Commerce, Administration

Section R151-4-306

Motion to Recuse or Disqualify a Board or Commission Member

Notice of Proposed Rule

(Amendment)

DAR File No.: 36104
Filed: 04/27/2012 01:15:59 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to provide a procedure to resolve potential challenges to the composition of a board or commission panel in an adjudicative proceeding.

Summary of the rule or change:

This rule filing provides a procedure for a party in an adjudicative proceeding to file a motion to disqualify a board or commission member from the proceeding, and the procedure for resolving such a motion. The vehicle franchise boards are exempted from this rule because the New Automobile Franchise Act and the Powersport Vehicle Franchise Act have a specific provision regarding board member conflicts.

State statutory or constitutional authorization for this rule:

• Section 13-1-6
• Subsection 63G-4-102(6)

Anticipated cost or savings to:

the state budget:

No costs to the state budget are anticipated in this filing which provides a procedure to challenge the participation of a board or commission member in an adjudicative proceeding.

local governments:

Local governments are generally not affected by adjudicative proceedings in this agency. Even if they were, this rule filing simply provides a procedure for challenges to board or commission member participation in proceedings and should result in no costs.

small businesses:

In the event that small businesses are involved in any adjudicative proceeding, this filing provides a procedure for challenges to board or commission member participation in proceedings and should result in no costs.

persons other than small businesses, businesses, or local governmental entities:

This rule filing provides a procedure for challenges to board or commission member participation in proceedings and should result in no costs to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

This rule filing provides a procedure for challenges to board or commission member participation in proceedings and should result in no costs to affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

No fiscal impact to businesses is anticipated from this filing which provides a procedure for challenges to board or commission member participation in proceedings.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Administration
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Masuda Medcalf at the above address, by phone at 801-530-7663, by FAX at 801-530-6446, or by Internet E-mail at mmedcalf@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2012

This rule may become effective on:

06/21/2012

Authorized by:

Francine Giani, Executive Director

R151. Commerce, Administration.

R151-4. Department of Commerce Administrative Procedures Act Rule.

R151-4-306. Motion to Recuse or Disqualify a Board or Commission Member.

(1)(a) A motion to recuse or disqualify a Board or Commission member must be filed no later than 14 days prior to the scheduled hearing before the Board or Commission. Service of such motion to the opposing party shall be by electronic mail, facsimile or overnight mail.

(b) A response to a motion to recuse or disqualify a Board or Commission member is permitted but not mandatory. Any response shall be filed no later than seven days before the scheduled hearing. Service of a response to the opposing party shall be by electronic mail, facsimile or overnight mail.

(c) No reply is permitted.

(2)(a) The decision on a motion to recuse or disqualify a Board or Commission member shall be made by the Board or Commission member the motion seeks to recuse or disqualify. A written decision is not necessary.

(b) At the beginning of the scheduled hearing, the Board or Commission member shall state on the record his or her decision. The Board or Commission member may choose to notify the presiding officer of his or her decision prior to the hearing, and the presiding officer shall then state the decision on the record.

(c) The Board or Commission member may ask the advice of the other members at the beginning of a scheduled hearing, but the Board or Commission member shall not be bound by any such advice.

(d) The Division, presiding officer, or filing party may not subject the Board or Commission member to questioning or examination on the motion.

(e) The Division or presiding officer may not reverse a recusal or disqualification decision made by a Board or Commission member.

(f) Like all interlocutory matters, a decision on a motion to recuse or disqualify a Board or Commission member is not subject to appeal or agency review.

(3) This rule does not apply to any adjudicative proceedings under the New Automobile Franchise Act, Utah Code Ann. Section 13-14-101 et seq.,or the Powersport Vehicle Franchise Act, Utah Code Ann. Section 13-35-101 et seq.

 

KEY: administrative procedures, adjudicative proceedings, government hearings

Date of Enactment or Last Substantive Amendment: [November 7, 2011]2012

Authorizing, and Implemented or Interpreted Law: 13-1-6; 63G-4-102(6)