8 CCR 1505-6-24 - Procedural Rules for Hearings under section 1-45-111.7, C.R.S
24.1
Scope of rules
24.1.1 These rules apply to
initial complaints filed under section
1-45-111.7(2)(a) and
(7), C.R.S., and to administrative complaints
filed by the division with a hearing officer pursuant to section
1-45-111.7(5),
C.R.S.
24.2 Filing an
administrative complaint
24.2.1 The division
shall determine whether it will file an administrative complaint within:
(a) 30 days after initiating an investigation
under section
1-45-111.7(5),
C.R.S.; or
(b) 14 business days
after the deputy secretary's denial of a motion to dismiss the initial
complaint filed under section
1-45-111.7(5),
C.R.S.
24.2.2 An
administrative complaint may supplement or amend the initial complaint with
such additional or alternative factual allegations and legal claims that are
supported by the division's review and investigation under sections
1-45-111.7(4) and
(5), C.R.S., and also may omit any factual
allegations, legal claims, and named respondents in the initial complaint that
are not supported by the division's review and investigation.
24.2.3 In any proceedings related to an
administrative complaint, the division will be represented by counsel from the
Colorado Department of Law, or such other special assistant attorneys general
as may be designated by the Colorado Department of Law.
24.2.4 For purposes of this rule, any filings
made to the hearing officer shall be made to the following email address:
AdministrativeHearingOfficer@coloradosos.gov.
24.3 General conduct of hearings
24.3.1 To the extent practicable, and unless
inconsistent with these rules and the applicable statute, the C.R.C.P. applies
to matters before the hearing officer. Unless the context otherwise requires,
whenever the word "court" appears in a rule of civil procedure, that word shall
be construed to mean a hearing officer. The following C.R.C.P rules do not
apply:
(a) C.R.C.P. 16.;
(b) The filing deadlines for motions and
cross motions for summary judgment set forth in C.R.C.P. 56(c); and
(c) Any other C.R.C.P. rule that by its terms
necessarily does not apply to the litigation of a disputed administrative
complaint.
24.3.2 A
hearing officer need not strictly comply with the Colorado Rules of Evidence.
Such rules shall serve as guidance for the hearing officer who has discretion
to admit evidence, not admissible under Colorado Rules of Evidence, that is
sufficiently reliable and trustworthy, and is evidence that possesses probative
value commonly accepted by reasonable and prudent persons in the conduct of
their affairs.
24.3.3 The hearing
officer will conduct any hearings at the offices of the Department at 1700
Broadway, Denver, Colorado, unless exigent circumstances require use of another
location. The Department will provide such administrative, technical, and
logistical support to the hearing officer as may be required to facilitate such
hearings. Remote hearings by video conference or telephone conference may be
conducted as circumstances require.
24.3.4 Any hearing conducted by the hearing
officer shall be open to the public, unless closed pursuant to a written order
by the hearing officer finding good cause for such closure.
24.3.5 All hearings conducted by the hearing
officer shall be audio recorded, with an audio recording system provided by the
Department.
(a) The audio recording of the
hearing shall be the official record of the proceeding.
(b) Any party may request a copy of the
recording, at the party's expense.
(c) One party or the other, or by agreement
of the parties, may make arrangements for a court reporter transcription of the
proceedings.
24.3.6
Subject to the exceptions set forth in sections
1-45-111.7(5)(a)(II) and
(III), C.R.S., all documents filed with or by
the hearing officer shall be open to public inspection, unless otherwise
prohibited by law, regulation, or court order, or when upon motion by either
party and so ordered by the hearing officer to prohibit public
inspection.
24.3.7 As required by
section 1-45-111.7(6)(b),
C.R.S., or any successor provision, any initial decision issued by a hearing
officer must be made in accordance with section
24-4-105, C.R.S., and is subject
to review by the deputy secretary, including any submission of exceptions filed
by the parties. The final agency decision is subject to review under section
24-4-106, C.R.S.
24.4 Assignment of cases
24.4.1 Cases will be assigned on a rotating
basis to the hearing officer(s) retained by the Department for purposes of
conducting hearings under this rule. Should the Department retain only one
hearing officer, that hearing officer will be assigned and will prioritize
hearing cases in order of their filing as appropriate.
24.5 Setting of hearings or other proceedings
24.5.1 Within 30 days of the filing of an
administrative complaint, a hearing officer will set a date for hearing unless
a stay is entered, the matter is continued, or the hearing officer finds good
cause for an enlargement of time.
24.5.2 For a proceeding that is stayed, or
for a hearing that has been continued, any party may file a request to reset
the proceedings to set a hearing date with the hearing officer.
24.6 Entry of appearance and
withdrawal of counsel
24.6.1 Entries of
appearance and withdrawals of counsel shall be in conformance with C.R.C.P.
121, section 1-1. Any out-of-state attorney shall comply with C.R.C.P. 221.1.
24.6.2 Rule 24.7.1 does not apply
to a substitution of counsel if new counsel enters an appearance at the same
time as prior counsel withdraws.
24.7 Default procedures
24.7.1 A person who is served an
administrative complaint is required to file a written answer, a motion under
C.R.C.P. 12(b), a motion for enlargement of time or a motion to stay due to
settlement within 30 days after the service or mailing of notice of the
proceeding. If a person receiving such notice fails to file an answer, a
hearing officer may enter a default against that person.
24.7.2 Respondent may, but is not required
to, file an answer during a stay or if the administrative complaint is
dismissed. If a stay is lifted and complaint proceedings resume, respondent
must file an answer, or responsive pleading within 30 days or as provided by
the hearing officer.
24.7.3 A
hearing officer will not grant a motion for entry of a default under this rule
unless the following requirements are met:
(a)
The motion for entry of a default must be served upon all parties to the
proceeding, including the person against whom a default is sought;
(b) The motion shall be accompanied by an
affidavit establishing that both the notice of the proceeding and the motion
for entry of default have been personally served upon the person against whom a
default is sought or have been mailed by first-class mail to the last address
furnished to the agency by the person against whom the default is sought;
and
(c) Any motion for entry of
default requesting a fine or civil penalty shall set forth the legal authority
for the claim and any applicable calculation thereof.
24.8 Discovery
24.8.1 Discovery may be sought by any party
without authorization of the hearing officer.
24.8.2 To the extent practicable, C.R.C.P. 26
through 37 and 121, section 1-12, and the duty to confer at C.R.C.P. 121,
section 1-15(8), apply to proceedings within the scope of these rules, except
to the extent that they provide for or relate to required disclosures, or the
time when discovery can be initiated.
24.8.3 In addition to the requirements of
C.R.C.P. 36, a request for admission shall explicitly advise the responding
party that failure to timely respond to the request may result in all of the
matters stated in the request being deemed established unless the hearing
officer, on motion, permits withdrawal or amendment of the admission. The
failure to comply with this rule may result in the matters contained in the
request being deemed denied.
24.8.4
Discovery requests and responses should not be filed with the hearing officer,
except to the extent necessary for the hearing officer to rule upon motions
involving discovery disputes, requests for summary judgment, or such other
dispositive motions as may depend on a discovery response.
24.8.5 Either party may move to modify
discovery deadlines and limitations in accordance with Pre-Hearing Procedures
as set forth in Rule 24.12.
24.8.6
Either party may move for a protective order. The motion must specify the
disclosure or portion of the disclosure to be subject to a protective order, as
well as the legal basis for seeking such an order.
24.9 Determination of motions
24.9.1 Any motion involving a contested issue
of law shall be supported by a recitation of legal authority.
24.9.2 A responding party shall have 14 days
from service, or as specified by the hearing officer to file and serve a
responsive brief. Reply briefs may be filed within seven days of service of the
responsive brief, or as specified by the hearing officer.
24.9.3 If facts not in the record before the
hearing officer are to be considered in disposition of the motion, the parties
may file affidavits at the time of filing the motion or responsive or reply
brief. Copies of such affidavits and any documentary evidence used in
connection with the motion shall be served on all other parties.
24.9.4 If possible, motions will be
determined upon the written motion and briefs submitted. The hearing officer
may order oral argument or evidentiary hearing on the hearing officer 's
request. If any party fails to appear at an oral argument or hearing without
prior showing of good cause for non-appearance, the hearing officer may proceed
to hear and rule on the motion.
24.9.5 An expedited hearing on any motion may
be held at the instance of the hearing officer. If any party requests that a
motion be determined immediately with or without a hearing, or that a hearing
be held on a motion in advance of a previously set motions date, that party
shall:
(a) Inform the hearing officer in
writing of said request;
(b)
Contact all other parties, determine their position on the motion, and indicate
on the face of the motion whether other parties oppose the motion and whether
they will request a hearing on the motion; and
(c) Conference in all other parties to set
the matter directly with the hearing officer on an expedited basis, if a
hearing is desired by any party and authorized upon advanced notice by the
hearing officer.
24.10 Burden of proof
24.10.1 The proponent of a request for remedy
or relief shall have the burden of proof, and every party to the proceeding
shall have the right to present their case or defense by oral and documentary
evidence, to submit rebuttal evidence, and to conduct such cross-examination as
may be required for a full and true disclosure of the facts.
24.10.2 Respondent bears the burden of
proving any affirmative defenses.
24.10.3 The degree of proof required to
prevail on a request for a remedy or relief is a preponderance of the evidence,
unless a constitutional or statutory provision sets a different
standard.
24.11
Prehearing procedures, statements, and conferences
24.11.1 Unless otherwise ordered by the
hearing officer, each party shall file with the hearing officer and serve on
each other party a prehearing statement in substantial compliance with the form
as outlined in Appendix A to these rules.
24.11.2 Prehearing statements shall be filed
and served no later than seven days prior to the hearing or such other date as
specified by the hearing officer. Exhibits shall not be filed with prehearing
statements, unless ordered by the hearing officer. Exhibits shall be exchanged
between the parties by the date on which prehearing statements are to be filed
and served on such other date as ordered by the hearing officer.
(a) The authenticity of exhibits, statutes,
ordinances, regulations, or standards set forth in the prehearing statement
shall be admitted unless objected to in a written objection filed with the
hearing officer and served on other parties no later than five days prior to
hearing.
(b) The information
provided in a prehearing statement shall be binding on each party throughout
the course of the hearing unless modified to prevent manifest injustice. New
witnesses or exhibits may be added only if the need to do so was not reasonably
foreseeable at the time of filing of the prehearing statement and then only if
it would not prejudice other parties or necessitate a delay of the hearing. The
division shall use numbers to identify exhibits and any opposing party shall
use letters.
(c) In the event of
noncompliance with this rule, the hearing officer may impose appropriate
sanctions including, but not limited to, the striking of witnesses, exhibits,
claims, and defenses.
24.11.3 Prehearing conferences may be held at
the request of either party or upon order of the hearing officer.
24.12 Motions for continuance
24.12.1 Continuances shall be granted only
upon a showing of good cause. Motions for continuance must be filed in a timely
manner. Stipulations for a continuance shall not be effective unless and until
approved by the hearing officer.
24.12.2 Good cause may include, but is not
limited to:
(a) Death or incapacitation of a
party or an attorney for a party;
(b) Entry or substitution of an attorney for
a party a reasonable time prior to the hearing, if the entry or substitution
reasonably requires a postponement of the hearing;
(c) A change in the parties or pleadings
sufficiently significant to require a postponement;
(d) A showing that more time is necessary to
complete mandatory preparation for the hearing;
(e) Agreement of the parties to a settlement
of the case which has been submitted for approval to the deputy secretary;
or
(f) Discovery.
24.12.3 Good cause normally will
not include the following:
(a) Unavailability
of counsel because of engagement in another judicial or administrative
proceeding, unless the other proceeding was involuntarily set subsequent to the
setting in the present case;
(b)
Unavailability of a necessary witness, if the witness's testimony can be taken
by telephone or by deposition; or
(c) Failure of an attorney or a party timely
to prepare for the hearing.
24.13 Subpoenas
24.13.1 Upon oral or written request of any
party or of counsel for any party, a hearing officer shall sign a subpoena or
subpoena duces tecum requiring the attendance of a witness or the production of
documentary evidence, or both, at a deposition or hearing. Unless otherwise
provided by statute, rule, or regulation, practice before the hearing officer
regarding subpoenas shall be governed by C.R.C.P. 45.
24.13.2 Hearing officer shall designate and
authorize specific Department personnel to use a stamp signature or to
otherwise duplicate the signature of a hearing officer on subpoenas completed
by the parties. However, no other party or person may duplicate the signature
of a hearing officer. Subpoenas issued in contravention of this rule are
invalid and may subject the party using them to sanctions.
24.13.3 Any attorney representing a party
before a hearing officer may issue a subpoena or subpoena duces tecum requiring
the attendance of a witness or the production of documentary evidence, or both,
at a deposition or hearing. Such attendance may be in-person or by video
conference as provided by the hearing officer.
24.14 Settlements
24.14.1 At any time, the parties may enter
into a settlement agreement. The settlement agreement must be in writing and
signed by the parties.
24.14.2 The
division shall file a motion to stay proceedings with the hearing officer once
good faith settlement negotiations begin. The division shall file a motion of
dismissal with the hearing officer if a settlement has been approved by the
deputy secretary. If the settlement agreement is not approved and alternative
terms cannot be agreed upon, the division will move the hearing officer to lift
the stay and resume proceedings before the hearing officer.
24.14.3 The following factors shall be
considered in arriving at a settlement agreement:
(a) Specific fine amounts outlined in Rule
23.3.3;
(b) Any appropriate
specific action in Rule 23.3.4; and
(c) The mitigating and aggravating factors in
Rule 23.3.5 to increase or decrease the monetary fine or terms, including the
public interest in resolution of the complaint.
24.14.4 The settlement agreement is
contingent upon approval by the deputy secretary, who must also consider the
factors set forth in Rule 24.15.3 . If the deputy secretary does not approve
the settlement agreement, none of the terms or recitals of the agreement are
binding or enforceable by either party.
24.14.5 If Respondent fails to comply with
the terms of a settlement agreement, including failure to submit payment or
satisfy any registration, filing, or other tasks required by the settlement
agreement, the division may pursue an enforcement action in Denver District
Court.
24.14.6 The settlement
agreement shall become the final agency action under section
24-4-105, C.R.S., upon approval by
the deputy secretary.
24.15 Ex parte communications
24.15.1 With the exception of scheduling or
other purely administrative matters, a party or counsel for a party shall not
initiate any communication with a hearing officer pertaining to a matter before
that hearing officer unless prior consent of all other parties or their counsel
has been obtained. Copies of all pleadings or correspondence filed with that
hearing officer or directed to a hearing officer by any party shall be served
upon all other parties or their counsel.
24.15.2 During the pendency of an
administrative complaint, the deputy secretary, as well as staff directly
supporting the deputy secretary or the deputy secretary's designee, shall have
no contact regarding the matter with the hearing officer while the matter is
pending before the hearing officer. Staff directly supporting the deputy
secretary or the deputy secretary's designee are authorized to contact support
staff directly supporting the hearing officer concerning procedural,
record-keeping, or other non-substantive matters.
24.16 Computation and modification of time
24.16.1 In computing any period of time
prescribed or allowed by these rules, the provisions of C.R.C.P. 6 shall apply.
The time periods of these rules may be modified at the discretion of the
hearing officer.
24.17
Filing of pleadings and other papers
24.17.1
Pleadings and other papers may be filed by email to the hearing officer.
Pleadings may not be filed by facsimile copy.
24.17.2 After the case has been assigned a
case number, all pleadings and papers filed with the hearing officer shall
contain that case number.
24.18 Service of pleadings and other papers.
24.18.1 Service of pleadings or other papers
on a party or on an attorney representing a party may be made by email. Service
of pleadings will not be accepted by facsimile copy.
24.18.2 Pleadings or other papers sent to the
hearing officer must contain a certificate of service attesting to service on
the opposing party and in the case of service by mail providing the address
where pleadings or other papers were served.
24.18.3 Attorneys and parties not represented
by attorneys must inform the hearing officer and all other parties of their
current address and of any change of address during the course of the
proceedings.
24.19 Court
reporters
24.19.1 Neither the Department nor
the hearing officer supplies court reporters. If any party wishes to have all
or a portion of a proceeding transcribed by a court reporter, that party may
make private arrangements to do so at that party's own expense. The recording
of any proceeding made electronically by the hearing officer shall be the
official record.
24.19.2 A request
to the hearing officer or the Department for a recording must be in writing and
must contain the case number and the date and time of the hearing or
conference.
24.20
Substitution of hearing officer
24.20.1 In the
event the hearing officer becomes aware of a circumstance that reflects an
actual or perceived conflict of interest for the hearing officer to conduct a
hearing on an administrative complaint, the hearing officer shall promptly
transmit to the deputy secretary a request for the deputy secretary to appoint
a substitute hearing officer in their place to conduct the hearing in the
matter. The deputy secretary will appoint a substitute hearing officer to
conduct the hearing of the pending administrative complaint.
24.20.2 A party may seek substitution of the
hearing officer assigned to conduct the hearing on an administrative complaint
only upon a verified motion with supporting evidence that is concrete and
particular and not speculative, demonstrating that a reasonable person would
question the propriety of the hearing officer conducting the hearing on the
administrative complaint. Such a request for substitution of the hearing
officer will be determined in the first instance by the hearing officer
assigned to hear the administrative complaint. If the hearing officer denies
the request for a substitute hearing officer, that decision is not subject to
review until the hearing officer issues an initial decision for review by the
deputy secretary, at which time a party may raise the substitution issue among
its exceptions to the initial decision.
24.20.3 By way of illustration, and without
limitation, circumstances that may give rise to an actual or perceived conflict
of interest requiring the substitution of the hearing officer are the follow:
(a) A familial relationship with a party or
the party's counsel;
(b) A current
business or professional relationship with or representation of a
party;
(c) Current representation
of a respondent in another campaign finance case either before the division or
in a separate hearing; or
(d) Such
other circumstances as would cause a reasonable person to question the
propriety of the hearing officer conducting the hearing on the administrative
complaint.
24.21 Transfer
24.21.1 Upon motion by the division, any
administrative complaint pending before the Office of Administrative Courts
shall be transferred to a hearing officer as provided for in these rules. The
administrative complaint will proceed uninterrupted.
Notes
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