§41-22-12. Notice and opportunity for hearing in contested cases; contents of notice; power of presiding officer to issue subpoenas, discovery and protective orders; procedure upon failure of notified party to appear; presentation of evidence and argument; right to counsel; disposition by stipulation, settlement, etc.; contents of record; public attendance at oral proceedings; recordings and transcripts of oral proceedings.

(a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice in writing delivered either by personal service as in civil actions or by certified mail, return receipt requested. However, an agency may provide by rule for the delivery of such notice by other means, including, where permitted by existing statute, delivery by first class mail, postage prepaid, to be effective upon the deposit of the notice in the mail. Delivery of the notice referred to in this subsection shall constitute commencement of the contested case proceeding.

(b) The notice shall include:

(1) A statement of the time, place, and nature of the hearing;

(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) A reference to the particular sections of the statutes and rules involved; and

(4) A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.

(c) In a contested case, on motion of a party, the presiding officer conducting the hearing may issue subpoenas, discovery orders related to relevant matters, and protective orders in accordance with the rules of civil procedure. The agency may set a reasonable fee by rule for the issuance of a subpoena to be paid by the moving party. Process issued pursuant to this subsection shall be enforced by a court in the same manner as process issued by the court. This subsection shall not apply to proceedings before the State Ethics Commission.

(d) If a party fails to appear in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, proceed with the hearing and make a decision in the absence of the party.

(e) Opportunity shall be afforded all parties to respond and present evidence and argument on all material issues involved and to be represented by counsel at their own expense. Provided, where the statutory determinative process is a multi-level or multi-step procedure, the opportunity to present evidence need be afforded the parties at only one level or step in the determination process, unless otherwise provided by statute establishing such determination process.

(f) Unless precluded by statute, informal dispositions may be made of any contested case by stipulation, agreed settlement, consent order, or default or by another method agreed upon by the parties in writing.

(g) The record in a contested case shall include:

(1) All pleadings, motions, and intermediate rulings;

(2) All evidence received or considered and all other submissions; provided, in the event that evidence in any proceeding may contain proprietary and confidential information, steps shall be taken to prevent public disclosure of that information;

(3) A statement of all matters officially noticed;

(4) All questions and offers of proof, objections, and rulings thereon;

(5) All proposed findings and exceptions;

(6) Any decision, opinion, or report by the hearing officer at the hearing; and

(7) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case unless such memoranda or data is protected as confidential or privileged; provided, if such memoranda or data contains information of a proprietary and confidential nature, it shall be protected by the agency from public disclosure.

(h) Oral proceedings shall be open to the public, unless private hearings are otherwise authorized by law. Oral proceedings shall be recorded either by mechanized means or by qualified shorthand reporters. Oral proceedings or any part thereof shall be transcribed at the request of any party with the expense of the transcription charged to the requesting party. The recording or stenographic notes of oral proceedings or the transcription thereof shall be filed with and maintained by the agency for at least five years from the date of decision and shall be made available for inspection by the public, except in those cases where private hearings are authorized by law, or where the proceedings shall be ordered sealed by order of court, or are required to be sealed by statute.

(i) Findings of fact shall be based solely on the evidence in the record and on matters officially noticed in the record.

(Acts 1981, No. 81-855, p. 1534, §12; Acts 1986, No. 86-472, p. 880, §1; Acts 1993, No. 93-627, p. 1051, §1.)