La. Admin. Code tit. 46 § LXX-15219

Current through Register Vol. 50, No. 11, November 20, 2024

Section LXX-15219 - Board's Action on Sworn Complaints

A. After receiving a sworn complaint as defined in §15005 of this Subpart from any source, the board shall act on the complaint at its next meeting provided it is submitted at least 30 days prior to the meeting. Within 60 days of its meeting, the board shall notify the complainant and the respective Board of Commissioners or Examiners in writing of its action to either:

1. refer the matter to the appropriate Board of Commissioners or Examiners for investigation, the results of which are to be submitted to the board in the form of a report; or

2. conduct investigations and, if necessary, conduct hearings pursuant to the Administrative Procedure Act and the rules adopted by the board.

B. Conducting Investigations. After the board makes a decision under §15219. A.2 of this Chapter, the board may begin its investigation under the following procedures.

1. The board may appoint an investigating officer to investigate the complaint and report to the board.

2. Following the board's decision to conduct an investigation under §15219. A.2 of this Chapter, above, and prior to the acceptance of an administrative complaint, which begins the commencement of administrative proceedings and noted in §15219. I of this Chapter, the Board shall follow the provisions of the Louisiana Open Meetings Law, R.S. 42:6.1(A)(4), which provides that investigative proceedings regarding allegations of misconduct may be held in an executive session pursuant to R.S. 42:6.

3. If the board, or its designated investigating officer, is of the opinion that the complaint, if true, is sufficient to justify a further investigation, it shall appoint an investigating officer, or authorize its designated investigating officer to conduct a full investigation of the complaint.

4. Once authorized under §15219. B.2 of this Chapter, the investigating officer, who may be an active or retired member of Board of Examiners of Bar Pilots for the Port of New Orleans, the Board of River Port Pilot Commissioners for the Port of New Orleans, the Board of Examiners for the New Orleans and Baton Rouge Steamship Pilots for the Mississippi River, or the Board of River Port Pilot Commissioners and Examiners for the Calcasieu River Waterway. He shall be assisted by an attorney, named as independent prosecutor by the board. In the event that the investigating officer, as contemplated by either §15219. B of this Chapter, is an active member of the board, he shall be recused from any participation in the decision of the case.

5. If the investigating officer is of the opinion that the conduct in question is not sufficient to justify further proceedings, he shall make a reasoned report to the board, which may accept or reject his recommendation.

C. If the investigating officer is of the opinion that the conduct complained of is sufficient to justify further proceedings and the board has accepted his recommendations, or if the board has rejected his recommendation to dismiss the complaint, he shall give notice to the state commissioned pilot, the Board of Commissioners or Examiners, and the complainant, by regular mail, of the facts or conduct on which the complaint is based, and offer the pilot an opportunity to show compliance with the laws or regulations allegedly violated. If, in the opinion of the investigating officer, the pilot is able to demonstrate such compliance, then the investigating officer shall make a report to the board, recommending to the board that the complaint be dismissed. The board may accept or reject the recommendation of the investigating officer.

D. If the state commissioned pilot is unable to demonstrate such compliance, or if the board rejects the recommendation of the investigating officer to dismiss the complaint, the investigating officer shall, with the assistance of the board-appointed prosecutor, initiate proceedings by filing a written administrative complaint with the board, which shall be signed by the investigating officer.

E. The written administrative complaint shall name the accused state commissioned pilot as respondent in the proceedings. It shall also set forth, in separately numbered paragraphs, the following:

1. a concise statement of material facts and matters alleged and to be proven by the investigating officer, including the facts giving rise to the board's jurisdiction over the respondent;

2. the facts constituting legal cause under law for administrative action against the respondent; and

3. the statutory or regulatory provisions alleged to have been violated by respondent.

F. The administrative complaint shall conclude with a request for the administrative sanction sought by the investigating officer, and shall state the name, address, and telephone number of administrative complaint counsel (the prosecutor) engaged by the board to present the case at the evidentiary hearing before the board.

G. The board may either accept or reject the administrative complaint.

H. If the board rejects the administrative complaint, the case may be either dismissed or referred back to the investigating officer for further investigation.

I. Administrative Proceedings Commence: If the board accepts the administrative complaint, the board shall docket the administrative complaint and schedule the administrative complaint for hearing before the board not less than 45 days nor more than 180 days thereafter; provided, however, that such time may be lengthened or shortened as the board determines may be necessary or appropriate to protect the public interest or upon motion of the investigating officer or respondent pursuant to a showing of proper grounds. In the event the respondent's commission as a pilot has been suspended by the board pending hearing, the evidentiary hearing on the administrative complaint shall be noticed and scheduled not more than 45 days after the filing of the administrative complaint.

J. A written notice of the administrative complaint and the time, date, and place of the scheduled hearing thereon shall be served upon the respondent and the Board of Commissioners or Examiners. The notice shall include a statement of the legal authority and jurisdiction under which the hearing is to be held, and shall be accompanied by a certified copy of the administrative complaint.

K. The case shall be prosecuted by the independent prosecutor, also referred to as administrative complaint counsel, who shall handle the case to its conclusion. He shall be entirely independent of the authority of the Board in going forward with the matter, and may conduct such further investigation, and prepare and try the case in such manner as he may deem appropriate.

L. Within 15 days of service of the administrative complaint, or such longer time as the board, on motion of the respondent, may permit, the respondent may answer the administrative complaint, admitting or denying each of the separate allegations of fact and law set forth therein. Any matters admitted by respondent shall be deemed proven and established for purposes of adjudication. In the event that the respondent does not file a response to the administrative complaint, all matters asserted therein shall be deemed denied.

M. Any respondent may be represented in an adjudication proceeding before the board by an attorney at law duly admitted to practice in the State of Louisiana. Upon receipt of service of an administrative complaint pursuant to these rules, or thereafter, a respondent who is represented by legal counsel with respect to the proceeding shall, personally or through such counsel, give written notice to the Board of the name, address, and telephone number of such counsel. Following receipt of proper notice of such representation, all further notices, administrative complaints, subpoenas or other process related to the proceeding shall be served on respondent through his or her designated counsel of record.

N. All pleadings, motions or other papers permitted or required to be filed with the board in connection with a pending adjudication proceeding shall be filed with the office of the board and shall by the same method of delivery be concurrently served upon administrative complaint counsel designated by the administrative complaint, if filed by or on behalf of the respondent, or upon respondent, through counsel of record, if any, if filed by administrative complaint counsel.

1. All such pleadings, motions or other papers shall be submitted on plain white letter-size (8 1/2" x 11") bond, with margins of at least one inch on all sides, and double spaced except as to quotations and other matters customarily single spaced, shall bear the caption and docket number of the case as it appears on the administrative complaint, and shall include the certificate of the attorney or person making the filing that service of a copy of the same has been effected in the manner prescribed by Subsection N of this Section.

2. The board may refuse to accept for filing any pleading, motion or other paper not conforming to the requirements of this Section and shall return such filing to the sender with an explanation of error and without prejudice.

O. Motions. Motions for continuance of hearing, for dismissal of the proceeding, and all other pre-hearing motions shall be filed not later than 30 days following service of the administrative complaint on the respondent or 15 days prior to the hearing, whichever is earlier. Each pre-hearing motion shall be accompanied by a memorandum which shall set forth a concise statement of the grounds upon which the relief sought is based and the legal authority therefore. A motion may be accompanied by an affidavit as necessary to establish facts alleged in support of the motion. Within 10 days of the filing of any such motion and memorandum or such shorter time as the board may order, the investigating officer, through administrative complaint counsel, may file a memorandum in opposition to or otherwise setting forth the investigating officer's position with respect to the motion.

1. A motion for continuance of hearing shall be filed within the delay prescribed by this Subpart, provided that the board may accept the filing of a motion for continuance at any time prior to hearing upon a showing of good cause not discoverable within the time otherwise provided for the filing of pre-hearing motions.

2. A scheduled hearing may be continued by the board only upon a showing by respondent or administrative complaint counsel that there are substantial legitimate grounds that the hearing should be continued, balancing the right of the respondent to a reasonable opportunity to prepare and present a defense to the complaint and the board's responsibility to protect the public health, welfare and safety. Except in extraordinary circumstances evidenced by verified motion or accompanying affidavit, the board will not ordinarily grant a motion to continue a hearing that has been previously continued upon motion of the same party.

3. If an initial motion for continuance is not opposed, it may be granted by the presiding officer.

4. Any pre-hearing motion, other than an unopposed initial motion for continuance of hearing which may be granted by the chairman of the board, shall be referred for decision to the board member designated by the board as the presiding officer of the board with respect to the proceeding for ruling. The presiding officer in each matter before the board may, in his discretion, refer any pre-hearing motion to the board for disposition, and any party aggrieved by the decision of a presiding officer on a pre-hearing motion may request that the motion be reconsidered by the entire board.

5. Pre-hearing motions shall ordinarily be ruled upon by the presiding officer or the board, as the case may be, on the papers filed without hearing. On the written request of respondent or of administrative complaint counsel, however, and on demonstration that there are good grounds therefore, the presiding officer may grant opportunity for hearing by oral argument on any pre-hearing motion.

P. Upon request of the respondent or administrative complaint counsel and compliance with the requirements of this Section, the chairman of the board or the presiding officer shall sign and issue subpoenas in the name of the board requiring the attendance and giving of testimony by witnesses and the production of books, papers, and other documentary evidence at an adjudication hearing.

Q. No subpoena shall be issued unless and until the party who wishes to subpoena the witness first deposits with the board a sum of money sufficient to pay all fees and expenses to which a witness in a civil case is entitled pursuant to R.S. 13:3661 and R.S. 13:3671. Witnesses subpoenaed to testify before the board only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examination, and to state the results thereof, shall receive such additional compensation from the party who wishes to subpoena such witnesses as may be fixed by the board with reference to the value of time employed and the degree of learning or skill required.

R. In any case of adjudication noticed and docketed for hearing, counsel for respondent and administrative complaint counsel may agree, or the presiding officer may require, that a pre-hearing conference be held among such counsel, for the purpose of simplifying the issues for hearing and promoting stipulations as to facts and proposed evidentiary offerings which will not be disputed at hearing.

S. Following such pre-hearing conference the parties shall, and without such conference the parties may, agree in writing on a pre-hearing stipulation which should include:

1. a brief statement by administrative complaint counsel as to what such counsel expects the evidence to be presented against respondent to show;

2. a brief statement by respondent as to what the evidence and arguments in defense are expected to show;

3. a list of the witnesses to be called by administrative complaint counsel and by respondent, together with a brief general statement of the nature of the testimony each such witness is expected to give;

4. any stipulations which the parties may be able to agree upon concerning undisputed claims, facts, testimony, documents, or issues; and

5. an estimate of the time required for the hearing.

T. Adjudication hearings, being the hearings conducted on the merits of the administrative complaint, shall be conducted in open session in accordance with the Louisiana Open Meetings Law, R.S. 42:6.

U. Adjudication hearings, including the presentation of facts and arguments, examination and cross-examination of witnesses, offering and introduction of evidence and exhibits, testimony, rulings on evidentiary and procedural questions, compiling of the record, findings of fact, weighing of evidence and notice of facts, administration of oaths, and regulation of the hearing shall be conducted in accordance with the provisions of the APA, R.S. 49:955 to 956, except that Notice as defined in §15005 of this Subpart shall govern all requirements concerning notice, issue of notice, and service. Additionally, the use of the term "agency" or "agencies" in the APA shall mean board, and R.S. 49:956(d) is modified in part by the provisions of R.S. 34:1135.N.

V. Except as otherwise governed by the provision of these rules, adjudication hearings before the board shall be governed by the Louisiana Code of Evidence, insofar as the same may be applied, and the provisions of APA, R.S.49:960 shall be applicable to the board and the parties and use of the term "agency" or "members" or "employees" shall mean board, board members, and staff.

W. In any adjudication hearing, the board's deliberations may be held in executive session pursuant to R.S. 42:6.1.A(1).

X. In any adjudication hearing, the board's decision shall be in an open meeting.

Y. Following notice and a hearing, the board may either:

1. acquit the pilot; or

2. impose sanctions against the pilot, including but not limited to reprimand of the pilot, order the pilot to participate in remedial training, impose a probationary period, impose a fine not to exceed $10,000 order the pilot to pay the costs of the hearings inclusive of attorney fees, or recommend to the governor that the pilot's commission be suspended or revoked.

3. The board shall have the authority to suspend a pilot's commission in the event of an emergency pursuant to the emergency procedures set out in the APA, R.S. 49:961, which provides that no revocation, suspension, annulment, or withdrawal of any state commission is lawful unless, prior to the institution of agency proceedings, the board gives notice by mail to the state commissioned pilot of facts or conduct which warrant the intended action, and the state commissioned pilot is given an opportunity to show compliance with all lawful requirements for the retention of the state commission. If the board finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a state commission may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

La. Admin. Code tit. 46, § LXX-15219

Promulgated by the Office of the Governor, Board of Louisiana River Pilot Review and Oversight, LR 36:988 (May 2010).

AUTHORITY NOTE: Promulgated in accordance with R.S. 34:1135.G, R.S. 34:1135.N, R.S. 42:6.1, R.S. 42:6, R.S. 42:6.1(A)(4), R.S. 49:961.C, R.S. 49:955-56, Pilot Rules, Title 46 §304