Alabama Administrative Code Chapter 364-X-16 — Disciplinary Action and Procedures

364 Alabama Board of Licensure for Professional Geologists

Ala. Admin. Code r. 364-X-16-.01 Filing Of Complaints And Charges

(1) Any person, business, or other entity, including a member of the Board, may file with the Secretary of the Board a complaint or charge of any misconduct or other circumstance listed under Section 34-41-19, Code of Ala. 1975. Such a complaint or charge must be in writing and sworn to. Complaints shall be referred to a standing investigative committee of the Board consisting of a board member, the Board’s investigator, the executive secretary, and the Board’s attorney. The investigative committee shall submit a report to the Board as to the validity or merit of the complaint or charge. After consideration of any complaint or charge by the investigative committee, the Board may give notice of an administrative hearing under the Alabama Administrative Procedure Act, or may take other action as provided by regulation or statute. All complaints or charges received by the Board are to be held in confidential status until the investigative committee reviews the allegations and recommends further action.

(2) Examples of conduct for which the Board may take disciplinary action under Code of Ala. 1975, Section 34-41-19, shall include, but not limited to, the following:

(a) basic scientific principles are ignored;

(b) critical factors are not investigated;

(c) data are not analyzed or are selectively analyzed;

(d) data collection is incomplete or inappropriate;

(e) unsupported assumptions are made or unsupported conclusions reached;

(f) misleading presentations of data;

(g) conclusions or recommendations that lack the support from the presented data.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-17.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Repealed and New Rule: Filed March 5, 2002; effective April 9,2002.

Ala. Admin. Code r. 364-X-16-.02 Reprimand

If probable cause for the complaint or charge is found, but it is determined that license revocation or suspension would not be warranted even if the complaint or charge was proven, the accused party shall be informed of the nature of the complaint or charge, and that the complaint or charge, if admitted, may result in a private reprimand, and will be asked to respond to the complaint or charge. If the accused party admits to the complaint or charge, then a private reprimand will be issued if appropriate. If the accused party denies the complaint or charge, then the accused party will be given an opportunity to appear before the Board for an informal hearing at which the evidence supporting the complaint or charge will be considered. If after the informal hearing the Board finds that the complaint or charge is established, the Board may issue a private reprimand. A record of any private reprimand issued by the Board under this rule shall be maintained in the Board’s office but shall not be made public.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-17.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Repealed and New Rule: Filed March 5, 2002; effective April 9,2002.

Ala. Admin. Code r. 364-X-16-.03 Dismissal Of Charges

If no probable cause is found, the Board shall dismiss the charges as unfounded or trivial and prepare a statement, in writing, of the reasons for the decision. The statement shall be mailed to the accused party and the complaining party by registered or certified mail.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-17.
• New Rule: Filed May 10, 1996; effective June 14, 1996.

Ala. Admin. Code r. 364-X-16-.04 Letter Of Caution

If no probable cause is found, but it is determined by the board that the conduct of the accused party is not in accord with accepted professional practice or may be subject to disciplinary action if continued or repeated, the Board may issue a Letter of Caution to the accused party stating that the conduct, while not the basis for a disciplinary hearing, is not professionally acceptable or may if repeated be the basis for a letter of reprimand or a disciplinary hearing from which suspension or revocation of license could result. A record of such Letter of Caution shall be maintained in the office of the Board but shall not be made public.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-17.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Amended: Filed March 5, 2002; effective April 9,2002.

Ala. Admin. Code r. 364-X-16-.05 Right Of Hearing

If the Board finds probable cause exists and that the nature of the alleged violation could result in license suspension or revocation, the accused party shall be notified of the right to a hearing before any disciplinary action is taken. The notification shall be by certified mail, and shall include a factual statement of the alleged violation, a statement as to the possible action that could result from a determination by the Board, a statement as to the legal authority and jurisdiction under which the hearing would be held. The accused party may assert his/her right to a hearing by mailing a request for a hearing to the Board by certified mail within 30 days of receipt of the notice, and the notification shall inform him or her of the timeframe and method for making this request. If an accused party fails to request a hearing in the manner provided here, the Board shall proceed to consider the alleged violation and appropriate disciplinary action, if any, based upon the information in its possession. If the alleged violation is by a person or entity which does not hold a license, the Board may refer the case to the appropriate prosecutor for criminal prosecution or seek an injunction in a court of appropriate jurisdiction under Code of Ala. 1975, Section 34-41-23, or other applicable provision of law.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Repealed and New Rule: Filed March 5, 2002; effective April 9,2002.

Ala. Admin. Code r. 364-X-16-.06 Request For Hearing

(1) When an individual believes his or her rights, duties or privileges have been or may be affected by the Board's administrative action, but has not received notice of a right to an administrative hearing, he or she may file, in writing, a formal request for a hearing.

(2) Before an individual may file a request, he/she must first exhaust all reasonable efforts to resolve the issue informally with the Board office. This requirement will be satisfied by decision of the matter by the chairman of the Board or other designee of the Board.

(3) Subsequent to such informal action, if still dissatisfied, the individual may submit a request, in writing, to the Board with the container of the request bearing the notation: "RE: REQUEST FOR ADMINISTRATIVE HEARING.” That request should contain the following information:

(a) Name and address of the petitioner,

(b) A concise statement of the action taken by the Board which is challenged;

(c) A concise statement of the way in which the petitioner has been aggrieved; and

(d) A clear and specific statement of request for a hearing.

(4) Such request will be acknowledged, in writing, promptly and, if deemed appropriate, a hearing will be scheduled.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996.

Ala. Admin. Code r. 364-X-16-.07 Granting Or Denying Hearing Request

(1) The Board or its designee will decide whenever to grant a request for a hearing.

(2) A denial of a request for a hearing will be issued immediately upon decision, and in no case later than 30 days after receipt of the request. Such denial shall contain a statement of the reasons leading the Board to deny the request.

(3) Approval of a request for a hearing will be signified by the issuing of a notice as required by the Alabama Procedures Act, and explained in Rule 364-X-16-.08 of this Section.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996.

Ala. Admin. Code r. 364-X-16-.08 Notice Of Hearing

In addition to the items specified in the Alabama Procedures Act to be included in the notice, notices of administrative hearing, of the Board shall:

(1) Give the name, position, address and telephone number of a person in the Board office to contact for further information or discussion;

(2) Include a statement that failure to inform the Board within 30 days after notice is mailed of intent to appear at any hearing or preheating conference scheduled in the hearing notice will be deemed a waiver of the right to a hearing;

(3) Give notice of date and place for a preheating conference, if any;

(4) Give scheduled the date of the hearing; and

(5) Include any other information deemed relevant to informing the party or parties as to the procedure of the hearing.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Amended: Filed March 5, 2002; effective April 9,2002.

Ala. Admin. Code r. 364-X-16-.09 Discipline

(1) Upon a finding, either after a hearing or, if a hearing is not requested, after informal consideration, that a licensee has committed any of the acts or omissions, or is subject to any of the circumstances set out in Code of Ala. 1975, Section 34-41-19, the Board may impose any of the disciplinary penalties provided under that subsection.

(2) Upon a finding based upon informal consideration under subsection (1) the Board may, at its discretion, either permanently or temporarily stay the execution of its order imposing disciplinary penalties on a licensee. The stay may be conditional upon any provision that the Board deems appropriate for the circumstances of the case.

(3) Upon a finding after a hearing under subsection (1) the imposition of a stay of any order imposing disciplinary sanctions shall be governed by the Alabama Administrative Procedures Act.

(4) In determining whether a license should be revoked or suspended, and whether and what conditions the Board’s order should be stayed, the Board shall consider relevant factors, including but not limited to the following:

(a) the severity of the offense;

(b) the danger to the public or the environment;

(c) the number of present violations;

(d) any previous offense;

(e) the length of time since the violations;

(f) the number of previous complaints against the licensee;

(g) the length of time the licensee has practiced the profession;

(h) the actual damage to the complainant, the public, or the environment;

(i) the deterrent effect of the penalty imposed;

(j) the effect of the penalty upon the licensee’s livelihood;

(k) any efforts of rehabilitation by the licensee;

(l) any other mitigating or aggravating circumstances.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §§34-41-17, 34-41-18, 34-41-19, 34-41-22, 34-41-23, 34-42-20, 34-42-21.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Repealed and New Rule: Filed March 5, 2002; effective April 9,2002.

Ala. Admin. Code r. 364-X-16-.10 No Ex Parte Communications

After notice of the opportunity for hearing, no member of the Board assigned to make a decision or to make findings of fact or conclusions of law in a contested case shall communicate, directly or indirectly, regarding any issue of fact or law in the case, with any party or his/her representative or with any member of the Board or employee of the Board involved in the investigation or consideration of that case or with any party or complainant or his representative or agent, except on notice and opportunity for all parties to participate.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Repealed and New Rule: Filed March 5, 2002; effective April 9,2002.

Ala. Admin. Code r. 364-X-16-.11 Petition For Intervention

(1) The right to intervene in a contested case is governed by Code of Ala. 1975, Section 41-22-14. Any application for intervention shall be in writing and shall include the following:

(a) the name and address of the petitioner;

(b) the business and occupation of the petitioner, if relevant;

(c) a full identification of the contested case in which the petitioner is seeking intervention;

(d) if intervention based on statutory right is claimed, an identification of the statute and explanation of how the statute grants a right of intervention to the petitioner;

(e) if the intervention is claimed based on an individual interest in the outcome of the case as opposed to a public interest, an explanation of that individual interest and of how the representation of that individual interest is inadequate without intervention;

(f) the claim or defense with respect to which intervention is sought; and

(g) a summary of the arguments or evidence that the petitioner intends to present.

(2) Upon receipt of the petition the Board shall mail copies of the petition to the parties in the case, with the cost chargeable to the petitioner. The parties will be given the opportunity to comment in writing upon the merits of the petition prior to any decision as to whether intervention shall be allowed.

(3) If the Board determines that the petitioner is entitled to intervention, notice of this decision, in writing, shall be issued promptly to all parties and to the petitioner. If the Board determines that the petitioner is not entitled to intervention but that intervention is nonetheless appropriate for proper resolution of the issues, the Board may vote to permit intervention, either as to the case as a whole or as to certain matters, and notification to the parties and the petitioner shall include a statement of any limitations to be imposed upon the intervenor, such as of time, subject matter, or evidence.

(4) If the Board decides to deny intervention, the petitioner shall be promptly notified, in writing of this decision and the reasons for the decision.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Repealed and New Rule: Filed March 5, 2002; effective April 9,2002.

Ala. Admin. Code r. 364-X-16-.12 Hearing Officers: Designations: Powers

(1) A hearing officer, designated by the Board, may, at the Board’s option, preside at hearings in contested cases, but the Board shall, regardless, be present to hear the testimony, examine the evidence, and, if desired, ask questions of any witnesses.

(2) The hearing officer may, in addition, conduct any prehearing conferences, regulate discovery, issue subpoenas, and exercise any other powers appropriate under the Alabama Administrative Procedures Act.

History

• Author: Thornton Neathery
• Authority: Code of Ala. 1975, §34-41-11.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Repealed and New Rule: Filed March 5, 2002; effective April 9,2002.