Title 17 . Transportation and Public Facilities

Chapter 85 . Miscellaneous Provisions

Section 40. Hearing

17 AAC 85.040. Hearing

(a) An aggrieved party may request a formal hearing on the decision issued under 17 AAC 85.030 if the decision does not grant the relief sought.

(b) A request for hearing must be in writing and must be received by the chief engineer no later than 15 days after the date an aggrieved party received the decision under 17 AAC 85.030. A request must set out

(1) the list of exhibits the aggrieved party intends to introduce at the hearing;

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

(3) whether the aggrieved party will be represented by counsel.

(c) Except as provided in (k) of this section, within 10 days after receipt of the request for hearing made under (a)-(b) of this section, the chief engineer shall impanel an administrative review panel to hear the appeal. The administrative review panel consists of the chief engineer, or a designee, and the department's regional directors, or their designees, except the director of the region from which the appeal arose. The chief engineer may appoint a hearing officer, who is not an employee of the department, to hear the appeal and render a recommended decision to the administrative review panel.

(d) Except as provided in (k) of this section, within 10 days after the receipt of an appeal, the chief engineer shall establish a date by which the department will provide to the aggrieved party a list of exhibits that the department intends to introduce, a list of persons that the department intends to call as witnesses, and a date, time, and place for the hearing. Unless all parties to the appeal agree to an alternate date, the hearing will be held within 60 days after the request made under (a)-(b) of this section is received by the chief engineer. The administrative review panel may authorize formal or informal discovery if

(1) a party to the appeal requests discovery;

(2) discovery can be completed before the date of the hearing, unless all parties to the appeal agree to an alternate date; and

(3) the administrative review panel determines that discovery is necessary for the fair and orderly conduct of the hearing.

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

(1) oral evidence shall 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 common law or statutory 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; and

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

(f) The administrative review panel shall make its decision in the form set out in AS 44.62.510 within 21 days after the close of the record of the hearing.

(g) The chief engineer shall notify an aggrieved party, within 10 days that the administrative review panel has rendered its decision, by certified mail, return receipt requested, including findings of fact and reasons for the ruling.

(h) If the chief engineer appoints a hearing officer under (c) of this section to hear an appeal, the hearing officer may only be challenged for cause by an aggrieved party. The hearing officer shall set the date, place and time of hearing, and, subject to the provisions of(d)-(e) of this section, the rules necessary for conducting the hearing, including pre-hearing discovery. A hearing must occur not more than 60 days after the date that the request is made under (a)-(b) of this section is received by the chief engineer. A hearing officer shall issue a recommended decision to the administrative review panel not more than 15 days after the hearing officer receives the transcript of the hearing or after the close of the record of the hearing, whichever occurs later.

(i) Upon receipt of a recommended decision from a hearing officer, the administrative review panel may adopt the decision of the hearing officer, modify the decision, reject the decision and render its own decision, or remand the decision back to the hearing officer with instructions for further consideration of the decision or further proceedings.

(j) Expenses incurred by an aggrieved party with respect to a hearing are the sole responsibility of the aggrieved party.

(k) The chief engineer may decide, without a hearing under this section, an appeal submitted under (a) of this section if, after reviewing the notice of appeal submitted under 17 AAC 85.020, the record developed under 17 AAC 85.030, the decision issued under 17 AAC 85.030, and the request for hearing submitted under (a) of this section, the chief engineer determines that the appeal may be decided as a matter of law, or the facts of the appeal are not in dispute. The chief engineer may request additional briefing as the chief engineer determines necessary to decide the appeal.

History: Eff. 5/4/2000, Register 154; am 3/1/2002, Register 161

Authority: AS 19.05.020

AS 35.05.020

AS 44.42.030