Minnesota Administrative Rules

4525.0210 DETERMINATIONS PRIOR TO FORMAL INVESTIGATION.

Subpart 1.

[Repealed, L 2017 1Sp4 art 3 s 18]

Subp. 2.

Making the prima facie determination.

In determining whether a complaint states a prima facie violation, any evidence outside the complaint and its attachments may not be considered. Arguments of the respondent, which are not themselves evidence, must be considered.

If a finding is made that a complaint does not state a prima facie violation, the complaint must be dismissed without prejudice. The dismissal must be ordered by the board member making the determination or by the full board if the full board makes the determination. The determination must be in writing and must indicate why the complaint does not state a prima facie violation.

If a finding is made that a complaint states a prima facie violation, the board chair must schedule the complaint for a probable cause determination.

Subp. 3.

Action after prima facie violation determination.

The executive director must promptly notify the complainant and the respondent of the prima facie determination. The notice must include a copy of the prima facie determination.

If a determination is made that a complaint states a prima facie violation, the notice also must include the date of the meeting at which the board will make a probable cause determination regarding the complaint and a statement that the complainant and the respondent have the opportunity to be heard before the board makes the probable cause determination.

Subp. 4.

Action after probable cause not found.

If the board finds that probable cause does not exist to believe that a violation has occurred, the board must order that the complaint be dismissed without prejudice. The order must be in writing and must indicate why probable cause does not exist to believe that a violation has occurred.

The executive director must promptly notify the complainant and the respondent of the board's determination. The notice must include a copy of the order dismissing the complaint for lack of probable cause.

Subp. 5.

Action after probable cause found.

If the board finds that probable cause exists to believe that a violation has occurred, the board then must determine whether the alleged violation warrants a formal investigation.

When making this determination, the board must consider the type of possible violation; the magnitude of the violation if it is a financial violation; the extent of knowledge or intent of the violator; the benefit of formal findings, conclusions, and orders compared to informal resolution of the matter; the availability of board resources; whether the violation has been remedied; and any other similar factor necessary to decide whether the alleged violation warrants a formal investigation.

If the board orders a formal investigation, the order must be in writing and must describe the basis for the board's determination, the possible violations to be investigated, the scope of the investigation, and the discovery methods available for use by the board in the investigation.

The executive director must promptly notify the complainant and the respondent of the board's determination.

The notice to the respondent also must:

A.

include a copy of the probable cause order;

B.

explain how the investigation is expected to proceed and what discovery methods are expected to be used;

C.

explain the respondent's rights at each stage of the investigation, including the right to provide a written response and the right to counsel; and

D.

state that the respondent will be given an opportunity to be heard by the board prior to the board's determination as to whether any violation occurred.

Subp. 6.

Action if formal investigation not ordered.

If the board finds that probable cause exists to believe that a violation has occurred, but does not order a formal investigation under subpart 5, the board must either dismiss the matter without prejudice or order a staff review under part 4525.0320.

In making the determination of whether to dismiss the complaint or order a staff review, the board must consider the type of possible violation, the magnitude of the violation if it is a financial violation, the extent of knowledge or intent of the violator, the availability of board resources, whether the violation has been remedied, and any other similar factor necessary to decide whether to proceed with a staff review.

An order dismissing a matter must be in writing and must indicate why the matter was dismissed.

The executive director must promptly notify the complainant and the respondent of the board's determination. The notice must include a copy of the order.

Statutory Authority:

MS s 10A.02

History:

39 SR 757; L 2015 c 73 s 26; L 2017 1Sp4 art 3 s 18

Published Electronically:

August 16, 2017