expected to direct particular attention, including the existence of
emergency conditions or any request for the granting of interlocutory relief by
way of an interim order during the pendency of the petition or
application.
(b) There
shall be attached to the pleading any exhibits, sworn written testimony, data,
models, illustrations, or other materials that the petitioner or movant deems
necessary or desirable to support the granting of the pleading or that any
statute or regulation may require for the lawful determination of the petition
or request.
(c) All documents,
whenever practicable, shall be printed, typewritten, or reproduced on one side
of the paper only, and double-spaced with a normal margin on all four sides.
All pleadings shall be on paper 8 ½ by 11 inches in size.
(d) Pleadings shall show the venue as
"Arkansas Securities Department," the title of the proceedings, the docket
number assigned, and an appropriate designation (e.g. Petition, Request,
Motion, Brief, Complaint).