Commerce, Administration

Section R151-4-306

Motion to Recuse or Disqualify a Board or Commission Member

Notice of Proposed Rule

(Amendment)

DAR File No.: 36416
Filed: 06/27/2012 10:41:06 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This filing sets forth with more clarity the original intent of motions to recuse or disqualify a board or commission member; the amendments are not intended to make any substantive changes.

Summary of the rule or change:

In particular, this amendment clarifies that a motion to recuse or disqualify a board or commission member may be accompanied by an affidavit, that a decision on such a motion is not subject to interlocutory appeal, and that a board or commission member may recuse himself or herself at any time without a motion by a party.

State statutory or constitutional authorization for this rule:

• Section 13-1-6

Anticipated cost or savings to:

the state budget:

This rule filing clarifies the procedures for filing a motion to disqualify a board or commission member from a proceeding. No costs to the state budget are anticipated from these clarifications.

local governments:

Local governments are generally not affected by adjudicative proceedings in this agency. Even if they were, this rule filing simply clarifies the 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 proceedings, this filing is just a clarification of the applicable 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 clarifies the procedures for filing a motion to disqualify a board or commission member from a proceeding 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 clarifies the procedures for filing a motion to disqualify a board or commission member from a proceeding 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 clarifies the procedures 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 [email protected]

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:

08/14/2012

This rule may become effective on:

08/21/2012

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 and may include affidavits supporting the basis for the motion. 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 an interlocutory appeal or agency review.

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

(4) A Board or Commission member may recuse him or herself at any time regardless of whether a party has filed a motion to recuse or disqualify the Board or Commission member.

 

KEY: administrative procedures, adjudicative proceedings, government hearings

Date of Enactment or Last Substantive Amendment: [June 21], 2012

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