Proposed Regulations Posted for CommentProposed Revision to Disciplinary Regulation 511
Within the proposed revision, additions and deletions are indicated by underlining and lining out respectively, except where the entire regulation or document is new.
Notice to interested persons, in accordance with Regulation 600, Procedure for the Adoption, Amendment, and Repeal of Regulations, Regulation 602, on October 8, 2012, the Certified Professional Guardian Board will act on Disciplinary Regulation 511. The changes and additions are set out below. The Board will meet at 9 am at the SeaTac Office Facility, 18000 International Blvd., Ste 1106, SeaTac, WA.
Purpose:
The following revision to Disciplinary Regulation 511 is proposed to resolve a current problem in the Disciplinary Regulation which requires the Board to hold a disciplinary hearing, even when a certified professional guardian fails to respond to a disciplinary complaint. This requires hiring a hearing officer and incurring unnecessary cost.
511.5
Entry of Default.
511.5.1 Timing: If a certified professional guardian (guardian), after being served with a notice to answer as provided in Reg. 510.4, fails to file an answer to a formal complaint or to an amendment to a formal complaint within the time provided by these rules, the Board’s attorney of record in the disciplinary proceeding may serve the guardian with a written motion for an order of default.
511.5.2 Motion: The Board’s attorney of record must serve the guardian with a written motion for an order of default and a copy of this regulation at least five (5) days before entry of the order of default. The motion for an order of default must include the following:
a) The dates of filing and service of the notice to answer, formal complaint, and any amendments to the complaint; and
b) The Board’s attorney of record statement that the guardian has not timely filed an answer as required by Reg. 510.4 and that the Board’s attorney of record seeks an order of default under this regulation.
511.5.3 Entry of Order of Default: If the guardian fails to file a written answer with the Administrative Office of the Courts (AOC) within twenty (20) days of service of the motion for entry of an order of default, the hearing officer, or if no hearing officer has been assigned, the chair of the Standard of Practice Committee, on proof of proper service of the motion, enters an order finding the guardian in default.
511.5.4 Effect of Order of Default:Upon entry of an order of default, the allegations and violations in the formal complaint and any amendments to the complaint are deemed admitted and established for the purpose of imposing discipline and the guardian may not participate further in the proceedings unless the order of default is vacated under this regulation.
511.6 Proceedings After Entry of an Order of Default.
511.6.1 Service:The AOC serves the order of default and a copy of this rule under regulation 510.4.2.
511.6.2 No Further Notices:After entry of an order of default, no further notices must be served on the guardian except for copies of the decisions of the hearing officer or the Board.
511.6.3 Disciplinary Proceeding: Within 60 days of the filing of the order of default, the hearing officer or the Board must conduct a disciplinary proceeding to recommend disciplinary action based on the allegations and violations established under section (a). At the discretion of the hearing officer or Board, these proceedings may be conducted by formal hearing, written submissions, telephone hearing, or other electronic means. The attorney of record for the Board may present additional evidence including, but not limited to, requests for admission under regulation 511.10[1] and depositions, affidavits, and declarations regardless of the witness’s availability.
511.7 Setting Aside Default.
511.7.1 Motion To Vacate Order of Default: A guardian may move to vacate the order of default and any decision of the hearing officer or Board arising from the default on the following grounds:
a) mistake, inadvertence, surprise, excusable neglect, or irregularity in obtaining the default;
b) erroneous proceedings against a guardian, who was, at the time of the default, incapable of conducting a defense;
c) newly discovered evidence that by due diligence could not have been previously discovered;
d) fraud, misrepresentation, or other misconduct of an adverse party;
e) the order of default is void;
f) unavoidable casualty or misfortune preventing the guardian from defending; or
f) any other reason justifying relief from the operation of the default.
511.7.2 Time:The motion must be made within a reasonable time and for grounds (A) and (C) within one year after entry of the default. If the guardian's motion is based on allegations of incapability of conducting a defense, the motion must be made within one year after the disability ceases.
511.7.3 Burden of Proof:The guardian bears the burden of proving the grounds for setting aside the default. If the guardian proves that the default was entered as a result of a disability which made the guardian incapable of conducting a defense, the default must be set aside.
511.7.4 Service and Contents of Motion: The motion must be filed and served under regulation 510.4.34.1 and 510.4.4 and be accompanied by a copy of guardian's proposed answer to each formal complaint for which an order of default has been entered. The proposed answer must state with specificity the guardian's asserted defenses and any facts that guardian asserts as mitigation. The motion to vacate the order of default must be supported by an affidavit showing:
a) the date on which the guardian first learned of the entry of the order of default;
b) the grounds for setting aside the order of default; and
c) an offer of proof of the facts that the guardian expects to establish if the order of default is vacated.
511.7.4 Response to Motion: Within ten days of filing and service of the motion to vacate, the attorney of record for the Board may file and serve a written response.
511.7.5 Decision:The hearing officer decides a motion to vacate the order of default on the written record without oral argument. If the proceedings have been concluded, the chair of the Board assigns a hearing officer to decide the motion. Pending a ruling on the motion, the hearing officer may order a stay of proceedings not to exceed 30 days. In granting a motion to vacate an order of default, the hearing officer has discretion to order appropriate conditions.
511.7.6 Appeal of Denial of Motion: A guardian may appeal to the Chair a denial of a motion to vacate an order of default by filing and serving a written notice of appeal stating the arguments against the hearing officer’s decision. The guardian must file the notice of appeal within ten days of service on the guardian of the order denying the motion. The appeal is decided on the written record without oral argument. Pending a ruling on the appeal, the Chair may order a stay of proceedings not to exceed 30 days. In granting a motion to vacate an order of default, the Chair has discretion to order appropriate conditions.
511.7.7 Decision To Vacate Is Not Subject to Interim Review:An order setting aside an order of default is not subject to interim review.
Regulation 511 will be renumbered accordingly.
Comment Period:
All comments should be submitted to the Certified Professional Guardian Board by either U.S. mail or e-mail. Comments should be received no later than September 24, 2012. Comments may be sent to the following addresses:
Certified Professional Guardian Board
P.O. Box 41170
Olympia, WA 98504
or
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