CHAPTER 20:03:05
ANSWERS AND HEARINGS
Section
20:03:05:01 Scheduling charge for hearing.
20:03:05:01.01 Parties' right to discovery.
20:03:05:01.02 Investigating official's report.
20:03:05:02 Contents of answer -- Construed effect of omissions.
20:03:05:02.01 Further pleadings by the parties and admissions.
20:03:05:03 Service of answer.
20:03:05:04 Notice to answer charge at hearing.
20:03:05:05 Amendment of charge or answer after hearing scheduled.
20:03:05:06 Consolidated hearing.
20:03:05:07 Conduct of hearings.
20:03:05:08 Settlement prior to recommended order and decision.
20:03:05:09 Representation at hearings.
20:03:05:01. Scheduling charge for hearing. The investigating official shall report to the commission when further effort to settle a charge is futile, and the official shall give the commissioners copies of the original and any amended charges and the respondent's written answer submitted pursuant to SDCL 20-13-34. If no answer is received, the official shall include a certified mail receipt for a notice sent to the respondent requesting such an answer. After reviewing the investigating official's report and the charges and answers, the commission shall schedule the matter for a public hearing. The commission may not review the investigating official's file or ask substantive questions about the investigation prior to the hearing, except as necessary to rule on prehearing motions filed by the parties.
Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR 31, effective September 15, 1997.
General Authority:SDCL 20-13-27(2)
20:03:05:01.01. Parties' right to discovery. At any time after notice to answer the parties may use the discovery proceedings available under the Administrative Procedures Act, SDCL chapter 1-26, and the Civil Rules Procedure in SDCL chapter 15-6. The investigating official shall obtain an authorization to disclose under SDCL 1-27-31(2) from the parties to allow the disclosure of the investigative file and shall provide copies to the parties and their counsel of record for the limited purpose of conducting the hearing.
Source: 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR 31, effective September 15, 1997.
General Authority:SDCL 20-13-27(2).
20:03:05:01.02. Investigating official's report. The investigating official's report shall include the name of the parties; the type of unfair or discriminatory practice alleged (e.g., employment discrimination on the basis of race, public accommodation discrimination on the basis of disability); the fact that the investigating official made a probable cause determination; and a statement that further effort to settle the charge is futile.
Source: 24 SDR 31, effective September 15, 1997.
General Authority:SDCL 20-13-27(2).
20:03:05:02. Contents of answer -- Construed effect of omissions. The original answer shall be in writing, with the original signed under oath or affirmation by the respondent or the respondent's attorney, and shall contain the following:
(1) The correct name and post office address of the respondent;
(2) The correct name, post office address, and telephone number of the respondent's attorney, if respondent is represented by an attorney; and
(3) One of the following:
(a) A specific denial or admission of each allegation of the charge;
(b) A denial of any knowledge or information sufficient to form a belief; or
(c) A statement of any matter constituting a defense against any allegation in the charge.
Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-35.
20:03:05:02.01. Further pleadings by the parties and admissions. Further pleadings by the parties shall not be made unless the commission chair or the hearing examiner orders them for purposes of clarification of the issues. No admissions may be construed from lack of response. Any allegation in the charge which is not denied or admitted in the answer, unless the respondent states in the answer that he or she is without knowledge or information sufficient to form a belief, shall be deemed admitted.
Source: 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
20:03:05:03. Service of answer. One copy of the answer shall be served on all parties, the members of the commission, and the division by personal delivery or by certified or registered mail. An affidavit of mailing or service, copies of the receipts for delivery by certified or registered mail, an admission of service, or other competent evidence shall suffice as proof of service which shall be supplied to the investigating official at the time of the filing or within 10 days after the filing of the answer.
Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-34.
20:03:05:04. Notice to answer charge at hearing. If the matter is scheduled for hearing under § 20:03:05:01, all parties shall be given prompt notice of the hearing. In addition to notice requirements provided by SDCL 1-26, the notice shall also contain the following:
(1) The name of the hearing examiner who will conduct such hearing if one has been designated;
(2) A statement advising both the charging party and the respondent of each party's right to be present and to be represented at the hearing in person, by an attorney, or both; and
(3) A statement advising the respondent of his or her right to file an answer to the charge in accordance with § 20:03:05:01 unless the answer was filed prior to the notice.
Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
20:03:05:05. Amendment of charge or answer after hearing scheduled. At any time before the close of the hearing, the charging party may, by written request to the commission or to the hearing examiner, ask permission to amend the charge. The request shall specify the particular amendments to the charge requested by the charging party and shall be served at the same time on all parties to the proceedings. Requests to amend shall be granted unless substantial harm to the respondent can be shown.
At any time before the close of the hearing, the respondent may amend the answer to the original or amended charge. Copies of the respondent's request to amend and the particular amendments requested shall be served at the same time on all parties to the proceedings. Such requests shall be granted unless substantial harm to the charging party can be shown.
Amended charges and amended answers shall conform to the requirements for charges and answers set forth in this chapter.
Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-40.
20:03:05:06. Consolidated hearing. Two or more proceedings against the same respondent arising out of the same set of circumstances or two or more proceedings by the same charging party against two or more respondents arising out of the same set of circumstances may be consolidated by the commission or the hearing examiner, in their discretion, for the purposes of hearing.
Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-40.
20:03:05:07. Conduct of hearings. The hearing shall be conducted by the commission or a hearing examiner designated by the commission.
All testimony taken at the hearing shall be under oath or affirmation.
The commission or the hearing examiner shall arrange for electronic recording or stenographic reporting, or both, of the proceedings of all hearings to be made by a commission agent. If ordered by the commission or the hearing examiner, the record of the hearing shall be transcribed.
Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 1-26-26, 20-13-36, 20-13-37, 20-13-38, 20-13-39, 20-13-41.
20:03:05:08. Settlement prior to recommended order and decision. If, after issuance and service of a written notice of hearing but before the close of the hearing, the charging party and the respondent jointly notify the commission or the hearing examiner in writing that they have agreed to terms of settlement and adjustment, all of which are set forth in detail in the joint notification, the commission or the hearing examiner may order the scheduled hearing date postponed or the hearing recessed if it is already in progress.
If the terms of settlement and adjustment agreed to by the parties are approved by the commission or the hearing examiner, the commission or the hearing examiner shall have the terms of settlement and adjustment prepared in writing and signed by the parties and by the commission or the hearing examiner. The written agreement has the same status and effect as the executed written terms of settlement and adjustment under §§ 20:03:04:05 and 20:03:04:06.
If the terms of settlement and adjustment agreed to by the parties are not approved by the commission, it need not sign the written agreement and may close the case as having been settled on terms not approved by them. If this occurs, the commission need not seek enforcement if there is a violation of the terms of settlement and adjustment.
Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-32.
20:03:05:09. Representation at hearings. At hearings held before the commission, a commissioner, or a hearing examiner, representation shall be by individuals on their own behalf, by attorneys or other agents of the division, or by attorneys licensed to practice law in South Dakota. Out-of-state attorneys appearing at a human rights hearing shall be introduced by an attorney licensed to practice law in South Dakota who must be present at all phases of the proceedings before the commission.
Source: 5 SDR 27, effective October 17, 1978; 6 SDR 59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-32.
