2022 -- H 8307

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LC006015

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT

COUNCIL

     Introduced By: Representatives Ruggiero, Handy, Carson, Speakman, Cortvriend,
Batista, Kazarian, McGaw, Edwards, and Craven

     Date Introduced: June 01, 2022

     Referred To: House State Government & Elections

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 46-23-20, 46-23-20.1, 46-23-20.2, 46-23-20.3 and 46-23-20.4 of the

General Laws in Chapter 46-23 entitled "Coastal Resources Management Council" are hereby

amended to read as follows:

     46-23-20. Administrative hearings.

     (a) All contested cases, all contested enforcement proceedings, and all contested

administrative fines shall be heard by the administrative hearing officers, or by subcommittees

officer, except for federal consistency decisions as set forth below and as provided in § 46-23-20.1,

pursuant to the regulations promulgated by the council; provided, however, that no proceeding and

hearing prior to the appointment of the hearing officers officer shall be subject to the provisions of

this section. Notwithstanding the foregoing, the commissioner executive director of coastal

resources management shall be authorized, in his or her discretion, to resolve contested licensing,

penalty and enforcement proceedings through informal disposition pursuant to regulations

promulgated by the council.

     (b) All contested cases, contested enforcement proceedings, and contested administrative

fines except federal consistency decisions pursuant to this chapter shall not be heard or issued

without a hearing at which the public shall have full access to observe and shall be allowed a

reasonable opportunity to testify and/or offer written testimony so long as the testimony is related

to the proceeding. All federal consistency decisions shall be made by the executive director or the

council or after a hearing before the council.

     46-23-20.1. Hearing officers -- Appointment -- Compensation -- Subcommittee

Hearing officer -- Appointment -- Compensation --Subcommittee.

     (a) The governor, with the advice and consent of the senate, shall appoint two (2) one

hearing officers officer who shall be attorneys-at-law an attorney at law, who, prior to their

appointment, shall have practiced law for a period of not less than five (5) years for a term of five

(5) years; provided, however, that the initial appointments shall be as follows: one hearing officer

shall be appointed for a term of three (3) years and one hearing officer shall be appointed for a term

of five (5) years. The appointees shall be addressed as hearing officers.

     (b) The governor shall designate one of the hearing officers as chief hearing officer. The

hearing officers officer shall hear proceedings as provided by this section, and the council, with the

assistance of the chief hearing officer, may promulgate such rules and regulations as shall be

necessary or desirable to effect the purposes of this section.

     (c) A hearing officer shall be devoted full time to these administrative duties, and shall not

otherwise practice law while holding office nor be a partner nor an associate of any person in the

practice of law.

     (d) Compensation for the hearing officers officer shall be determined by the unclassified

pay board.

     (e) Whenever In case of a contested federal consistency decision the chairperson of the

coastal resources management council or, in the absence of the chairperson, the commissioner of

coastal resources makes a finding that the hearing officers are otherwise engaged and unable to

hear a matter in a timely fashion, he or she executive director may appoint a subcommittee which

will act as hearing officers in any contested case coming before the council officer. The

subcommittee shall consist of at least one member; provided, however, that in In all contested

federal consistency cases an additional member shall be a resident of the coastal community

affected, if a individual community is specifically impacted. The city or town council of each

coastal community shall, at the beginning of its term of office, appoint a resident of that city or

town to serve as an alternate member of the aforesaid subcommittee for federal consistency

decisions should there be no existing member of the coastal resources management council from

that city or town available to serve on the subcommittee. Any member of the subcommittee actively

engaged in hearing a case shall continue to hear the case, even though his or her term may have

expired, until the case is concluded and a vote taken thereon. Hearings before subcommittees shall

be subject to all rules of practice and procedure as govern hearings before the hearing officers

officer.

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     46-23-20.2. Clerk.

     The commissioner executive director of coastal resources or his or her designee shall serve

as clerk to the hearing officers officer. The clerk shall have general charge of the office, keep a full

record of proceedings, file and preserve all documents and papers, prepare such papers and notices

as may be required, and perform such other duties as required. The commissioner executive director

shall have the power to issue subpoenas for witnesses and documents and to administer oaths in all

cases before any hearing officer or pertaining to the duties of his or her office.

     46-23-20.3. Prehearing procedure.

     (a) Prior to the commencement of any hearing, the hearing officer may in his or her

discretion direct the parties or their attorneys to appear before him or her for such conferences as

shall be necessary. At the conferences, the hearing officer may order any party to file, prior to the

commencement of any formal hearing, exhibits that the party intends to use in the hearing, and the

names and addresses of witnesses that the party intends to produce in its direct case, together with

a short statement of the testimony of each witness. Following entry of an order, a party shall not be

permitted, except in the discretion of the hearing officer, to introduce into evidence, in the party's

direct case, exhibits which are not filed in accordance with the order. At the conference, the hearing

officer may designate a date before which he or she requires any party to specify what issues are

conceded, and further proof of conceded issues shall not be required. The hearing officer shall also

require the parties to simplify the issues, to consider admissions of fact and of documents which

will avoid unnecessary proof, and to limit the number of expert witnesses. The hearing officer shall

enter an order reciting the concessions and agreements made by the parties, and shall enter an order

on such other matters as are pertinent to the conduct of the hearing, and unless modified, the hearing

shall be conducted by the order.

     (b) The hearing officer may also order the parties to file, prior to the commencement of

any hearing, the testimony of any or all of their respective witnesses, and to submit the testimony

to the hearing officer and the opposing party or the opposing counsel by such date as the hearing

officer shall determine. The witness shall testify under oath, and all of the testimony shall be in a

question and answer format. Save for good cause shown, said testimony shall be the direct

examination of the witness; provided, however, that the witness shall be available at the hearing

for cross-examination by the opposing party or opposing counsel.

     (c) The council, with the assistance of the chief hearing officer, shall promulgate, by

regulation, such other prehearing procedures and/or hearing procedures as deemed necessary,

including the use of portions of the superior court civil rules of discovery where such are not

inconsistent with the applicable provisions of the Administrative Procedures Act, chapter 35 of title

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42.

     46-23-20.4. Hearings -- Orders.

     (a) Subject to the provisions of this chapter, every hearing for the adjudication of a violation

or for a contested matter shall be held before a hearing officer or a subcommittee. The chief hearing

officer shall assign a hearing officer to each matter not assigned to a subcommittee, except for

federal consistency cases. After due consideration of the evidence and arguments, the hearing

officer shall make written proposed findings of fact and proposed conclusions of law which shall

be made public when submitted to the council for review. The council may, in its discretion, adopt,

modify, or reject the findings of fact and/or conclusions of law; provided, however, that any

modification or rejection of the proposed findings of fact or conclusions of law shall be in writing

and shall state the rationales therefor.

     (b) The director of the department of environmental management and the coastal resources

management council shall promulgate such rules and regulations, not inconsistent with law, as to

assure uniformity of proceedings as applicable.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT

COUNCIL

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     This act would reduce the number of coastal resources management council hearing

officers, provide that the executive director of coastal resources serve as the hearing officers clerk,

and permit public testimony at administrative hearings of the coastal resources management

council.

     This act would take effect upon passage.

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