DAR File No. 27623

Administrative Services, Records Committee

R35-5

Subpoenas Issued by the Records Committee

NOTICE OF PROPOSED RULE

DAR File No.: 27623
Filed: 12/29/2004, 02:42
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

After a five-year review, the State Records Committee decided it was necessary to make an amendment.

Summary of the rule or change:

The definitions under Section R35-5-2 will be moved to the newly created Rule R35-1a, and Section R35-5-3 will be renumbered to Section R35-5-2. (DAR NOTE: The proposed new rule of R35-1a is under DAR No. 27621 in this issue.)

State statutory or constitutional authorization for this rule:

Subsection 63-2-502(2)(a)

Anticipated cost or savings to:

the state budget:

There is no cost impact to the state budget since this is a change only in the location of the definitions.

local governments:

There is no cost impact to local government since this is a change only in the location of the definitions.

other persons:

There is no cost impact to other persons since this is a change only in the location of the definitions.

Compliance costs for affected persons:

There is no cost impact since this is a change only in the location of the definitions.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule change allows for easier access to the definitions and does not create any fiscal impact on businesses. Camille Anthony, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Janell Tuttle at the above address, by phone at 801-538-3052, by FAX at 801-538-3354, or by Internet E-mail at jtuttle@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/14/2005

This rule may become effective on:

02/15/2005

Authorized by:

Patricia Smith-Mansfield, Director

RULE TEXT

R35. Administrative Services, Records Committee.

R35-5. Subpoenas Issued by the Records Committee.

R35-5-1. Authority and Purpose.

In accordance with Subsection 63-2-403(10), Utah Code, this rule intends to establish the procedures for issuing subpoenas by the Records Committee.

[R35-5-2. Definitions.

In addition to terms defined in Section 63-2-102, Utah Code, and in rule Section R35-2-2 of the Utah Administrative Code, the following apply to this rule:

(a) "Order" means the Decision and Order issued by the State Records Committee as provided by Subsection 63-2-403(11), Utah Code.

(b) "Subpoena" means a written order requiring appearance before the State Records Committee to give testimony in accordance with Section 63-2-403, Utah Code.

]

R35-5-[3]2. Subpoenas.

(a) In order to initiate a request for subpoena, a party shall file a written request with the chair of the state records committee at least 14 business days prior to a hearing. The request shall describe the purpose for which the subpoena is sought, and state specifically why, given that hearsay is available before the state records committee, the individual being subpoenaed must be present.

(b) The chair of the state records committee shall review each subpoena request and grant or deny the request within three business days, based on the following considerations:

(1) a weighing of the proposed witness' testimony as material and necessary; or

(2) a weighing of the burden to the witness against the need to have the witness present.

(c) If the chair grants the request, the requesting party may obtain a subpoena form, signed, but otherwise in blank, from the executive secretary of the state records committee. The requesting party shall fill out the subpoena and have it served upon the proposed witness at least seven business days prior to a hearing.

(d) A subpoenaed witness shall be entitled to witness fees and mileage reimbursement to be paid by the requesting party. Witnesses shall receive the same witness fees and mileage reimbursement allowed by law to witnesses in a state district court.

(e) A subpoenaed witness may file a motion to quash the subpoena with the executive secretary at least three business days prior to the hearing at which the witness has been ordered to be present, and shall simultaneously transmit a copy of that motion to the parties. Such motion shall include the reasons for quashing the subpoena, and shall be granted or denied based on the same considerations as outlined in Subsection R35-5-3(b)(2). As part of the motion to quash, the witness must indicate whether a hearing on the motion is requested. If a hearing is requested, it shall be granted. All parties to the appeal have a right to be present at the hearing. The hearing must occur prior to the appeal hearing, and shall be heard by the committee chair. The hearing may be in person, or by telephone, as determined by the committee chair. A decision on the motion to quash shall be rendered prior to the appeal hearing.

(f) If the chair denies the request for subpoena, the denial is final and unreviewable.

KEY: government documents, state records committee, records appeal hearings

[July 16, 1999]2005

Notice of Continuation July 2, 2004

63-2-502(2)(a)

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For questions regarding the content or application of this rule, please contact Janell Tuttle at the above address, by phone at 801-538-3052, by FAX at 801-538-3354, or by Internet E-mail at jtuttle@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.