Pardons (Board Of), Administration

Rule R671-309

Impartial Hearings

Notice of Proposed Rule

(Amendment)

DAR File No.: 36572
Filed: 07/31/2012 10:16:35 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes procedures for holding impartial hearings to ensure due process. Agency action, and this administrative rule, are authorized and required by Subsection 63G-3-201(3), and Sections 77-27-5 and 77-27-7. The Board has statutory authority to enact administrative rules, pursuant to Section 77-27-1 et seq. and Subsection 77-27-9(4)(a).

Summary of the rule or change:

This rule change clarifies procedures for holding impartial hearings.

State statutory or constitutional authorization for this rule:

• Subsection 63G-3-201(3)
• Section 77-27-5
• Section 77-27-7
• Section 77-27-1 et seq.
• Subsection 77-27-9(4)(a)

Anticipated cost or savings to:

the state budget:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to the state budget. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

local governments:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to local governments. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

small businesses:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to small businesses. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

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

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to any other person. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Compliance costs for affected persons:

There is no compliance cost for affected persons. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

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

The Chairman of the Board of Pardons and Parole has considered this rule amendment, and finds that there is no fiscal impact on businesses because of this rule amendment. Interested persons may present their views on the rule pursuant to Division of Administrative Rules process and procedures. A public meeting was scheduled, noticed, and held regarding this rule amendment on Monday, 07/16/2012 at 8:00 a.m. No person attended the hearing to comment on this rule amendment, and no comments have been received by the Board.

Clark A. Harms, Chairman

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

Pardons (Board Of)
AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• John Green at the above address, by phone at 801-261-6464, by FAX at 801-261-6481, 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:

09/14/2012

This rule may become effective on:

09/21/2012

Authorized by:

Clark Harms, Chairman

R671. Pardons (Board of), Administration.

R671-309. Impartial Hearings.

R671-309-1. [Impartial Hearings.]Ex-Parte Communications.

Offenders are entitled to an impartial hearing before the Board. The Board discourages any direct outside contact with individual Board Members regarding specific cases. This also applies to Hearing Officers designated to conduct the hearing. Any such contact should be made with the Board's designated staff member.

All contacts by offenders, victims of crime, their family members or any other person outside the staff of the Board regarding a specific case shall be referred, whenever possible, to [the]a staff member designated by the Board who [may]is not [be ]directly involved in hearing the case. If circumstances dictate, the designated Board staff member shall prepare a memorandum for the file containing the substance of the contact. If the contact is by a victim wishing to make a statement for the Board's consideration, the Board's rule on Victim Input and Notification shall apply.

No board member and no hearing officer assigned to a case shall initiate, permit, or consider ex-parte communications concerning the substance of a pending or impending matter.

In situations where such ex-parte communication does occur, the Board member or hearing officer shall immediately take steps to terminate the communication, and shall thereafter reduce the substance of the communication to a written memorandum for the Board file, including copies of any writings that formed any part of the ex-parte communication. Such memorandum shall thereafter be disclosed to the parties.

[If a contact, or prior knowledge of a case or individuals involved, is such that it may affect the ability of a Board Member or designated Hearing Officer to make a fair and impartial decision in a case, the Board Member or designated Hearing Officer shall decide whether to participate in the hearing. Should the offender request that a board member or hearing officer not participate, such a request is not binding in any way, but shall be weighed along with all other factors in making a final decision regarding participation in the hearing.

]This rule shall not preclude contact regarding procedural matters so long as such contact is not for the purpose of influencing the decision of an individual Board Member on any particular case or hearing.

 

R671-309-2. Recusal.

A Board Member or other hearing official or officer shall recuse themselves in a proceeding in which the official's impartiality might reasonably be questioned. However, a potentially disqualified or recused hearing official may disclose the basis of the potential recusal to the offender, who, after disclosure, may waive disqualification or recusal. If the offender waives the recusal or disqualification and agrees that the hearing official need not be disqualified, the hearing official may conduct the proceeding. The offender's waiver shall be entered on the record and memorialized in the case file.

 

KEY: parole, inmates

Date of Enactment or Last Substantive Amendment: [November 22, 2002]2012

Notice of Continuation: January 31, 2012

Authorizing, and Implemented or Interpreted Law: 63G-3-201(3); 77-27-1 et seq.; 77-27-5; 77-27-7; 77-27-9(4)(a)