Title 15 . Revenue

Chapter 5 . (Repealed)

Section 30. Formal hearings

15 AAC 05.030. Formal hearings

(a) The department will hold a formal hearing if a request for a formal hearing conforming to the requirements of 15 AAC 05.010(a) is filed. If a request for a formal hearing follows an informal conference, it must be filed within 30 days after the date the informal conference decision is issued, and must be filed in accordance with the appeal form provided by the department. If a request for a formal hearing follows an administrative review under 15 AAC 125.118, 15 AAC 125.216, 15 AAC 125.222, 15 AAC 125.226, 15 AAC 125.242, 15 AAC 125.246, 15 AAC 125.252, 15 AAC 125.321, 15 AAC 125.331, 15 AAC 125.335, 15 AAC 125.505, or 15 AAC 125.710, it must be filed within 30 days after the date the decision of the review officer is issued and must be filed with the child support services agency in accordance with the appeal form provided by the division.

(b) On receipt of a request for appeal requesting a formal hearing, the commissioner will appoint a hearing officer. The department will notify the person who filed the request of the appointment. Within 60 days after receipt of the request for formal hearing, the hearing officer will notify the applicant of the date of either a prehearing conference or the hearing, except in child support matters under AS 25.27.170 , in which a hearing must be scheduled within 30 days of the date of service of the request for hearing on the agency. For purposes of a request for a formal hearing in a child support matter, in computing the 30-day time period for scheduling the hearing, the department will exclude a period of delay resulting from pre-hearing motions filed by the parties and the granting of continuances requested by a parent. The hearing officer may

(1) administer oaths and affirmations;

(2) issue subpoenas;

(3) order discovery by the parties and issue protective orders;

(4) receive relevant evidence;

(5) regulate the course of the hearing, including granting and denying continuances;

(6) hold prehearing conferences;

(7) dispose of procedural requests or similar matters; and

(8) exercise all other powers necessary for the orderly and expeditious conduct of the hearing.

(c) A party requesting the disqualification of a hearing officer must file a motion and a supporting affidavit within 10 days after the date of notice that the hearing officer was assigned to the appeal. The moving party has the burden of establishing that the hearing officer is personally prejudiced and would be incapable of according the party an impartial hearing or consideration of the appeal. No responsive briefing is allowed. The hearing officer shall rule on the motion after reviewing the affidavit. The ruling must be in writing and will become a part of the record. A party aggrieved by the determination of the hearing officer may file a motion for reconsideration of the ruling with the commissioner within 10 days after the ruling by the hearing officer. The commissioner will issue an order in writing either affirming or overruling the ruling of the hearing officer.

(d) A hearing officer may not communicate with a party, directly or indirectly, regarding a case unless notice and opportunity to participate is given to all parties. A hearing officer may communicate with a party without notice and opportunity for all other parties to participate if the communication involves a procedural matter and the other parties have verbally or in writing waived notice and participation. A verbal waiver may be communicated directly to the hearing officer or through an opposing party. A party conveying a waiver of another party to the hearing officer must first declare that the subject matter of the communication was discussed with the other party and the other party expressly authorized the communication. A hearing officer who receives an ex parte communication in violation of this subsection may be disqualified if necessary to eliminate the effect of the communication.

(e) The hearing officer may order the parties to participate in a prehearing conference. The hearing officer shall set the time and place of the conference. The prehearing conference may be conducted by telephone, audio or video teleconference, or other electronic means. At the conference, the hearing officer shall determine matters promoting the orderly and prompt conduct of the hearing, including preparation of stipulations, simplification of issues, identity and limitation of the number of witnesses, objections to evidence, order of presentation of evidence and cross-examination, exchange of exhibits, issuance of subpoenas, discovery orders and protective orders, briefing schedules, the extent to which evidence will be presented in written form, and the substitution of telephone, teleconference, or other electronic means for proceedings in person. The hearing officer may issue a prehearing order incorporating the matters determined at the conference. If a prehearing conference is not held, the hearing officer may issue a prehearing order to regulate the conduct of the proceedings.

(f) The hearing officer may give the parties the opportunity, at appropriate stages of the proceedings, to file motions and objections, briefs, and proposed findings of fact, conclusions of law and orders. A party shall serve copies of any filed item on all parties, personally delivered or deposited in the United States mail with first class postage prepaid. A motion to dismiss, motion for summary judgment, or other dispositive motion must be filed at least 15 days before the date scheduled for hearing, unless good cause is shown for filing the motion after that time. An opposition to a dispositive motion must be filed within 10 days after receipt of the motion by the opposing party, unless otherwise ordered by the hearing officer. The hearing officer may, at the request of a party, or on the hearing officer's own motion, issue a subpoena. A subpoena issued under this section must be served in accordance with the Alaska Rules of Civil Procedure or by a person designated by the hearing officer.

(g) The hearing officer shall set the time and place of the hearing and shall give reasonable notice to the parties. A request to change the time and place set for the hearing must be made at least 7 days before the date scheduled for hearing, unless good cause is shown. The hearing officer may conduct all or part of the hearing by telephone, audio or video teleconference, or other electronic means. With the consent of the parties the hearing may be conducted through correspondence. The hearing must be recorded by the hearing officer or by a person designated by the hearing officer. The parties may obtain, at cost, a copy of the recording or, if the department hires a reporter, a transcript. If the hearing officer records the hearing by tape recording and a reporter is not hired, a party may, at the party's expense, hire a reporter approved by the department to prepare a transcript from the department's recording or to record and transcribe the hearing. If the party's reporter prepares a transcript, a copy must be provided to the department at the usual cost for a copy of a transcript.

(h) A hearing is not conducted according to technical rules of evidence. Relevant evidence must be admitted if it is probative of material facts. Irrelevant and unduly repetitious evidence must be excluded. Hearsay evidence is admissible if in the judgment of the hearing officer it is the kind of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Oral evidence may be taken only on oath or affirmation. Each party may call and examine witnesses, introduce and object to exhibits, cross-examine opposing witnesses, impeach a witness, and offer rebuttal evidence. At the hearing, the person requesting the hearing has the burden of proving that the action by the department to which that person objects is incorrect.

(i) The hearing officer may allow the parties a designated time after conclusion of the hearing for the submission of additional evidence, briefs, or proposed findings, with opportunity for objection by the opposing parties. The hearing officer shall issue a written decision containing the hearing officer's findings of fact and conclusions of law within six months after the record is closed, except in a child support matter. In a child support matter under AS 25.27.170 - AS 25.27.180 , the hearing officer shall issue the written decision within 20 days after the date of the hearing, unless the hearing officer determines that it is necessary to keep the record open after the hearing in order to have a complete record upon which to base the hearing officer's decision, in which case the hearing officer shall issue the written decision within 20 days after the date the record is closed. Upon adoption by the commissioner, the commissioner's designee, or the senior hearing officer on behalf of the commissioner, the written decision shall be mailed to the parties and is the final administrative decision of the department for purposes of appeal to the superior court under under 15 AAC 05.040, unless a motion for reconsideration is filed under 15 AAC 05.035.

(j) If a person requests a hearing and fails to appear at the hearing, the hearing officer may issue a decision without taking evidence from that person, unless the person, within 10 days after the date scheduled for hearing, shows reasonable cause for failure to appear.

(k) The hearing officer may waive any requirement or deadline established in 15 AAC 05.010 - 15 AAC 05.030 if it appears to the officer that strict adherence to the deadline or requirement would work an injustice; however, the hearing officer may not waive the provision in (b) of this section applying to the scheduling of a hearing or a prehearing conference, or the provision in (i) of this section requiring that a hearing decision be adopted within six months after the close of the hearing. If a written decision is not issued within six months after the record is closed, the commissioner will, within 30 days after the expiration of the six-month period, notify the parties of the reason for the delay.

History: Eff. 5/31/78, Register 66; am 12/26/80, Register 76; am 4/21/88, Register 106; am 4/1/89, Register 109; am 10/1/98, Register 147

Authority: AS 25.27.020

AS 25.27.170

AS 25.27.180

AS 43.05.010

AS 43.05.040

AS 43.05.080

AS 43.05.240

AS 43.23.015

AS 43.55.110

AS 43.56.200

Editor's note: As of Register 171 (October 2004), and acting under AS 44.62.125 (b)(6) and sec. 12, ch. 107, SLA 2004, the regulations attorney made technical changes to reflect the name change of the child support enforcement agency to the child support services agency made by sec. 1, ch. 107, SLA 2004.