SECTION 455:10-17-7. Non-binding arbitration conference

(a)   General. The non-binding arbitration conference provides an opportunity for each party to present witnesses and evidence in support of his or her respective case for decision by an Alternative Dispute Resolution Program (ADRP) facilitator or a panel of ADRP facilitators. Proof is presented but no formal rules of evidence apply. The Executive Director may schedule a non-binding arbitration conference after a preparation conference.

(b)   Party responsibility. Each party shall be present, on time and prepared. Failure to do so may result in dismissal of the appeal or other sanctions unless good cause is shown.

(1)   Each party to the appeal shall speak for himself or herself.

(2)   The appointing authority may name a spokesperson to speak and act on behalf of the agency. The spokesperson shall have direct knowledge of or involvement in the incidents surrounding the appeal. The appointing authority shall not name a legal representative to act in this capacity unless the legal representative has direct knowledge of or involvement in the incidents surrounding the appeal.

(c)   Representation. Each party to the appeal may have a representative accompany him or her to the conference to act in an advisory role only. A representative shall not be allowed to interrogate or question any party or witness and shall not otherwise have or take an active role in the conference.

(d)   Facilitator. The Executive Director may assign a single ADRP facilitator or a panel of three ADRP facilitators. If the Executive Director assigns a panel, he or she shall name a chair ADRP facilitator who shall be responsible for administrative matters. The ADRP facilitator(s) shall:

(1)   take an active role in the conference to determine the facts and maintain neutrality and impartiality at all times;

(2)   have the flexibility to adapt the conference to the situation at hand;

(3)   consider any matters which will aid in the fair and prompt resolution and disposition of the appeal, including settlement;

(4)   provide each party an opportunity to present his or her case;

(5)   rule on whether witnesses, documents, requests or motions are relevant; and

(6)   terminate the conference because of the disruptive behavior or conduct of a party or representative.

(e)   Conference. The conference shall be informal, structured by the ADRP facilitator(s) and open to the public. The conference shall be recorded by audio tape recording. Court reporters shall not normally be appropriate to record the conference.

(1)   Notice. At least 7 calendar days before the scheduled conference, the Commission shall notify the parties of the date, time and location of the conference.

(2)   Location. The conference shall be held at the Commission office or any other location determined appropriate.

(3)   Witnesses. Witnesses shall not be present during the conference except when giving testimony. The ADRP facilitator(s) shall put the witness under oath or affirmation and may ask questions of the witness at any point.

(4)   Record of documents. The ADRP facilitator(s) shall maintain a record of documents to reflect all documents submitted at the conference as exhibits.

(5)   Record of witnesses. The ADRP facilitator(s) shall maintain a record of witnesses to reflect all witnesses and giving testimony at the conference.

(6)   Continuance. A request for continuance shall normally be filed in writing no less than 3 calendar days before the scheduled non-binding arbitration conference date in accordance with OAC 455:10-3-17. A lesser period of time may be permitted for good cause shown.

(A)   The ADRP facilitator(s), or in his or her absence, the Executive Director, shall rule on a request and shall grant a request only in those instances where extraordinary circumstances exist and good cause has been shown.

(B)   A continuance shall be granted to a date certain and in no case shall a combination of continuances exceed a total of 30 calendar days except for good cause shown.

(7)   Closing. The ADRP facilitator(s) shall close the conference after each party has presented his or her case, unless sooner terminated for other just cause.

(f)   Proposed order. The ADRP facilitator(s) shall file a proposed order with the Commission within 10 calendar days after the conference is closed. The proposed order shall include findings of fact and conclusions of law. Findings of fact shall be written in clear and concise language.

(1)   The Executive Director shall issue the proposed order to the parties within 5 calendar days after the proposed order is filed.

(2)   Within 10 calendar days after the issue date of the proposed order, any party may file a response and include any additional relevant information for consideration by the ADRP facilitator(s). The time limit may be extended for good cause.

(3)   Any party filing a response or providing additional relevant information should provide a copy to all other parties.

(g)   Final order. The ADRP facilitator(s) shall review the available relevant evidence, including but not limited to, the petition for appeal, evidence submitted at the conference, the proposed order, any responses and additional relevant information filed in response to the proposed order, and applicable laws and rules.

(1)   Within 10 calendar days after the time limit for the receipt of responses to the proposed order, the ADRP facilitator(s) shall file a final order with the Commission. The final order shall include findings of fact and conclusions of law. Findings of fact shall be written in clear and concise language.

(2)   The Executive Director shall issue the final order to the parties within 5 calendar days after the final order is filed.

(3)   The final order shall become final, conclusive and enforceable unless a rejection is filed in accordance with OAC 455:10-17-7(h) below.

(h)   Rejection of final order. Within 10 calendar days after the issue date of the final order, any party may file a request for rejection and request the matter be heard through a hearing. The request for rejection shall include an affidavit of service to all other parties.

(1)   Within 7 calendar days after receiving a timely filed request for rejection, the Executive Director shall schedule the matter for a prehearing conference and hearing.

(2)   If after the hearing, the final decision to sustain or deny the appeal is the same as the final decision in the non-binding arbitration conference, or if the filing party fails to advance or gain in the decision, the party filing the request for rejection shall bear the costs of the hearing.

(i)   Costs. For purposes of this section, costs of the hearing shall include costs to the Commission, costs of witnesses appearing at the hearing and reasonable attorney fees and costs. Reasonable costs and attorney fees shall be determined according to OAC 455:10-15-3 and OAC 455:10-15-4.

(1)   Within 10 calendar days after the final decision is issued, a request for award of attorney fees and costs associated with the hearing may be filed for decision by the Administrative Law Judge. The request shall be filed according to OAC 455:10-15-5.

(2)   Within 10 calendar days after receipt of a request, the Administrative Law Judge shall file an addendum decision in accordance with OAC 455:10-15-6.

(3)   The amount of award determined by the Administrative Law Judge shall be final and conclusive except as provided in the Administrative Procedures Act and this Chapter.

[Source: Added at 11 Ok Reg 1871, eff 5-12-94; Amended at 19 Ok Reg 2376, eff 7-1-02]