Ala. Admin. Code r. 480-3-7-.02
Current through Register Vol. 43, No. 1, October 31, 2024
Section 480-3-7-.02 - Procedure Before The Board Of Examiners Applicable To Any Proceeding Against Any Certified Mine Foreman Or Fire Boss For Revocation Of His Certificate Of Competency(1)Initiation of Charge. Decertification proceedings before the Board of Examiners are initiated by the filing of a charge, which must be in writing and signed. The charge is filed with the Chief of the Division of Safety and Inspection of the Alabama Department of Industrial Relations. The charge shall contain the name and address of the person against whom the charge is made and a reasonably detailed statement of facts on which the charge is based.(2)Investigation of Charges. When a charge is received in the office of the Chief, the Chief shall promptly direct an inspector from the Division of Safety and Inspection to investigate the allegations of the charge and submit a report of his investigation to the Board of Examiners. The investigation report must report on each allegation of the charge and must state whether the alleged activities were a hazard to the health and/or safety of the underground miners or were otherwise in violation of the Coal Mine Safety Laws of Alabama.(3)Evaluation of the Charge. (a) After receiving the inspector's report, the Board of Examiners shall review the charges, the inspection report, and other information available to them to determine (1) whether the charges are supported by the inspection report, and (2) whether the charges, if taken as true, state a violation of the Alabama Coal Mine Laws. If the Board determines that the charges, or any part of them, are not supported by the available evidence, or that the charges do not state a violation of the Coal Mine Laws, the Board shall dismiss the charges, or any part of said charges. If the Board determines that the charges, if taken as true, state a violation of the Alabama Coal Mining laws but the act or activity complained of does not merit revocation, cancellation or suspension of one's certificate, then in that event, the Board may at its discretion reprimand in writing any or all the parties charged without a formal hearing, unless the reprimanded party or parties within ten (10) days after receipt of the written reprimand, request a formal hearing in writing on the reprimand. In all cases before the Board, a simple majority shall be controlling.(b) If the Board determines by simple majority that the charges merit revocation under the Alabama Coal Mine Laws, then in that event, the Board shall schedule a formal hearing on the charges.(4)Notice of Formal Hearings. All charged parties shall have at least thirty (30) days notice of the date of a formal hearing. Said notice shall include a copy of the charges upon which the Board has determined to proceed. The notice to the charged party shall also include a statement of the procedures of the Board of Examiners and the rights the charged party will have at the formal hearing. Any party may request in writing a postponement or rescheduling of the hearing; such request shall be granted by the Chief for good cause shown.(5)Formal Hearings.(a) The charged party and charging party shall have the right to be represented by counsel, before the Board of Examiners.(b) The charged party and the charging party shall have the right to call, examine and cross-examine witnesses and to introduce relevant evidence into the record. The parties may also submit briefs, engage in oral argument, and submit proposed findings and conclusions to the Board of Examiners. The attendance and testimony of witnesses and the production of evidence material to any matter under investigation may be compelled by subpoena.(c) In the hearing of a contested case, the Board may announce that it shall not be necessary that objections be made during the hearing and upon such announcement it shall not be required or necessary that objection be made to any testimony or evidence which may be offered by either party and on the consideration of such cases, the Board shall consider only such testimony and evidence as is relevant, material, competent and legal, and shall not consider any testimony or evidence which is irrelevant, immaterial, incompetent or illegal, whether objections shall have been made thereto or not, and whether such testimony be brought out on direct, cross or re-direct examination, or is hearsay. The Board shall consider only such testimony as is relevant, material, competent and legal, and shall not be required to point out what testimony or evidence should be excluded or not considered.(d) The Board of Examiners shall conduct the formal hearing in an impartial manner and any member of the Board of Examiners may at any time recuse himself if he deems himself disqualified to hear the charges for any reason.(e) The charging party shall have the burden of proving the charges by a preponderance of the evidence, that is, that it is more likely than not that the charged party is unworthy of official endorsement. The fact that the Chief has referred a charge to the Board for a formal hearing shall not be considered by the Board in determining the merits of that charge.(f) The decision of the Board of Examiners shall be based only on such evidence as is presented at the formal hearing.(g) The charged party and the charging party at their own expense each have the right to request that a court reporter be present to transcribe the proceedings in the formal hearing. In the event any party retains a court reporter, that party shall be obligated to furnish the Board, at the party's expense, a copy of the hearing.(h) At the beginning of the hearing, the Chief shall read a copy of the charges and explain the procedures that will be followed in the hearing. The charging party shall present its evidence in chief. After the charging party has completed the presentation of its evidence, the charged party may present evidence. Then rebuttal evidence may be presented by either party.(6)The Decision of the Board of Examiners. (a) The Board of Examiners may, in its discretion, require the parties to present proposed findings of fact prior to the Board's decision.(b) At the conclusion of the hearing, the Board of Examiners shall meet to decide the charges, and a decision shall be rendered within thirty (30) days. The Board of Examiners shall prepare the decision stating findings of fact and conclusions, including the reasons for the Board's determinations on all material issues. The decision shall be in writing and shall be sent to all parties involved. The decision of the Board of Examiners shall be made by a simple majority of the Board of Examiners.(7)Request for Rehearing. (a) Within fifteen (15) days after the entry of the Board's Order, any party who deems himself aggrieved may file an application for rehearing before the Board of Examiners. The petition shall state the reasons why a rehearing is necessary. It shall not be grounds for a rehearing that new evidence, not presented at the hearing, has been obtained. (1) Within thirty (30) days from the filing of an application, the Board may, at its discretion, enter an Order: (a) Setting a hearing on the application; or(b) With reference to the application without a hearing; or(c) Granting or denying the application.(b) If no Order whatsoever is entered by the Board regarding the application, the application shall be deemed to have been denied as of the expiration of the thirty-day period.(c) In the discretion of the Board of Examiners, the parties shall have the right to oral argument at the rehearing; otherwise, the rehearing shall be decided on briefs of the parties.(d) If the decision of the Board of Examiners is amended, superseded or set aside, the Board shall in its amended order set out the reasons therefore. Author: George Cocoris
Ala. Admin. Code r. 480-3-7-.02
Statutory Authority:Code of Ala. 1975, § 25-2-2(5) and § 25-2-8