Colorado Regulations § 8 CCR 1505-6-24 Procedural Rules for Hearings under section 1-45-111.7, C.R.S
Regulation Text
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.
History