501 KAR 3:150. Hearings, procedures, disposition.

      RELATES TO: KRS Chapter 441

      STATUTORY AUTHORITY: KRS 441.013

      NECESSITY, FUNCTION, AND CONFORMITY: The Commissioner of the Department of Corrections is authorized by KRS 441.075(3) to hear matters covered by the order of the department requesting county jails, correctional or detention facilities to comply with the minimum standards for local jails pursuant to KRS 441.055 and to issue, modify or repeal the order at the conclusion of the hearing.

      Section 1. Definitions. (1) "Commissioner" means the Commissioner of the Department of Corrections.

      (2) "Department" means the Department of Corrections.

      (3) "Standards" means the minimum jail standards for local jails.

      (4) "Hearing officer" means a hearing officer appointed by the commissioner pursuant to KRS 441.075.

      (5) "Proceeding" means any proceeding before the commissioner or before a hearing officer.

      (6) "Day" means a calendar day.

      (7) "Order" means the order of the commissioner requiring the petitioner(s) to comply with the minimum jail standards for local jails as specified.

      (8) "Petitioner" means the jailer or county/judge executive who requests a hearing for review of the commissioner's order.

      (9) "Jail" means county jails and correctional or detention facilities, including correctional facilities defined in KRS 67B.020 and juvenile detention facilities, operated by and under the supervision of any county, city or urban county government.

      Section 2. Assignment of Hearing; Filings. (1) Pursuant to KRS 441.075(3), cases coming before the commissioner may be assigned to a hearing officer within the discretion of the commissioner for a hearing and a finding of facts, conclusions of law, and recommended order. Cases may be withdrawn by agreement, dismissed for cause, or otherwise disposed of before hearing in the discretion and judgment of the commissioner.

      (2) A recommended order or adjudication by the hearing officer or the initial order of the commissioner, if dismissed or disposed of as provided in subsection (1) of this section, or any modification of repeal of the initial order, shall become the final order of the commissioner under the provisions of KRS 441.013(3), appealable to the Franklin Circuit Court, thirty (30) days from the date of issue.

      (3) Prior to the assignment of a case to a hearing officer, the county jailer or county judge/executive shall, within seventy-two (72) hours of receipt of notification of order, request in writing a public hearing before the commissioner or his designee on the matters covered by said order to the Commissioner of the Department of Corrections, P.O. Box 2400, Frankfort, Kentucky 40602-2400. Subsequent to the assignment of the case to a hearing officer and prior to the issuance of his decision, all papers shall be filed with the hearing officer at the address given in the notice of hearing.

      (4) All evidence and witnesses of both parties and intervenors and all proof must be presented at the time of hearing. No additional evidence will be permitted thereafter except in unusual circumstances and within the discretion of the commissioner or the hearing officer.

      (5) All hearings shall be held in Frankfort, Kentucky unless otherwise ordered by the commissioner.

      (6) Unless otherwise ordered, all filing may be accomplished by first class mail.

      (7) Filing is deemed effective at the time of mailing.

      Section 3. Scope of Rules; Applicability of Kentucky Rules of Civil Procedure. (1) These rules shall govern all proceedings before the department and its hearing officers.

      (2) In the absence of a specific provision, procedure shall be in accordance with the Kentucky Rules of Civil Procedure.

      Section 4. Computation of Time. Where service of a pleading or documents is by mail pursuant to Section 2 of this administrative regulation, three (3) days shall be added to the time allowed by these rules for the filing of a responsive pleading.

      Section 5. Notice and Time of Hearing. (1) Notice of hearings shall be given to all parties and intervenors within forty-five (45) days from the receipt of the request for hearing unless otherwise ordered by the commissioner or his designee. No hearing shall be held later than ninety (90) days from the date of request.

      (2) The notice of hearing shall include:

      (a) Statement of the time and place of the hearing.

      (b) The name and address of the assigned hearing officer.

      (c) Statement of the legal authority and jurisdiction under which the hearing is held.

      Section 6. Continuance of Hearing. (1) Continuance of a hearing ordinarily will not be allowed.

      (2) Except in the case of an extreme emergency or in unusual circumstances, no such request will be considered unless received in writing at least three (3) days in advance of the time set for the hearing. The request for continuance must include the reasons therefor.

      (3) Continuance of hearing not in excess of fifteen (15) days may be granted in the discretion of the hearing officer. One (1) additional continuance not in excess of fifteen (15) days may be granted by the hearing officer in extreme emergency or under unusual circumstances. No additional continuance may be granted without approval of the commissioner.

      Section 7. Failure to Appear. (1) Subject to the provisions of subsection (3) of this section, the failure of a party to appear at a hearing shall be deemed to be a waiver of all rights except the rights to be served with a copy of the decision of the hearing officer.

      (2) Requests for a newly scheduled hearing must be made in the absence of extraordinary circumstances within five (5) days after the scheduled hearing date.

      (3) The commissioner or the hearing officer, upon a showing of good cause, may excuse such failure to appear. In such event, the hearing will be rescheduled.

      Section 8. Consolidation. Cases may be consolidated on the motion of any party, on the hearing officer's own motion, or on the commissioner's own motion, where there exist common parties, common questions of law or fact, or both, or in such other circumstances as justice and the administration of the Act require.

      Section 9. Severance. Upon its own motion, or upon motion of any party or intervenor, the commissioner or the hearing officer may, for good cause, order any proceeding severed with respect to some or all issues or parties.

      Section 10. Intervention. (1) A petition for leave to intervene may be filed at any stage of a proceeding before commencement of the hearing, or in the event of a settlement or dismissal before issuance of a recommended order.

      (2) The petition shall set forth the interest of the petitioner in the proceeding and show that participation of the petitioner will assist in the determination of the issues in question and that the intervention will not unnecessarily delay the proceeding.

      (3) The commissioner or the hearing officer may grant a petition for intervention to such an extent and upon such terms as the commissioner or the hearing officer shall determine.

      (4) The caption of all cases where intervention is allowed shall reflect such intervention by adding to the caption after the name of the respondent the name of the intervenor, followed by the designation "intervenor."

      Section 11. Service. (1) At the time of filing pleadings or other documents a copy thereof shall be served by the filing party or intervenor on every other party or intervenor.

      (2) Service upon a party or intervenor who has appeared through a representative shall be made only upon such representative.

      (3) Unless otherwise ordered, service may be accomplished by postage prepaid first-class mail or by personal delivery. Service is deemed effected at the time of mailing (if by mail) or at the time of personal delivery (if by personal delivery).

      (4) Proof of service shall be accomplished by a written statement of the same which sets forth the date and manner of service. Such statement shall be filed with the pleading or document.

      (5) Where service is accomplished by posting, proof of such posting shall be filed not later than the first working day following the posting.

      Section 12. Statement of Position. At any time prior to the commencement of the hearing before the hearing officer, any person entitled to appear as a party, or any person who has been granted leave to intervene, may file a statement of position with respect to any or all issues to be heard.

      Section 13. Response to Motions. Any party or intervenor upon whom a motion is served shall have ten (10) days from service of the motion to file a response.

      Section 14. Failure to File. Failure to file any pleading pursuant to these rules when due, may, in the discretion of the commissioner or the hearing officer, constitute a waiver of right to further participation in the proceedings.

      Section 15. Withdrawal of Notice of Hearing. At any stage of a proceeding, a party may withdraw his notice of hearing, subject to the approval of the commissioner.

      Section 16. Prehearing Conference. (1) At any time before a hearing, the commissioner or the hearing officer, on their own motion or on motion of a party, may direct the parties or their representatives to exchange information or to participate in a prehearing conference for the purpose of considering matters which will tend to simplify the issues or expedite the proceedings.

      (2) The commissioner or the hearing officer may issue a prehearing order which includes the agreements reached by the parties. Such order shall be served on all parties and shall be a part of the record.

      Section 17. Requests for Admissions. (1) At any time after the filing of responsive pleadings, any party may request of any other party admissions of facts to be made under oath. Each admission requested shall be set forth separately. The matter shall be deemed admitted unless, within fifteen (15) days after service of the request, or within such shorter or longer time as the commissioner or the hearing officer may prescribe, the party to whom the request is directed serves upon the party requesting the admission of a specific written response.

      (2) Copies of all requests and responses shall be served on all parties in accordance with the provisions of these rules and filed with the commissioner within the time allotted and shall be a part of the record.

      Section 18. Discovery Depositions and Interrogatories. (1) Except by special order of the commissioner or the hearing officer, discovery depositions of parties, intervenors, or witnesses, and interrogatories directed to parties, intervenors, or witnesses shall not be allowed.

      (2) In the event the commissioner or the hearing officer grants an application for the conduct of such discovery proceedings, the order granting the same shall set forth appropriate time limits governing the discovery.

      Section 19. Failure to Comply with Orders for Discovery. If any party or intervenor fails to comply with an order of the commissioner or the hearing officer to permit discovery in accordance with the provisions of these rules, the commissioner or the hearing officer may issue appropriate orders.

      Section 20. Reporter's Fees. Reporter's fees shall be equally shared by all parties. This shall include the reporter's per diem costs and the cost of the original transcript. All other copies will be paid by the requesting party.

      Section 21. Transcript of Testimony. Hearings shall be transcribed verbatim. A copy of the transcript of testimony taken at the hearing, duly certified by the reporter, shall be filed with the hearing officer before whom the matter was heard. The hearing officer shall promptly serve notice upon each of the parties and intervenors of such filing. Participants desiring copies of such transcripts may obtain the same from the official reporter upon payment of fees fixed therefor.

      Section 22. Duties and Powers of Hearing Officers. It shall be the duty of the hearing officer to conduct a fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate all issues and avoid delay. The hearing officer shall have authority with respect to cases assigned to him, between the time he is designated and the time he issues his decision, subject to the rules and administrative regulations of the department; to:

      (1) Administer oaths and affirmations;

      (2) Rule upon offers of proof and receive relevant evidence;

      (3) Regulate the course of the hearing and, if appropriate or necessary, exclude persons or counsel from the hearing for contemptuous conduct and strike all related testimony of witnesses refusing to answer any proper questions;

      (4) Hold conferences for the settlement or simplification of the issues;

      (5) Dispose of procedural requests or similar matters including motions referred to the hearing officer by the commissioner and motions to amend pleadings; also to dismiss complaints or portions thereof, and to order hearings reopened or, upon motion, consolidated prior to issuance of this decision;

      (6) Examine witnesses and to introduce into the record documentary or other evidence;

      (7) Request the parties at any time during the hearing to state their respective positions concerning any issue in the case or theory in support thereof;

      (8) Adjourn the hearing as the needs of justice and good administration require; and

      (9) Take any other action necessary under the foregoing and authorized by the published rules and administrative regulations of the department .

      Section 23. Exhibits. (1) All exhibits offered in evidence shall be numbered and marked with a designation identifying the party or intervenor by whom the exhibit is offered.

      (2) In the absence of objection by another party or intervenor, exhibits shall be admitted into evidence as a part of the record, unless excluded by the hearing officer pursuant to Section 27 of this administrative regulation.

      (3) Unless the hearing officer finds it impractical, a copy of each such exhibit shall be given to the other parties and intervenors.

      (4) All exhibits offered, but denied admission into evidence, shall be identified as in subsection (1) of this section and shall be placed in a separate file designed for rejected exhibits.

      Section 24. Rules of Evidence. Hearings before the department and its hearing officers insofar as practicable shall be governed by the Kentucky Rules of Evidence.

      Section 25. Burden of Proof. In all proceedings commenced by the filing of a notice of hearing, the burden of proof shall rest with the department.

      Section 26. Objections. (1) Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence or a ruling of the hearing officer, may be stated orally or in writing, accompanied by a short statement of the grounds for the objection, and shall be included in the record. No such objection shall be deemed waived by further participation in the hearing.

      (2) Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record of the proceeding.

      Section 27. Recommendations of Hearing Officer; Exceptions; Final Order. (1) The decision of the hearing officer shall include findings of fact, conclusions of law, and a recommended order to the commissioner disposing of all issues before him.

      (2) Any party may file exceptions to the hearing officer's findings of fact, conclusions of law, and recommended order within ten (10) days of the date of said findings of fact, conclusions of law, and recommended order.

      (3) The commissioner shall, within forty-five (45) days of the date of the hearing officer's findings of fact, conclusions of law, and recommended order, issue a final order modifying, repealing, or adopting the findings of fact, conclusions of law and recommended order of the hearing officer. (9 Ky.R. 1270; eff. 6-1-83; Am. 12 Ky.R. 1609; eff. 5-6-86; 13 Ky.R. 696; eff. 11-11-86; 19 Ky.R. 1857; 2625; eff. 6-7-93.)