References
are to North Carolina Administrative Code, Title 21 - Occupational Licensing
Boards, Chapter 8 - Board of Certified Public Accountant Examiners.
SUBCHAPTER 8C ‑ CONTESTED CASES
SECTION .0100 ‑
PROCEDURE IN CONTESTED CASES
21 NCAC 08C .0103 ADDITIONAL INFORMATION ON NOTICES OF
HEARINGS
In addition
to the items required by G.S. 150B‑38 to be included in a notice of
hearing for a contested case before the Board, such a notice shall include the
following information:
(1) the name, title, address and phone
number of Board personnel to contact for further information or discussion; and
(2) the date and place for any pre‑hearing
conference.
21 NCAC 08C .0104 WRITTEN PETITION FOR INTERVENTION
A person
desiring to intervene in a contested case must file a written petition with the
Board at its address set forth in 21 NCAC 8A .0102. A petition to intervene
shall be filed in accordance with G.S. 1A‑1, Rule 24.
21 NCAC 08C .0105 NOTICE OF ALLOWANCE OR DENIAL OF PETITION
TO INTERVENE
(a) If a petition for intervention is one of
right, or if a petition for permissive intervention is allowed by the Board,
the Board will promptly send written notice of the intervention to all parties,
including the intervenor. In cases of permissive
intervention, such notification will also include a statement of any
limitations of time, subject matter, evidence or any other matters the Board
thereby imposes upon the intervenor.
(b) If the Board denies a petition for permissive
intervention, it will promptly send written notice of such denial to the
petitioner and all parties setting forth its reasons for denying the petition.
21 NCAC 08C .0107 DISQUALIFICATION OF BOARD MEMBER
(a) A Board member shall be disqualified from
participating in the hearing of any contested case or performing any duties
related to a contested case if personal bias or other factors would keep the
member from being able to participate in the hearing or to perform any duty
related to the contested case or hearing in an impartial manner.
(b) If a party to a hearing or any other
interested person has a reasonable good faith belief that a Board member should
be disqualified, that person shall submit an affidavit of disqualification to
the Board.
21 NCAC 08C .0108 AFFIDAVIT OF DISQUALIFICATION
An affidavit
of disqualification must state all the facts the affiant deems relevant to the
disqualification of the Board member.
21 NCAC 08C .0109 FILING AFFIDAVIT OF DISQUALIFICATION
An affidavit
of disqualification must be filed with the Board office before commencement of
the hearing. However, it may be filed after the commencement of the hearing if
it is filed within a reasonable time after the affiant knows or reasonably
should know the facts giving rise to the affiant's reasonable belief that the
Board member should be disqualified from participating in a contested case
under this Section.
21 NCAC 08C .0110 DETERMINATION OF DISQUALIFICATION
(a) The members of the Board not challenged in an
affidavit of disqualification shall determine whether the challenged Board
member should be disqualified from participating in the hearing of a contested
case. In making this determination, those Board members may:
(1) call upon the challenged Board member to
furnish relevant information; and
(2) appoint a member of the Board or a
member of the staff to investigate the allegations of the affidavit and report
their findings and recommendations to the Board.
(b) The Board will maintain a record of the
proceedings on disqualification and a written summary of its conclusions as
part of the record of the contested case.
21 NCAC 08C .0111 NEW HEARING AFTER DISQUALIFICATION
(a) Upon request of a party to a contested case,
the Board will conduct a new hearing of the contested case if a Board member
was disqualified after the beginning of the initial hearing and if either:
(1) less than a majority of Board members
remained at the hearing subsequent to the disqualification, or
(2) when the Board determines that
substantial prejudice would result if a new hearing was not conducted.
(b) The Board member who has been disqualified
shall not participate in the determination of whether substantial prejudice
would result if a new hearing was not conducted.
21 NCAC 08C .0114 PRE‑HEARING CONFERENCE
(a) The Board may itself conduct an informal pre‑hearing
conference for the purposes set forth in 21 NCAC 8C .0115 or it may designate a
committee to conduct such a conference. The committee so designated may be
composed entirely of staff members.
(b) Evidence of conduct or evidence of statements
made during the pre‑hearing conference are not admissible at the hearing
in a contested case. However, evidence otherwise discoverable shall not be
excluded merely because it is presented during the pre‑hearing
conference.
21 NCAC 08C .0115 PURPOSES OF A PRE‑HEARING CONFERENCE
The purposes
of a pre‑hearing conference in a contested case are:
(1) to determine the possibility of
simplifying or eliminating the issues;
(2) to facilitate the stipulation to facts
or findings by the parties;
(3) to identify evidence which will be
needed at the hearing;
(4) to determine the validity of proposed
evidence;
(5) to determine the need for depositions or
subpoenas;
(6) to determine the relevance of findings
in some other case to the case at hand;
(7) to determine the need for consolidation
of cases or joint hearings; and
(8) to determine any other matters which
will reduce cost or save time or otherwise aid in the expeditious disposition
of the contested case.
21 NCAC 08C .0116 NOTICE OF PRE‑HEARING CONFERENCE
Notice of a
pre‑hearing conference in a contested case will be given in the notice of
hearing for the case or, if the decision to hold a pre‑hearing conference
is made after the notice of hearing has been sent, in a subsequent notice.
21 NCAC 08C .0118 CONTINUANCES
A continuance
of a pre‑hearing conference will be granted to a party only under
compelling circumstances, especially when a continuance has been previously
requested by and granted to the party. Under no circumstances is the Board
required to grant continuances.
21 NCAC 08C .0121 SERVICE OF SUBPOENAS
(a) Subpoenas shall be served as the officer
issuing the subpoenas shall direct and as may be appropriate to the
circumstances of the case. The Executive Director, Board counsel, or staff
member designated by the Executive Director may serve subpoenas on behalf of
the Board pursuant to G.S. 1A‑1, Rule 45(e).
(b) Subpoenas shall be issued in duplicate with a
"Return of Service" form attached to each copy. The person serving
the subpoena shall fill out the attached "Return of Service" form for
each copy and promptly return one copy of the subpoena and the completed
"Return of Service" form to the Board office.
21 NCAC 08C .0122 OBJECTIONS TO SUBPOENAS
(a) A person who is subject to a subpoena or a
party to the contested case may file an objection to the subpoena with the
Board within ten days of the issuance of the subpoena.
(b) An objection to a subpoena must include a
concise but complete statement of reasons why the subpoena should be revoked or
modified. These reasons may include, for example, lack of relevancy of the
evidence requested, lack of particularity in the description of the evidence
sought, or any other reason sufficient in law for holding the subpoena invalid,
such as the evidence is privileged or the appearance or production would be so
disruptive as to be unreasonable in light of the significance of the evidence
sought or would produce some other undue hardship.
(c) The person objecting to the subpoena must
serve a copy of the objection upon the party who requested the subpoena.
Service must be on or before the date the objection is filed with the Board's
office and may be accomplished by the United States Postal Service.
21 NCAC 08C .0123 RESPONSES TO OBJECTIONS TO SUBPOENAS
(a) The person requesting the subpoena may file a
written response to the objection to the subpoena with the Board within ten
days of service of the objection.
(b) The person responding shall also serve a copy
of the response upon the person who objected to the subpoena. Service must be
on or before the date the response is filed with the Board's office and may be
accomplished by the United States Postal Service.
21 NCAC 08C .0124 HEARINGS ON SUBPOENA CHALLENGES
(a) After receipt of an objection to a subpoena,
the Board shall schedule a public hearing on the objection within a reasonable
time and shall issue a notice of hearing to the person requesting the subpoena
and to the person objecting to it. The Board may also give notice to all other
parties to the contested case.
(b) The hearing on objections to a subpoena shall
be limited to the issues properly raised by the objection and any response, and
all parties to the contested case may present evidence at the hearing relevant
to those issues.
(c) Promptly after the close of a hearing, the
Board shall rule on the objection to the subpoena and shall issue a written
decision. The copy of the decision will be issued to all parties to the hearing
and will be made a part of the permanent record of the contested case.
21 NCAC 08C .0125 RECORDS OF CONTESTED CASES
A copy of the
record of a contested case proceeding may be obtained by requesting such in
writing from the Board.
21 NCAC 08C .0126 HEARING EXHIBITS
(a) The Board staff shall serve upon the
Respondent copies of documents it plans to offer as evidence at a contested
case hearing at least 14 business days prior to the scheduled hearing.
(b) Respondent shall likewise serve upon the
Board staff copies of documents Respondent plans to offer as evidence at the
hearing at least 14 business days prior to the scheduled hearing.
(c) Additional exhibits may be introduced by the
Board staff or Respondent and admitted into evidence at the hearing if the
presiding officer determines that the document(s) were not otherwise available
to the party 14 business days prior to the hearing or the documents(s) are
offered in response to documents served by the other party.
(d) Respondents shall supply at the hearing 16
copies of any document(s) that is of this Rule not served upon the Board staff
in advance as prescribed in Paragraph (b) of this Rule.