803 KAR 50:010. Hearings; procedure, disposition.

 

      RELATES TO: KRS Chapter 338

      STATUTORY AUTHORITY: KRS 338.071, 338.081

      NECESSITY, FUNCTION, AND CONFORMITY: The Kentucky Occupational Safety and Health Review Commission is authorized by KRS 338.071 and 338.081 to hear and rule on appeals from citations, notifications, and variances and adopt and promulgate rules and administrative regulations with respect to the procedural aspect of its hearings. This administrative regulation is to provide for these hearings and their proper disposition.

 

      Section 1. Definitions. As used herein:

      (1) "Act" means the Occupational Safety and Health Act of 1972, KRS Chapter 338.

      (2) "Commission" means the Kentucky Occupational Safety and Health Review Commission.

      (3) "Commissioner" means the Commissioner of the Department of Workplace Standards, Labor Cabinet.

      (4) "Executive Director" means the Executive Director of the Review Commission.

      (5) "Hearing Officer" means a hearing officer appointed by the commission pursuant to KRS 338.071 and 338.081.

      (6) "Affected employee" or "employee" means an employee of a cited employer who is exposed to the alleged hazard described in the citation, as a result of his assigned duties.

      (7) "Authorized employee representative" means a labor organization which has a collective bargaining relationship with a cited employer and which represents affected employees.

      (8) "Representative" means any person, including an authorized employee representative, authorized by a party or intervenor to represent him in a proceeding.

      (9) "Citation" means a written communication issued by the commissioner to an employer pursuant to KRS 338.141.

      (10) "Notification of proposed penalty" means a written communication issued by the commissioner to an employer pursuant to KRS 338.141(1).

      (11) "Day" means a calendar day.

      (12) "Working day" means all days except Saturdays, Sundays, or federal or state holidays.

      (13) "Proceeding" means any proceeding before the commission or before a hearing officer.

      (14) Unless otherwise specified, definitions set forth in KRS 338.015 are hereby adopted by this review commission.

 

      Section 2. Meetings. (1) Regular meetings of the commission shall be held in its offices, Frankfort, Kentucky, on the first Tuesday of each month at 11 a.m., unless changed to another date, place, or time by commission action.

      (2) Special meetings may be called by the chairman or by two (2) members of the commission, and shall be held at such times and places as the call directs.

      (3) The commission shall be considered as in continuous session for the performance of administrative duties.

      (4) Two (2) members of the commission shall constitute a quorum.

 

      Section 3. Assignment of Hearing; Filings. (1) Pursuant to KRS 338.081, cases coming before the commission may be assigned to a hearing officer within the discretion of the commission 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 commission. Further, the commission may, upon its own motion or on motion of any party, if granted, hold hearings, as provided under KRS 338.071, in which case provisions of this regulation relating to hearing officers and hearings shall apply where applicable.

      (2) A recommended order or adjudication by the hearing officer or the initial order of the Review Commission, if dismissed or disposed of as provided in subsection (1) or if the commission sits for a hearing, shall become the final order of the commission, under the provisions of KRS 338.091, appealable to the Franklin Circuit Court, forty (40) days from date of issue, unless called for further review pursuant to Section 48 of this regulation. In the event of review by the commission, an order of the commission determinative of issues before it shall become a final order as defined in KRS 338.091 upon date of issue.

      (3) Prior to the assignment of a case to a hearing officer, all papers shall be filed with the executive director at the commission offices, #4 Millcreek Park, Route #3, Millville Road, Frankfort, Kentucky 40601. Subsequent to the assignment of the case to a hearing officer, and before the issuance of his decision, all papers shall be filed with the hearing officer at the address given in the notice informing of such assignment. Subsequent to a decision of the hearing officer, all papers shall be filed with the executive director.

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

      (5) Filing is deemed effected at the time of mailing.

 

      Section 4. Scope of Rules; Applicability of Kentucky Rules of Civil Procedure. (1) These rules shall govern all proceedings before the commission 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 5. Words Denoting Number or Gender. (1) Words importing the singular number may extend and be applied to the plural and vice versa.

      (2) Words importing masculine gender may be applied to feminine or neuter gender and vice versa.

 

      Section 6. Computation of Time. (1) In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or federal or state holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or federal or state holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and federal or state holidays shall be excluded in the computation.

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

 

      Section 7. Extensions of Time. Requests for extensions of time for the filing of any pleading or document must be received in advance of the date on which the pleading or document is due to be filed.

 

      Section 8. Record Address. The initial pleading filed by any person shall contain his name, address and telephone number. Any change in such information must be communicated promptly to the hearing officer or the commission, as the case may be, and to all other parties and intervenors. A party or intervenor who fails to furnish such information shall be deemed to have waived his right to notice and service under these rules.

 

      Section 9. Service and Notice. (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.

      (6) Service and notice to employees represented by an authorized employee representative shall be deemed accomplished by serving the representative in the manner prescribed in subsection (3) of this section.

      (7) In the event that there are any affected employees who are not represented by an authorized employee representative, the employer shall, immediately upon receipt of notice of contest or request for extension or modification of the abatement period, post, where the citation is required to be posted, a copy of the notice of contest and a notice informing such affected employees of their right to party status and of the availability of all pleadings for inspection and copying at reasonable times. A notice in the following form shall be deemed to comply with this paragraph:

 

(Name of employer)

Your employer has been cited by the Commissioner of the Department of Workplace Standards for violation of the Occupational Safety and Health Act of 1972. The citation has been contested and will be the subject of a hearing before the Occupational Safety and Health Review Commission. Affected employees are entitled to participate in this hearing as parties under terms and conditions established by the Occupational Safety and Health Review Commission in its rules of procedure. Notice of intent to participate should be sent to:

      Kentucky Occupational Safety and Health Review Commission

      #4 Millcreek Park

      Route #3, Millville Road

      Frankfort, Kentucky 40601

      All papers relevant to this matter may be inspected at: (Place reasonably convenient to employees, preferably at or near work place.)

      (8) Where appropriate, the second sentence of the above notice will be deleted and the following sentence will be substituted: The reasonableness of the period prescribed by the Commissioner of the Department of Workplace Standards for abatement of the violation has been contested and will be the subject of a hearing before the Occupational Safety and Health Review Commission.

      (9) the authorized employee representative, if any, shall be served with the notice set forth above and with a copy of the notice of contest.

      (10) A copy of the notice of the hearing to be held before the hearing officer shall be served by the employer on affected employees who are not represented by an authorized employee representative by posting a copy of the notice of such hearing at or near the place where the citation is required to be posted.

      (11) A copy of the notice of the hearing to be held before the hearing officer shall be served by the employer on the authorized employee representative or affected employees in the manner prescribed in subsection (3) of this section, if the employer has not been informed that the authorized employee representative has entered an appearance as of the date such notice is received by the employer.

      (12) Where a notice of contest is filed by an affected employee or an authorized employee representative, a copy of the notice of contest and response filed in support thereof shall be provided to the employer for posting in the manner prescribed in subsection (7) of this section.

      (13) An authorized employee representative who files a notice of contest shall be responsible for serving any other authorized employee representative whose members are affected employees.

      (14) Where posting is required by this section, such posting shall be maintained until the commencement of the hearing or until earlier disposition.

 

      Section 10. Consolidation. Cases may be consolidated on the motion of any party, on the hearing officer's own motion, or on the commission'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 11. Severance. Upon its own motion, or upon motion of any party or intervenor, the commission or the hearing officer may, for good cause, order any proceeding severed with respect to some or all issues or parties.

 

      Section 12. Protection of Trade Secrets and Other Confidential Information. (1) Upon application by any person, In a proceeding where trade secrets or other matters may be divulged, the confidentiality of which is protected by law, the hearing officer shall issue such orders as may be appropriate to protect the confidentiality of such matters.

      (2) Interlocutory appeal from an adverse ruling under this section shall be granted as a matter of right.

 

      Section 13. Employer or Employee Contests. (1) Where a notice of contest is filed by an employer contesting a citation or notification issued pursuant to KRS 338.131, 338.141 or 338.153, an employee or an authorized employee representative may elect party status by a request for intervention at any time before commencement of the hearing or if no hearing is held, within the time period a motion for dismissal is required to be posted.

      (2) Where a notice of contest is filed by an employee or by an authorized employee representative contesting a citation or notification issued pursuant to KRS 338.131, 338.141 or 338.153, the employer may elect party status at any time before commencement of the hearing, or if no hearing is held, within the time period a motion for dismissal is required to be posted.

 

      Section 14. 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 commission or the hearing officer may grant a petition for intervention to such an extent and upon such terms as the commission 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 15. Representatives of Parties and Intervenors. (1) Any party or intervenor may appear in person, through an attorney, or through another representative who is not an attorney.

      (2) A representative of a party or intervenor shall be deemed to control all matters respecting the interest of such party or intervenor in the proceeding.

      (3) Affected employees who are represented by an authorized employee representative may appear only through such authorized employee representative.

      (4) In the absence of an appearance by a representative, a party or intervenor will be deemed to appear for himself. A corporation or unincorporated association may be represented by an authorized officer or agent.

      (5) Withdrawal of appearance of any representative may be effected by filing a written notice of withdrawal and by serving a copy thereof on all parties and intervenors.

 

      Section 16. Variance Contests. (1) An employer, employee or authorized employee representative who receives notification of an adverse ruling to an application for a variance made pursuant to KRS 338.153 may, within fifteen (15) working days of issuance of such ruling file a notice of contest with the Commissioner of the Department of Workplace Standards. the commissioner of the Department of Workplace Standards shall transmit such notice, together with the complete record in the matter as compiled before the Commissioner of the Department of Workplace Standards, to the commission within seven (7) days of receipt, under authority of KRS 338.071(4).

      (2) The commission may on its own order or on motion of any party, if granted, consider the matter on the record or may Require further hearing or filings of information in the matter.

      (3) All pertinent provisions relating to contests of citations, where applicable, shall apply.

 

      Section 17. Request for Extension or Modification of Abatement. (1) Any party adversely affected by a ruling of the Commissioner of the Department of Workplace Standards on any application for extension or modification of an abatement period may file an appeal from such notification with the Commissioner of the Department of Workplace Standards, provided such appeal is filed within fifteen (15) working days from receipt of such notice. Such appeal shall be limited to the commissioner's ruling affecting the party's application for extension or modification of the abatement period.

      (2) The commissioner of the Department of Workplace Standards shall transmit such appeal to the commission {within seven (7) days after its receipt, together with all pertinent and relevant records considered by the Commissioner of the Department of Workplace Standards in making his ruling.

      (3) The commissioner of the Department of Workplace Standards shall file a response to such appeal within ten (10) days of receipt of notice of such appeal.

      (4) The commission may on its own order or on motion of any party, if granted, consider the matter on the record or may require further hearing, pleading or information in the matter.

 

      Section 18. Form. (1) Except as provided herein, there are no specific requirements as to the form of any pleading. A pleading is simply required to contain a caption sufficient to identify the parties in accordance with Section 19 of this administrative regulation which shall include the commission's docket number, if assigned; and a clear and plain statement of the relief that is sought, together with the grounds therefor.

      (2) Pleadings and other documents (other than exhibits) shall be typewritten, double spaced.

      (3) Pleadings shall be signed by the party filing or by his representative. Such signing constitutes a representation by The signer that he has read the document or pleading; that To the best of his knowledge, information and belief that statements made therein are true and that it is not interposed for delay.

      (4) The commission may refuse for filing any pleading or document which does not comply with the requirements of subsections (1), (2), and (3) of this section.

      (5) All pleadings shall be filed in duplicate unless otherwise indicated.

      (6) Unless otherwise designated in this regulation, any pleading shall be assumed as admitted as correct unless a reply or denial is received within ten (10) days of receipt of such pleading.

 

      Section 19. Captions. (1) Cases initiated by a notice of contest shall be titled: Commissioner of the Department of Workplace Standards, Complainant v. (Name of Contestant), Respondent.

      (2) Cases initiated from an adverse ruling of the commissioner of the Department of Workplace Standards relative to a variance or by a request for extension or modification of the abatement period shall be titled: (Name of Petitioner), Petitioner v. Commissioner of the Department of Workplace Standards, Respondent.

      (3) The titles listed in subsections (1) and (2) of this section shall appear at the left upper portion of the initial page of any pleading or document (other than exhibits) filed.

      (4) The initial page of any pleading or document (other than exhibits) shall show, at the upper right of the page, opposite the title, the docket number, if known, assigned by the commission.

 

      Section 20. Notices of Contest of Citations. (1) Any employer, employee or authorized employee representative may contest any citation issued pursuant to KRS 338.141.

      (2) When a notice of contest is received by the commissioner the original and one (1) copy of the notification of contest shall be transmitted to the commission together with copies of all relevant documents, within seven (7) days of receipt of notice by the commissioner.

      (3) Complaint.

      (a) The commissioner shall file a complaint with the commission no later than twenty (20) days after his receipt of the notice of contest.

      (b) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:

      1. The basis for jurisdiction;

      2. The time, location, place and circumstances of each such alleged violation; and

      3. The considerations upon which the period for abatement and the proposed penalty on each alleged violation is based.

      (c) Where the commissioner seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

      (4) Answer.

      (a) Within fifteen (15) days after service of the complaint, the party against whom the complaint was issued shall file an answer with the commission.

      (b) The answer shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest. Any allegation not denied shall be deemed admitted.

 

      Section 21. 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 22. 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 23. Failure to File. Failure to file any pleading pursuant to these rules when due, may, in the discretion of the commission or the hearing officer, constitute a waiver of right to further participation in the proceedings.

 

      Section 24. Withdrawal of Notice of Contest. At any stage of a proceeding, a party may withdraw his notice of contest, subject to the approval of the commission.

 

      Section 25. Prehearing Conference. (1) At any time before a hearing, the commission 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 commission 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 26. 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 commission 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 commission within the time allotted and shall be a part of the record.

 

      Section 27. Discovery Depositions and Interrogatories. (1) Except by special order of the commission 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 commission 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 28. Failure to Comply With Orders for Discovery. If any party or intervenor fails to comply with an order of the commission or the hearing officer to permit discovery in accordance with the provisions of these rules, the commission or the hearing officer may issue appropriate orders.

 

      Section 29. Issuance of Subpoenas; Petitions to Revoke or Modify Subpoenas; Right to Inspect or Copy Data. (1) Any member of the commission shall, on the application of any party directed to the commission, forthwith issue subpoenas requiring the attendance and testimony of witnesses and The production of any evidence, including relevant books, records, correspondence or documents in his possession or under his control applications for subpoenas, if filed subsequent to the assignment of the case to a hearing officer, may be filed with the hearing officer. A hearing officer shall grant the application on behalf of any member of the commission. Applications for subpoenas may be made ex parte. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued.

      (2) Any person served with a subpoena, whether ad testificandum or duces tecum, shall, within five (5) days after the date of service of the subpoena upon him, move in writing to revoke or modify the subpoena if he does not intend to comply. All motions to revoke or modify shall be served on the party at whose request the subpoena was issued. The hearing officer or the commission, as the case may be, shall revoke or modify the subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The hearing officer or the commission, as the case may be, shall make a simple statement of procedural or other grounds for the ruling on the motion to revoke or modify. The motion to revoke or modify, any answer filed thereto, and ruling thereon shall become a part of the record.

      (3) Persons compelled to submit data or evidence at a public proceeding are entitled to retain or, on payments of lawfully prescribed costs, to procure copies of transcripts of the data or evidence submitted by them.

      (4) Upon the failure of any person to comply with a subpoena issued upon the request of a party, the commission by its counsel shall initiate proceedings in the Franklin Circuit Court or appropriate circuit court for the enforcement thereof, if in its judgment the enforcement of such subpoena would be consistent with law and with policies of the Act. Neither the commission nor its counsel shall be deemed thereby to have assumed responsibility for the effective prosecution of the same before the court.

 

      Section 30. Notice of Hearing. (1) Notice of the time, place, and nature of a hearing shall be given to the parties and intervenors at least ten (10) days in advance of such hearing, except as otherwise provided in Section 52 of this regulation.

      (2) Copy of notice of hearing shall be served by the employer on affected employees          and/or the affected employees' representative as provided in Section 9(9) and (10) of this regulation, If no information has been received by the employer as to employee intervention in the case before the commission. Notice of hearing will be given by the commission to any party-intervenor.

      (3) The executive director shall secure or cause to be secured a location for such hearing, in the discretion of the commission, and secure a reporter for the taking of proof at any hearing.

 

      Section 31. Postponement of Hearing. (1) Postponement 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.

      (3) Postponement of hearing not in excess of thirty (30) days may be granted in the discretion of the hearing officer. One (1) additional postponement not in excess of thirty (30) days may be granted by the hearing officer in extreme emergency or under unusual circumstances. No additional postponement may be granted without commission approval.

 

      Section 32. 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 and to request commission review pursuant to Section 48 of this administrative regulation.

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

      (3) The commission 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 33. Payment of Witness Fees and Mileage; Fees of Persons Taking Depositions. Witnesses summoned before the commission or the hearing officer shall be paid the same fees and mileage that are paid witnesses in the courts of the Commonwealth of Kentucky and Witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the Commonwealth of Kentucky. Witness fees and mileage shall be paid by the party at whose instance the witness appears, and the person taking a deposition shall be paid by the party at whose instance the deposition is taken.

 

      Section 34. Reporter's Fees. Reporter's fees shall be borne by the commission, except as provided in Section 33 of this regulation.

 

      Section 35. 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 36. 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 regulations of the commission, to:

      (1) Administer oaths and affirmations;

      (2) Issue authorized subpoenas;

      (3) Rule upon petitions to revoke subpoenas;

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

      (5) Take or cause depositions to be taken whenever the needs of justice would be served;

      (6) 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;

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

      (8) Dispose of procedural requests or similar matters including motions referred to the hearing officer by the commission 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 his decision;

      (9) Call and examine witnesses and to introduce into the record documentary or other evidence;

      (10) 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;

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

      (12) Take any other action necessary under the foregoing and authorized by the published rules and regulations of the commission.

 

      Section 37. Disqualification of Hearing Officer. (1) A hearing officer may withdraw from a proceeding whenever he deems himself disqualified.

      (2) Any party may request the hearing officer at any time following his designation and before the filing of his decision, to withdraw on grounds of personal bias or disqualification, by filing with him promptly upon the discovery of the alleged facts an affidavit setting forth in detail the matters alleged to constitute grounds for disqualification.

      (3) If, in the opinion of the hearing officer the affidavit referred to in subsection (2) of this section is filed with due diligence and is sufficient on its face, the hearing officer shall forthwith disqualify himself and withdraw from the proceeding.

      (4) If the hearing officer does not disqualify himself and withdraw from the proceedings, he shall so rule upon the record, stating the grounds for his ruling and shall proceed with the hearing, or, If the hearing has closed, he shall proceed with the issuance of his decision and the provisions of Section 47 of this regulation shall thereupon apply.

 

      Section 38. Examination of Witnesses. Witnesses shall be examined orally under oath. Opposing parties shall have the right to cross-examine any witness whose testimony is introduced by an adverse party.

 

      Section 39. Affidavits. An affidavit may be admitted as evidence in lieu of oral testimony if the matters therein contained are otherwise admissible and the parties agree to its admission.

 

      Section 40. Deposition in Lieu of Oral Testimony; Application; Procedures, Form; Rulings. (1) An application to take the deposition of a witness in lieu of oral testimony shall be in writing and shall set forth the reasons such deposition should be taken; the name and address of the witness; the matters concerning which it is expected he will testify; and the time and place proposed for the taking of the deposition; together with The name and address of the person before whom it is desired that the deposition be taken (for purposes of this section, hereinafter referred to as the officer). Such application shall be filed with the commission or the hearing officer, as the case may be, and shall be served on all other parties and intervenors not less than seven (7) days (when the deposition is to be taken elsewhere) prior to the time when it is desired that the deposition be taken. Where good cause has been shown, the commission or the hearing officer shall make and serve on the parties and intervenors an order which specifies the name of the witness whose deposition is to be taken and the time, place, and designation of the officer before whom the witness is to testify. Such officer may or may not be the officer specified in the application.

      (2) Such deposition may be taken before any officer authorized to administer oaths by the laws of Kentucky or of the place where the examination is held. If the examination is held in a foreign country, it may be taken before any secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States.

      (3) At the time and place specified in the order, The officer designated to take such deposition shall permit the witness to be examined and cross-examined under oath by all parties appearing, and The testimony of the witness shall be reduced to typewriting by the officer or under his direction. All objections to questions or evidence shall be deemed waived unless made at the examination. The officer shall not have power to rule upon any objection, but he shall note them upon the deposition. The testimony shall be subscribed by the witness in the presence of the officer who shall attach his certificate stating that the witness was duly sworn by him; that the deposition is a true record of the testimony and exhibits given by the witness; and that the officer is not of counsel or attorney to any of the parties nor interested in the proceeding. If the deposition is not signed by the witness because he is ill, dead, cannot be found, or refuses to sign it, or will be unavailable to sign the typed deposition and it is so stated by agreement, such fact shall be included in the certificate of the officer and the deposition may be used as fully as though signed. The officer shall immediately deliver an original and three (3) copies of the transcript, together with his certificate, in person or by registered mail to the executive director, Kentucky Occupational Safety and Health Review Commission, #4 Millcreek Park, Route #3, Millville Road, Frankfort, Kentucky 40601.

      (4) The hearing officer shall rule upon the admissibility of the deposition or any part thereof.

      (5) All errors or irregularities in compliance with the provisions of this section shall be deemed waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is or with due diligence might have been discovered.

      (6) If the parties so stipulate in writing, depositions may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used as other depositions.

 

      Section 41. 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 42 of this 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 designated for rejected exhibits.

 

      Section 42. Rules of Evidence. Hearings before the commission and its hearing officers insofar as practicable shall be governed by the rules of evidence applicable in the courts of the Commonwealth of Kentucky.

 

      Section 43. Burden of Proof. (1) In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the commissioner.

      (2) In proceedings commenced by a request for extension or modification of the abatement period, the burden of establishing the necessity for such extension or modification shall rest with the petitioner.

      (3) In all proceedings commenced by appealing from an adverse ruling on a variance application, the burden of proving the inequity of the ruling of the commissioner of the Department of Workplace Standards shall rest on the petitioner-complainant.

 

      Section 44. 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 45. Interlocutory Appeals; Special; as of Right. (1) Unless expressly authorized by these rules, rulings by the hearing officer may not be appealed directly to the commission except by its special permission. Unless otherwise provided by these rules, all such rulings shall become a part of the record.

      (2) Request to the commission for special permission to appeal from such ruling shall be filed in writing within five (5) days following receipt of the ruling and shall state briefly the grounds relied on.

      (3) Interlocutory appeal from a ruling of the hearing officer shall be allowed as of right where the hearing officer certifies that:

      (a) The ruling involves an important question of law concerning which there is substantial ground for difference of opinion; and

      (b) An immediate appeal from the ruling will materially expedite the proceedings. Such appeal shall also be allowed in the circumstances set forth in Section 12 of this regulation.

      (4) Neither the filing of a petition for interlocutory appeal nor the granting thereof as provided in subsections (2) and (3) of this section shall stay the proceedings before the hearing officer unless such stay is specifically ordered by the commission.

 

      Section 46. Filing of Briefs and Proposed Findings with the Hearing Officer; Oral Argument at the Hearing. (1) Any party shall be entitled, upon request, to a reasonable period at the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Any party shall be entitled, upon request made before the close of the hearing, to file a brief, proposed findings of fact and conclusions of law, or both, with the hearing officer. The hearing officer may fix a reasonable period of time for such filing, but the initial period shall not exceed thirty (30) days from the receipt by the party of the transcript of the hearing or the date the hearing officer designates by order of his receipt. The complainant shall have fifteen (15) days to file, the respondent ten (10) days and the complainant five (5) days for reply, unless a shorter period is agreed on by all parties. Intervenors shall have until the 25th day of the thirty (30) day period in which to file briefs.

      (2) All briefs must be filed within the time fixed and The hearing officer or the commission may refuse to consider any brief filed thereafter. Application for extension of time to file briefs must be made to the hearing officer or commission before whom hearing was held.

      (3) Briefs must be accompanied with notice, showing service upon all other parties, and in addition to the original filed, three (3) copies of each such document shall be furnished to the commission.

 

      Section 47. Decisions of Hearing Officers. (1) The decision of the hearing officer shall include findings of fact, conclusions of law, and a recommended order disposing of all issues before him.

      (2) The hearing officer shall sign the decision and forward to the executive director. The executive director shall then date and issue such decision, sending a copy to all parties of record and to each commission member. Upon issuance of the recommended order, jurisdiction shall rest solely in the commission, and all motions, petitions and other pleadings filed subsequent to such issuance shall be addressed to the commission.

      (3) The recommended order of the hearing officer may be called for further review by any commission member or by the commission as a whole at any time within a forty (40) day period. If the recommended order is not ordered for further review, it shall become the final order of this commission forty (40) days after date of issuance. If a recommended order is called for review by a commissioner or the commission on its own order, parties will be advised in order that briefs may be submitted if desired. The commission will set the briefing time.

 

      Section 48. Discretionary Review; Petition. (1) A party aggrieved by the decision of a hearing officer may submit a petition for discretionary review.

      (2) The petition must be received by the commission at its offices in Frankfort, Kentucky on or before the 25th day following receipt by the commission of the hearing officer's decision.

      (3) A petition should contain a concise statement of each portion of the decision and order to which exception is taken and may be accompanied by a brief of points and authorities relied upon. The original and three (3) copies shall be filed with the commission.

      (4) Statements in opposition to petitions for discretionary review may be filed at any time during the review period, if received by the commission on or before the 35th day from date of the issuance of the recommended order. Such statement shall contain a concise statement on each portion of the petition for discretionary review to which it is addressed.

      (5) The commission while reviewing a case may request briefs on any point, and shall set the time for such filings.

      (6) The original and three (3) copies of all briefs or statements provided for under this section and Section 47 of this administrative regulation shall be furnished for use of the commission.

      (7) Failure to act on any petition for discretionary review in the review period shall be deemed a denial thereof.

 

      Section 49. Stay of Final Order. (1) Any party aggrieved by a final order of the commission may, while the matter is within the jurisdiction of the commission, file a motion for a stay.

      (2) Such motion shall set forth the reasons a stay is sought and the length of the stay requested.

      (3) The commission may order such stay for the period requested or for such longer or shorter period as it deems appropriate.

 

      Section 50. Oral Argument Before the Commission. (1) Oral argument before the commission ordinarily will not be allowed.

      (2) In the event the commission desires to hear oral argument with respect to any matter it will advise all parties to the proceeding of the date, hour, place, time allotted, and scope of such argument at least ten (10) days prior to the date set.

 

      Section 51. Settlement or Dismissals. (1) Settlement is encouraged at any stage of the proceedings where such settlement is consistent with the provisions and objectives of the Act.

      (2) Settlement agreements submitted by the parties shall be accompanied by an appropriate proposed order. Such settlement agreement shall detail the basis for such settlement, either by order or a stipulated agreement properly signed by all parties.

      (3) Where parties to settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees in the manner set forth in Section 9 of this regulation. Proof of such service shall accompany the proposed settlement when submitted to the commission or the hearing officer showing such notice to such employees or authorized employee representative ten (10) days before submission to the hearing officer or the commission.

      (4) In any action on a citation on motion of either party for dismissal, the motion shall state the reason for such dismissal and show posting for ten (10) days as required for settlement agreements. In cases where dismissal is moved by the respondent, respondent shall also show abatement of cited violation and payment of any penalty, if applicable.

 

      Section 52. Expedited Proceeding. (1) Upon application of any party or intervenor, or upon his own motion, any commission member may order an expedited proceeding.

      (2) When such proceeding is ordered, the executive director shall notify all parties and intervenors.

      (3) The hearing officer assigned in an expedited proceeding shall make necessary rulings, with respect to time for filing of pleadings and with respect to all other matters, without reference to times set forth in these rules, shall Order daily transcripts of the hearing and shall do all other things necessary to complete the proceeding in the minimum time consistent with fairness.

 

      Section 53. Standards of Conduct. All Persons appearing in any proceeding shall conform to the standards of ethical conduct required in the courts of the Commonwealth of Kentucky.

 

      Section 54. Ex Parte Communication. (1) There shall be no ex parte communication, with respect to the merits of any case not concluded, between the commission, including any member, officer, employee, or agent of the commission who is employed in the decisional process, and any of the parties or intervenors.

      (2) In the event such ex parte communication occurs, the commission or the hearing officer may make such orders or take such action as fairness requires. Upon notice and hearing, the commission may take such disciplinary action as is appropriate in the circumstances against any person who knowingly and willfully makes or solicits the making of a prohibited ex parte communication.

 

      Section 55. Restrictions as to Participation by Investigative or Prosecuting Officers. In any proceeding noticed pursuant to the rules in this part, the commissioner shall not participate or advise with respect to the report of the hearing officer or the commission decision.

 

      Section 56. Inspection and Reproduction of Documents. (1) Subject to the provisions of law restricting public disclosure of information, any person may, at the offices of the commission, inspect and copy any document filed in any proceeding.

      (2) Costs shall be borne by such person.

 

      Section 57. Restrictions with Respect to Former Employees. (1) No former employee of the commission or the commissioner (including a member of the commission or the executive director) shall appear before the commission as an attorney or other representative for any party in any proceeding or other matter, formal or informal, in which he participated personally and substantially during the period of his employment.

      (2) No former employee of the commission or the commissioner (including a member of the commission or the executive director) shall appear before the commission as an attorney or other representative for any party in any proceeding or other matter, formal or informal, for which he was personally responsible during the period of his employment, unless one (1) year has elapsed since the termination of such employment.

 

      Section 58. Amendments to Rules. The commission may at any time upon its own motion or initiative, or upon written suggestion of any interested person setting forth reasonable grounds therefor, amend or revoke any of the rules contained herein, in compliance with KRS Chapter 13.

 

      Section 59. Special Circumstances, Waiver of Rules. In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the commission may, upon application by any party or intervenor, or on its own motion, after three (3) days notice to all parties and intervenors, waive any rule or make such orders as justice or the administration of the Act requires.

 

      Section 60. Penalties. All penalties assessed by the commission are civil. (KOSHRC-Proc.-1; 1 Ky.R. 349; eff. 2-5-75; Am. 2 Ky.R. 288; eff. 2-4-76; 6 Ky.R. 62; eff. 9-5-79; 23 Ky.R. 191; eff. 9-11-96.)