State Codes and Statutes

Statutes > Wyoming > Title16 > Chapter3

CHAPTER 3 - ADMINISTRATIVE PROCEDURE

 

16-3-101. Short title; definitions.

 

(a) This act may be cited as the "Wyoming AdministrativeProcedure Act".

 

(b) As used in this act:

 

(i) "Agency" means any authority, bureau, board,commission, department, division, officer or employee of the state, a county,city or town or other political subdivision of the state, except the governingbody of a city or town, the state legislature, the University of Wyoming andthe judiciary;

 

(ii) "Contested case" means a proceeding including butnot restricted to ratemaking, price fixing and licensing, in which legalrights, duties or privileges of a party are required by law to be determined byan agency after an opportunity for hearing but excludes designations under W.S.9-2-1022(h)(i);

 

(iii) "License" includes the whole or part of anyagency permit, certificate, approval, registration, charter or similar form ofpermission required by law, but it does not include a license required solelyfor revenue purposes;

 

(iv) "Licensing" includes the agency processrespecting the grant, denial, renewal, revocation, suspension, annulment,withdrawal or amendment of a license;

 

(v) "Local agency" means any agency withresponsibilities limited to less than statewide jurisdiction, except thegoverning body of a city or town;

 

(vi) "Party" means each person or agency named oradmitted as a party or properly seeking and entitled as of right to be admittedas a party;

 

(vii) "Person" means any individual, partnership, corporation,association, municipality, governmental subdivision or public or privateorganization of any character other than an agency;

 

(viii) "Registrar of rules" for state agency rules meansthe secretary of state. "Registrar of rules" for local agency rulesmeans the county clerk of the county in which the rule is to be effective;

 

(ix) "Rule" means each agency statement of generalapplicability that implements, interprets and prescribes law, policy orordinances of cities and towns, or describes the organization, procedures, orpractice requirements of any agency. The term includes the amendment or repealof a prior rule, but does not include:

 

(A) Statements concerning only the internal management of anagency and not affecting private rights or procedures available to the public;or

 

(B) Rulings issued pursuant to W.S. 16-3-106; or

 

(C) Intraagency memoranda; or

 

(D) Agency decisions and findings in contested cases; or

 

(E) Rules concerning the use of public roads or facilitieswhich are indicated to the public by means of signs and signals; or

 

(F) Ordinances of cities and towns; or

 

(G) Designations under W.S. 9-2-1022(h)(i).

 

(x) "State agency" means any agency with statewideresponsibilities;

 

(xi) "This act" means W.S. 16-3-101 through 16-3-115.

 

16-3-102. General rulemaking requirements; assistance of attorneygeneral.

 

 

(a) In addition to other rulemaking requirements imposed bylaw, each agency shall:

 

(i) Adopt rules of practice setting forth the nature andrequirements of all formal and informal procedures available in connection withcontested cases;

 

(ii) Make available for public inspection all rules and allother written statements of policy or interpretations formulated, adopted orused by the agency in the discharge of its functions;

 

(iii) Make available for public inspection all final orders,decisions and opinions.

 

(b) No agency rule, order or decision is valid or effectiveagainst any person or party, nor may it be invoked by the agency for anypurpose, until it has been filed with the registrar of rules and made availablefor public inspection as required by this act. This subsection does not applyto orders or decisions in favor of any person or party with actual knowledge ofthe rule, order or decision.

 

(c) In formulating rules of practice as required by thissection, each agency may request the assistance of the attorney general andupon request the attorney general shall assist the agency or agencies in thepreparation of rules of practice.

 

16-3-103. Adoption, amendment and repeal of rules; notice; hearing;emergency rules; proceedings to contest; review and approval by governor.

 

(a) Prior to an agency's adoption, amendment or repeal of allrules other than interpretative rules or statements of general policy, theagency shall:

 

(i) Give at least forty-five (45) days notice of its intendedaction. Notice shall be mailed to all persons making timely requests of theagency for advanced notice of its rulemaking proceedings and to the attorneygeneral, the secretary of state's office as registrar of rules, and thelegislative service office if a state agency. The agency shall submit a copy ofthe proposed rules, in a format conforming to any requirements prescribedpursuant to subsection (f) of this section, with the notice given to thelegislative service office. The notice shall include:

 

(A) The time when, the place where and the manner in whichinterested persons may present their views on the intended action;

 

(B) A statement of the terms and substance of the proposed ruleor a description of the subjects and issues involved;

 

(C) If an amendment or a repeal, the citation to the agencyrule to be amended or repealed;

 

(D) If new rules, a statement that they are new rules and acitation of the statute which authorizes adoption of the rules;

 

(E) The place where an interested person may obtain a copy ofthe proposed rules in a format conforming to any requirements prescribedpursuant to subsection (f) of this section;

 

(F) If the agency asserts that all or a portion of a rule isproposed to be adopted, amended or repealed in order for the state to complywith federal law or regulatory requirements:

 

(I) A statement that the adoption, amendment or repeal of therule is required by federal law or regulation together with citations to theapplicable federal law or regulation; and

 

(II) A statement whether the proposed rule change meets minimumfederal requirements or whether the proposed rule change exceeds minimumfederal requirements.

 

(G) A statement whether the proposed rule change meets minimumsubstantive state statutory requirements or whether the proposed rule changeexceeds minimum substantive state statutory requirements. If the rule changeexceeds minimum substantive state statutory requirements, the agency shallinclude a statement explaining the reason why the rule exceeds minimumsubstantive statutory requirements.

 

(ii) Afford all interested persons reasonable opportunity tosubmit data, views or arguments, orally or in writing, provided this periodshall consist of at least forty-five (45) days from the later of the datesspecified under subparagraph (A) of this paragraph, and provided:

 

(A) In the case of substantive rules, opportunity for oralhearing shall be granted if requested by twenty-five (25) persons, or by agovernmental subdivision, or by an association having not less than twenty-five(25) members. No hearing under this subparagraph shall be conducted until atleast forty-five (45) days after the later of:

 

(I) The date notice of intended action is given under paragraph(i) of this subsection; or

 

(II) The date notice is published if publication is required bysubsection (e) of this section.

 

(B) The agency shall consider fully all written and oralsubmissions respecting the proposed rule;

 

(C) If prior to final adoption any person objects to theaccuracy of a statement made by the agency pursuant to W.S.16-3-103(a)(i)(F)(I) or (II), the agency shall:

 

(I) Provide the objecting person with a written responseexplaining and substantiating the agency's position by reference to federal lawor regulations; and

 

(II) Include with the final rules submitted for review to thegovernor and legislative service office a concise statement of the objectionand the agency's response.

 

(D) Upon adoption of the rule, the agency, if requested to doso by an interested person, either prior to adoption or within thirty (30) daysthereafter, shall issue a concise statement of the principal reasons foroverruling the consideration urged against its adoption.

 

(b) When an agency finds that an emergency requires the agencyto proceed without notice or opportunity for hearing required by subsection (a)of this section, it may adopt emergency rules. An emergency rule is effectivewhen filed. A state agency emergency rule shall bear the endorsement of thegovernor's concurrence on the finding of emergency before the registrar ofrules accepts the rule for filing. The rule so adopted shall be effective forno longer than one hundred twenty (120) days but the adoption of an identicalrule under W.S. 16-3-103(a) or of an emergency rule under this subsection isnot precluded. In no case shall identical or substantially similar emergencyrules be effective for a total period of more than two hundred forty (240)days. A local agency may proceed with the emergency rule when notice of theemergency is filed with the local registrar of rules.

 

(c) No rule is valid unless submitted, filed and adopted insubstantial compliance with this section. A proceeding to contest any rule onthe ground of noncompliance with the procedural requirements of this sectionmust be commenced within two (2) years from the effective date of the rule.

 

(d) No state agency rule or any amendment, repeal, modificationor revision of the rule may be filed with the registrar of rules unless therule has been submitted to the governor for review and the governor hasapproved and signed the rule. Except in the case of emergency rules and rulesadopted by the game and fish commission fixing general hunting or fishingregulations, season or bag limits or establishing hunting areas, the governorshall not approve any rule until the date of receipt of the legislativemanagement council's recommendation under W.S. 28-9-106(a) or until forty (40)days after the rule is filed with the legislative service office pursuant toW.S. 28-9-103(b), whichever is sooner. During the process of approving rules,the governor may disapprove any portion of a rule not conforming to paragraphs(d)(i), (ii) or (iii) of this section by clearly indicating the portion of therule disapproved and the basis for the disapproval. Only those portions of arule approved by the governor shall be filed with the registrar of rules asprovided by W.S. 16-3-104(a). Any portion of a rule disapproved by the governorshall be returned to the agency and shall be null and void and shall not befiled, implemented or enforced. The governor shall report his disapproval ofany rule or portion thereof to the management council within fifteen (15) days.The governor shall not approve any rule or any amendment, repeal, modificationor revision of the rule unless it:

 

(i) Is within the scope of the statutory authority delegated tothe adopting agency;

 

(ii) Appears to be within the scope of the legislative purposeof the statutory authority; and

 

(iii) Has been adopted in compliance with the proceduralrequirements of this act. For the purposes of this subsection, an"agency" means any authority, bureau, board, commission, department,division, officer or employee of the state, excluding the state legislature andthe judiciary.

 

(e) If a state agency created as a licensing or regulatoryboard or commission for any profession or occupation regulated under title 33regularly publishes a newsletter, memorandum or other written or electroniccommunication which serves as a medium to provide information to members of theregulated profession or occupation, then in addition to the notice requirementsof subsection (a) of this section, the agency shall publish within that mediumthe proposed rules in a format conforming to any requirements prescribedpursuant to subsection (f) of this section. If the agency determinespublication in such manner is not practicable, it shall publish within thechosen medium at least once prior to taking final action to adopt, amend orrepeal any rule notice of its intended rulemaking proceedings and makeavailable the full text of all proposed changes in the format conforming to anyrequirements prescribed pursuant to subsection (f) of this section. Thissubsection shall not apply to emergency rules adopted pursuant to subsection(b) of this section.

 

(f) The state registrar of rules shall prescribe a format forstate agencies to follow in preparing proposed amendments to existing ruleswhich shall ensure that additions to and deletions from existing language areclearly indicated.

 

(g) Upon receipt of a notice of intended action from a stateagency under paragraph (a)(i) of this section, the secretary of state's officeshall maintain a file of these notices and make them available for publicinspection during regular business hours. A notice shall remain in the fileuntil the rules are adopted or until the agency determines not to take action toadopt the proposed rules. To the extent that resources enable the office to doso, the secretary of state's office shall make these notices available to thepublic electronically. The secretary of state may promulgate rules specifyingthe format of notices submitted by state agencies under this subsection.Compliance with this subsection shall not affect the validity of rulespromulgated by state agencies.

 

(h) An agency may incorporate, by reference in its rules andwithout publishing the incorporated matter in full, all or any part of a code,standard, rule or regulation that has been adopted by an agency of the UnitedStates or of this state, another state or by a nationally recognizedorganization or association, provided:

 

(i) Incorporation of the full text in agency rules would beunduly cumbersome or expensive;

 

(ii) The reference in the rules of the incorporating agencyfully identifies the incorporated matter by location, date and otherwise, andstates that the rule does not include any later amendments or editions of theincorporated matter;

 

(iii) The agency, organization or association originally issuingthe incorporated matter makes copies of it readily available to the public andthe rules of the incorporating agency state where such copies are available;

 

(iv) The incorporating agency maintains and makes available forpublic inspection a copy of the incorporated matter and the rules of theincorporating agency state where copies of the incorporated matter areavailable at cost from the incorporating agency; and

 

(v) The incorporating agency otherwise complies with allprocedural requirements under this act and the rules of the registrar of stateagency rules governing the promulgation and filing of agency rules.

 

16-3-104. Filing of copies of rules; permanent register; effectivedates; manner of preparation; advice and assistance of attorney general.

 

(a) Each agency shall file in the office of the registrar ofrules a certified copy of each rule adopted by it as approved by the governor.State agencies shall file each rule within seventy-five (75) days of the dateof agency action adopting the rule or it is not effective. There shall be notedupon the rule a citation of the authority by which it or any part of it wasadopted. The registrar of rules shall keep a permanent register of the rulesopen to public inspection. Not more than ten (10) days after a state agencyfiles a copy of a rule in the office of the registrar of rules, the agencyshall mail a notice that the rule has been filed to each person who was sent anotice under W.S. 16-3-103(a)(i). The notice shall contain a citation to therule and the date it was filed. Failure to send the notice required under thissubsection does not affect the effectiveness of the rule.

 

(b) Each rule and any amendment or repeal adopted after June 1,1982 is effective after filing in accordance with subsection (a) of thissection and W.S. 28-9-108 except:

 

(i) If a later date is required by statute or specified in therule, the later date is the effective date;

 

(ii) Where the agency finds that an emergency exists and thefinding is concurred in by the governor, a rule or amendment or repeal may beeffective immediately upon filing with the registrar of rules and if a stateagency, also with the legislative service office. Existing rules remain ineffect unless amended or repealed, subject to this section or W.S. 28-9-105 or28-9-106.

 

(c) Rules shall be prepared in the manner and form prescribedby the state registrar of rules. The registrar of rules may refuse to acceptfor filing any rule that does not conform to the prescribed form.

 

(d) The attorney general shall furnish advice and assistance toall state agencies in the preparation of their regulations, and in revising,codifying and editing existing or new regulations.

 

16-3-105. Compilation and indexing of rules; charges for copies;authentication by registrar.

 

 

(a) The registrar of state agency rules shall compile, indexand publish the rules adopted by each agency and remaining in effect. Thecompilation shall be supplemented or revised at least once every two (2) years.

 

(b) The registrar of state agency rules may make a reasonablecharge for any rules published except those furnished to state officers,agencies, members of the legislature or the legislative service office andothers in the employment of the state and its political subdivisions requiringthe rules in the performance of their duties. The registrar of local agencyrules may make a reasonable charge for copies of any rule on file.

 

(c) The registrar's authenticated file stamp on a rule orpublication of a rule shall raise a rebuttable presumption that the rule wasadopted and filed in compliance with all requirements necessary to make iteffective.

 

(d) The registrar of state agency rules shall annually compileand publish an index of all state agency rules filed with the registrar as ofDecember 31 of each year. The index shall list the effective date of each setof rules or the effective date of each set of amendments to an agency's rules.Copies of the index shall be distributed as provided by W.S. 16-3-105(b).

 

16-3-106. Petition for promulgation, amendment or repeal of rules.

 

Anyinterested person may petition an agency requesting the promulgation, amendmentor repeal of any rule and may accompany his petition with relevant data, viewsand arguments. Each agency may prescribe by rule the form of the petition andthe procedure for its submission, consideration and disposition. Uponsubmission of a petition, the agency as soon as practicable either shall denythe petition in writing (stating its reasons for the denials) or initiaterulemaking proceedings in accordance with W.S. 16-3-103. The action of theagency in denying a petition is final and not subject to review.

 

16-3-107. Contested cases; general procedure.

 

 

(a) In any contested case, all parties shall be afforded anopportunity for hearing after reasonable notice served personally or by mail.Where the indispensable and necessary parties are composed of a large class,the notice shall be served upon a reasonable number thereof as representativesof the class or by giving notice by publication in the manner specified by therules or an order of the agency.

 

(b) The notice shall include a statement of:

 

(i) The time, place and nature of the hearing;

 

(ii) The legal authority and jurisdiction under which thehearing is to be held;

 

(iii) The particular sections of the statutes and rules involved;

 

(iv) A short and plain statement of the matters asserted. If theagency or other party is unable to state the matters in detail at the time thenotice is served, the initial notice may be limited to a statement of theissues involved, and thereafter upon application a more definite and detailedstatement shall be furnished.

 

(c) In all contested cases, depositions and discovery relatingthereto, agencies shall have the authority to administer oaths andaffirmations, subpoena witnesses and require the production of any books,papers or other documents relevant or material to the inquiry. In case ofrefusal to obey a subpoena issued by the agency in a contested case, depositionor discovery relating thereto, to any person, the district court for thedistrict in which the hearing or deposition or other proceeding is beingconducted, or for the district where the person may be served, may uponapplication by the agency issue to the person refusing to obey the subpoena anorder requiring the person to show cause for the refusal or to appear beforethe agency or other person designated by it there to produce documentaryevidence if so ordered or there to give evidence touching the matter inquestion. Any failure to show cause or obey the order of court may be punishedby the court as a contempt thereof.

 

(d) In all contested cases the agency shall as part of itsrules of practice provide that the agency or one (1) of its presiding officersdesignated by it upon application of any party shall issue a subpoena requiringthe appearance of witnesses for the purpose of taking evidence or requiring theproduction of any books, papers or other documents relevant or material to theinquiry.

 

(e) The agency upon motion made promptly and in any event at orbefore the time specified in the subpoena for compliance therewith, may quashor modify the subpoena if it is unreasonable and oppressive, or in the eventissued pursuant to subsection (g) of this section may condition denial of themotion upon the advancement by the person in whose behalf the subpoena isissued of the reasonable cost of producing the books, papers, documents ortangible things.

 

(f) If a subpoena issued pursuant to this section is disobeyedand if the agency fails to apply pursuant to subsection (c) of this section forenforcement any party may apply to the district court for the district havingvenue under subsection (c) of this section for enforcement pursuant tosubsection (c) of this section.

 

(g) In all contested cases the taking of depositions anddiscovery shall be available to the parties in accordance with the provisionsof Rules 26, 28 through 37 (excepting Rule 37(b)(1) and 37(b)(2)(D) therefrom)of the Wyoming Rules of Civil Procedure in effect on the date of the enactmentof this act and any subsequent rule amendments thereto. All references thereinto the "court" shall be deemed to refer to the appropriate"agency"; all references to the use of the subpoena power shall bereferences to subsection (c) of this section; all references to"trial" shall be deemed references to "hearing"; allreferences to "plaintiff" shall be deemed references to "aparty". If a party or other witness refuses to be sworn or refuses toanswer any question after being directed to do so by the agency in which theaction is pending, the refusal to obey the agency order shall be enforced inthe same manner as is provided in subsection (c) of this section.

 

(h) Any agency which is a party to the contested case issubject to the discovery provisions of this section but neither the agency, norany member, officer or employee shall be required to disclose information whichis confidential or privileged under the law and no member of the presidingagency shall be compelled to testify or give a deposition in a contested case.Discovery sought from the agency initially shall be by written application. Ifthe agency refuses to allow discovery in whole or in part the aggrieved partymay apply to the presiding officer for an order compelling discovery. If thepresiding officer fails or refuses to compel discovery, the aggrieved party mayapply to the district court for the district in which the hearing, depositionor other proceeding is being or is to be conducted for an order directed to theagency compelling discovery. The presiding officer or district court shallenter such order as may be appropriate.

 

(j) Opportunity shall be afforded all parties to respond andpresent evidence and argument on all issues involved. Any person compelled toappear in person before any agency or representative thereof shall be accordedthe right to be accompanied, represented and advised by counsel or, ifpermitted by the agency, by other qualified representative.

 

(k) Every party shall be accorded the right to appear in personor by or with counsel or other duly qualified representative in any agencyproceeding in accordance with such rules as the agency prescribes and thepertinent rules of the supreme court of Wyoming. So far as the orderly conductof public business permits, any interested person may appear before any agencyor its responsible officers or employees for the presentation, adjustment ordetermination of any issue, request or controversy in any proceeding(interlocutory, summary or otherwise) or in connection with any agencyfunction. Every agency shall proceed with reasonable dispatch to conclude anymatter presented to it except that due regard shall be had for the convenienceand necessity of the parties or their representatives. Any person representingan agency at a hearing in a contested case in which the agency is a party shallnot in the same case serve as presiding officer or provide ex parte adviceregarding the case to the presiding officer or to the body or any member of thebody comprising the decision makers.

 

(m) No process, requirement of a report, inspection, or otherinvestigative act or demand shall be issued, made or enforced in any manner orfor any purpose except as authorized by law. Every person compelled to submitdata or evidence is entitled to retain or, on payment of lawfully prescribedcosts, procure a copy of a transcript thereof, except that in a nonpublicinvestigatory proceeding the witness may for good cause be limited toinspection of the official transcript of his testimony.

 

(n) Unless precluded by law, informal disposition may be madeof any contested case by stipulation, agreed settlement, consent order ordefault.

 

(o) The record in a contested case must include:

 

(i) All formal or informal notices, pleadings, motions andintermediate rulings;

 

(ii) Evidence received or considered including mattersofficially noticed;

 

(iii) Questions and offers of proof, objections and rulingsthereon;

 

(iv) Any proposed findings and exceptions thereto;

 

(v) Any opinion, findings, decision or order of the agency andany report by the officer presiding at the hearing.

 

(p) In all contested cases the proceeding including alltestimony shall be reported verbatim stenographically or by any otherappropriate means determined by the agency or the officer presiding at thehearing.

 

(q) Oral proceedings or any part thereof shall be transcribedon request of any party upon payment of the cost thereof.

 

(r) Findings of fact shall be based exclusively on the evidenceand matters officially noticed.

 

16-3-108. Contested cases; admissible evidence; cross-examination;judicial notice.

 

 

(a) In contested cases irrelevant, immaterial or undulyrepetitious evidence shall be excluded and no sanction shall be imposed ororder issued except upon consideration of the whole record or such portionthereof as may be cited by any party and unless supported by the type ofevidence commonly relied upon by reasonably prudent men in the conduct of theirserious affairs. Agencies shall give effect to the rules of privilegerecognized by law. Subject to these requirements and agency rule if theinterests of the parties will not be prejudiced substantially testimony may bereceived in written form subject to the right of cross-examination as providedin subsection (c) of this section.

 

(b) Documentary evidence may be received in the form of copiesor excerpts, if the original is not readily available. Upon request, partiesshall be given opportunity to compare the copy with the original.

 

(c) A party may conduct cross-examinations required for a fulland true disclosure of the facts and a party is entitled to confront allopposing witnesses.

 

(d) Notice may be taken of judicially cognizable facts. Inaddition notice may be taken of technical or scientific facts within theagency's specialized knowledge or of information, data and material includedwithin the agency's files. The parties shall be notified either before orduring the hearing or after the hearing but before the agency decision ofmaterial facts noticed, and they shall be afforded an opportunity to contestthe facts noticed.

 

16-3-109. Contested cases; consideration of record; exceptions todecision; briefs and oral argument.

 

Theagency shall consider the whole record or any portion stipulated to by theparties. In the event a recommended decision is rendered all parties shall beafforded a reasonable opportunity to file exceptions thereto which shall bedeemed a part of the record. All parties as a matter of right shall bepermitted to file a brief with the agency and oral argument shall be allowed inthe discretion of the agency.

 

16-3-110. Contested cases; final decision; contents; notification.

 

Afinal decision or order adverse to a party in a contested case shall be inwriting or dictated into the record. The final decision shall include findings offact and conclusions of law separately stated. Findings of fact if set forth instatutory language, shall be accompanied by a concise and explicit statement ofthe underlying facts supporting the findings. Parties shall be notified eitherpersonally or by mail of any decision or order. A copy of the decision andorder shall be delivered or mailed forthwith to each party or to his attorneyof record.

 

16-3-111. Contested cases; limitations on consultations andparticipations.

 

Unlessrequired for the disposition of ex parte matters authorized by law, members ofthe agency, employees presiding at a hearing in a contested case and employeesassisting the foregoing persons in compiling, evaluating and analyzing therecord in a contested case or in writing a decision in a contested case shallnot directly or indirectly in connection with any issue in the case consultwith any person other than an agency member, officer, contract consultant oremployee or other state or federal employee, any party other than the agency orwith any agency employee, contract consultant or other state or federalemployee who was engaged in the investigation, preparation, presentation orprosecution of the case except upon notice and opportunity for all parties toparticipate. Nothing herein contained precludes any agency member fromconsulting with other members of the agency. No officer, employee, contractconsultant, federal employee or agent who has participated in theinvestigation, preparation, presentation or prosecution of a contested caseshall be in that or a factually related case participate or advise in thedecision, recommended decision or agency review of the decision, or beconsulted in connection therewith except as witness or counsel in publicproceedings. A staff member is not disqualified from participating or advisingin the decision, recommended decision or agency review because he hasparticipated in the presentation of the case in the event the staff member doesnot assert or have an adversary position.

 

16-3-112. Contested cases; presiding officers; qualifications; powers;outside personnel; hearing officers.

 

 

(a) If not otherwise authorized by law there shall preside atthe taking of evidence in all contested cases the statutory agency, one (1) ormore members of the body which comprises the agency, or an employee of theagency or an employee of another agency designated by the agency to act aspresiding officer. The functions of all those presiding in contested casesshall be conducted in an impartial manner. Any officer shall at any timewithdraw if he deems himself disqualified provided there are other qualifiedpresiding officers available to act.

 

(b) Officers presiding at hearings shall have authority,subject to the published rules of the agency and within its power to:

 

(i) Administer oaths and affirmations;

 

(ii) Issue subpoenas;

 

(iii) Rule upon offers of proof and receive relevant evidence;

 

(iv) Take or cause depositions to be taken in accordance withthe provisions of this act and the rules of the agency;

 

(v) Regulate the course of the hearing;

 

(vi) Hold conferences for the settlement or simplification ofthe issues;

 

(vii) Dispose of procedural requests or similar matters;

 

(viii) Make recommended decisions when directed to do so by theagency; and

 

(ix) Take any other action authorized by agency rules consistentwith this act.

 

(c) In all contested cases to the extent that it is necessaryin order to obtain compliance with W.S. 16-3-111 the agency (excepting countyand municipal agencies and political subdivisions on the county and locallevel) may request the office of the attorney general to furnish to the agencysuch personnel as may be necessary in order for the agency to properlyinvestigate, prepare, present and prosecute the contested case before theagency. The attorney general upon the receipt of the request shall promptlycomply with same with no charge being made against the requesting agency'sappropriation other than for travel and per diem expenses.

 

(d) To the extent an agency utilizes an employee of anotheragency (other than the staff of the attorney general) to preside at a hearingor otherwise the salary of the employee during the period of the employment andthe expenses incurred by the employee shall be charged against theappropriation of the using agency.

 

(e) When required by law an agency shall adopt rules andregulations providing a procedure for the use and the selection of anadministrative hearing officer. An agency shall not delegate the authority tomake final decisions to an independent administrative hearing officer unlessrequired by law.

 

16-3-113. License hearings.

 

 

(a) When the grant, denial, suspension or renewal of a licenseis required by law to be preceded by notice and an opportunity for hearing theprovisions of this act concerning contested cases apply.

 

(b) When a licensee has made timely and sufficient applicationfor the renewal of a license or a new license with reference to any activity ofa continuing nature, the existing license does not expire until the applicationhas been finally determined by the agency, and, in case the application isdenied or the terms of the new license limited, until the last day for seekingreview of the agency order or a later date fixed by order of the reviewingcourt.

 

(c) No revocation, suspension, annulment or withdrawal of anylicense is lawful unless, prior to the institution of agency proceedings, theagency gave notice by mail to the licensee of facts or conduct which warrantthe intended action, and the licensee was given an opportunity to showcompliance with all lawful requirements for the retention of the license. Ifthe agency finds that public health, safety or welfare imperatively requiresemergency action, and incorporates a finding to that effect in its order,summary suspension of a license may be ordered pending proceedings forrevocation or other action. A cancellation of a driver's license pursuant toW.S. 31-7-121(c) shall not be valid until the department of transportationgives notice by mail to the licensee of the facts which warrant the intendedaction and provides the licensee with an opportunity to provide additionalevidence or information with respect to the condition at issue within fifteen(15) days of the mailing of the notice. These proceedings shall be promptlyinstituted and determined.

 

16-3-114. Judicial review of agency actions; district courts.

 

 

(a) Subject to the requirement that administrative remedies beexhausted and in the absence of any statutory or common-law provisionprecluding or limiting judicial review, any person aggrieved or adverselyaffected in fact by a final decision of an agency in a contested case, or byother agency action or inaction, or any person affected in fact by a ruleadopted by an agency, is entitled to judicial review in the district court forthe county in which the administrative action or inaction was taken, or inwhich any real property affected by the administrative action or inaction islocated, or if no real property is involved, in the district court for thecounty in which the party aggrieved or adversely affected by the administrativeaction or inaction resides or has its principal place of business. Theprocedure to be followed in the proceeding before the district court shall bein accordance with rules heretofore or hereinafter adopted by the Wyomingsupreme court.

 

(b) The supreme court's authority to adopt rules governingreview from agencies to the district courts shall include authority todetermine the content of the record upon review, the pleadings to be filed, thetime and manner for filing the pleadings, records and other documents and theextent to which supplemental testimony and evidence may be taken or consideredby the district court. The rules adopted by the supreme court under thisprovision may supersede existing statutory provisions.

 

(c) To the extent necessary to make a decision and whenpresented, the reviewing court shall decide all relevant questions of law,interpret constitutional and statutory provisions, and determine the meaning orapplicability of the terms of an agency action. In making the followingdeterminations, the court shall review the whole record or those parts of itcited by a party and due account shall be taken of the rule of prejudicialerror. The reviewing court shall:

 

(i) Compel agency action unlawfully withheld or unreasonablydelayed; and

 

(ii) Hold unlawful and set aside agency action, findings andconclusions found to be:

 

(A) Arbitrary, capricious, an abuse of discretion or otherwisenot in accordance with law;

 

(B) Contrary to constitutional right, power, privilege orimmunity;

 

(C) In excess of statutory jurisdiction, authority orlimitations or lacking statutory right;

 

(D) Without observance of procedure required by law; or

 

(E) Unsupported by substantial evidence in a case reviewed onthe record of an agency hearing provided by statute.

 

16-3-115. Judicial review of agency actions; supreme court.

 

Anaggrieved party may obtain a review of any final judgment of the district courtunder this act by appeal to the supreme court. The appeal shall be taken as inother civil cases.

 

State Codes and Statutes

Statutes > Wyoming > Title16 > Chapter3

CHAPTER 3 - ADMINISTRATIVE PROCEDURE

 

16-3-101. Short title; definitions.

 

(a) This act may be cited as the "Wyoming AdministrativeProcedure Act".

 

(b) As used in this act:

 

(i) "Agency" means any authority, bureau, board,commission, department, division, officer or employee of the state, a county,city or town or other political subdivision of the state, except the governingbody of a city or town, the state legislature, the University of Wyoming andthe judiciary;

 

(ii) "Contested case" means a proceeding including butnot restricted to ratemaking, price fixing and licensing, in which legalrights, duties or privileges of a party are required by law to be determined byan agency after an opportunity for hearing but excludes designations under W.S.9-2-1022(h)(i);

 

(iii) "License" includes the whole or part of anyagency permit, certificate, approval, registration, charter or similar form ofpermission required by law, but it does not include a license required solelyfor revenue purposes;

 

(iv) "Licensing" includes the agency processrespecting the grant, denial, renewal, revocation, suspension, annulment,withdrawal or amendment of a license;

 

(v) "Local agency" means any agency withresponsibilities limited to less than statewide jurisdiction, except thegoverning body of a city or town;

 

(vi) "Party" means each person or agency named oradmitted as a party or properly seeking and entitled as of right to be admittedas a party;

 

(vii) "Person" means any individual, partnership, corporation,association, municipality, governmental subdivision or public or privateorganization of any character other than an agency;

 

(viii) "Registrar of rules" for state agency rules meansthe secretary of state. "Registrar of rules" for local agency rulesmeans the county clerk of the county in which the rule is to be effective;

 

(ix) "Rule" means each agency statement of generalapplicability that implements, interprets and prescribes law, policy orordinances of cities and towns, or describes the organization, procedures, orpractice requirements of any agency. The term includes the amendment or repealof a prior rule, but does not include:

 

(A) Statements concerning only the internal management of anagency and not affecting private rights or procedures available to the public;or

 

(B) Rulings issued pursuant to W.S. 16-3-106; or

 

(C) Intraagency memoranda; or

 

(D) Agency decisions and findings in contested cases; or

 

(E) Rules concerning the use of public roads or facilitieswhich are indicated to the public by means of signs and signals; or

 

(F) Ordinances of cities and towns; or

 

(G) Designations under W.S. 9-2-1022(h)(i).

 

(x) "State agency" means any agency with statewideresponsibilities;

 

(xi) "This act" means W.S. 16-3-101 through 16-3-115.

 

16-3-102. General rulemaking requirements; assistance of attorneygeneral.

 

 

(a) In addition to other rulemaking requirements imposed bylaw, each agency shall:

 

(i) Adopt rules of practice setting forth the nature andrequirements of all formal and informal procedures available in connection withcontested cases;

 

(ii) Make available for public inspection all rules and allother written statements of policy or interpretations formulated, adopted orused by the agency in the discharge of its functions;

 

(iii) Make available for public inspection all final orders,decisions and opinions.

 

(b) No agency rule, order or decision is valid or effectiveagainst any person or party, nor may it be invoked by the agency for anypurpose, until it has been filed with the registrar of rules and made availablefor public inspection as required by this act. This subsection does not applyto orders or decisions in favor of any person or party with actual knowledge ofthe rule, order or decision.

 

(c) In formulating rules of practice as required by thissection, each agency may request the assistance of the attorney general andupon request the attorney general shall assist the agency or agencies in thepreparation of rules of practice.

 

16-3-103. Adoption, amendment and repeal of rules; notice; hearing;emergency rules; proceedings to contest; review and approval by governor.

 

(a) Prior to an agency's adoption, amendment or repeal of allrules other than interpretative rules or statements of general policy, theagency shall:

 

(i) Give at least forty-five (45) days notice of its intendedaction. Notice shall be mailed to all persons making timely requests of theagency for advanced notice of its rulemaking proceedings and to the attorneygeneral, the secretary of state's office as registrar of rules, and thelegislative service office if a state agency. The agency shall submit a copy ofthe proposed rules, in a format conforming to any requirements prescribedpursuant to subsection (f) of this section, with the notice given to thelegislative service office. The notice shall include:

 

(A) The time when, the place where and the manner in whichinterested persons may present their views on the intended action;

 

(B) A statement of the terms and substance of the proposed ruleor a description of the subjects and issues involved;

 

(C) If an amendment or a repeal, the citation to the agencyrule to be amended or repealed;

 

(D) If new rules, a statement that they are new rules and acitation of the statute which authorizes adoption of the rules;

 

(E) The place where an interested person may obtain a copy ofthe proposed rules in a format conforming to any requirements prescribedpursuant to subsection (f) of this section;

 

(F) If the agency asserts that all or a portion of a rule isproposed to be adopted, amended or repealed in order for the state to complywith federal law or regulatory requirements:

 

(I) A statement that the adoption, amendment or repeal of therule is required by federal law or regulation together with citations to theapplicable federal law or regulation; and

 

(II) A statement whether the proposed rule change meets minimumfederal requirements or whether the proposed rule change exceeds minimumfederal requirements.

 

(G) A statement whether the proposed rule change meets minimumsubstantive state statutory requirements or whether the proposed rule changeexceeds minimum substantive state statutory requirements. If the rule changeexceeds minimum substantive state statutory requirements, the agency shallinclude a statement explaining the reason why the rule exceeds minimumsubstantive statutory requirements.

 

(ii) Afford all interested persons reasonable opportunity tosubmit data, views or arguments, orally or in writing, provided this periodshall consist of at least forty-five (45) days from the later of the datesspecified under subparagraph (A) of this paragraph, and provided:

 

(A) In the case of substantive rules, opportunity for oralhearing shall be granted if requested by twenty-five (25) persons, or by agovernmental subdivision, or by an association having not less than twenty-five(25) members. No hearing under this subparagraph shall be conducted until atleast forty-five (45) days after the later of:

 

(I) The date notice of intended action is given under paragraph(i) of this subsection; or

 

(II) The date notice is published if publication is required bysubsection (e) of this section.

 

(B) The agency shall consider fully all written and oralsubmissions respecting the proposed rule;

 

(C) If prior to final adoption any person objects to theaccuracy of a statement made by the agency pursuant to W.S.16-3-103(a)(i)(F)(I) or (II), the agency shall:

 

(I) Provide the objecting person with a written responseexplaining and substantiating the agency's position by reference to federal lawor regulations; and

 

(II) Include with the final rules submitted for review to thegovernor and legislative service office a concise statement of the objectionand the agency's response.

 

(D) Upon adoption of the rule, the agency, if requested to doso by an interested person, either prior to adoption or within thirty (30) daysthereafter, shall issue a concise statement of the principal reasons foroverruling the consideration urged against its adoption.

 

(b) When an agency finds that an emergency requires the agencyto proceed without notice or opportunity for hearing required by subsection (a)of this section, it may adopt emergency rules. An emergency rule is effectivewhen filed. A state agency emergency rule shall bear the endorsement of thegovernor's concurrence on the finding of emergency before the registrar ofrules accepts the rule for filing. The rule so adopted shall be effective forno longer than one hundred twenty (120) days but the adoption of an identicalrule under W.S. 16-3-103(a) or of an emergency rule under this subsection isnot precluded. In no case shall identical or substantially similar emergencyrules be effective for a total period of more than two hundred forty (240)days. A local agency may proceed with the emergency rule when notice of theemergency is filed with the local registrar of rules.

 

(c) No rule is valid unless submitted, filed and adopted insubstantial compliance with this section. A proceeding to contest any rule onthe ground of noncompliance with the procedural requirements of this sectionmust be commenced within two (2) years from the effective date of the rule.

 

(d) No state agency rule or any amendment, repeal, modificationor revision of the rule may be filed with the registrar of rules unless therule has been submitted to the governor for review and the governor hasapproved and signed the rule. Except in the case of emergency rules and rulesadopted by the game and fish commission fixing general hunting or fishingregulations, season or bag limits or establishing hunting areas, the governorshall not approve any rule until the date of receipt of the legislativemanagement council's recommendation under W.S. 28-9-106(a) or until forty (40)days after the rule is filed with the legislative service office pursuant toW.S. 28-9-103(b), whichever is sooner. During the process of approving rules,the governor may disapprove any portion of a rule not conforming to paragraphs(d)(i), (ii) or (iii) of this section by clearly indicating the portion of therule disapproved and the basis for the disapproval. Only those portions of arule approved by the governor shall be filed with the registrar of rules asprovided by W.S. 16-3-104(a). Any portion of a rule disapproved by the governorshall be returned to the agency and shall be null and void and shall not befiled, implemented or enforced. The governor shall report his disapproval ofany rule or portion thereof to the management council within fifteen (15) days.The governor shall not approve any rule or any amendment, repeal, modificationor revision of the rule unless it:

 

(i) Is within the scope of the statutory authority delegated tothe adopting agency;

 

(ii) Appears to be within the scope of the legislative purposeof the statutory authority; and

 

(iii) Has been adopted in compliance with the proceduralrequirements of this act. For the purposes of this subsection, an"agency" means any authority, bureau, board, commission, department,division, officer or employee of the state, excluding the state legislature andthe judiciary.

 

(e) If a state agency created as a licensing or regulatoryboard or commission for any profession or occupation regulated under title 33regularly publishes a newsletter, memorandum or other written or electroniccommunication which serves as a medium to provide information to members of theregulated profession or occupation, then in addition to the notice requirementsof subsection (a) of this section, the agency shall publish within that mediumthe proposed rules in a format conforming to any requirements prescribedpursuant to subsection (f) of this section. If the agency determinespublication in such manner is not practicable, it shall publish within thechosen medium at least once prior to taking final action to adopt, amend orrepeal any rule notice of its intended rulemaking proceedings and makeavailable the full text of all proposed changes in the format conforming to anyrequirements prescribed pursuant to subsection (f) of this section. Thissubsection shall not apply to emergency rules adopted pursuant to subsection(b) of this section.

 

(f) The state registrar of rules shall prescribe a format forstate agencies to follow in preparing proposed amendments to existing ruleswhich shall ensure that additions to and deletions from existing language areclearly indicated.

 

(g) Upon receipt of a notice of intended action from a stateagency under paragraph (a)(i) of this section, the secretary of state's officeshall maintain a file of these notices and make them available for publicinspection during regular business hours. A notice shall remain in the fileuntil the rules are adopted or until the agency determines not to take action toadopt the proposed rules. To the extent that resources enable the office to doso, the secretary of state's office shall make these notices available to thepublic electronically. The secretary of state may promulgate rules specifyingthe format of notices submitted by state agencies under this subsection.Compliance with this subsection shall not affect the validity of rulespromulgated by state agencies.

 

(h) An agency may incorporate, by reference in its rules andwithout publishing the incorporated matter in full, all or any part of a code,standard, rule or regulation that has been adopted by an agency of the UnitedStates or of this state, another state or by a nationally recognizedorganization or association, provided:

 

(i) Incorporation of the full text in agency rules would beunduly cumbersome or expensive;

 

(ii) The reference in the rules of the incorporating agencyfully identifies the incorporated matter by location, date and otherwise, andstates that the rule does not include any later amendments or editions of theincorporated matter;

 

(iii) The agency, organization or association originally issuingthe incorporated matter makes copies of it readily available to the public andthe rules of the incorporating agency state where such copies are available;

 

(iv) The incorporating agency maintains and makes available forpublic inspection a copy of the incorporated matter and the rules of theincorporating agency state where copies of the incorporated matter areavailable at cost from the incorporating agency; and

 

(v) The incorporating agency otherwise complies with allprocedural requirements under this act and the rules of the registrar of stateagency rules governing the promulgation and filing of agency rules.

 

16-3-104. Filing of copies of rules; permanent register; effectivedates; manner of preparation; advice and assistance of attorney general.

 

(a) Each agency shall file in the office of the registrar ofrules a certified copy of each rule adopted by it as approved by the governor.State agencies shall file each rule within seventy-five (75) days of the dateof agency action adopting the rule or it is not effective. There shall be notedupon the rule a citation of the authority by which it or any part of it wasadopted. The registrar of rules shall keep a permanent register of the rulesopen to public inspection. Not more than ten (10) days after a state agencyfiles a copy of a rule in the office of the registrar of rules, the agencyshall mail a notice that the rule has been filed to each person who was sent anotice under W.S. 16-3-103(a)(i). The notice shall contain a citation to therule and the date it was filed. Failure to send the notice required under thissubsection does not affect the effectiveness of the rule.

 

(b) Each rule and any amendment or repeal adopted after June 1,1982 is effective after filing in accordance with subsection (a) of thissection and W.S. 28-9-108 except:

 

(i) If a later date is required by statute or specified in therule, the later date is the effective date;

 

(ii) Where the agency finds that an emergency exists and thefinding is concurred in by the governor, a rule or amendment or repeal may beeffective immediately upon filing with the registrar of rules and if a stateagency, also with the legislative service office. Existing rules remain ineffect unless amended or repealed, subject to this section or W.S. 28-9-105 or28-9-106.

 

(c) Rules shall be prepared in the manner and form prescribedby the state registrar of rules. The registrar of rules may refuse to acceptfor filing any rule that does not conform to the prescribed form.

 

(d) The attorney general shall furnish advice and assistance toall state agencies in the preparation of their regulations, and in revising,codifying and editing existing or new regulations.

 

16-3-105. Compilation and indexing of rules; charges for copies;authentication by registrar.

 

 

(a) The registrar of state agency rules shall compile, indexand publish the rules adopted by each agency and remaining in effect. Thecompilation shall be supplemented or revised at least once every two (2) years.

 

(b) The registrar of state agency rules may make a reasonablecharge for any rules published except those furnished to state officers,agencies, members of the legislature or the legislative service office andothers in the employment of the state and its political subdivisions requiringthe rules in the performance of their duties. The registrar of local agencyrules may make a reasonable charge for copies of any rule on file.

 

(c) The registrar's authenticated file stamp on a rule orpublication of a rule shall raise a rebuttable presumption that the rule wasadopted and filed in compliance with all requirements necessary to make iteffective.

 

(d) The registrar of state agency rules shall annually compileand publish an index of all state agency rules filed with the registrar as ofDecember 31 of each year. The index shall list the effective date of each setof rules or the effective date of each set of amendments to an agency's rules.Copies of the index shall be distributed as provided by W.S. 16-3-105(b).

 

16-3-106. Petition for promulgation, amendment or repeal of rules.

 

Anyinterested person may petition an agency requesting the promulgation, amendmentor repeal of any rule and may accompany his petition with relevant data, viewsand arguments. Each agency may prescribe by rule the form of the petition andthe procedure for its submission, consideration and disposition. Uponsubmission of a petition, the agency as soon as practicable either shall denythe petition in writing (stating its reasons for the denials) or initiaterulemaking proceedings in accordance with W.S. 16-3-103. The action of theagency in denying a petition is final and not subject to review.

 

16-3-107. Contested cases; general procedure.

 

 

(a) In any contested case, all parties shall be afforded anopportunity for hearing after reasonable notice served personally or by mail.Where the indispensable and necessary parties are composed of a large class,the notice shall be served upon a reasonable number thereof as representativesof the class or by giving notice by publication in the manner specified by therules or an order of the agency.

 

(b) The notice shall include a statement of:

 

(i) The time, place and nature of the hearing;

 

(ii) The legal authority and jurisdiction under which thehearing is to be held;

 

(iii) The particular sections of the statutes and rules involved;

 

(iv) A short and plain statement of the matters asserted. If theagency or other party is unable to state the matters in detail at the time thenotice is served, the initial notice may be limited to a statement of theissues involved, and thereafter upon application a more definite and detailedstatement shall be furnished.

 

(c) In all contested cases, depositions and discovery relatingthereto, agencies shall have the authority to administer oaths andaffirmations, subpoena witnesses and require the production of any books,papers or other documents relevant or material to the inquiry. In case ofrefusal to obey a subpoena issued by the agency in a contested case, depositionor discovery relating thereto, to any person, the district court for thedistrict in which the hearing or deposition or other proceeding is beingconducted, or for the district where the person may be served, may uponapplication by the agency issue to the person refusing to obey the subpoena anorder requiring the person to show cause for the refusal or to appear beforethe agency or other person designated by it there to produce documentaryevidence if so ordered or there to give evidence touching the matter inquestion. Any failure to show cause or obey the order of court may be punishedby the court as a contempt thereof.

 

(d) In all contested cases the agency shall as part of itsrules of practice provide that the agency or one (1) of its presiding officersdesignated by it upon application of any party shall issue a subpoena requiringthe appearance of witnesses for the purpose of taking evidence or requiring theproduction of any books, papers or other documents relevant or material to theinquiry.

 

(e) The agency upon motion made promptly and in any event at orbefore the time specified in the subpoena for compliance therewith, may quashor modify the subpoena if it is unreasonable and oppressive, or in the eventissued pursuant to subsection (g) of this section may condition denial of themotion upon the advancement by the person in whose behalf the subpoena isissued of the reasonable cost of producing the books, papers, documents ortangible things.

 

(f) If a subpoena issued pursuant to this section is disobeyedand if the agency fails to apply pursuant to subsection (c) of this section forenforcement any party may apply to the district court for the district havingvenue under subsection (c) of this section for enforcement pursuant tosubsection (c) of this section.

 

(g) In all contested cases the taking of depositions anddiscovery shall be available to the parties in accordance with the provisionsof Rules 26, 28 through 37 (excepting Rule 37(b)(1) and 37(b)(2)(D) therefrom)of the Wyoming Rules of Civil Procedure in effect on the date of the enactmentof this act and any subsequent rule amendments thereto. All references thereinto the "court" shall be deemed to refer to the appropriate"agency"; all references to the use of the subpoena power shall bereferences to subsection (c) of this section; all references to"trial" shall be deemed references to "hearing"; allreferences to "plaintiff" shall be deemed references to "aparty". If a party or other witness refuses to be sworn or refuses toanswer any question after being directed to do so by the agency in which theaction is pending, the refusal to obey the agency order shall be enforced inthe same manner as is provided in subsection (c) of this section.

 

(h) Any agency which is a party to the contested case issubject to the discovery provisions of this section but neither the agency, norany member, officer or employee shall be required to disclose information whichis confidential or privileged under the law and no member of the presidingagency shall be compelled to testify or give a deposition in a contested case.Discovery sought from the agency initially shall be by written application. Ifthe agency refuses to allow discovery in whole or in part the aggrieved partymay apply to the presiding officer for an order compelling discovery. If thepresiding officer fails or refuses to compel discovery, the aggrieved party mayapply to the district court for the district in which the hearing, depositionor other proceeding is being or is to be conducted for an order directed to theagency compelling discovery. The presiding officer or district court shallenter such order as may be appropriate.

 

(j) Opportunity shall be afforded all parties to respond andpresent evidence and argument on all issues involved. Any person compelled toappear in person before any agency or representative thereof shall be accordedthe right to be accompanied, represented and advised by counsel or, ifpermitted by the agency, by other qualified representative.

 

(k) Every party shall be accorded the right to appear in personor by or with counsel or other duly qualified representative in any agencyproceeding in accordance with such rules as the agency prescribes and thepertinent rules of the supreme court of Wyoming. So far as the orderly conductof public business permits, any interested person may appear before any agencyor its responsible officers or employees for the presentation, adjustment ordetermination of any issue, request or controversy in any proceeding(interlocutory, summary or otherwise) or in connection with any agencyfunction. Every agency shall proceed with reasonable dispatch to conclude anymatter presented to it except that due regard shall be had for the convenienceand necessity of the parties or their representatives. Any person representingan agency at a hearing in a contested case in which the agency is a party shallnot in the same case serve as presiding officer or provide ex parte adviceregarding the case to the presiding officer or to the body or any member of thebody comprising the decision makers.

 

(m) No process, requirement of a report, inspection, or otherinvestigative act or demand shall be issued, made or enforced in any manner orfor any purpose except as authorized by law. Every person compelled to submitdata or evidence is entitled to retain or, on payment of lawfully prescribedcosts, procure a copy of a transcript thereof, except that in a nonpublicinvestigatory proceeding the witness may for good cause be limited toinspection of the official transcript of his testimony.

 

(n) Unless precluded by law, informal disposition may be madeof any contested case by stipulation, agreed settlement, consent order ordefault.

 

(o) The record in a contested case must include:

 

(i) All formal or informal notices, pleadings, motions andintermediate rulings;

 

(ii) Evidence received or considered including mattersofficially noticed;

 

(iii) Questions and offers of proof, objections and rulingsthereon;

 

(iv) Any proposed findings and exceptions thereto;

 

(v) Any opinion, findings, decision or order of the agency andany report by the officer presiding at the hearing.

 

(p) In all contested cases the proceeding including alltestimony shall be reported verbatim stenographically or by any otherappropriate means determined by the agency or the officer presiding at thehearing.

 

(q) Oral proceedings or any part thereof shall be transcribedon request of any party upon payment of the cost thereof.

 

(r) Findings of fact shall be based exclusively on the evidenceand matters officially noticed.

 

16-3-108. Contested cases; admissible evidence; cross-examination;judicial notice.

 

 

(a) In contested cases irrelevant, immaterial or undulyrepetitious evidence shall be excluded and no sanction shall be imposed ororder issued except upon consideration of the whole record or such portionthereof as may be cited by any party and unless supported by the type ofevidence commonly relied upon by reasonably prudent men in the conduct of theirserious affairs. Agencies shall give effect to the rules of privilegerecognized by law. Subject to these requirements and agency rule if theinterests of the parties will not be prejudiced substantially testimony may bereceived in written form subject to the right of cross-examination as providedin subsection (c) of this section.

 

(b) Documentary evidence may be received in the form of copiesor excerpts, if the original is not readily available. Upon request, partiesshall be given opportunity to compare the copy with the original.

 

(c) A party may conduct cross-examinations required for a fulland true disclosure of the facts and a party is entitled to confront allopposing witnesses.

 

(d) Notice may be taken of judicially cognizable facts. Inaddition notice may be taken of technical or scientific facts within theagency's specialized knowledge or of information, data and material includedwithin the agency's files. The parties shall be notified either before orduring the hearing or after the hearing but before the agency decision ofmaterial facts noticed, and they shall be afforded an opportunity to contestthe facts noticed.

 

16-3-109. Contested cases; consideration of record; exceptions todecision; briefs and oral argument.

 

Theagency shall consider the whole record or any portion stipulated to by theparties. In the event a recommended decision is rendered all parties shall beafforded a reasonable opportunity to file exceptions thereto which shall bedeemed a part of the record. All parties as a matter of right shall bepermitted to file a brief with the agency and oral argument shall be allowed inthe discretion of the agency.

 

16-3-110. Contested cases; final decision; contents; notification.

 

Afinal decision or order adverse to a party in a contested case shall be inwriting or dictated into the record. The final decision shall include findings offact and conclusions of law separately stated. Findings of fact if set forth instatutory language, shall be accompanied by a concise and explicit statement ofthe underlying facts supporting the findings. Parties shall be notified eitherpersonally or by mail of any decision or order. A copy of the decision andorder shall be delivered or mailed forthwith to each party or to his attorneyof record.

 

16-3-111. Contested cases; limitations on consultations andparticipations.

 

Unlessrequired for the disposition of ex parte matters authorized by law, members ofthe agency, employees presiding at a hearing in a contested case and employeesassisting the foregoing persons in compiling, evaluating and analyzing therecord in a contested case or in writing a decision in a contested case shallnot directly or indirectly in connection with any issue in the case consultwith any person other than an agency member, officer, contract consultant oremployee or other state or federal employee, any party other than the agency orwith any agency employee, contract consultant or other state or federalemployee who was engaged in the investigation, preparation, presentation orprosecution of the case except upon notice and opportunity for all parties toparticipate. Nothing herein contained precludes any agency member fromconsulting with other members of the agency. No officer, employee, contractconsultant, federal employee or agent who has participated in theinvestigation, preparation, presentation or prosecution of a contested caseshall be in that or a factually related case participate or advise in thedecision, recommended decision or agency review of the decision, or beconsulted in connection therewith except as witness or counsel in publicproceedings. A staff member is not disqualified from participating or advisingin the decision, recommended decision or agency review because he hasparticipated in the presentation of the case in the event the staff member doesnot assert or have an adversary position.

 

16-3-112. Contested cases; presiding officers; qualifications; powers;outside personnel; hearing officers.

 

 

(a) If not otherwise authorized by law there shall preside atthe taking of evidence in all contested cases the statutory agency, one (1) ormore members of the body which comprises the agency, or an employee of theagency or an employee of another agency designated by the agency to act aspresiding officer. The functions of all those presiding in contested casesshall be conducted in an impartial manner. Any officer shall at any timewithdraw if he deems himself disqualified provided there are other qualifiedpresiding officers available to act.

 

(b) Officers presiding at hearings shall have authority,subject to the published rules of the agency and within its power to:

 

(i) Administer oaths and affirmations;

 

(ii) Issue subpoenas;

 

(iii) Rule upon offers of proof and receive relevant evidence;

 

(iv) Take or cause depositions to be taken in accordance withthe provisions of this act and the rules of the agency;

 

(v) Regulate the course of the hearing;

 

(vi) Hold conferences for the settlement or simplification ofthe issues;

 

(vii) Dispose of procedural requests or similar matters;

 

(viii) Make recommended decisions when directed to do so by theagency; and

 

(ix) Take any other action authorized by agency rules consistentwith this act.

 

(c) In all contested cases to the extent that it is necessaryin order to obtain compliance with W.S. 16-3-111 the agency (excepting countyand municipal agencies and political subdivisions on the county and locallevel) may request the office of the attorney general to furnish to the agencysuch personnel as may be necessary in order for the agency to properlyinvestigate, prepare, present and prosecute the contested case before theagency. The attorney general upon the receipt of the request shall promptlycomply with same with no charge being made against the requesting agency'sappropriation other than for travel and per diem expenses.

 

(d) To the extent an agency utilizes an employee of anotheragency (other than the staff of the attorney general) to preside at a hearingor otherwise the salary of the employee during the period of the employment andthe expenses incurred by the employee shall be charged against theappropriation of the using agency.

 

(e) When required by law an agency shall adopt rules andregulations providing a procedure for the use and the selection of anadministrative hearing officer. An agency shall not delegate the authority tomake final decisions to an independent administrative hearing officer unlessrequired by law.

 

16-3-113. License hearings.

 

 

(a) When the grant, denial, suspension or renewal of a licenseis required by law to be preceded by notice and an opportunity for hearing theprovisions of this act concerning contested cases apply.

 

(b) When a licensee has made timely and sufficient applicationfor the renewal of a license or a new license with reference to any activity ofa continuing nature, the existing license does not expire until the applicationhas been finally determined by the agency, and, in case the application isdenied or the terms of the new license limited, until the last day for seekingreview of the agency order or a later date fixed by order of the reviewingcourt.

 

(c) No revocation, suspension, annulment or withdrawal of anylicense is lawful unless, prior to the institution of agency proceedings, theagency gave notice by mail to the licensee of facts or conduct which warrantthe intended action, and the licensee was given an opportunity to showcompliance with all lawful requirements for the retention of the license. Ifthe agency finds that public health, safety or welfare imperatively requiresemergency action, and incorporates a finding to that effect in its order,summary suspension of a license may be ordered pending proceedings forrevocation or other action. A cancellation of a driver's license pursuant toW.S. 31-7-121(c) shall not be valid until the department of transportationgives notice by mail to the licensee of the facts which warrant the intendedaction and provides the licensee with an opportunity to provide additionalevidence or information with respect to the condition at issue within fifteen(15) days of the mailing of the notice. These proceedings shall be promptlyinstituted and determined.

 

16-3-114. Judicial review of agency actions; district courts.

 

 

(a) Subject to the requirement that administrative remedies beexhausted and in the absence of any statutory or common-law provisionprecluding or limiting judicial review, any person aggrieved or adverselyaffected in fact by a final decision of an agency in a contested case, or byother agency action or inaction, or any person affected in fact by a ruleadopted by an agency, is entitled to judicial review in the district court forthe county in which the administrative action or inaction was taken, or inwhich any real property affected by the administrative action or inaction islocated, or if no real property is involved, in the district court for thecounty in which the party aggrieved or adversely affected by the administrativeaction or inaction resides or has its principal place of business. Theprocedure to be followed in the proceeding before the district court shall bein accordance with rules heretofore or hereinafter adopted by the Wyomingsupreme court.

 

(b) The supreme court's authority to adopt rules governingreview from agencies to the district courts shall include authority todetermine the content of the record upon review, the pleadings to be filed, thetime and manner for filing the pleadings, records and other documents and theextent to which supplemental testimony and evidence may be taken or consideredby the district court. The rules adopted by the supreme court under thisprovision may supersede existing statutory provisions.

 

(c) To the extent necessary to make a decision and whenpresented, the reviewing court shall decide all relevant questions of law,interpret constitutional and statutory provisions, and determine the meaning orapplicability of the terms of an agency action. In making the followingdeterminations, the court shall review the whole record or those parts of itcited by a party and due account shall be taken of the rule of prejudicialerror. The reviewing court shall:

 

(i) Compel agency action unlawfully withheld or unreasonablydelayed; and

 

(ii) Hold unlawful and set aside agency action, findings andconclusions found to be:

 

(A) Arbitrary, capricious, an abuse of discretion or otherwisenot in accordance with law;

 

(B) Contrary to constitutional right, power, privilege orimmunity;

 

(C) In excess of statutory jurisdiction, authority orlimitations or lacking statutory right;

 

(D) Without observance of procedure required by law; or

 

(E) Unsupported by substantial evidence in a case reviewed onthe record of an agency hearing provided by statute.

 

16-3-115. Judicial review of agency actions; supreme court.

 

Anaggrieved party may obtain a review of any final judgment of the district courtunder this act by appeal to the supreme court. The appeal shall be taken as inother civil cases.

 


State Codes and Statutes

State Codes and Statutes

Statutes > Wyoming > Title16 > Chapter3

CHAPTER 3 - ADMINISTRATIVE PROCEDURE

 

16-3-101. Short title; definitions.

 

(a) This act may be cited as the "Wyoming AdministrativeProcedure Act".

 

(b) As used in this act:

 

(i) "Agency" means any authority, bureau, board,commission, department, division, officer or employee of the state, a county,city or town or other political subdivision of the state, except the governingbody of a city or town, the state legislature, the University of Wyoming andthe judiciary;

 

(ii) "Contested case" means a proceeding including butnot restricted to ratemaking, price fixing and licensing, in which legalrights, duties or privileges of a party are required by law to be determined byan agency after an opportunity for hearing but excludes designations under W.S.9-2-1022(h)(i);

 

(iii) "License" includes the whole or part of anyagency permit, certificate, approval, registration, charter or similar form ofpermission required by law, but it does not include a license required solelyfor revenue purposes;

 

(iv) "Licensing" includes the agency processrespecting the grant, denial, renewal, revocation, suspension, annulment,withdrawal or amendment of a license;

 

(v) "Local agency" means any agency withresponsibilities limited to less than statewide jurisdiction, except thegoverning body of a city or town;

 

(vi) "Party" means each person or agency named oradmitted as a party or properly seeking and entitled as of right to be admittedas a party;

 

(vii) "Person" means any individual, partnership, corporation,association, municipality, governmental subdivision or public or privateorganization of any character other than an agency;

 

(viii) "Registrar of rules" for state agency rules meansthe secretary of state. "Registrar of rules" for local agency rulesmeans the county clerk of the county in which the rule is to be effective;

 

(ix) "Rule" means each agency statement of generalapplicability that implements, interprets and prescribes law, policy orordinances of cities and towns, or describes the organization, procedures, orpractice requirements of any agency. The term includes the amendment or repealof a prior rule, but does not include:

 

(A) Statements concerning only the internal management of anagency and not affecting private rights or procedures available to the public;or

 

(B) Rulings issued pursuant to W.S. 16-3-106; or

 

(C) Intraagency memoranda; or

 

(D) Agency decisions and findings in contested cases; or

 

(E) Rules concerning the use of public roads or facilitieswhich are indicated to the public by means of signs and signals; or

 

(F) Ordinances of cities and towns; or

 

(G) Designations under W.S. 9-2-1022(h)(i).

 

(x) "State agency" means any agency with statewideresponsibilities;

 

(xi) "This act" means W.S. 16-3-101 through 16-3-115.

 

16-3-102. General rulemaking requirements; assistance of attorneygeneral.

 

 

(a) In addition to other rulemaking requirements imposed bylaw, each agency shall:

 

(i) Adopt rules of practice setting forth the nature andrequirements of all formal and informal procedures available in connection withcontested cases;

 

(ii) Make available for public inspection all rules and allother written statements of policy or interpretations formulated, adopted orused by the agency in the discharge of its functions;

 

(iii) Make available for public inspection all final orders,decisions and opinions.

 

(b) No agency rule, order or decision is valid or effectiveagainst any person or party, nor may it be invoked by the agency for anypurpose, until it has been filed with the registrar of rules and made availablefor public inspection as required by this act. This subsection does not applyto orders or decisions in favor of any person or party with actual knowledge ofthe rule, order or decision.

 

(c) In formulating rules of practice as required by thissection, each agency may request the assistance of the attorney general andupon request the attorney general shall assist the agency or agencies in thepreparation of rules of practice.

 

16-3-103. Adoption, amendment and repeal of rules; notice; hearing;emergency rules; proceedings to contest; review and approval by governor.

 

(a) Prior to an agency's adoption, amendment or repeal of allrules other than interpretative rules or statements of general policy, theagency shall:

 

(i) Give at least forty-five (45) days notice of its intendedaction. Notice shall be mailed to all persons making timely requests of theagency for advanced notice of its rulemaking proceedings and to the attorneygeneral, the secretary of state's office as registrar of rules, and thelegislative service office if a state agency. The agency shall submit a copy ofthe proposed rules, in a format conforming to any requirements prescribedpursuant to subsection (f) of this section, with the notice given to thelegislative service office. The notice shall include:

 

(A) The time when, the place where and the manner in whichinterested persons may present their views on the intended action;

 

(B) A statement of the terms and substance of the proposed ruleor a description of the subjects and issues involved;

 

(C) If an amendment or a repeal, the citation to the agencyrule to be amended or repealed;

 

(D) If new rules, a statement that they are new rules and acitation of the statute which authorizes adoption of the rules;

 

(E) The place where an interested person may obtain a copy ofthe proposed rules in a format conforming to any requirements prescribedpursuant to subsection (f) of this section;

 

(F) If the agency asserts that all or a portion of a rule isproposed to be adopted, amended or repealed in order for the state to complywith federal law or regulatory requirements:

 

(I) A statement that the adoption, amendment or repeal of therule is required by federal law or regulation together with citations to theapplicable federal law or regulation; and

 

(II) A statement whether the proposed rule change meets minimumfederal requirements or whether the proposed rule change exceeds minimumfederal requirements.

 

(G) A statement whether the proposed rule change meets minimumsubstantive state statutory requirements or whether the proposed rule changeexceeds minimum substantive state statutory requirements. If the rule changeexceeds minimum substantive state statutory requirements, the agency shallinclude a statement explaining the reason why the rule exceeds minimumsubstantive statutory requirements.

 

(ii) Afford all interested persons reasonable opportunity tosubmit data, views or arguments, orally or in writing, provided this periodshall consist of at least forty-five (45) days from the later of the datesspecified under subparagraph (A) of this paragraph, and provided:

 

(A) In the case of substantive rules, opportunity for oralhearing shall be granted if requested by twenty-five (25) persons, or by agovernmental subdivision, or by an association having not less than twenty-five(25) members. No hearing under this subparagraph shall be conducted until atleast forty-five (45) days after the later of:

 

(I) The date notice of intended action is given under paragraph(i) of this subsection; or

 

(II) The date notice is published if publication is required bysubsection (e) of this section.

 

(B) The agency shall consider fully all written and oralsubmissions respecting the proposed rule;

 

(C) If prior to final adoption any person objects to theaccuracy of a statement made by the agency pursuant to W.S.16-3-103(a)(i)(F)(I) or (II), the agency shall:

 

(I) Provide the objecting person with a written responseexplaining and substantiating the agency's position by reference to federal lawor regulations; and

 

(II) Include with the final rules submitted for review to thegovernor and legislative service office a concise statement of the objectionand the agency's response.

 

(D) Upon adoption of the rule, the agency, if requested to doso by an interested person, either prior to adoption or within thirty (30) daysthereafter, shall issue a concise statement of the principal reasons foroverruling the consideration urged against its adoption.

 

(b) When an agency finds that an emergency requires the agencyto proceed without notice or opportunity for hearing required by subsection (a)of this section, it may adopt emergency rules. An emergency rule is effectivewhen filed. A state agency emergency rule shall bear the endorsement of thegovernor's concurrence on the finding of emergency before the registrar ofrules accepts the rule for filing. The rule so adopted shall be effective forno longer than one hundred twenty (120) days but the adoption of an identicalrule under W.S. 16-3-103(a) or of an emergency rule under this subsection isnot precluded. In no case shall identical or substantially similar emergencyrules be effective for a total period of more than two hundred forty (240)days. A local agency may proceed with the emergency rule when notice of theemergency is filed with the local registrar of rules.

 

(c) No rule is valid unless submitted, filed and adopted insubstantial compliance with this section. A proceeding to contest any rule onthe ground of noncompliance with the procedural requirements of this sectionmust be commenced within two (2) years from the effective date of the rule.

 

(d) No state agency rule or any amendment, repeal, modificationor revision of the rule may be filed with the registrar of rules unless therule has been submitted to the governor for review and the governor hasapproved and signed the rule. Except in the case of emergency rules and rulesadopted by the game and fish commission fixing general hunting or fishingregulations, season or bag limits or establishing hunting areas, the governorshall not approve any rule until the date of receipt of the legislativemanagement council's recommendation under W.S. 28-9-106(a) or until forty (40)days after the rule is filed with the legislative service office pursuant toW.S. 28-9-103(b), whichever is sooner. During the process of approving rules,the governor may disapprove any portion of a rule not conforming to paragraphs(d)(i), (ii) or (iii) of this section by clearly indicating the portion of therule disapproved and the basis for the disapproval. Only those portions of arule approved by the governor shall be filed with the registrar of rules asprovided by W.S. 16-3-104(a). Any portion of a rule disapproved by the governorshall be returned to the agency and shall be null and void and shall not befiled, implemented or enforced. The governor shall report his disapproval ofany rule or portion thereof to the management council within fifteen (15) days.The governor shall not approve any rule or any amendment, repeal, modificationor revision of the rule unless it:

 

(i) Is within the scope of the statutory authority delegated tothe adopting agency;

 

(ii) Appears to be within the scope of the legislative purposeof the statutory authority; and

 

(iii) Has been adopted in compliance with the proceduralrequirements of this act. For the purposes of this subsection, an"agency" means any authority, bureau, board, commission, department,division, officer or employee of the state, excluding the state legislature andthe judiciary.

 

(e) If a state agency created as a licensing or regulatoryboard or commission for any profession or occupation regulated under title 33regularly publishes a newsletter, memorandum or other written or electroniccommunication which serves as a medium to provide information to members of theregulated profession or occupation, then in addition to the notice requirementsof subsection (a) of this section, the agency shall publish within that mediumthe proposed rules in a format conforming to any requirements prescribedpursuant to subsection (f) of this section. If the agency determinespublication in such manner is not practicable, it shall publish within thechosen medium at least once prior to taking final action to adopt, amend orrepeal any rule notice of its intended rulemaking proceedings and makeavailable the full text of all proposed changes in the format conforming to anyrequirements prescribed pursuant to subsection (f) of this section. Thissubsection shall not apply to emergency rules adopted pursuant to subsection(b) of this section.

 

(f) The state registrar of rules shall prescribe a format forstate agencies to follow in preparing proposed amendments to existing ruleswhich shall ensure that additions to and deletions from existing language areclearly indicated.

 

(g) Upon receipt of a notice of intended action from a stateagency under paragraph (a)(i) of this section, the secretary of state's officeshall maintain a file of these notices and make them available for publicinspection during regular business hours. A notice shall remain in the fileuntil the rules are adopted or until the agency determines not to take action toadopt the proposed rules. To the extent that resources enable the office to doso, the secretary of state's office shall make these notices available to thepublic electronically. The secretary of state may promulgate rules specifyingthe format of notices submitted by state agencies under this subsection.Compliance with this subsection shall not affect the validity of rulespromulgated by state agencies.

 

(h) An agency may incorporate, by reference in its rules andwithout publishing the incorporated matter in full, all or any part of a code,standard, rule or regulation that has been adopted by an agency of the UnitedStates or of this state, another state or by a nationally recognizedorganization or association, provided:

 

(i) Incorporation of the full text in agency rules would beunduly cumbersome or expensive;

 

(ii) The reference in the rules of the incorporating agencyfully identifies the incorporated matter by location, date and otherwise, andstates that the rule does not include any later amendments or editions of theincorporated matter;

 

(iii) The agency, organization or association originally issuingthe incorporated matter makes copies of it readily available to the public andthe rules of the incorporating agency state where such copies are available;

 

(iv) The incorporating agency maintains and makes available forpublic inspection a copy of the incorporated matter and the rules of theincorporating agency state where copies of the incorporated matter areavailable at cost from the incorporating agency; and

 

(v) The incorporating agency otherwise complies with allprocedural requirements under this act and the rules of the registrar of stateagency rules governing the promulgation and filing of agency rules.

 

16-3-104. Filing of copies of rules; permanent register; effectivedates; manner of preparation; advice and assistance of attorney general.

 

(a) Each agency shall file in the office of the registrar ofrules a certified copy of each rule adopted by it as approved by the governor.State agencies shall file each rule within seventy-five (75) days of the dateof agency action adopting the rule or it is not effective. There shall be notedupon the rule a citation of the authority by which it or any part of it wasadopted. The registrar of rules shall keep a permanent register of the rulesopen to public inspection. Not more than ten (10) days after a state agencyfiles a copy of a rule in the office of the registrar of rules, the agencyshall mail a notice that the rule has been filed to each person who was sent anotice under W.S. 16-3-103(a)(i). The notice shall contain a citation to therule and the date it was filed. Failure to send the notice required under thissubsection does not affect the effectiveness of the rule.

 

(b) Each rule and any amendment or repeal adopted after June 1,1982 is effective after filing in accordance with subsection (a) of thissection and W.S. 28-9-108 except:

 

(i) If a later date is required by statute or specified in therule, the later date is the effective date;

 

(ii) Where the agency finds that an emergency exists and thefinding is concurred in by the governor, a rule or amendment or repeal may beeffective immediately upon filing with the registrar of rules and if a stateagency, also with the legislative service office. Existing rules remain ineffect unless amended or repealed, subject to this section or W.S. 28-9-105 or28-9-106.

 

(c) Rules shall be prepared in the manner and form prescribedby the state registrar of rules. The registrar of rules may refuse to acceptfor filing any rule that does not conform to the prescribed form.

 

(d) The attorney general shall furnish advice and assistance toall state agencies in the preparation of their regulations, and in revising,codifying and editing existing or new regulations.

 

16-3-105. Compilation and indexing of rules; charges for copies;authentication by registrar.

 

 

(a) The registrar of state agency rules shall compile, indexand publish the rules adopted by each agency and remaining in effect. Thecompilation shall be supplemented or revised at least once every two (2) years.

 

(b) The registrar of state agency rules may make a reasonablecharge for any rules published except those furnished to state officers,agencies, members of the legislature or the legislative service office andothers in the employment of the state and its political subdivisions requiringthe rules in the performance of their duties. The registrar of local agencyrules may make a reasonable charge for copies of any rule on file.

 

(c) The registrar's authenticated file stamp on a rule orpublication of a rule shall raise a rebuttable presumption that the rule wasadopted and filed in compliance with all requirements necessary to make iteffective.

 

(d) The registrar of state agency rules shall annually compileand publish an index of all state agency rules filed with the registrar as ofDecember 31 of each year. The index shall list the effective date of each setof rules or the effective date of each set of amendments to an agency's rules.Copies of the index shall be distributed as provided by W.S. 16-3-105(b).

 

16-3-106. Petition for promulgation, amendment or repeal of rules.

 

Anyinterested person may petition an agency requesting the promulgation, amendmentor repeal of any rule and may accompany his petition with relevant data, viewsand arguments. Each agency may prescribe by rule the form of the petition andthe procedure for its submission, consideration and disposition. Uponsubmission of a petition, the agency as soon as practicable either shall denythe petition in writing (stating its reasons for the denials) or initiaterulemaking proceedings in accordance with W.S. 16-3-103. The action of theagency in denying a petition is final and not subject to review.

 

16-3-107. Contested cases; general procedure.

 

 

(a) In any contested case, all parties shall be afforded anopportunity for hearing after reasonable notice served personally or by mail.Where the indispensable and necessary parties are composed of a large class,the notice shall be served upon a reasonable number thereof as representativesof the class or by giving notice by publication in the manner specified by therules or an order of the agency.

 

(b) The notice shall include a statement of:

 

(i) The time, place and nature of the hearing;

 

(ii) The legal authority and jurisdiction under which thehearing is to be held;

 

(iii) The particular sections of the statutes and rules involved;

 

(iv) A short and plain statement of the matters asserted. If theagency or other party is unable to state the matters in detail at the time thenotice is served, the initial notice may be limited to a statement of theissues involved, and thereafter upon application a more definite and detailedstatement shall be furnished.

 

(c) In all contested cases, depositions and discovery relatingthereto, agencies shall have the authority to administer oaths andaffirmations, subpoena witnesses and require the production of any books,papers or other documents relevant or material to the inquiry. In case ofrefusal to obey a subpoena issued by the agency in a contested case, depositionor discovery relating thereto, to any person, the district court for thedistrict in which the hearing or deposition or other proceeding is beingconducted, or for the district where the person may be served, may uponapplication by the agency issue to the person refusing to obey the subpoena anorder requiring the person to show cause for the refusal or to appear beforethe agency or other person designated by it there to produce documentaryevidence if so ordered or there to give evidence touching the matter inquestion. Any failure to show cause or obey the order of court may be punishedby the court as a contempt thereof.

 

(d) In all contested cases the agency shall as part of itsrules of practice provide that the agency or one (1) of its presiding officersdesignated by it upon application of any party shall issue a subpoena requiringthe appearance of witnesses for the purpose of taking evidence or requiring theproduction of any books, papers or other documents relevant or material to theinquiry.

 

(e) The agency upon motion made promptly and in any event at orbefore the time specified in the subpoena for compliance therewith, may quashor modify the subpoena if it is unreasonable and oppressive, or in the eventissued pursuant to subsection (g) of this section may condition denial of themotion upon the advancement by the person in whose behalf the subpoena isissued of the reasonable cost of producing the books, papers, documents ortangible things.

 

(f) If a subpoena issued pursuant to this section is disobeyedand if the agency fails to apply pursuant to subsection (c) of this section forenforcement any party may apply to the district court for the district havingvenue under subsection (c) of this section for enforcement pursuant tosubsection (c) of this section.

 

(g) In all contested cases the taking of depositions anddiscovery shall be available to the parties in accordance with the provisionsof Rules 26, 28 through 37 (excepting Rule 37(b)(1) and 37(b)(2)(D) therefrom)of the Wyoming Rules of Civil Procedure in effect on the date of the enactmentof this act and any subsequent rule amendments thereto. All references thereinto the "court" shall be deemed to refer to the appropriate"agency"; all references to the use of the subpoena power shall bereferences to subsection (c) of this section; all references to"trial" shall be deemed references to "hearing"; allreferences to "plaintiff" shall be deemed references to "aparty". If a party or other witness refuses to be sworn or refuses toanswer any question after being directed to do so by the agency in which theaction is pending, the refusal to obey the agency order shall be enforced inthe same manner as is provided in subsection (c) of this section.

 

(h) Any agency which is a party to the contested case issubject to the discovery provisions of this section but neither the agency, norany member, officer or employee shall be required to disclose information whichis confidential or privileged under the law and no member of the presidingagency shall be compelled to testify or give a deposition in a contested case.Discovery sought from the agency initially shall be by written application. Ifthe agency refuses to allow discovery in whole or in part the aggrieved partymay apply to the presiding officer for an order compelling discovery. If thepresiding officer fails or refuses to compel discovery, the aggrieved party mayapply to the district court for the district in which the hearing, depositionor other proceeding is being or is to be conducted for an order directed to theagency compelling discovery. The presiding officer or district court shallenter such order as may be appropriate.

 

(j) Opportunity shall be afforded all parties to respond andpresent evidence and argument on all issues involved. Any person compelled toappear in person before any agency or representative thereof shall be accordedthe right to be accompanied, represented and advised by counsel or, ifpermitted by the agency, by other qualified representative.

 

(k) Every party shall be accorded the right to appear in personor by or with counsel or other duly qualified representative in any agencyproceeding in accordance with such rules as the agency prescribes and thepertinent rules of the supreme court of Wyoming. So far as the orderly conductof public business permits, any interested person may appear before any agencyor its responsible officers or employees for the presentation, adjustment ordetermination of any issue, request or controversy in any proceeding(interlocutory, summary or otherwise) or in connection with any agencyfunction. Every agency shall proceed with reasonable dispatch to conclude anymatter presented to it except that due regard shall be had for the convenienceand necessity of the parties or their representatives. Any person representingan agency at a hearing in a contested case in which the agency is a party shallnot in the same case serve as presiding officer or provide ex parte adviceregarding the case to the presiding officer or to the body or any member of thebody comprising the decision makers.

 

(m) No process, requirement of a report, inspection, or otherinvestigative act or demand shall be issued, made or enforced in any manner orfor any purpose except as authorized by law. Every person compelled to submitdata or evidence is entitled to retain or, on payment of lawfully prescribedcosts, procure a copy of a transcript thereof, except that in a nonpublicinvestigatory proceeding the witness may for good cause be limited toinspection of the official transcript of his testimony.

 

(n) Unless precluded by law, informal disposition may be madeof any contested case by stipulation, agreed settlement, consent order ordefault.

 

(o) The record in a contested case must include:

 

(i) All formal or informal notices, pleadings, motions andintermediate rulings;

 

(ii) Evidence received or considered including mattersofficially noticed;

 

(iii) Questions and offers of proof, objections and rulingsthereon;

 

(iv) Any proposed findings and exceptions thereto;

 

(v) Any opinion, findings, decision or order of the agency andany report by the officer presiding at the hearing.

 

(p) In all contested cases the proceeding including alltestimony shall be reported verbatim stenographically or by any otherappropriate means determined by the agency or the officer presiding at thehearing.

 

(q) Oral proceedings or any part thereof shall be transcribedon request of any party upon payment of the cost thereof.

 

(r) Findings of fact shall be based exclusively on the evidenceand matters officially noticed.

 

16-3-108. Contested cases; admissible evidence; cross-examination;judicial notice.

 

 

(a) In contested cases irrelevant, immaterial or undulyrepetitious evidence shall be excluded and no sanction shall be imposed ororder issued except upon consideration of the whole record or such portionthereof as may be cited by any party and unless supported by the type ofevidence commonly relied upon by reasonably prudent men in the conduct of theirserious affairs. Agencies shall give effect to the rules of privilegerecognized by law. Subject to these requirements and agency rule if theinterests of the parties will not be prejudiced substantially testimony may bereceived in written form subject to the right of cross-examination as providedin subsection (c) of this section.

 

(b) Documentary evidence may be received in the form of copiesor excerpts, if the original is not readily available. Upon request, partiesshall be given opportunity to compare the copy with the original.

 

(c) A party may conduct cross-examinations required for a fulland true disclosure of the facts and a party is entitled to confront allopposing witnesses.

 

(d) Notice may be taken of judicially cognizable facts. Inaddition notice may be taken of technical or scientific facts within theagency's specialized knowledge or of information, data and material includedwithin the agency's files. The parties shall be notified either before orduring the hearing or after the hearing but before the agency decision ofmaterial facts noticed, and they shall be afforded an opportunity to contestthe facts noticed.

 

16-3-109. Contested cases; consideration of record; exceptions todecision; briefs and oral argument.

 

Theagency shall consider the whole record or any portion stipulated to by theparties. In the event a recommended decision is rendered all parties shall beafforded a reasonable opportunity to file exceptions thereto which shall bedeemed a part of the record. All parties as a matter of right shall bepermitted to file a brief with the agency and oral argument shall be allowed inthe discretion of the agency.

 

16-3-110. Contested cases; final decision; contents; notification.

 

Afinal decision or order adverse to a party in a contested case shall be inwriting or dictated into the record. The final decision shall include findings offact and conclusions of law separately stated. Findings of fact if set forth instatutory language, shall be accompanied by a concise and explicit statement ofthe underlying facts supporting the findings. Parties shall be notified eitherpersonally or by mail of any decision or order. A copy of the decision andorder shall be delivered or mailed forthwith to each party or to his attorneyof record.

 

16-3-111. Contested cases; limitations on consultations andparticipations.

 

Unlessrequired for the disposition of ex parte matters authorized by law, members ofthe agency, employees presiding at a hearing in a contested case and employeesassisting the foregoing persons in compiling, evaluating and analyzing therecord in a contested case or in writing a decision in a contested case shallnot directly or indirectly in connection with any issue in the case consultwith any person other than an agency member, officer, contract consultant oremployee or other state or federal employee, any party other than the agency orwith any agency employee, contract consultant or other state or federalemployee who was engaged in the investigation, preparation, presentation orprosecution of the case except upon notice and opportunity for all parties toparticipate. Nothing herein contained precludes any agency member fromconsulting with other members of the agency. No officer, employee, contractconsultant, federal employee or agent who has participated in theinvestigation, preparation, presentation or prosecution of a contested caseshall be in that or a factually related case participate or advise in thedecision, recommended decision or agency review of the decision, or beconsulted in connection therewith except as witness or counsel in publicproceedings. A staff member is not disqualified from participating or advisingin the decision, recommended decision or agency review because he hasparticipated in the presentation of the case in the event the staff member doesnot assert or have an adversary position.

 

16-3-112. Contested cases; presiding officers; qualifications; powers;outside personnel; hearing officers.

 

 

(a) If not otherwise authorized by law there shall preside atthe taking of evidence in all contested cases the statutory agency, one (1) ormore members of the body which comprises the agency, or an employee of theagency or an employee of another agency designated by the agency to act aspresiding officer. The functions of all those presiding in contested casesshall be conducted in an impartial manner. Any officer shall at any timewithdraw if he deems himself disqualified provided there are other qualifiedpresiding officers available to act.

 

(b) Officers presiding at hearings shall have authority,subject to the published rules of the agency and within its power to:

 

(i) Administer oaths and affirmations;

 

(ii) Issue subpoenas;

 

(iii) Rule upon offers of proof and receive relevant evidence;

 

(iv) Take or cause depositions to be taken in accordance withthe provisions of this act and the rules of the agency;

 

(v) Regulate the course of the hearing;

 

(vi) Hold conferences for the settlement or simplification ofthe issues;

 

(vii) Dispose of procedural requests or similar matters;

 

(viii) Make recommended decisions when directed to do so by theagency; and

 

(ix) Take any other action authorized by agency rules consistentwith this act.

 

(c) In all contested cases to the extent that it is necessaryin order to obtain compliance with W.S. 16-3-111 the agency (excepting countyand municipal agencies and political subdivisions on the county and locallevel) may request the office of the attorney general to furnish to the agencysuch personnel as may be necessary in order for the agency to properlyinvestigate, prepare, present and prosecute the contested case before theagency. The attorney general upon the receipt of the request shall promptlycomply with same with no charge being made against the requesting agency'sappropriation other than for travel and per diem expenses.

 

(d) To the extent an agency utilizes an employee of anotheragency (other than the staff of the attorney general) to preside at a hearingor otherwise the salary of the employee during the period of the employment andthe expenses incurred by the employee shall be charged against theappropriation of the using agency.

 

(e) When required by law an agency shall adopt rules andregulations providing a procedure for the use and the selection of anadministrative hearing officer. An agency shall not delegate the authority tomake final decisions to an independent administrative hearing officer unlessrequired by law.

 

16-3-113. License hearings.

 

 

(a) When the grant, denial, suspension or renewal of a licenseis required by law to be preceded by notice and an opportunity for hearing theprovisions of this act concerning contested cases apply.

 

(b) When a licensee has made timely and sufficient applicationfor the renewal of a license or a new license with reference to any activity ofa continuing nature, the existing license does not expire until the applicationhas been finally determined by the agency, and, in case the application isdenied or the terms of the new license limited, until the last day for seekingreview of the agency order or a later date fixed by order of the reviewingcourt.

 

(c) No revocation, suspension, annulment or withdrawal of anylicense is lawful unless, prior to the institution of agency proceedings, theagency gave notice by mail to the licensee of facts or conduct which warrantthe intended action, and the licensee was given an opportunity to showcompliance with all lawful requirements for the retention of the license. Ifthe agency finds that public health, safety or welfare imperatively requiresemergency action, and incorporates a finding to that effect in its order,summary suspension of a license may be ordered pending proceedings forrevocation or other action. A cancellation of a driver's license pursuant toW.S. 31-7-121(c) shall not be valid until the department of transportationgives notice by mail to the licensee of the facts which warrant the intendedaction and provides the licensee with an opportunity to provide additionalevidence or information with respect to the condition at issue within fifteen(15) days of the mailing of the notice. These proceedings shall be promptlyinstituted and determined.

 

16-3-114. Judicial review of agency actions; district courts.

 

 

(a) Subject to the requirement that administrative remedies beexhausted and in the absence of any statutory or common-law provisionprecluding or limiting judicial review, any person aggrieved or adverselyaffected in fact by a final decision of an agency in a contested case, or byother agency action or inaction, or any person affected in fact by a ruleadopted by an agency, is entitled to judicial review in the district court forthe county in which the administrative action or inaction was taken, or inwhich any real property affected by the administrative action or inaction islocated, or if no real property is involved, in the district court for thecounty in which the party aggrieved or adversely affected by the administrativeaction or inaction resides or has its principal place of business. Theprocedure to be followed in the proceeding before the district court shall bein accordance with rules heretofore or hereinafter adopted by the Wyomingsupreme court.

 

(b) The supreme court's authority to adopt rules governingreview from agencies to the district courts shall include authority todetermine the content of the record upon review, the pleadings to be filed, thetime and manner for filing the pleadings, records and other documents and theextent to which supplemental testimony and evidence may be taken or consideredby the district court. The rules adopted by the supreme court under thisprovision may supersede existing statutory provisions.

 

(c) To the extent necessary to make a decision and whenpresented, the reviewing court shall decide all relevant questions of law,interpret constitutional and statutory provisions, and determine the meaning orapplicability of the terms of an agency action. In making the followingdeterminations, the court shall review the whole record or those parts of itcited by a party and due account shall be taken of the rule of prejudicialerror. The reviewing court shall:

 

(i) Compel agency action unlawfully withheld or unreasonablydelayed; and

 

(ii) Hold unlawful and set aside agency action, findings andconclusions found to be:

 

(A) Arbitrary, capricious, an abuse of discretion or otherwisenot in accordance with law;

 

(B) Contrary to constitutional right, power, privilege orimmunity;

 

(C) In excess of statutory jurisdiction, authority orlimitations or lacking statutory right;

 

(D) Without observance of procedure required by law; or

 

(E) Unsupported by substantial evidence in a case reviewed onthe record of an agency hearing provided by statute.

 

16-3-115. Judicial review of agency actions; supreme court.

 

Anaggrieved party may obtain a review of any final judgment of the district courtunder this act by appeal to the supreme court. The appeal shall be taken as inother civil cases.

 

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