DAR File No. 38876

Pardons (Board Of), Administration

Section R671-309-2

Recusal

Notice of Proposed Rule

(Amendment)

DAR File No.: 38876
Filed: 09/22/2014 11:07:30 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The current rule does not have a path for an individual to request the recusal of a Board member who may vote on the decision but is not conducting the hearing. The rule does not have an administrative appeal process if the initial hearing officer denies the recusal.

Summary of the rule or change:

The proposed changes clarify situations that require recusal and mirror judicial rules about recusal. The changes also create a path for an individual to request recusal of a Board member and an administrative appeal process.

State statutory or constitutional authorization for this rule:

• Section 77-27-1
• Section 77-27-5
• Subsection 77-27-9(4)(a)

Anticipated cost or savings to:

the state budget:

The proposed changes affect the Board, Board staff, and individuals under the jurisdiction of the Board. The parole hearing process is already in place. The proposed changes clarify when a hearing officer or Board member should be recused as well as the administrative appeal process if a request is denied by the initial hearing officer. These changes do not add cost or create savings for the state budget.

local governments:

The rule applies to the Board and its staff. The changes clarify the right of the offender to request recusal. Local governments do not participate in the parole hearing process. The recusal rule does not affect local governments.

small businesses:

The proposed changes affect the Board, Board staff and individuals under the jurisdiction of the Board. The rule denotes the situations that require a Board member or hearing officer to be recused and an appeal process for the individual. There is no impact for small business.

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

The proposed changes apply to an individual under the jurisdiction of the Board of Pardons and Parole. The changes clarify the circumstances for requesting a recusal and the appeal process if the individual's request is denied.

Compliance costs for affected persons:

There is not cost for the individual to participate in a hearing or to request recusal. The changes clarify the circumstances for requesting a recusal and the appeal process if the individual's request is denied.

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

The proposed changes affect the Board, Board staff and the offender. The parole hearing process is already in place and does not involve businesses. There is no cost impact for businesses.

Angela Micklos, Board Chair

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:

11/14/2014

This rule may become effective on:

11/21/2014

Authorized by:

Angela Micklos, Chair

R671. Pardons (Board of), Administration.

R671-309. Impartial Hearings.

R671-309-2. Recusal.

[A Board Member or other](1) A hearing official or [officer shall recuse themselves]Board member may be recused in [a]any proceeding in which the [official's]hearing official or Board member's impartiality might reasonably be questioned[. However, a potentially disqualified], including but not limited to the following circumstances:

(a) has a personal bias or prejudice concerning a party or a party's lawyer, is or could have been a witness or victim in any matter relating to the offender.

(b) has a familial, financial, or other relationship with anyone involved in the case that might reasonably be seen as a bias.

(c) served as a lawyer, judge, agent, or [recused hearing official may ]caseworker in any previous matter with the offender.

(2) In cases where a clear basis for recusal exists the hearing official will document the recusal in the file and re-assign the case before the hearing is conducted.

(3) If the conflict isn't recognized before the hearing or the basis for recusal is minimal, the hearing official shall 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.

(4) If the offender believes the hearing official or any Board member should be recused the offender shall raise the issue any time before or during the hearing.

(a) The offender may waive the recusal and continue with the hearing as prescribed in (2).

(b) If the offender requests the recusal of the hearing official or Board member who is conducting the hearing, the hearing official or Board member will rule on the issue. If the hearing official or Board member denies the recusal and proceeds with the hearing, the offender may appeal to the Board Chair or designee. The offender must clearly describe, in writing, the basis for recusing the hearing official and the requested remedy. If the offender does not appeal the issue within 10 calendar days after the hearing official denies the recusal, the appeal is waived.

(5) The offender may request the recusal of a Board member from the voting process based on any factors in subsection (1).

(a) If the offender requests the recusal of a Board Member who is not conducting the hearing, the hearing official will document the request. The Board will make a decision about the recusal before considering the case.

(b) If the offender does not raise the issue of recusal within 10 calendar days after the Board renders a decision the claim is waived.

 

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)