Section 4.40.040. Formal hearing.

	(a)  If the commissioner's designee affirms the decision of the initial decision maker, a district or applicant may request a formal hearing on the decision of the initial decision maker or the designee. If the designee amends the decision, or remands the decision to the initial decision maker, and the amended decision or the decision after remand does not grant the relief sought in the notice of appeal, a district or applicant may request a formal hearing on the decision of the initial decision maker after remand or the designee.  
	(b)  The request for hearing must be in writing, must be transmitted to the department by certified mail or in person, and must be postmarked or delivered no later than 15 calendar days after the date the decision under 4 AAC 40.030(c) or the decision of the initial decision maker after a remand was issued. The request must set out  
		(1) the errors that the district or applicant alleges were made by the initial decision maker or the commissioner's designee;  
		(2) the relief requested; and  
		(3) whether the district or applicant will be represented by counsel.  
	(c)  No later than 15 days after receipt of the request for hearing made under (a) of this section, the commissioner will appoint a hearing officer who is not an employee of the department.  
	(d)  No later than five days after appointment, the hearing officer shall schedule a prehearing conference with the parties for the purpose of determining scheduling, requirements for briefing and identification of exhibits, whether an oral hearing is necessary, witnesses, and other administrative matters specific to the hearing, The hearing officer may hold a settlement conference, or may arrange for other alternative dispute resolution, if requested by both parties.  
	(e)  The hearing shall be held no later than 30 days after the date of appointment of the hearing officer unless extended by the hearing officer on request of a party. A hearing officer may supplement the procedures in this subsection as necessary to conduct a fair and efficient hearing. The following procedures apply to all hearings:  
		(1) the hearing must be recorded;  
		(2) oral testimony must be under oath or affirmation;  
		(3) each party may  
			(A) be represented by counsel;  
			(B) call and examine witnesses;  
			(C) introduce items from the administrative record as exhibits;  
			(D) cross-examine opposing witnesses;  
			(E) impeach a witness regardless of who first called the witness to testify;  
			(F) file motions, including a motion for summary adjudication or to exclude evidence or argument;  
		(4) hearsay evidence may be used to supplement or explain nonhearsay evidence, but is not sufficient by itself to support a finding unless it would be admissible in a civil action;  
		(5) the rules of privilege are effective to the same extent that they are recognized in a civil action;  
		(6) the rules of privilege are effective to the same extent that they are recognized in a civil action;  
		(7) evidence shall be excluded if it would cause undue delay, waste time, or be a needless presentation of cumulative evidence;  
		(8) the burden of proof is on the party making the appeal;  
		(9) the hearing officer shall recommend that the commissioner uphold the initial decision maker or the commissioner's designee unless the hearing officer determines that  
			(A) the initial decision maker did not have a reasonable basis for the decision, based upon substantial evidence that was available to the initial decision maker at the time of the decision; or  
			(B) the commissioner's designee abused the designee's discretion in failing to grant the relief requested by the district or applicant, based upon substantial evidence that was available to the designee at the time of the decision.  
	(f)  The hearing officer shall prepare a transcript of the hearing upon the request of a party. The hearing officer shall submit a recommended decision to the commissioner no later than 15 working days after the record closes. The recommended decision must outline the substantive issues presented, and include findings of fact and conclusions of law.  
	(g)  The commissioner may adopt all, part, or none of the hearing officer's recommended decision submitted under (f) of this section, or may remand the matter back to the hearing officer with written instructions for further hearing or directions for further deliberation. No later than 15 working days after receiving the hearing officer's recommended decision, the commissioner will notify the district or applicant by certified mail of the commissioner's decision on the appeal.  
	(h)  The district or other applicant is solely responsible for expenses incurred by the district or other applicant with respect to the hearing.  
	(i)  Unless the commissioner remands the decision to the hearing officer, the commissioner's decision under (g) of this section is a final administrative decision of the department for purposes of appeal to the superior court under the Alaska Rules of Appellate Procedure.  

Authorities

14.07.060;14.17.920

Notes

Reference

4 AAC 52.710

Authority

AS 14.07.060 AS 14.17.920

History

Eff. 10/16/81, Register 80; am 2/11/89, Register 109; am 1/13/95, Register 133; am 11/10/2002, Register 164; am 12/29/2010, Register 196