DAR File No. 38629

Pardons (Board Of), Administration

Section R671-309-1

Ex-Parte Communications

Notice of Proposed Rule

(Amendment)

DAR File No.: 38629
Filed: 06/16/2014 05:47:03 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to clarify that hearing officers assigned to a case may not receive ex parte communication. Board members may not receive ex parte communication that could be perceived as an attempt to influence the Board's decision. Unwritten ex parte communication with staff will be summarized in writing and disclosed to the offender. The existing rule has no subnumbering. This amendment will number the rule.

Summary of the rule or change:

The existing rule prohibits ex parte communication. The amendment clarifies that the rule refers to hearing officers currently assigned to a case and contact with Board members that could be perceived as an attempt to influence the Board's decision. Unwritten ex parte communication with staff will be summarized in writing and disclosed to the offender.

State statutory or constitutional authorization for this rule:

• Section 77-27-7
• Subsection 77-27-9(4)(a)
• Section 77-27-5

Anticipated cost or savings to:

the state budget:

No change in cost or savings to the state budget. The proposed rule change does not create an additional duty but clarifies that contacts from victims, offenders or the public will be directed to designated staff rather than to Board members or the hearing officer assigned to a case. Just as in judicial proceedings, the Board must avoid ex parte communication which can give the appearance that a decision was unfairly influenced by information submitted without the knowledge of the other parties.

local governments:

No change in cost or savings to local governments. This proposed rule change does not create or change any procedure or action by a local government.

small businesses:

No change in cost or savings to small business. The proposed rule change does not restrict the small business from inquiring about a case or submitting information. The rule change clarifies that those inquires will be directed to designated staff rather than the Board member or hearing officer assigned to decide the case.

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

The existing rule prohibits ex parte communication. Ex parte communication can give the appearance that a person is attempting to influence the Board member or hearing officer making a decision about the case without the knowledge of the other parties. This amendment clarifies the duty of staff, hearing officers and Board members to disallow ex parte communication and to summarize any attempted ex parte communications in writing. This proposed rule change does not limit a person from inquiring about a case nor does it create a financial bar to submitting information to the Board.

Compliance costs for affected persons:

The existing rule prohibits ex parte communication. This amendment clarifies the duty of staff, hearing officers, and Board members but does not increase compliance costs for members of the public submitting information to the Board.

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

The proposed rule amendment does not fiscally impact businesses.

Clark Harms, Board 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:

• Greg Johnson at the above address, by phone at 801-261-6454, by FAX at 801-261-6481, or by Internet E-mail at gregjohnson@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:

08/18/2014

Interested persons may attend a public hearing regarding this rule:

• 08/18/2014 08:00 AM, 448 E Winchester, Suite 300, Murray, UT

This rule may become effective on:

08/25/2014

Authorized by:

Clark Harms, Chairman

R671. Pardons (Board of), Administration.

R671-309. Impartial Hearings.

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

(1) Offenders are entitled to an impartial hearing before the Board. The Board therefore discourages any [direct outside]ex parte 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.]:

(a) individual Board Members at any time; or

(b) hearing Officers once the Hearing Officer has been assigned to conduct a hearing for a specific offender.

(2) 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 a staff member designated by the Board who is not [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] currently directly involved in hearing the case.

[No board] (a) If information provided by any person outside of a hearing could materially affect the Board's decision, the designated staff member shall prepare a memorandum for the file containing the substance of the contact.

(b) If the contact is by a victim wishing to make a statement for the Board's consideration, Rule 671-203 on Victim Input and [no hearing officer]Notification shall apply.

(c) Any inquiries or input from attorneys, public officials, or members of the public, regarding case facts or substantive matters, shall be submitted in writing. Unwritten inquiries shall be documented and responded to in writing.

(3)(a) A Board Member or Hearing Officer assigned to a case [shall]may not initiate, permit, or consider ex[-] parte communications concerning the substance of a pending [or impending ]matter.

(b) A Board Member may not permit, consider, or be a party to any ex parte communication regarding a specific offender under Board jurisdiction if the object, intent, or substance of the communication is, or reasonably could be perceived to be, an attempt to impart information or opinion not contained in the offender's file, or to otherwise influence, change, or modify a Board decision or a Board Member's deliberations, decision, or vote.

(c)  In situations where such ex[-] parte communication does occur, the Board member or [hearing officer]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]offender.

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

(5) Attorneys may submit information for the Board to consider. The information shall be submitted in writing and directed to the Administrative Coordinator or designee.

 

KEY: parole, inmates

Date of Enactment or Last Substantive Amendment: [October 4, 2012]2014

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)