4 AAC 40.040. Hearing

(a) A district or other applicant may request a formal hearing on the decision of the commissioner's designee under 4 AAC 40.030(b) if the commissioner's designee does not grant the relief sought in the notice of appeal.

(b) The request for hearing must be in writing, must be transmitted to the department by certified mail, and must be postmarked no later than 15 calendar days after the date the district or applicant received the decision under 4 AAC 40.030(b) . The request must set out

(1) the list of exhibits that the district or applicant intends to introduce at the hearing;

(2) names of persons to be called as witnesses at the hearing; and

(3) whether the district or applicant will be represented by counsel.

(c) Within 15 days after receipt of the request for hearing made under (a) of this section, the commissioner will appoint a hearing officer who is not an employee of the department.

(d) Within five days after appointment, the hearing officer will schedule a prehearing conference with the parties to the appeal for the purpose of

(1) setting a time, date, and location for the hearing;

(2) providing a schedule for the parties' exchange of exhibits, witness lists, and legal briefing, if requested;

(3) authorizing formal or informal discovery procedures as the hearing officer determines are necessary for the fair and orderly conduct of the hearing; and

(4) addressing other scheduling and procedural matters raised by the parties or the hearing officer.

(e) The hearing will be held within 30 days after the date of appointment of the hearing officer unless extended by the hearing officer on request of a party. The hearing will be recorded and will 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 that 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 which 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 party making the appeal; the hearing officer shall determine whether the department had a reasonable basis for its decision, based upon substantial evidence in the record.

(f) The hearing officer will submit a recommended decision to the commissioner within 15 working days after the hearing officer receives the hearing transcript. The recommended decision must outline all of the relevant issues presented, and include findings of fact and conclusions of law on each relevant issue.

(g) The commissioner shall adopt all, part, or none of the hearing officer's recommended decision submitted under (f) of this section, or may remand the matter back to the hearing officer with written instructions for further hearing or directions for further deliberation. The commissioner shall notify the district or applicant by certified mail of the commissioner's decision on the appeal, including findings of fact and conclusions of law supporting the commissioner's decision; or in the case of a remand, of the time schedule authorized for further hearing or deliberation. The commissioner shall notify the district or applicant of the commissioner's decision on the appeal or decision to remand within 15 working days after the commissioner's receipt of the hearing officer's recommended decision.

(h) , (i) Repealed 2/11/89.

(j) Expenses incurred by the district or other applicant with respect to the hearing are the sole responsibility of the district or applicant.

(k) The commissioner's decision under (g) of this section is a final administrative decision of the department for purposes of appeal to the superior court under the Alaska Rules of Appellate Procedure.

History: Eff. 10/16/81, Register 80; am 2/11/89, Register 109; am 1/13/95, Register 133; am 11/10/2002, Register 164

Authority: AS 14.07.060

AS 14.17.920

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