Title 4 . Education and Early Development

Chapter 31 . (Repealed)

Section 26. Requests for reconsideration and appeals

4 AAC 31.026. Requests for reconsideration and appeals

(a) By November 5 of each year the department will provide to each school district submitting a grant application notice of its proposed revised grant schedule that commences in the next fiscal year and of its priority ranking under 4 AAC 31.022(b) of all proposed projects for the first year of the six-year capital improvement plan. No later than December 1, with notice provided no later than November 15, the department will conduct a public hearing under AS 14.11.013 (e) to receive oral and written comments on its priority ranking of proposed projects. A school district aggrieved by the priority ranking assigned to a project, its scope as approved by the department, the denial of a waiver of all or a portion of the required local contribution to the cost of the project or the project's budget shall file, no later than the public hearing, a written request for reconsideration that states

(1) its specific objections;

(2) a summary of the evidence that the department erred in its priority ranking of the project, the scope of the project allowed, the denial of a waiver of all or a portion of the required local contribution to the cost of the project, or the amount of the project budget approved; and

(3) the relief it requests, which may include a higher priority, a broader scope of project, a waiver of all or a portion of the required local contribution to the cost of the project, or a larger project budget.

(b) A request for reconsideration filed by an aggrieved school district under (a) of this section will be considered by the department, and a written decision will be issued not later than 15 working days after the last day of the public hearing conducted under (a) of this section. In reaching its decision, the department will consider

(1) the school district's updated capital improvement plan submitted under 4 AAC 31.011;

(2) the grant application, and supporting documentation submitted by the school district under 4 AAC 31.021(c) ;

(3) oral and written comments received at the public hearing conducted under (a) of this section; and

(4) the protest filed by the aggrieved school district.

(c) A school district dissatisfied by the department's reconsideration decision under (b) of this section regarding a project's priority ranking, scope of the project, a denial of a waiver of all or a portion of the required local contribution to the cost of the project, or its budget, may file an appeal with the commissioner within 15 calendar days after the receipt of that decision. The notice of appeal must state the factual and legal basis of the appeal and the specific relief sought. Any issue not raised by the notice of appeal is considered waived in the subsequent proceedings.

(d) Within 10 working days after the filing of an appeal under (c) of this section, the commissioner shall appoint a hearing officer to hear the case. The hearing officer shall consider the issues raised in the appeal on the basis of

(1) the school district's updated capital improvement plan submitted under 4 AAC 31.011;

(2) the grant application, and supporting documentation submitted by the school district under 4 AAC 31.020(c) ;

(3) the comments received at the public hearing conducted under (a) of this section;

(4) the decision rendered by the department on the request for reconsideration under (b) of this section; and

(5) the appeal filed by the school district under (c) of this section.

(e) Within five working days after appointment, the hearing officer shall determine whether the appeal raises issues of law or fact. If the hearing officer determines that the appeal does not raise an issue of law or fact, the hearing officer shall render a written decision that denies the appeal. This decision is a final decision under AS 14.11.015 (b) and Alaska Rules of Appellate Procedure 601 - 611.

(f) If the hearing officer determines, under (e) of this section, that the appeal presents questions of law or fact, the hearing officer shall establish the date, time, and place of the hearing, which shall occur not more than 15 working days after appointment of the hearing officer, to supplement the record.

(g) The hearing shall be recorded and shall be conducted according to the following rules of evidence:

(1) oral evidence may be taken only on oath or affirmation;

(2) each party or party's counsel, but not both, may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on matters relevant to the issues even though those matters were not covered in the direct examination, impeach a witness regardless of which party first called the witness to testify, and rebut the evidence against the party;

(3) the hearing need not be conducted according to technical rules relating to evidence and witnesses; however, relevant evidence may be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a court rule that makes improper the admission of the evidence over objection in a civil action; hearsay evidence may be used to supplement or explain direct evidence but is not sufficient by itself to support a finding unless it would be admissible over objection in a civil action; the rules of privilege are effective to the same extent that they are recognized in a civil action; irrelevant and unduly repetitious evidence may be excluded;

(4) the burden of proof is on the district; the burden of persuasion is by a preponderance of the evidence.

(h) The hearing officer shall determine whether the department had a reasonable basis for deciding as it did. Using "reasonable basis" as a standard of review, the hearing officer shall decide the issues in the appeal on the basis of the record specified in (d) of this section and the evidence taken at the hearing. The hearing officer shall prepare proposed findings of fact and conclusions of law. Within 60 calendar days after the filing of the school district's appeal under (c) of this section, the hearing officer shall deliver the proposed findings of fact, conclusions of law, and proposed decision to the state Board of Education, with copies to the aggrieved school district and the department. Either party may file a response to the proposed decision not later than five working days after receipt of the copy of the proposed decision.

(i) At its next regularly scheduled meeting after receipt of the proposed findings of fact and conclusions of law, the state Board of Education will, in its discretion, adopt all, part, or none of the recommended decision, or remand the issue back to the hearing officer for further hearing. The board's decision will be in writing. The decision is the final decision on the issues presented in the appeal under the provisions of AS 14.11.015 and Alaska Rules of Appellate Procedure 601 - 611.

(j) A school district may not

(1) challenge the award of points to another district's projects except to show application of an arbitrary standard of evaluation; and

(2) raise in any appeal filed under (c) of this section an issue not raised by the written request for reconsideration; and issue not raised is considered waived in the subsequent proceedings.

History: Eff. 8/31/90, Register 115; am 8/12/93, Register 127; am 4/17/98, Register 146

Authority: AS 14.11.013

AS 14.11.015

AS 14.11.132