Chapter 8
ORDERS,
CONTESTS AND HEARINGS
Section 1. Authority.
This chapter contains the rules of procedure for Securities Division hearings and
proceedings. These rules are promulgated by authority of W.S. §17-4-124 and
pursuant to W.S. §16-3-102.
Section 2. Wyoming
Administrative Procedure Act (WAPA). The Wyoming Administrative Procedure
Act (WAPA) W.S. §16-3-101 through W.S. §16-3-115 is incorporated herein by
reference.
Section 3. Wyoming
Rules of Civil Procedure (WRCP). The Wyoming Rules of Civil Procedure
insofar as they are applicable and not inconsistent with the WAPA are
incorporated herein by reference.
Section 4. Parties
to a Proceeding. In any proceeding before the Secretary of State:
(a) The
Securities Division is always a party to a proceeding.
(b) A person
who is the subject of a disciplinary hearing is a party to that proceeding.
(c) A party
to a proceeding has the right to present a direct case, cross examine each
witness, submit legal arguments and otherwise participate fully in the
proceeding.
(d) A party
summoned to appear at a hearing must appear unless he/she is excused by the
Secretary of State. Parties may appear with counsel or other representatives of
their choice.
(e) A
non-party to a proceeding who wishes to appear in a contested case pending
before the Secretary of State must prove that he/she has an effected interest
sufficient to create standing in the case. The burden of proof is on the party
asserting standing in such a contested case.
Section 5. Notice.
In any proceeding before the Secretary of State:
(a) Not less
than ten days before the date set for a hearing, the Secretary of State shall
serve written notice on each party of record to the proceeding.
(b) The
Secretary of State shall mail the notice to the address on file with the
Secretary of State or to the person’s last known address, by certified Unites
States mail, return receipt requested.
(c) A notice
of the hearing must include:
(i) a
statement of time, place and nature of the hearing;
(ii) a
statement of the legal authority and jurisdiction under which the hearing is to
be held;
(iii) a
reference to the particular sections of the statutes and rules involved;
(iv) a
short, plain statement of the matters asserted; and,
(v) any
other statement required by law.
(d) If the
Secretary of State determines that a material error has been made in a notice
of hearing, or that a material change has been made in the nature of a
proceeding after notice has been issued, the Secretary of State shall issue a
revised notice. The party who has caused the change or error requiring revised
notice shall bear the expense of giving revised notice.
(e) A party
to a proceeding may move to postpone the proceeding. The motion must be in
writing, set forth the specific grounds on which it is sought and be filed with
the Secretary of State before the date of the hearing is set. If the person
presiding over the proceeding grants the motion for postponement, the Secretary
of State shall cause new notice to be issued.
(f) After a
hearing has begun, the presiding officer may grant a continuance on oral or
written motion, without issuing new notice, by announcing the date, time and
place for reconvening the hearing before recessing the hearing.
Section 6. Pleadings.
In any proceeding before the Secretary of State:
(a) Pleadings
filed with the Secretary of State include appeals, applications, answers,
complaints, exceptions, replies and motions. Regardless of an error in
designation, a pleading shall be accorded its true status in the proceeding in
which it is filed.
(b) A
request for discovery or a response to a request for discovery is not a
pleading and is not a part of the administrative record of a contested case
unless the request or response is offered into evidence.
(c) A
pleading for which the Secretary of State’s staff has not prepared an official
form must contain:
(i) the
name of the person making the pleading;
(ii) the
telephone number and street address of the pleader’s residence and business and
the telephone number and street address of the pleader’s representative, if
any;
(iii) the
jurisdiction of the Secretary of State over the subject matter;
(iv) a
concise statement of the facts relied on by the pleader;
(v) a
request stating the type of Secretary of State action desired by the pleader;
(vi) the
name and address of each person who the pleader knows or believes will be
affected if the request is granted;
(vii) any
other matter required by statute or Secretary of State rule; and
(viii) a
certificate of service.
(d) A party
filing a pleading shall mail or deliver a copy of the pleading to each party of
record. If a party is being represented by an attorney or other representative,
service must be made on the attorney or representative instead of on the party.
The knowing failure of a party to make service in accordance with this
subsection is grounds for the Secretary of State to strike the pleading from
the record.
(e) An
objection to a defect, omission or fault in the form or content of a pleading
must be specifically stated in a motion or an exception presented not later
than the prehearing conference if one is held and not later than 10 days before
the date of the hearing if a prehearing conference is not held. A party who
fails to timely file an objection under this subsection waives the objection.
(f) Except
as otherwise provided by this subsection, a pleader may amend or supplement a
pleading at any time:
(i) on
written consent of each party of record; or,
(ii) as
permitted by the presiding officer for the proceeding, when justice requires
the amendment or supplementation and when the amendment or supplementation will
not unfairly surprise another party.
(g) A
pleading may adopt or incorporate by specific reference any part of a document
in the official files and records of the Secretary of State. This subsection
does not relieve the pleader of the duty to allege in detail all facts
necessary to sustain the pleader’s burden of proof.
Section 7. Conferences.
In any proceeding before the Secretary of State:
(a) On
written notice, the presiding officer may, on the officer’s own motion or on
the motion of a party, direct each party to appear at a specified time and
place for a prehearing conference to formulate issues and consider any of the
following:
(i) simplifying
issues;
(ii) amending
the pleadings;
(iii) making
admissions of fact or stipulations to avoid the unnecessary introduction of
proof;
(iv) designating
parties;
(v) setting
the order of procedure at a hearing;
(vi) identifying
and limiting the number of witnesses; and
(vii) resolving
other matters that may expedite or simplify the disposition of the controversy,
including settling issues in dispute.
(b) The
presiding officer shall record the action taken at the prehearing conference
unless the parties enter into a written agreement as to the action. The
presiding officer may enter appropriate orders concerning prehearing discovery,
stipulations of uncontested matters, presentation of evidence and scope of
inquiry.
(c) During a
hearing, on written notice or notice orally entered into the record, the
presiding officer may direct each party or the representative of each party to
appear for a conference to consider any matter that may expedite the hearing to
serve the interests of justice. The presiding officer shall prepare a written
statement regarding the action taken at the conference and the statement must
be signed by each party and made a part of the record.
Section 8. Discovery.
In any proceeding before the Secretary of State, all motions for discovery
shall be subject to the Wyoming Rules of Civil Procedure.
Section 9. Recording.
In any proceeding before the Secretary of State:
(a) The
proceeding, including all testimony, shall be reported verbatim
stenographically or by any other appropriate means determined by the agency or
the officer presiding at the hearing.
(b) The
Secretary of State may allow electronic recording of proceedings in lieu of
stenographic recording if each party is provided a copy of the recording upon
that party’s written request.
(c) Any
party requesting a transcript of the proceeding shall bear the cost of the
transcription.
Section 10. Hearing
and Disposition. In any proceeding before the Secretary of State:
(a) A
hearing is open to the public, however, witnesses may be excluded or
sequestered and Secretary of State deliberations may be conducted in private to
the extent permitted by statute.
(b) Unless
precluded by law or objected to by a party, the Secretary of State may allow
informal disposition of a proceeding without a hearing. Informal disposition
includes disposition by stipulation, agreed settlement, consent order and
default.
Section 11. Hearing
Officers. In any proceeding before the Secretary of State:
(a) The
Secretary of State may designate a hearing officer to preside over the hearing.
The Secretary of State may appoint an employee of a state agency or hire an
independent contractor.
(b) The
presiding officer may:
(i) authorize
the taking of depositions;
(ii) issue
subpoenas to compel the attendance of witnesses and the production of papers
and documents;
(iii) administer
oaths or affirmations;
(iv) receive
evidence;
(v) rule
on admissibility of evidence, offers of proof and amendments to pleadings;
(vi) examine
witnesses;
(vii) set
reasonable times within which a party may present evidence and within which a
witness may testify;
(viii) permit
and limit oral argument;
(ix) issue
interim orders;
(x) recess
a hearing from day to day and place to place;
(xi) request
briefs, findings of fact, conclusions of law and orders, before or after the
presiding officer files a report or proposal for decision;
(xii) propose
findings of fact and conclusions of law;
(xiii) propose
orders and decisions;
(xiv) perform
other duties necessary to a fair and proper hearing;
(xv) hold
conferences for the settlement or simplification of the issuers; and,
(xvi) dispose
of procedural requests or similar matters.
(c) A person
serving as the presiding officer of a proceeding must be a disinterested party
to the proceeding.
Section 12. Order
of Hearing. Hearings shall be conducted in accordance with the following
order of procedure:
(a) The
presiding officer shall open the hearing, make a concise statement of its scope
and purposes and announce that a record of the hearing is being made.
(b) When a
hearing has begun, a party or a party’s representative may make statements off
the record only as permitted by the presiding officer. If a discussion off the
record is pertinent, the presiding officer shall summarize the discussion for
the record.
(c) Each
appearance by a party, a party’s representative or a person who may testify
must be entered on the record.
(d) The
presiding officer shall receive motions and afford each party of record an
opportunity to make an opening statement.
(e) Except
as otherwise provided by this subsection, the party with the burden of proof is
entitled to open and close. The presiding officer shall designate who may open
and close in a hearing on a proceeding if the proceeding was initiated by the
Secretary of State or if several proceedings are heard on a consolidated
record.
(f) After
opening statements, the party with the burden of proof may proceed with the
party’s direct case. Each party may cross examine each witness.
(g) After
the conclusion of the direct case of the party having the burden of proof, the
other party may present their direct case and their witnesses will be subject
to cross examination.
(h) The
presiding officer or the Secretary of State may examine any witnesses.
(i) At the
conclusion of all evidence and cross examination, the presiding officer shall
allow closing statements. The presiding officer may limit the length of closing
statements.
Section 13. Behavior.
In any proceeding before the Secretary of State:
(a) Each
party, witness, attorney or other representative shall behave with dignity,
courtesy and respect for the Secretary of State, the presiding officer and all
other parties and participants.
Section 14. Evidence.
In any proceeding before the Secretary of State:
(a) All
testimony must be given under oath administered by the presiding officer. The
presiding officer may limit the number of witnesses and shall exclude all
irrelevant, immaterial or unduly repetitious evidence.
(b) Evidence
shall be accepted in accordance with the Wyoming Administrative Procedure Act.
All irrelevant, immaterial or unduly repetitious evidence may be excluded.
Hearsay evidence may be admissible. Effect to the rules of privilege shall be
given as recognized by law. Documentary evidence may be received in the form of
copies of excerpts if the original is not available. All copies are subject to
being compared with the original.
(c) A party
may object to offered evidence and the objection shall be noted in the record.
A party, at the time an objection is made or sought, shall make known to the
presiding officer the action the party desires. Formal exceptions to rulings by
the presiding officer during a hearing are unnecessary.
(d) When the
presiding officer rules to exclude evidence, the party offering the evidence
may make an offer of proof by dictating or submitting in writing the substance
of the proposed evidence, before the closing of the hearing. The offer of proof
preserves the point for review. The presiding officer may ask a witness or
offered witness questions necessary to indicate that the witness would testify
as represented in the offer of proof. An alleged error in sustaining an
objection to questions asked on cross examination is preserved without making
an offer of proof.
(e) The
presiding officer may take official notice of judicially cognizable facts and
of facts generally recognized within the area of the Secretary of State’s
specialized knowledge. The Secretary of State shall notify each party of record
before the final decision in a proceeding of each specific fact officially
noticed, including any facts or other data in staff memoranda. A party must be
given an opportunity to rebut the facts
to be noticed.
(f) The
skills and knowledge of the Secretary of State may be used in evaluating the
evidence.
(g) The
presiding officer may require prepared testimony in a hearing if the presiding
officer determines that it will expedite the hearing without substantially
prejudicing the interest of a party. Prepared testimony consists of any
document that is intended to be offered as evidence and adopted as sworn
testimony by a witness who prepared the document or supervised its preparation.
A person who intends to offer prepared testimony at a hearing shall prefile the
testimony with the Secretary of State on the date set by the presiding officer
and shall serve a copy of the prepared testimony on each party of record. The
presiding officer may authorize the late filing of prepared testimony on a
showing of extenuating circumstances. The prepared testimony of a witness may
be incorporated into the record as if read or received as an exhibit, on the
witness being sworn and identifying the writing as a true and accurate record
of what the testimony would be if the witness were to testify orally. The
witness is subject to clarifying the questions and to cross examination and
their prepared testimony is subject to a motion to strike either in whole or in
part.
(h) The
party offering an exhibit shall tender the original, or best evidence, of the
exhibit to the presiding officer for identification. The party shall furnish
one copy to the presiding officer and one copy to each party of record. A
document received in evidence may not be withdrawn except with the permission
of the presiding officer. If an exhibit has been offered, objected to, and
included and the party offering the exhibit withdraws the offer, the presiding
officer shall return the exhibit to the party. If the party does not withdraw
the offered exhibit, the exhibit shall be numbered for identification, endorsed
by the presiding officer with the ruling on the exhibit and included in the
record to preserve the exception.
(i) The
state shall mark all exhibits in consecutive order beginning with the number 1.
The Respondent shall mark all exhibits in consecutive order beginning with the
letter A.
(j) The
presiding officer may allow a party to offer an exhibit in evidence after the
close of the hearing only on a showing of extenuating circumstances and a
certificate of service of each party of record.
Section 15. Findings
and Conclusions. In any proceeding before the Secretary of State:
(a) The
parties have a right to submit proposed findings of fact and conclusions of law
or a proposal for decision. The presiding official shall set reasonable
deadlines for submission of proposed findings of fact and conclusions of law.
(b) Proposed
findings of fact submitted under this section must be supported by concise and
explicit statements of underlying facts developed from the record with specific
reference to where in the record the facts appear.
(c) The
Secretary of State may direct the presiding officer to write proposed findings
of fact and conclusions of law. The Secretary of State may also direct the
presiding officer to write a recommended decision.
(d) All
parties shall have an opportunity to file objections to proposed findings of
fact and conclusions of law and orders submitted by any party or by the
presiding officer.
(e) The
presiding officer shall establish deadlines for the filing of proposed findings
of fact and conclusions of law and orders.
(f) After
the expiration of time for filing objections, the Secretary of State shall
consider the proposal for decision. The Secretary of State may:
(i) adopt
the proposal for decision, in whole or in part;
(ii) decline
to adopt the proposal for decision, in whole or in part;
(iii) remand
the proceeding for further examination by the same or a different presiding
officer; or
(iv) direct
the presiding officer to give further consideration to the proceeding with or
without reopening the hearing.
(g) Parties
shall be given an opportunity to file exceptions, replies and briefs in the
event a decision is remanded for further consideration.
(h) If on
remand additional evidence is received which results in a substantial revision
of the proposal for decision, a new proposal for decision shall be prepared,
unless the Secretary of State, on remand, has heard the case or read the
record. A new proposal for decision must be clearly labeled as such and all
parties of record are entitled to file exceptions, replies and briefs.
Section 16. Dismissal.
In any proceeding before the Secretary of State:
(a) On its
own motion or by a motion of a party, the Secretary of State may dismiss a
proceeding, with or without prejudice, under conditions and for reasons that
are just and reasonable, including:
(i) failure
to timely pay all required fees to the Secretary of State;
(ii) unnecessary
duplication of proceedings;
(iii) withdrawal;
(iv) moot
questions or obsolete petitions; and
(v) lack
of jurisdiction.
Section 17.
Orders. In any proceeding before the Secretary of State:
(a) Except
as otherwise provided by these rules, the Secretary of State shall issue a
final order not later than 60 days after the hearing. A final order of the
Secretary of State must be in writing and be signed by the Secretary of State.
A final order must include findings of facts and conclusions of law, separately
stated.
(b) The
Secretary of State shall direct staff to mail by certified mail a copy of the
order to each party or the party’s representative.
(c) A final
order of the Secretary of State takes effect on the date the order is issued,
unless another effective date is provided for in the Order.
(d) If the
Secretary of State finds that an immediate final order in a proceeding is
required, the Secretary of State shall recite that finding in the order in
addition to reciting that the order is final from the date issued. An order
issued under this subsection is final and appealable from the date issued.
Parties may still submit proposed findings of fact and conclusions of law and
order and the Secretary of State may direct the presiding officer to submit
recommended findings of fact in accordance with its decision.
(e) The
Secretary of State’s decision shall be based upon the record before it. The
record shall contain:
(i) all
formal or informal notices, pleadings, motions and intermediate rulings;
(ii) evidence
received or considered including matters officially noticed;
(iii) questions
and offers of proof, objections and rulings thereto;
(iv) any
proposed findings and exceptions thereto;
(v) any
opinion, findings, decision or order of the agency and any report by the
officer presiding at the hearing;
(vi) any
brief or memorandum of law filed by the parties or the presiding officer.
Section 18. Rehearing.
In any proceeding before the Secretary of State:
(a) W.S.
§16-3-101 et. seq. pertaining to rehearing after Secretary of State action, is
hereby incorporated by reference.
(b) An order
granting a motion for rehearing vacates the preceding final order. The order
granting a motion for rehearing may direct that the hearing be reopened or may
incorporate a new final decision.
Section 19. Ex
Parte Communications. In any proceeding before the Secretary of State,
W.S. §16-3-111 pertaining to ex parte communications, is hereby incorporated by
reference.
Section 20. Informal
Hearing Process. In any proceeding before the Secretary of State, a person
may agree to an informal Secretary of State’s hearing in order to discuss an
alleged or apparent violation of the statutes or the Rules. Oral notice is
sufficient to commence an informal hearing. The formal rules governing
Secretary of State’s hearings as listed within this chapter are not applicable
to informal hearings. After the informal hearing no sanction or penalty may be
imposed by the Secretary of State unless all affected parties agree to it. At
any time during the informal hearing, a person may request that the hearing
terminate and that the Secretary of State proceed with a formal hearing.
Section 21. Default.
In any proceeding before the Secretary of State, failure of the registrant to
appear at the time and place of the Secretary of State’s hearing, following
proper notice, will be deemed a default. Such default will be noted in the
record and taken as a waiver of the registrant’s due process rights. The
allegations in the complaint may be taken as true and be so noted in the
record. The Secretary of State may then impose penalties or make registration
discipline rulings against the registrant to the extent
authorized applicable statutes
or these rules.
Section 22. Service.
In any proceeding before the Secretary of State, service shall be made whether
personally or by certified mail.
(a) The
person serving the process shall make proof of service thereof to the Secretary
of State or to the designated hearing officer.
(b) Proof of
service shall be made:
(i) by
sworn affidavit with the statement as to date, place and manner of service.
(ii) if
by certified mail, by the return receipt.
Section 23. Subpoenas.
In any proceeding before the Secretary of State, subpoenas for the appearance
of witnesses and for the production of books, papers, or documents for exhibits
will be issued by the Secretary of State, the Deputy or the Hearing Officer
upon written request of any party. The Secretary of State, the Deputy, or the
Hearing Officer may issue any subpoenas for the production of books, papers,
documents, exhibits or for the appearance of any person or persons in support
of the order or petition.
(a) All
written subpoena requests shall be received by the Secretary of State in
sufficient time to allow for processing in order that the subpoenaed party has
a ten (10) day prior notice to the date of the hearing.
(b) The cost
of subpoenas and witness fees shall be paid by the party making the request for
the subpoena.
Section 24. Attorney
General May be Present. In any proceeding before the Secretary of State,
all matters before the presiding officer, the presiding officer may request the
Attorney General or a representative of his staff to be present throughout the
hearing or any part of the hearing to assist and advise the presiding officer
conducting the hearing.
Section 25. Rules
Not to Apply to Investigations. Nothing contained in these rules shall
apply to investigations that may be conducted by the Secretary of State under
the terms and provisions of W.S. §17-4-119.
Section 26. Severability.
If any provision of these rules or their application to any person or
circumstance is held invalid this shall not affect other provisions or
applications of these rules which can be given effect without the invalid
provision or application and to this end the provisions of these rules are
severable.
Chapter 8
ORDERS, CONTESTS AND HEARINGS
Section 1. Authority. This chapter contains the rules of procedure for Securities Division hearings and proceedings. These rules are promulgated by authority of W.S. §17-4-124 and pursuant to W.S. §16-3-102.
Section 2. Wyoming Administrative Procedure Act (WAPA). The Wyoming Administrative Procedure Act (WAPA) W.S. §16-3-101 through W.S. §16-3-115 is incorporated herein by reference.
Section 3. Wyoming Rules of Civil Procedure (WRCP). The Wyoming Rules of Civil Procedure insofar as they are applicable and not inconsistent with the WAPA are incorporated herein by reference.
Section 4. Parties to a Proceeding. In any proceeding before the Secretary of State:
(a) The Securities Division is always a party to a proceeding.
(b) A person who is the subject of a disciplinary hearing is a party to that proceeding.
(c) A party to a proceeding has the right to present a direct case, cross examine each witness, submit legal arguments and otherwise participate fully in the proceeding.
(d) A party summoned to appear at a hearing must appear unless he/she is excused by the Secretary of State. Parties may appear with counsel or other representatives of their choice.
(e) A non-party to a proceeding who wishes to appear in a contested case pending before the Secretary of State must prove that he/she has an effected interest sufficient to create standing in the case. The burden of proof is on the party asserting standing in such a contested case.
Section 5. Notice. In any proceeding before the Secretary of State:
(a) Not less than ten days before the date set for a hearing, the Secretary of State shall serve written notice on each party of record to the proceeding.
(b) The Secretary of State shall mail the notice to the address on file with the Secretary of State or to the person’s last known address, by certified Unites States mail, return receipt requested.
(c) A notice of the hearing must include:
(i) a statement of time, place and nature of the hearing;
(ii) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(iii) a reference to the particular sections of the statutes and rules involved;
(iv) a short, plain statement of the matters asserted; and,
(v) any other statement required by law.
(d) If the Secretary of State determines that a material error has been made in a notice of hearing, or that a material change has been made in the nature of a proceeding after notice has been issued, the Secretary of State shall issue a revised notice. The party who has caused the change or error requiring revised notice shall bear the expense of giving revised notice.
(e) A party to a proceeding may move to postpone the proceeding. The motion must be in writing, set forth the specific grounds on which it is sought and be filed with the Secretary of State before the date of the hearing is set. If the person presiding over the proceeding grants the motion for postponement, the Secretary of State shall cause new notice to be issued.
(f) After a hearing has begun, the presiding officer may grant a continuance on oral or written motion, without issuing new notice, by announcing the date, time and place for reconvening the hearing before recessing the hearing.
Section 6. Pleadings. In any proceeding before the Secretary of State:
(a) Pleadings filed with the Secretary of State include appeals, applications, answers, complaints, exceptions, replies and motions. Regardless of an error in designation, a pleading shall be accorded its true status in the proceeding in which it is filed.
(b) A request for discovery or a response to a request for discovery is not a pleading and is not a part of the administrative record of a contested case unless the request or response is offered into evidence.
(c) A pleading for which the Secretary of State’s staff has not prepared an official form must contain:
(i) the name of the person making the pleading;
(ii) the telephone number and street address of the pleader’s residence and business and the telephone number and street address of the pleader’s representative, if any;
(iii) the jurisdiction of the Secretary of State over the subject matter;
(iv) a concise statement of the facts relied on by the pleader;
(v) a request stating the type of Secretary of State action desired by the pleader;
(vi) the name and address of each person who the pleader knows or believes will be affected if the request is granted;
(vii) any other matter required by statute or Secretary of State rule; and
(viii) a certificate of service.
(d) A party filing a pleading shall mail or deliver a copy of the pleading to each party of record. If a party is being represented by an attorney or other representative, service must be made on the attorney or representative instead of on the party. The knowing failure of a party to make service in accordance with this subsection is grounds for the Secretary of State to strike the pleading from the record.
(e) An objection to a defect, omission or fault in the form or content of a pleading must be specifically stated in a motion or an exception presented not later than the prehearing conference if one is held and not later than 10 days before the date of the hearing if a prehearing conference is not held. A party who fails to timely file an objection under this subsection waives the objection.
(f) Except as otherwise provided by this subsection, a pleader may amend or supplement a pleading at any time:
(i) on written consent of each party of record; or,
(ii) as permitted by the presiding officer for the proceeding, when justice requires the amendment or supplementation and when the amendment or supplementation will not unfairly surprise another party.
(g) A pleading may adopt or incorporate by specific reference any part of a document in the official files and records of the Secretary of State. This subsection does not relieve the pleader of the duty to allege in detail all facts necessary to sustain the pleader’s burden of proof.
Section 7. Conferences. In any proceeding before the Secretary of State:
(a) On written notice, the presiding officer may, on the officer’s own motion or on the motion of a party, direct each party to appear at a specified time and place for a prehearing conference to formulate issues and consider any of the following:
(i) simplifying issues;
(ii) amending the pleadings;
(iii) making admissions of fact or stipulations to avoid the unnecessary introduction of proof;
(iv) designating parties;
(v) setting the order of procedure at a hearing;
(vi) identifying and limiting the number of witnesses; and
(vii) resolving other matters that may expedite or simplify the disposition of the controversy, including settling issues in dispute.
(b) The presiding officer shall record the action taken at the prehearing conference unless the parties enter into a written agreement as to the action. The presiding officer may enter appropriate orders concerning prehearing discovery, stipulations of uncontested matters, presentation of evidence and scope of inquiry.
(c) During a hearing, on written notice or notice orally entered into the record, the presiding officer may direct each party or the representative of each party to appear for a conference to consider any matter that may expedite the hearing to serve the interests of justice. The presiding officer shall prepare a written statement regarding the action taken at the conference and the statement must be signed by each party and made a part of the record.
Section 8. Discovery. In any proceeding before the Secretary of State, all motions for discovery shall be subject to the Wyoming Rules of Civil Procedure.
Section 9. Recording. In any proceeding before the Secretary of State:
(a) The proceeding, including all testimony, shall be reported verbatim stenographically or by any other appropriate means determined by the agency or the officer presiding at the hearing.
(b) The Secretary of State may allow electronic recording of proceedings in lieu of stenographic recording if each party is provided a copy of the recording upon that party’s written request.
(c) Any party requesting a transcript of the proceeding shall bear the cost of the transcription.
Section 10. Hearing and Disposition. In any proceeding before the Secretary of State:
(a) A hearing is open to the public, however, witnesses may be excluded or sequestered and Secretary of State deliberations may be conducted in private to the extent permitted by statute.
(b) Unless precluded by law or objected to by a party, the Secretary of State may allow informal disposition of a proceeding without a hearing. Informal disposition includes disposition by stipulation, agreed settlement, consent order and default.
Section 11. Hearing Officers. In any proceeding before the Secretary of State:
(a) The Secretary of State may designate a hearing officer to preside over the hearing. The Secretary of State may appoint an employee of a state agency or hire an independent contractor.
(b) The presiding officer may:
(i) authorize the taking of depositions;
(ii) issue subpoenas to compel the attendance of witnesses and the production of papers and documents;
(iii) administer oaths or affirmations;
(iv) receive evidence;
(v) rule on admissibility of evidence, offers of proof and amendments to pleadings;
(vi) examine witnesses;
(vii) set reasonable times within which a party may present evidence and within which a witness may testify;
(viii) permit and limit oral argument;
(ix) issue interim orders;
(x) recess a hearing from day to day and place to place;
(xi) request briefs, findings of fact, conclusions of law and orders, before or after the presiding officer files a report or proposal for decision;
(xii) propose findings of fact and conclusions of law;
(xiii) propose orders and decisions;
(xiv) perform other duties necessary to a fair and proper hearing;
(xv) hold conferences for the settlement or simplification of the issuers; and,
(xvi) dispose of procedural requests or similar matters.
(c) A person serving as the presiding officer of a proceeding must be a disinterested party to the proceeding.
Section 12. Order of Hearing. Hearings shall be conducted in accordance with the following order of procedure:
(a) The presiding officer shall open the hearing, make a concise statement of its scope and purposes and announce that a record of the hearing is being made.
(b) When a hearing has begun, a party or a party’s representative may make statements off the record only as permitted by the presiding officer. If a discussion off the record is pertinent, the presiding officer shall summarize the discussion for the record.
(c) Each appearance by a party, a party’s representative or a person who may testify must be entered on the record.
(d) The presiding officer shall receive motions and afford each party of record an opportunity to make an opening statement.
(e) Except as otherwise provided by this subsection, the party with the burden of proof is entitled to open and close. The presiding officer shall designate who may open and close in a hearing on a proceeding if the proceeding was initiated by the Secretary of State or if several proceedings are heard on a consolidated record.
(f) After opening statements, the party with the burden of proof may proceed with the party’s direct case. Each party may cross examine each witness.
(g) After the conclusion of the direct case of the party having the burden of proof, the other party may present their direct case and their witnesses will be subject to cross examination.
(h) The presiding officer or the Secretary of State may examine any witnesses.
(i) At the conclusion of all evidence and cross examination, the presiding officer shall allow closing statements. The presiding officer may limit the length of closing statements.
Section 13. Behavior. In any proceeding before the Secretary of State:
(a) Each party, witness, attorney or other representative shall behave with dignity, courtesy and respect for the Secretary of State, the presiding officer and all other parties and participants.
Section 14. Evidence. In any proceeding before the Secretary of State:
(a) All testimony must be given under oath administered by the presiding officer. The presiding officer may limit the number of witnesses and shall exclude all irrelevant, immaterial or unduly repetitious evidence.
(b) Evidence shall be accepted in accordance with the Wyoming Administrative Procedure Act. All irrelevant, immaterial or unduly repetitious evidence may be excluded. Hearsay evidence may be admissible. Effect to the rules of privilege shall be given as recognized by law. Documentary evidence may be received in the form of copies of excerpts if the original is not available. All copies are subject to being compared with the original.
(c) A party may object to offered evidence and the objection shall be noted in the record. A party, at the time an objection is made or sought, shall make known to the presiding officer the action the party desires. Formal exceptions to rulings by the presiding officer during a hearing are unnecessary.
(d) When the presiding officer rules to exclude evidence, the party offering the evidence may make an offer of proof by dictating or submitting in writing the substance of the proposed evidence, before the closing of the hearing. The offer of proof preserves the point for review. The presiding officer may ask a witness or offered witness questions necessary to indicate that the witness would testify as represented in the offer of proof. An alleged error in sustaining an objection to questions asked on cross examination is preserved without making an offer of proof.
(e) The presiding officer may take official notice of judicially cognizable facts and of facts generally recognized within the area of the Secretary of State’s specialized knowledge. The Secretary of State shall notify each party of record before the final decision in a proceeding of each specific fact officially noticed, including any facts or other data in staff memoranda. A party must be given an opportunity to rebut the facts
to be noticed.
(f) The skills and knowledge of the Secretary of State may be used in evaluating the evidence.
(g) The presiding officer may require prepared testimony in a hearing if the presiding officer determines that it will expedite the hearing without substantially prejudicing the interest of a party. Prepared testimony consists of any document that is intended to be offered as evidence and adopted as sworn testimony by a witness who prepared the document or supervised its preparation. A person who intends to offer prepared testimony at a hearing shall prefile the testimony with the Secretary of State on the date set by the presiding officer and shall serve a copy of the prepared testimony on each party of record. The presiding officer may authorize the late filing of prepared testimony on a showing of extenuating circumstances. The prepared testimony of a witness may be incorporated into the record as if read or received as an exhibit, on the witness being sworn and identifying the writing as a true and accurate record of what the testimony would be if the witness were to testify orally. The witness is subject to clarifying the questions and to cross examination and their prepared testimony is subject to a motion to strike either in whole or in part.
(h) The party offering an exhibit shall tender the original, or best evidence, of the exhibit to the presiding officer for identification. The party shall furnish one copy to the presiding officer and one copy to each party of record. A document received in evidence may not be withdrawn except with the permission of the presiding officer. If an exhibit has been offered, objected to, and included and the party offering the exhibit withdraws the offer, the presiding officer shall return the exhibit to the party. If the party does not withdraw the offered exhibit, the exhibit shall be numbered for identification, endorsed by the presiding officer with the ruling on the exhibit and included in the record to preserve the exception.
(i) The state shall mark all exhibits in consecutive order beginning with the number 1. The Respondent shall mark all exhibits in consecutive order beginning with the letter A.
(j) The presiding officer may allow a party to offer an exhibit in evidence after the close of the hearing only on a showing of extenuating circumstances and a certificate of service of each party of record.
Section 15. Findings and Conclusions. In any proceeding before the Secretary of State:
(a) The parties have a right to submit proposed findings of fact and conclusions of law or a proposal for decision. The presiding official shall set reasonable deadlines for submission of proposed findings of fact and conclusions of law.
(b) Proposed findings of fact submitted under this section must be supported by concise and explicit statements of underlying facts developed from the record with specific reference to where in the record the facts appear.
(c) The Secretary of State may direct the presiding officer to write proposed findings of fact and conclusions of law. The Secretary of State may also direct the presiding officer to write a recommended decision.
(d) All parties shall have an opportunity to file objections to proposed findings of fact and conclusions of law and orders submitted by any party or by the presiding officer.
(e) The presiding officer shall establish deadlines for the filing of proposed findings of fact and conclusions of law and orders.
(f) After the expiration of time for filing objections, the Secretary of State shall consider the proposal for decision. The Secretary of State may:
(i) adopt the proposal for decision, in whole or in part;
(ii) decline to adopt the proposal for decision, in whole or in part;
(iii) remand the proceeding for further examination by the same or a different presiding officer; or
(iv) direct the presiding officer to give further consideration to the proceeding with or without reopening the hearing.
(g) Parties shall be given an opportunity to file exceptions, replies and briefs in the event a decision is remanded for further consideration.
(h) If on remand additional evidence is received which results in a substantial revision of the proposal for decision, a new proposal for decision shall be prepared, unless the Secretary of State, on remand, has heard the case or read the record. A new proposal for decision must be clearly labeled as such and all parties of record are entitled to file exceptions, replies and briefs.
Section 16. Dismissal. In any proceeding before the Secretary of State:
(a) On its own motion or by a motion of a party, the Secretary of State may dismiss a proceeding, with or without prejudice, under conditions and for reasons that are just and reasonable, including:
(i) failure to timely pay all required fees to the Secretary of State;
(ii) unnecessary duplication of proceedings;
(iii) withdrawal;
(iv) moot questions or obsolete petitions; and
(v) lack of jurisdiction.
Section 17. Orders. In any proceeding before the Secretary of State:
(a) Except as otherwise provided by these rules, the Secretary of State shall issue a final order not later than 60 days after the hearing. A final order of the Secretary of State must be in writing and be signed by the Secretary of State. A final order must include findings of facts and conclusions of law, separately stated.
(b) The Secretary of State shall direct staff to mail by certified mail a copy of the order to each party or the party’s representative.
(c) A final order of the Secretary of State takes effect on the date the order is issued, unless another effective date is provided for in the Order.
(d) If the Secretary of State finds that an immediate final order in a proceeding is required, the Secretary of State shall recite that finding in the order in addition to reciting that the order is final from the date issued. An order issued under this subsection is final and appealable from the date issued. Parties may still submit proposed findings of fact and conclusions of law and order and the Secretary of State may direct the presiding officer to submit recommended findings of fact in accordance with its decision.
(e) The Secretary of State’s decision shall be based upon the record before it. The record shall contain:
(i) all formal or informal notices, pleadings, motions and intermediate rulings;
(ii) evidence received or considered including matters officially noticed;
(iii) questions and offers of proof, objections and rulings thereto;
(iv) any proposed findings and exceptions thereto;
(v) any opinion, findings, decision or order of the agency and any report by the officer presiding at the hearing;
(vi) any brief or memorandum of law filed by the parties or the presiding officer.
Section 18. Rehearing. In any proceeding before the Secretary of State:
(a) W.S. §16-3-101 et. seq. pertaining to rehearing after Secretary of State action, is hereby incorporated by reference.
(b) An order granting a motion for rehearing vacates the preceding final order. The order granting a motion for rehearing may direct that the hearing be reopened or may incorporate a new final decision.
Section 19. Ex Parte Communications. In any proceeding before the Secretary of State, W.S. §16-3-111 pertaining to ex parte communications, is hereby incorporated by reference.
Section 20. Informal Hearing Process. In any proceeding before the Secretary of State, a person may agree to an informal Secretary of State’s hearing in order to discuss an alleged or apparent violation of the statutes or the Rules. Oral notice is sufficient to commence an informal hearing. The formal rules governing Secretary of State’s hearings as listed within this chapter are not applicable to informal hearings. After the informal hearing no sanction or penalty may be imposed by the Secretary of State unless all affected parties agree to it. At any time during the informal hearing, a person may request that the hearing terminate and that the Secretary of State proceed with a formal hearing.
Section 21. Default. In any proceeding before the Secretary of State, failure of the registrant to appear at the time and place of the Secretary of State’s hearing, following proper notice, will be deemed a default. Such default will be noted in the record and taken as a waiver of the registrant’s due process rights. The allegations in the complaint may be taken as true and be so noted in the record. The Secretary of State may then impose penalties or make registration discipline rulings against the registrant to the extent
authorized applicable statutes or these rules.
Section 22. Service. In any proceeding before the Secretary of State, service shall be made whether personally or by certified mail.
(a) The person serving the process shall make proof of service thereof to the Secretary of State or to the designated hearing officer.
(b) Proof of service shall be made:
(i) by sworn affidavit with the statement as to date, place and manner of service.
(ii) if by certified mail, by the return receipt.
Section 23. Subpoenas. In any proceeding before the Secretary of State, subpoenas for the appearance of witnesses and for the production of books, papers, or documents for exhibits will be issued by the Secretary of State, the Deputy or the Hearing Officer upon written request of any party. The Secretary of State, the Deputy, or the Hearing Officer may issue any subpoenas for the production of books, papers, documents, exhibits or for the appearance of any person or persons in support of the order or petition.
(a) All written subpoena requests shall be received by the Secretary of State in sufficient time to allow for processing in order that the subpoenaed party has a ten (10) day prior notice to the date of the hearing.
(b) The cost of subpoenas and witness fees shall be paid by the party making the request for the subpoena.
Section 24. Attorney General May be Present. In any proceeding before the Secretary of State, all matters before the presiding officer, the presiding officer may request the Attorney General or a representative of his staff to be present throughout the hearing or any part of the hearing to assist and advise the presiding officer conducting the hearing.
Section 25. Rules Not to Apply to Investigations. Nothing contained in these rules shall apply to investigations that may be conducted by the Secretary of State under the terms and provisions of W.S. §17-4-119.
Section 26. Severability. If any provision of these rules or their application to any person or circumstance is held invalid this shall not affect other provisions or applications of these rules which can be given effect without the invalid provision or application and to this end the provisions of these rules are severable.
Chapter
9 1
CONDUCT OF CONTESTED CASE HEARINGS
Section 1. Authority.
This chapter contains the rules of procedure for Corporations Division
hearings and proceedings before the Secretary of State’s Office. These
rules are promulgated by authority of W.S. §17-16-130 and pursuant to W.S.
§16-3-102.
Section 2. Wyoming Administrative Procedure Act (WAPA). The Wyoming Administrative Procedure Act (WAPA) W.S. §16-3-101 through W.S. §16-3-115 is incorporated herein by reference.
Section 3. Wyoming Rules of Civil Procedure (WRCP). The Wyoming Rules of Civil Procedure insofar as they are applicable and not inconsistent with the WAPA are incorporated herein by reference.
Section 4. Parties to a Proceeding. In any proceeding before the Secretary of State:
(a)
The Corporations Division Secretary of State’s Office is
always a party to a proceeding.
(b) A person who is the subject of the proceeding or who has initiated actions for a hearing is a party to that proceeding.
(c) A party to a proceeding has the right to present a direct case, cross examine each witness, submit legal arguments and otherwise participate fully in the proceeding.
(d) A party summoned to appear at a hearing must appear unless he/she is excused by the Secretary of State. Parties may appear with counsel or other representatives of their choice.
(e) A non-party to a proceeding who wishes to appear in a contested case pending before the Secretary of State must prove that he/she has an effected interest sufficient to create standing in the case. The burden of proof is on the party asserting standing in such a contested case.
Section 5. Notice. In any proceeding before the Secretary of State:
(a) Not less than ten (10) days before the date set for a hearing, the Secretary of State shall serve written notice on each party of record to the proceeding.
(b) The Secretary of State shall mail the notice to the address on file with the Secretary of State or to the person’s last known address, by certified United States mail, return receipt requested.
(c) A notice of the hearing must include:
(i) a statement of time, place and nature of the hearing;
(ii) a statement of legal authority and jurisdiction under which the hearing is to be held;
(iii) a reference to the particular sections of the statutes and rules involved;
(iv) a short, plain statement of the matters asserted; and,
(v) any other statement required by law.
(d) If the Secretary of State determines that a material error has been made in a notice of hearing, or that a material change has been made in the nature of a proceeding after notice has been issued, the Secretary of State shall issue a revised notice.
(e) A party to a proceeding may move to postpone the proceeding. The motion must be in writing, set forth the specific grounds on which it is sought and be filed with the Secretary of State before the date of the hearing is set. If the person presiding over the proceeding grants the motion for postponement, the Secretary of State shall cause new notice to be issued.
(f) After a hearing has begun, the presiding officer may grant a continuance on oral or written motion, without issuing new notice, by announcing the date, time and place for reconvening the hearing before recessing the hearing.
Section 6. Appearances.
The filing of a pleading or other appearance by an attorney constitutes his appearance for the party for whom made. The Secretary of State must be notified in writing of his withdrawal from any matter. Any person appearing at a hearing in a representative capacity shall be precluded from examining or cross-examining any witness or performing other legal assistance including but not limited to making arguments and filing motions or other pleadings, unless such person shall be an attorney licensed to practice law in the State of Wyoming, or a non-resident attorney associated with a Wyoming attorney. This rule shall not be construed to prohibit any person from representing himself.
Section 7. Pleadings. In any proceeding before the Secretary of State:
(a) Pleadings filed with the Secretary of State include appeals, applications, answers, complaints, exceptions, replies and motions. Regardless of an error in designation, a pleading shall be accorded its true status in the proceeding in which it is filed.
(b) A request for discovery or a response to a request for discovery is not a pleading and is not a part of the administrative record of a contested case unless the request or response is offered into evidence.
(c) A pleading for which the Secretary of State’s staff has not prepared an official form must contain
(i) the name of the person making the pleading;
(ii) the telephone number and street address of the pleader’s residence and business and the telephone number and street address of the pleader’s representative, if any;
(iii) the jurisdiction of the Secretary of State over the subject matter;
(iv) a concise statement of the facts relied on by the pleader;
(v) a request stating the type of Secretary of State action desired by the pleader;
(vi) the name and address of each person who the pleader knows or believes will be affected if the request is granted;
(vii) any other matter required by statute or Secretary of State rule; and
(viii) a certificate of service.
(d) A party filing a pleading shall mail or deliver a copy of the pleading to each party of record. If a party is being represented by an attorney or other representative, service must be made on the attorney or representative instead of on the party. The knowing failure of a party to make service in accordance with this subsection is grounds for the Secretary of State to strike the pleading from the record.
(e) An objection to a defect, omission or fault in the form or content of a pleading must be specifically stated in a motion or an exception presented not later than the prehearing conference if one is held and not later than (ten) 10 days before the date of the hearing if a prehearing conference is not held. A party who fails to timely file an objection under this subsection waives the objection.
(f) Except as otherwise provided by this subsection, a pleader may amend or supplement a pleading at any time:
(i) on written consent of each party of record; or,
(ii) as permitted by the presiding officer for the proceeding, when justice requires the amendment or supplementation and when the amendment or supplementation will not unfairly surprise another party.
(g) A pleading may adopt or incorporate by specific reference any part of a document in the official files and records of the Secretary of State. This subsection does not relieve the pleader of the duty to allege in detail all facts necessary to sustain the pleader’s burden of proof.
(h) The Secretary of State shall maintain the official file in the contested matter. All pleadings shall be filed with the Secretary of State until such time as a hearing officer may be appointed. Following appointment of a hearing officer, the official file shall be delivered to the hearing officer and all future filings shall be with the hearing officer.
Section 8. Conferences. In any proceeding before the Secretary of State:
(a) On written notice, the presiding officer may, on the officer’s own motion or on the motion of a party, direct each party to appear at a specified time and place for a prehearing conference to formulate issues and consider any of the following:
(i) simplifying issues;
(ii) amending the pleadings;
(iii) making admissions of fact or stipulations to avoid the unnecessary introduction of proof;
(iv) designating parties;
(v) setting the order of procedure at a hearing;
(vi) identifying and limiting the number of witnesses; and
(vii) resolving other matters that may expedite or simplify the disposition of the controversy, including settling issues in dispute.
(b) The presiding officer shall record the action taken at the prehearing conference unless the parties enter into a written agreement as to the action. The presiding officer shall enter appropriate written orders concerning prehearing discovery, stipulations of uncontested matters, presentation of evidence and scope of inquiry.
(c) During a hearing, on written notice or notice orally entered into the record, the presiding officer may direct each party or the representative of each party to appear for a conference to consider any matter that may expedite the hearing to serve the interests of justice. The presiding officer shall prepare a written statement regarding the action taken at the conference and the statement must be signed by each party and made a part of the record.
Section 9. Discovery. In any proceeding before the Secretary of State, all motions for discovery shall be subject to the Wyoming Rules of Civil Procedure.
Section 10. Subpoenas.
(a) Subpoenas, requiring the attendance of witnesses from any place in the State of Wyoming at any designated place of hearing, or for the production of books, papers, or other documents, may be issued by the Secretary of State or the hearing officer upon application of any party to the proceedings. The hearing officer or Secretary of State upon written application of any party or his attorney shall issue a subpoena requiring the appearance of witnesses for the purpose of taking evidence or requiring the production of any books, papers, or other documents relevant or material to the inquiry, all subject to the provisions of the Wyoming Administrative Procedure Act.
(b) All subpoenas shall be served by delivering a copy personally, or by certified mail, requiring return receipt, to the party to be served.
(c) Costs of service of subpoenas shall be paid by the parties requesting service.
Section 11. Depositions. The testimony of any witness may be taken by deposition at the insistence of a party in any proceeding or investigation at any time after it is at issue by the consent of the hearing officer or the Secretary of State. The deposition shall be taken in the manner prescribed by the laws of Wyoming for taking depositions in civil actions in the District Courts of this State.
Section 12. Recording. In any proceeding before the Secretary of State:
(a) The proceeding, including all testimony, shall be reported verbatim stenographically or by any other appropriate means determined by the agency or the officer presiding at the hearing.
(b) The Secretary of State may allow electronic recording of proceedings in lieu of stenographic recording if each party is provided a copy of the recording upon that party’s written request.
(c) Any party requesting a transcript of the proceeding shall bear the cost of the transcription.
Section 13. Hearing and Disposition. In any proceeding before the Secretary of State:
(a) A hearing is open to the public, however, witnesses may be excluded or sequestered and Secretary of State deliberations may be conducted in private to the extent permitted by W.S. 16-4-401 et seq.
(b) Unless precluded by law or objected to by a party, the Secretary of State may allow informal disposition of a proceeding without a hearing. Informal disposition includes disposition by stipulation, agreed settlement, consent order and default.
Section 14. Hearing Officers. In any proceeding before the Secretary of State:
(a) The Secretary of State may designate a hearing officer to preside over the hearing. The Secretary of State may appoint an employee of a state agency or hire an independent contractor.
(b) The hearing officer may:
(i) authorize the taking of depositions;
(ii) issue subpoenas to compel the attendance of witnesses and the production of papers and documents;
(iii) administer oaths or affirmations;
(iv) receive evidence;
(v) rule on admissibility of evidence, offers of proof and amendments to pleadings;
(vi) examine witnesses;
(vii) set reasonable times within which a party may present evidence and within which a witness may testify;
(viii) permit and limit oral argument;
(ix) issue interim orders;
(x) recess a hearing from day to day and place to place;
(xi) request briefs, findings of fact, conclusions of law and orders, before or after the hearing officer files a report or proposal for decision;
(xii) propose findings of fact and conclusions of law;
(xiii) propose orders and decisions;
(xiv) perform other duties necessary to a fair and proper hearing;
(xv) hold conferences for the settlement or simplification of the issuers;
(xvi) dispose of procedural requests or similar matters;
(xvii) officially open and officially close the hearing; and
(xviii) otherwise preside over the hearing and regulate its proceedings.
(c) A person serving as the hearing officer of a proceeding must be a disinterested party to the proceeding;
Section 15. Order of Hearing. Hearings shall be conducted in accordance with the following order of procedure:
(a) The hearing officer shall open the hearing, make a concise statement of its scope and purposes and announce that a record of the hearing is being made.
(b) When a hearing has begun, a party or a party’s representative may make statements off the record only as permitted by the hearing officer. If a discussion off the record is pertinent, the hearing officer shall summarize the discussion for the record.
(c) Each appearance by a party, a party’s representative or a person who may testify must be entered on the record.
(d) The hearing officer shall receive motions and afford each party of record an opportunity to argue the motions.
(e) The hearing officer shall allow each party of record to make an opening statement.
(f) Except as otherwise provided by this subsection, the party with the burden of proof is entitled to open and close. The hearing officer shall designate who may open and close in a hearing on a proceeding.
(g) After opening statements, the party with the burden of proof may proceed with the party’s direct case. Each party may cross examine each witness.
(h) After the conclusion of the direct case of the party having the burden of proof, the other party may present its direct case and its witnesses will be subject to cross examination.
(i) The hearing officer or the Secretary of State may examine any witnesses.
(j) At the conclusion of all evidence and cross examination, the hearing officer shall declare the evidence closed, following which he shall allow closing statements. The hearing officer may limit the length of closing statements. Rebuttal argument may be permitted by the party with the burden of proof at the discretion of the hearing officer.
(k) The parties may tender briefs, or the Secretary of State or the hearing officer may call for briefs from the parties.
(l) The parties may file Findings of Fact and Conclusions of Law & Order as provided in Section 19.
Section 16. Behavior. In any proceeding before the Secretary of State:
(a) Each party, witness, attorney or other representative shall behave with dignity, courtesy and respect for the Secretary of State, the hearing officer and all other parties and participants.
Section 17. Evidence. In any proceeding before the Secretary of State:
(a) All testimony must be given under oath administered by the hearing officer or at his direction. The hearing officer may limit the number of witnesses and shall exclude all irrelevant, immaterial or unduly repetitious evidence.
(b) Evidence shall be accepted in accordance with the Wyoming Administrative Procedure Act. All irrelevant, immaterial or unduly repetitious evidence may be excluded. Hearsay evidence may be admissible. Effect to the rules of privilege shall be given as recognized by law. Documentary evidence may be received in the form of copies of excerpts if the original is not readily available. All copies are subject to being compared with the original.
(c) A party may object to offered evidence and the objection shall be noted in the record. A party, at the time an objection is made or sought, shall make known to the hearing officer the action the party desires. Formal exceptions to rulings by the hearing officer during a hearing are unnecessary.
(d) When the hearing officer rules to exclude evidence, the party offering the evidence may make an offer of proof by dictating or submitting in writing the substance of the proposed evidence, before the closing of the hearing. The offer of proof preserves the point for review. The hearing officer may ask a witness or offered witness questions necessary to indicate that the witness would testify as represented in the offer of proof. An alleged error in sustaining an objection to questions asked on cross examination is preserved without making an offer of proof.
(e) The hearing officer may take official notice of judicially cognizable facts and of facts generally recognized within the area of the Secretary of State’s specialized knowledge. The Secretary of State shall notify each party of record before the final decision in a proceeding of each specific fact officially noticed, including any facts or other data in staff memoranda. A party must be given an opportunity to rebut the facts to be noticed.
(f) The skills and knowledge of the Secretary of State may be used in evaluating the evidence.
(g) The party offering an exhibit shall tender the original, or best evidence, of the exhibit to the hearing officer for identification. The party shall furnish one copy to the hearing officer and one copy to each party of record. A document received in evidence may not be withdrawn except with the permission of the hearing officer. If an exhibit has been offered, objected to, and included and the party offering the exhibit withdraws the offer, the hearing officer shall return the exhibit to the party. If the party does not withdraw the offered exhibit, the exhibit shall be numbered for identification, endorsed by the hearing officer with the ruling on the exhibit and included in the record to preserve the exception.
(h) The party with the burden of proof shall mark all exhibits in consecutive order beginning with the number 1. The opposing party shall mark all exhibits in consecutive order beginning with the letter A.
(i) The hearing officer may allow a party to offer an exhibit in evidence after the close of the hearing only on a showing of extenuating circumstances and a certificate of service upon each party of record.
Section 18. Findings and Conclusions. In any proceeding before the Secretary of State:
(a) The parties have a right to submit proposed findings of fact and conclusions of law or a proposal for decision. The hearing officer shall set reasonable deadlines for submission of proposed findings of fact and conclusions of law.
(b) Proposed findings of fact submitted under this section must be supported by concise and explicit statements of underlying facts developed from the record with specific reference to where in the record the facts appear.
(c) The Secretary of State may direct the hearing officer to write proposed findings of fact and conclusions of law. The Secretary of State may also direct the hearing officer to write a recommended decision.
(d) All parties shall have an opportunity to file objections to proposed findings of fact and conclusions of law and orders submitted by any party or by the hearing officer.
(e) After the expiration of time for filing objections, the Secretary of State shall consider the proposal for decision. The Secretary of State may:
(i) adopt the hearing officer’s or any party’s proposal for decision, in whole or in part;
(ii) decline to adopt the hearing officer’s or any party’s proposal for decision, in whole or in part;
(iii) remand the proceeding for further examination by the same or a different hearing officer; or
(iv) direct the hearing officer to give further consideration to the proceeding with or without reopening the hearing.
(f) Parties shall be given an opportunity to file exceptions, replies and briefs in the event a decision is remanded for further consideration.
(g) If on remand additional evidence is received which results in a substantial revision of the proposal for decision, a new proposal for decision shall be prepared, unless the Secretary of State, on remand, has heard the case or read the record. A new proposal for decision must be clearly labeled as such and all parties of record are entitled to file exceptions, replies and briefs.
Section 19. Dismissal. In any proceeding before the Secretary of State:
(a) On its own motion or by a motion of a party, the Secretary of State may dismiss a proceeding, with or without prejudice, under conditions and for reasons that are just and reasonable, including:
(i) failure to timely pay all required fees to the Secretary of State;
(ii) unnecessary duplication of proceedings;
(iii) withdrawal;
(iv) moot questions or obsolete petitions; and
(v) lack of jurisdiction.
Section 20. Orders. In any proceeding before the Secretary of State:
(a) Except as otherwise provided by these rules, the Secretary of State shall issue a final order not later than sixty (60) days after the hearing. A final order of the Secretary of State must be in writing and be signed by the Secretary of State. A final order must include findings of facts and conclusions of law, separately stated.
(b) The Secretary of State shall direct staff to mail by certified mail a copy of the order to each party or the party’s representative.
(c) A final order of the Secretary of State takes effect on the date the order is issued, unless another effective date is provided for in the Order.
(d) If the Secretary of State finds that an immediate final order in a proceeding is required, the Secretary of State shall recite that finding in the order in addition to reciting that the order is final from the date issued. An order issued under this subsection is final and appealable from the date issued. Parties may still submit proposed findings of fact and conclusions of law and order and the Secretary of State may direct the hearing officer to submit recommended findings of fact in accordance with its decision.
(e) The Secretary of State’s decision shall be based upon the record before it. The record shall contain:
(i) all formal or informal notices, pleadings, motions and intermediate rulings;
(ii) evidence received or considered including matters officially noticed;
(iii) questions and offers of proof, objections and rulings thereto;
(iv) any proposed findings and exceptions thereto;
(v) any opinion, findings, decision or order of the agency and any report by the officer presiding at the hearing;
(vi) any brief or memorandum of law filed by the parties or the hearing officer.
Section 21. Ex Parte Communications. In any proceeding before the Secretary of State, W.S. §16-3-111 pertaining to ex parte communications, is hereby incorporated by reference.
Section 22. Informal Hearing Process. In any proceeding before the Secretary of State, a person may agree to an informal Secretary of State’s hearing in order to discuss an alleged or apparent violation of the statutes or the Rules. Oral notice is sufficient to commence an informal hearing. The formal rules governing Secretary of State’s hearings as listed within this chapter are not applicable to informal hearings. After the informal hearing no sanction or penalty may be imposed by the Secretary of State unless all affected parties agree to it. At any time during the informal hearing, a person may request that the hearing terminate and that the Secretary of State proceed with a formal hearing.
Section 23. Default. In any proceeding before the Secretary of State, failure of the registrant to appear at the time and place of the Secretary of State’s hearing, following proper notice, will be deemed a default. Such default will be noted in the record and taken as a waiver of the registrant’s due process rights. The allegations in the complaint may be taken as true and be so noted in the record. The Secretary of State may then impose penalties or make registration discipline rulings against the registrant to the extent authorized by applicable statutes or these rules.
Section 24. Service. In any proceeding before the Secretary of State, service shall be made whether personally or by certified mail.
(a) The person serving the process shall make proof of service thereof to the Secretary of State or to the designated hearing officer.
(b) Proof of service shall be made:
(i) by sworn affidavit with the statement as to date, place and manner of service.
(ii) if by certified mail, by the return receipt.
Section 25. Attorney General May be Present. In any proceeding before the Secretary of State, the Secretary of State may request the Attorney General or a representative of his staff to be present throughout the hearing or any part of the hearing to assist and advise the Secretary of State.
Section 26. Severability. If any provision of these rules or their application to any person or circumstance is held invalid this shall not affect other provisions or applications of these rules which can be given effect without the invalid provision or application and to this end the provisions of these rules are severable.
Chapter 1
CONDUCT OF CONTESTED CASE HEARINGS
Section 1. Authority. This chapter contains the rules of procedure for hearings and proceedings before the Secretary of State’s Office. These rules are promulgated by authority of W.S. §17-16-130 and pursuant to W.S. §16-3-102.
Section 2. Wyoming Administrative Procedure Act (WAPA). The Wyoming Administrative Procedure Act (WAPA) W.S. §16-3-101 through W.S. §16-3-115 is incorporated herein by reference.
Section 3. Wyoming Rules of Civil Procedure (WRCP). The Wyoming Rules of Civil Procedure insofar as they are applicable and not inconsistent with the WAPA are incorporated herein by reference.
Section 4. Parties to a Proceeding. In any proceeding before the Secretary of State:
(f) The Secretary of State’s Office is always a party to a proceeding.
(g) A person who is the subject of the proceeding or who has initiated actions for a hearing is a party to that proceeding.
(h) A party to a proceeding has the right to present a direct case, cross examine each witness, submit legal arguments and otherwise participate fully in the proceeding.
(i) A party summoned to appear at a hearing must appear unless he/she is excused by the Secretary of State. Parties may appear with counsel or other representatives of their choice.
(j) A non-party to a proceeding who wishes to appear in a contested case pending before the Secretary of State must prove that he/she has an effected interest sufficient to create standing in the case. The burden of proof is on the party asserting standing in such a contested case.
Section 5. Notice. In any proceeding before the Secretary of State:
(e) Not less than ten (10) days before the date set for a hearing, the Secretary of State shall serve written notice on each party of record to the proceeding.
(f) The Secretary of State shall mail the notice to the address on file with the Secretary of State or to the person’s last known address, by certified United States mail, return receipt requested.
(g) A notice of the hearing must include:
(vi) a statement of time, place and nature of the hearing;
(vii) a statement of legal authority and jurisdiction under which the hearing is to be held;
(viii) a reference to the particular sections of the statutes and rules involved;
(ix) a short, plain statement of the matters asserted; and,
(x) any other statement required by law.
(h) If the Secretary of State determines that a material error has been made in a notice of hearing, or that a material change has been made in the nature of a proceeding after notice has been issued, the Secretary of State shall issue a revised notice.
(e) A party to a proceeding may move to postpone the proceeding. The motion must be in writing, set forth the specific grounds on which it is sought and be filed with the Secretary of State before the date of the hearing is set. If the person presiding over the proceeding grants the motion for postponement, the Secretary of State shall cause new notice to be issued.
(f) After a hearing has begun, the presiding officer may grant a continuance on oral or written motion, without issuing new notice, by announcing the date, time and place for reconvening the hearing before recessing the hearing.
Section 6. Appearances.
The filing of a pleading or other appearance by an attorney constitutes his appearance for the party for whom made. The Secretary of State must be notified in writing of his withdrawal from any matter. Any person appearing at a hearing in a representative capacity shall be precluded from examining or cross-examining any witness or performing other legal assistance including but not limited to making arguments and filing motions or other pleadings, unless such person shall be an attorney licensed to practice law in the State of Wyoming, or a non-resident attorney associated with a Wyoming attorney. This rule shall not be construed to prohibit any person from representing himself.
Section 7. Pleadings. In any proceeding before the Secretary of State:
(i) Pleadings filed with the Secretary of State include appeals, applications, answers, complaints, exceptions, replies and motions. Regardless of an error in designation, a pleading shall be accorded its true status in the proceeding in which it is filed.
(j) A request for discovery or a response to a request for discovery is not a pleading and is not a part of the administrative record of a contested case unless the request or response is offered into evidence.
(k) A pleading for which the Secretary of State’s staff has not prepared an official form must contain
(ix) the name of the person making the pleading;
(x) the telephone number and street address of the pleader’s residence and business and the telephone number and street address of the pleader’s representative, if any;
(xi) the jurisdiction of the Secretary of State over the subject matter;
(xii) a concise statement of the facts relied on by the pleader;
(xiii) a request stating the type of Secretary of State action desired by the pleader;
(xiv) the name and address of each person who the pleader knows or believes will be affected if the request is granted;
(xv) any other matter required by statute or Secretary of State rule; and
(xvi) a certificate of service.
(l) A party filing a pleading shall mail or deliver a copy of the pleading to each party of record. If a party is being represented by an attorney or other representative, service must be made on the attorney or representative instead of on the party. The knowing failure of a party to make service in accordance with this subsection is grounds for the Secretary of State to strike the pleading from the record.
(m) An objection to a defect, omission or fault in the form or content of a pleading must be specifically stated in a motion or an exception presented not later than the prehearing conference if one is held and not later than (ten) 10 days before the date of the hearing if a prehearing conference is not held. A party who fails to timely file an objection under this subsection waives the objection.
(n) Except as otherwise provided by this subsection, a pleader may amend or supplement a pleading at any time:
(iii) on written consent of each party of record; or,
(iv) as permitted by the presiding officer for the proceeding, when justice requires the amendment or supplementation and when the amendment or supplementation will not unfairly surprise another party.
(o) A pleading may adopt or incorporate by specific reference any part of a document in the official files and records of the Secretary of State. This subsection does not relieve the pleader of the duty to allege in detail all facts necessary to sustain the pleader’s burden of proof.
(p) The Secretary of State shall maintain the official file in the contested matter. All pleadings shall be filed with the Secretary of State until such time as a hearing officer may be appointed. Following appointment of a hearing officer, the official file shall be delivered to the hearing officer and all future filings shall be with the hearing officer.
Section 8. Conferences. In any proceeding before the Secretary of State:
(c) On written notice, the presiding officer may, on the officer’s own motion or on the motion of a party, direct each party to appear at a specified time and place for a prehearing conference to formulate issues and consider any of the following:
(i) simplifying issues;
(ii) amending the pleadings;
(iii) making admissions of fact or stipulations to avoid the unnecessary introduction of proof;
(iv) designating parties;
(v) setting the order of procedure at a hearing;
(vi) identifying and limiting the number of witnesses; and
(vii) resolving other matters that may expedite or simplify the disposition of the controversy, including settling issues in dispute.
(d) The presiding officer shall record the action taken at the prehearing conference unless the parties enter into a written agreement as to the action. The presiding officer shall enter appropriate written orders concerning prehearing discovery, stipulations of uncontested matters, presentation of evidence and scope of inquiry.
(c) During a hearing, on written notice or notice orally entered into the record, the presiding officer may direct each party or the representative of each party to appear for a conference to consider any matter that may expedite the hearing to serve the interests of justice. The presiding officer shall prepare a written statement regarding the action taken at the conference and the statement must be signed by each party and made a part of the record.
Section 9. Discovery. In any proceeding before the Secretary of State, all motions for discovery shall be subject to the Wyoming Rules of Civil Procedure.
Section 10. Subpoenas.
(a) Subpoenas, requiring the attendance of witnesses from any place in the State of Wyoming at any designated place of hearing, or for the production of books, papers, or other documents, may be issued by the Secretary of State or the hearing officer upon application of any party to the proceedings. The hearing officer or Secretary of State upon written application of any party or his attorney shall issue a subpoena requiring the appearance of witnesses for the purpose of taking evidence or requiring the production of any books, papers, or other documents relevant or material to the inquiry, all subject to the provisions of the Wyoming Administrative Procedure Act.
(b) All subpoenas shall be served by delivering a copy personally, or by certified mail, requiring return receipt, to the party to be served.
(c) Costs of service of subpoenas shall be paid by the parties requesting service.
Section 11. Depositions. The testimony of any witness may be taken by deposition at the insistence of a party in any proceeding or investigation at any time after it is at issue by the consent of the hearing officer or the Secretary of State. The deposition shall be taken in the manner prescribed by the laws of Wyoming for taking depositions in civil actions in the District Courts of this State.
Section 12. Recording. In any proceeding before the Secretary of State:
(a) The proceeding, including all testimony, shall be reported verbatim stenographically or by any other appropriate means determined by the agency or the officer presiding at the hearing.
(b) The Secretary of State may allow electronic recording of proceedings in lieu of stenographic recording if each party is provided a copy of the recording upon that party’s written request.
(c) Any party requesting a transcript of the proceeding shall bear the cost of the transcription.
Section 13. Hearing and Disposition. In any proceeding before the Secretary of State:
(a) A hearing is open to the public, however, witnesses may be excluded or sequestered and Secretary of State deliberations may be conducted in private to the extent permitted by W.S. 16-4-401 et seq.
(b) Unless precluded by law or objected to by a party, the Secretary of State may allow informal disposition of a proceeding without a hearing. Informal disposition includes disposition by stipulation, agreed settlement, consent order and default.
Section 14. Hearing Officers. In any proceeding before the Secretary of State:
(a) The Secretary of State may designate a hearing officer to preside over the hearing. The Secretary of State may appoint an employee of a state agency or hire an independent contractor.
(b) The hearing officer may:
(i) authorize the taking of depositions;
(ii) issue subpoenas to compel the attendance of witnesses and the production of papers and documents;
(iii) administer oaths or affirmations;
(iv) receive evidence;
(v) rule on admissibility of evidence, offers of proof and amendments to pleadings;
(vi) examine witnesses;
(vii) set reasonable times within which a party may present evidence and within which a witness may testify;
(viii) permit and limit oral argument;
(ix) issue interim orders;
(x) recess a hearing from day to day and place to place;
(xi) request briefs, findings of fact, conclusions of law and orders, before or after the hearing officer files a report or proposal for decision;
(xii) propose findings of fact and conclusions of law;
(xiii) propose orders and decisions;
(xiv) perform other duties necessary to a fair and proper hearing;
(xv) hold conferences for the settlement or simplification of the issuers;
(xvi) dispose of procedural requests or similar matters;
(xvii) officially open and officially close the hearing; and
(xviii) otherwise preside over the hearing and regulate its proceedings.
(c) A person serving as the hearing officer of a proceeding must be a disinterested party to the proceeding;
Section 15. Order of Hearing. Hearings shall be conducted in accordance with the following order of procedure:
(a) The hearing officer shall open the hearing, make a concise statement of its scope and purposes and announce that a record of the hearing is being made.
(b) When a hearing has begun, a party or a party’s representative may make statements off the record only as permitted by the hearing officer. If a discussion off the record is pertinent, the hearing officer shall summarize the discussion for the record.
(c) Each appearance by a party, a party’s representative or a person who may testify must be entered on the record.
(d) The hearing officer shall receive motions and afford each party of record an opportunity to argue the motions.
(e) The hearing officer shall allow each party of record to make an opening statement.
(f) Except as otherwise provided by this subsection, the party with the burden of proof is entitled to open and close. The hearing officer shall designate who may open and close in a hearing on a proceeding.
(g) After opening statements, the party with the burden of proof may proceed with the party’s direct case. Each party may cross examine each witness.
(h) After the conclusion of the direct case of the party having the burden of proof, the other party may present its direct case and its witnesses will be subject to cross examination.
(i) The hearing officer or the Secretary of State may examine any witnesses.
(j) At the conclusion of all evidence and cross examination, the hearing officer shall declare the evidence closed, following which he shall allow closing statements. The hearing officer may limit the length of closing statements. Rebuttal argument may be permitted by the party with the burden of proof at the discretion of the hearing officer.
(k) The parties may tender briefs, or the Secretary of State or the hearing officer may call for briefs from the parties.
(l) The parties may file Findings of Fact and Conclusions of Law & Order as provided in Section 19.
Section 16. Behavior. In any proceeding before the Secretary of State:
(b) Each party, witness, attorney or other representative shall behave with dignity, courtesy and respect for the Secretary of State, the hearing officer and all other parties and participants.
Section 17. Evidence. In any proceeding before the Secretary of State:
(a) All testimony must be given under oath administered by the hearing officer or at his direction. The hearing officer may limit the number of witnesses and shall exclude all irrelevant, immaterial or unduly repetitious evidence.
(b) Evidence shall be accepted in accordance with the Wyoming Administrative Procedure Act. All irrelevant, immaterial or unduly repetitious evidence may be excluded. Hearsay evidence may be admissible. Effect to the rules of privilege shall be given as recognized by law. Documentary evidence may be received in the form of copies of excerpts if the original is not readily available. All copies are subject to being compared with the original.
(c) A party may object to offered evidence and the objection shall be noted in the record. A party, at the time an objection is made or sought, shall make known to the hearing officer the action the party desires. Formal exceptions to rulings by the hearing officer during a hearing are unnecessary.
(d) When the hearing officer rules to exclude evidence, the party offering the evidence may make an offer of proof by dictating or submitting in writing the substance of the proposed evidence, before the closing of the hearing. The offer of proof preserves the point for review. The hearing officer may ask a witness or offered witness questions necessary to indicate that the witness would testify as represented in the offer of proof. An alleged error in sustaining an objection to questions asked on cross examination is preserved without making an offer of proof.
(e) The hearing officer may take official notice of judicially cognizable facts and of facts generally recognized within the area of the Secretary of State’s specialized knowledge. The Secretary of State shall notify each party of record before the final decision in a proceeding of each specific fact officially noticed, including any facts or other data in staff memoranda. A party must be given an opportunity to rebut the facts to be noticed.
(f) The skills and knowledge of the Secretary of State may be used in evaluating the evidence.
(g) The party offering an exhibit shall tender the original, or best evidence, of the exhibit to the hearing officer for identification. The party shall furnish one copy to the hearing officer and one copy to each party of record. A document received in evidence may not be withdrawn except with the permission of the hearing officer. If an exhibit has been offered, objected to, and included and the party offering the exhibit withdraws the offer, the hearing officer shall return the exhibit to the party. If the party does not withdraw the offered exhibit, the exhibit shall be numbered for identification, endorsed by the hearing officer with the ruling on the exhibit and included in the record to preserve the exception.
(h) The party with the burden of proof shall mark all exhibits in consecutive order beginning with the number 1. The opposing party shall mark all exhibits in consecutive order beginning with the letter A.
(i) The hearing officer may allow a party to offer an exhibit in evidence after the close of the hearing only on a showing of extenuating circumstances and a certificate of service upon each party of record.
Section 18. Findings and Conclusions. In any proceeding before the Secretary of State:
(a) The parties have a right to submit proposed findings of fact and conclusions of law or a proposal for decision. The hearing officer shall set reasonable deadlines for submission of proposed findings of fact and conclusions of law.
(b) Proposed findings of fact submitted under this section must be supported by concise and explicit statements of underlying facts developed from the record with specific reference to where in the record the facts appear.
(c) The Secretary of State may direct the hearing officer to write proposed findings of fact and conclusions of law. The Secretary of State may also direct the hearing officer to write a recommended decision.
(d) All parties shall have an opportunity to file objections to proposed findings of fact and conclusions of law and orders submitted by any party or by the hearing officer.
(e) After the expiration of time for filing objections, the Secretary of State shall consider the proposal for decision. The Secretary of State may:
(i) adopt the hearing officer’s or any party’s proposal for decision, in whole or in part;
(ii) decline to adopt the hearing officer’s or any party’s proposal for decision, in whole or in part;
(iii) remand the proceeding for further examination by the same or a different hearing officer; or
(iv) direct the hearing officer to give further consideration to the proceeding with or without reopening the hearing.
(f) Parties shall be given an opportunity to file exceptions, replies and briefs in the event a decision is remanded for further consideration.
(g) If on remand additional evidence is received which results in a substantial revision of the proposal for decision, a new proposal for decision shall be prepared, unless the Secretary of State, on remand, has heard the case or read the record. A new proposal for decision must be clearly labeled as such and all parties of record are entitled to file exceptions, replies and briefs.
Section 19. Dismissal. In any proceeding before the Secretary of State:
(a) On its own motion or by a motion of a party, the Secretary of State may dismiss a proceeding, with or without prejudice, under conditions and for reasons that are just and reasonable, including:
(i) failure to timely pay all required fees to the Secretary of State;
(ii) unnecessary duplication of proceedings;
(iii) withdrawal;
(iv) moot questions or obsolete petitions; and
(v) lack of jurisdiction.
Section 20. Orders. In any proceeding before the Secretary of State:
(a) Except as otherwise provided by these rules, the Secretary of State shall issue a final order not later than sixty (60) days after the hearing. A final order of the Secretary of State must be in writing and be signed by the Secretary of State. A final order must include findings of facts and conclusions of law, separately stated.
(b) The Secretary of State shall direct staff to mail by certified mail a copy of the order to each party or the party’s representative.
(c) A final order of the Secretary of State takes effect on the date the order is issued, unless another effective date is provided for in the Order.
(d) If the Secretary of State finds that an immediate final order in a proceeding is required, the Secretary of State shall recite that finding in the order in addition to reciting that the order is final from the date issued. An order issued under this subsection is final and appealable from the date issued. Parties may still submit proposed findings of fact and conclusions of law and order and the Secretary of State may direct the hearing officer to submit recommended findings of fact in accordance with its decision.
(e) The Secretary of State’s decision shall be based upon the record before it. The record shall contain:
(i) all formal or informal notices, pleadings, motions and intermediate rulings;
(ii) evidence received or considered including matters officially noticed;
(iii) questions and offers of proof, objections and rulings thereto;
(iv) any proposed findings and exceptions thereto;
(v) any opinion, findings, decision or order of the agency and any report by the officer presiding at the hearing;
(vi) any brief or memorandum of law filed by the parties or the hearing officer.
Section 21. Ex Parte Communications. In any proceeding before the Secretary of State, W.S. §16-3-111 pertaining to ex parte communications, is hereby incorporated by reference.
Section 22. Informal Hearing Process. In any proceeding before the Secretary of State, a person may agree to an informal Secretary of State’s hearing in order to discuss an alleged or apparent violation of the statutes or the Rules. Oral notice is sufficient to commence an informal hearing. The formal rules governing Secretary of State’s hearings as listed within this chapter are not applicable to informal hearings. After the informal hearing no sanction or penalty may be imposed by the Secretary of State unless all affected parties agree to it. At any time during the informal hearing, a person may request that the hearing terminate and that the Secretary of State proceed with a formal hearing.
Section 23. Default. In any proceeding before the Secretary of State, failure of the registrant to appear at the time and place of the Secretary of State’s hearing, following proper notice, will be deemed a default. Such default will be noted in the record and taken as a waiver of the registrant’s due process rights. The allegations in the complaint may be taken as true and be so noted in the record. The Secretary of State may then impose penalties or make registration discipline rulings against the registrant to the extent authorized by applicable statutes or these rules.
Section 24. Service. In any proceeding before the Secretary of State, service shall be made whether personally or by certified mail.
(a) The person serving the process shall make proof of service thereof to the Secretary of State or to the designated hearing officer.
(b) Proof of service shall be made:
(i) by sworn affidavit with the statement as to date, place and manner of service.
(ii) if by certified mail, by the return receipt.
Section 25. Attorney General May be Present. In any proceeding before the Secretary of State, the Secretary of State may request the Attorney General or a representative of his staff to be present throughout the hearing or any part of the hearing to assist and advise the Secretary of State.
Section 26. Severability. If any provision of these rules or their application to any person or circumstance is held invalid this shall not affect other provisions or applications of these rules which can be given effect without the invalid provision or application and to this end the provisions of these rules are severable.