PART 5. TEXAS VETERANS LAND BOARD
CHAPTER 175. GENERAL RULES OF THE VETERANS LAND BOARD
SUBCHAPTER C. PROCEDURES FOR ALTERNATIVE DISPUTE RESOLUTION
The Veterans Land Board (VLB) proposes new §§175.100 - 175.111 in order to provide the availability of Alternative Dispute Resolution procedures for parties of internal and external disputes pending before the VLB.
INTRODUCTION AND BACKGROUND
Chapter 2009 of the Texas Government Code, which was enacted by the 75th Legislature in 1997 and is known as the Governmental Dispute Resolution Act, established the policy of this state that disputes before governmental bodies be resolved as fairly and expeditiously as possible and that each governmental body support this policy by developing and using alternative dispute resolution (ADR) procedures in appropriate aspects of the governmental body's operation and programs. The 80th Legislature in 2007 enacted §161.036 of the Texas Natural Resource Code to further encourage the use of alternative dispute resolution rules to assist in the resolution of internal and external disputes under the Board's jurisdiction, other than disputes governed by §161.311. In order to adhere to and to adopt this legislatively mandated policy, the VLB is proposing a body of new rules that provide ADR procedures as an option for resolving disputes pending before the VLB.
FISCAL AND EMPLOYMENT IMPACTS
Mr. Paul E. Moore, Executive Secretary of the Veterans Land Board, has determined that for each year of the first five years that the new sections as proposed will be in effect, there will be no significant fiscal implication to state or local government as a result of enforcing or administering these new sections.
Mr. Moore has also determined that for each year of the first five years that the proposed new sections will be in effect, the anticipated impact on local employment will be insignificant.
PUBLIC BENEFIT
Mr. Moore has determined that for each year of the first five years that the new sections as proposed will be in effect, the public will benefit because the proposed new sections will allow the public the opportunity to use alternative dispute resolution as a new method in which to solve contested matters with the VLB fairly and expeditiously.
Mr. Moore has also determined that for each year of the first five years that the new sections as proposed will be in effect, the anticipated economic costs to persons who elect to use alternative dispute resolution will be minimal because the costs will be apportioned pro rata between both parties wanting to settle the pending dispute.
SMALL BUSINESS ANALYSIS
Mr. Moore has determined that the proposed new sections will have no significant effect on small businesses during each year of the first five years these sections are in effect.
REQUEST FOR COMMENTS
To comment on the proposed rulemaking, please send a written comment to Mr. Walter Talley, Texas Register Liaison, Texas General Land Office, P.O. Box 12873, Austin, TX 78711, facsimile number (512) 463-6311 or e-mail to walter.talley@glo.state.tx.us. Written comments must be received no later than 5:00 p.m., thirty (30) days from the date of publication of this proposal.
STATUTORY AUTHORITY
Chapter 2009 of the Texas Government Code establishes the policy of this state that disputes before governmental bodies be resolved as fairly and expeditiously as possible and that each governmental body support this policy by developing and using alternative dispute resolution procedures in appropriate aspects of the governmental body's operation and programs. Chapter 2009 provides authority for the VLB to adopt alternative dispute resolution rules necessary to implement this policy.
CROSS REFERENCE TO STATUTE
Section 161.036 of the Texas Natural Resources Code provides further authority for the VLB to adopt alternative dispute resolution rules necessary to implement this policy.
§175.100.Applicability.
(a) This subchapter applies to internal and external disputes before the Texas Veterans Land Board (VLB), including those referred by the State Office of Administrative Hearings (SOAH), which is subject to the Administrative Procedures Act (APA), Chapter 2001, Texas Government Code.
(b) Sections 175.100 - 175.111 of this subchapter supplement the procedures required by the APA, Chapter 2001, Texas Government Code.
(c) In accordance with Chapter 2009 of the Texas Government Code and it is the VLB's policy that disputes with the VLB be resolved as fairly and expeditiously as possible. To encourage this policy, the VLB has adopted the use of Alternative Dispute Resolution (ADR).
(d) All ADR procedures shall be consistent with Chapters 2001 and 2009 of the Texas Government Code and Chapter 154 of the Civil Practice and Remedies Code. Chapter 2009 of the Texas Government Code is referred to as the Governmental Dispute Resolution Act or "GDRA".
(e) ADR procedures developed and used by the VLB do not limit other dispute resolution procedures available for the VLB.
(f) Consistent with this ADR policy, the VLB shall endeavor to educate its staff and persons who are subject to the VLB's jurisdiction concerning the availability of ADR to resolve disputes.
(g) The use of ADR may not be applied in a manner that denies a person a right granted under other state or federal law including a right to an administrative or judicial hearing that is allowed or mandated by the VLB or by laws of more general application.
(h) Any resolution reached as a result of the ADR procedure should be achieved through the voluntary agreement of the parties.
§175.101.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Alternative Dispute Resolution (ADR)--A procedure or combination of procedures that uses an impartial third party to assist individuals in voluntarily resolving disputes, including procedures described in §§154.023 - 154.027, Civil Practice and Remedies Code. The GDRA does not grant the GLO authority to engage in binding arbitration.
(2) Board (VLB)--The Veterans Land Board of the State of Texas.
(3) Commissioner--The Commissioner and also chairman of the Veterans Land Board.
(4) Contested case--Shall have the same meaning as such term is defined in the Administrative Procedure Act (Texas Government Code, Chapter 2001).
(5) Executive Secretary--The executive secretary of the board.
(6) GDRA--The Governmental Dispute Resolution Act, Texas Government Code, Chapter 2009.
(7) Impartial Third Party (ITP)--A person who meets the qualifications and conditions of Texas Government Code §2009.053, GDRA.
(8) Party--Shall have the same meaning as such term is defined in the Administrative Procedure Act (Texas Government Code, Chapter 2001).
(9) Person--Shall have the same meaning as such term is defined in the Administrative Procedure Act (Texas Government Code, Chapter 2001).
(10) Rule--Shall have the same meaning as such term is defined in the Administrative Procedure Act (Texas Government Code, Chapter 2001).
(11) State Agency--Shall have the same meaning as such term is defined in the Administrative Procedure Act (Texas Government Code, Chapter 2001).
§175.102.Referral of Pending Disputes for ADR.
The Commissioner, the ADR Coordinator, a Texas veteran or an assignee of VLB land may seek to resolve an internal or external dispute through any ADR procedure. Such procedures may include, but are not limited to, those applied to resolve matters pending in the state's district courts.
§175.103.Required Training for ADR Coordinator and Impartial Third Party.
Eligibility for designation as an ADR Coordinator or appointment as an ITP depends upon the following qualifications being met:
(1) completion of a minimum of 40 classroom hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution approved by the VLB; and
(2) in appropriate circumstances the VLB may waive the training required in this section if a person has professional training or experience in dispute resolution processes related to a particular matter.
§175.104.Appointment of ADR Coordinator.
(a) The Commissioner shall appoint an ADR Coordinator as soon as practicable following:
(1) initial adoption of this subchapter; or
(2) an ADR Coordinator's vacation of this office.
(b) The ADR Coordinator shall, as soon as practicable after appointment, complete the minimum training standards set forth in §154.052 of the GDRA.
§175.105.Responsibilities of ADR Coordinator.
The ADR Coordinator shall have the following responsibilities:
(1) Establish a method of choosing ITPs who possess the minimum qualifications described in §154.052 of the GDRA;
(2) Establish a pool of ITPs to resolve contested matters through ADR procedures;
(3) Coordinate the implementation of the ADR policies and procedures;
(4) Provide information about available ADR processes to agency employees, and to both potential and current users of the ADR program;
(5) Serve as a resource for any training and education needed to implement procedures and processes for the ADR program;
(6) Establish a system and collect data concerning the effectiveness of the ADR program in order to evaluate the ADR program and the ITPs that the VLB has used; and
(7) Maintain necessary agency records while maintaining the confidentiality of participants.
§175.106.Selection and Payment of Impartial Third Parties.
(a) For each matter referred for ADR procedures, the ADR Coordinator shall assign an ITP selected by the parties from the GLO's list of potential ITPs unless the parties agree upon the use of a private ITP.
(b) A private ITP may be hired for commission of ADR procedures provided that:
(1) the parties unanimously agree to the selection and use of a private ITP; and
(2) the private ITP agrees to be subject to the direction of the GLO's ADR Coordinator and to all time limits imposed by the Commissioner, the ADR Coordinator, the judge, or by statute or agency rule.
(c) If a private ITP is used, the costs for the services of the ITP shall be apportioned pro rata among the parties, unless otherwise agreed upon by the parties, and shall be paid directly to the ITP.
(d) If the parties select a GLO ITP for ADR procedures, the costs for the services of the ITP shall be apportioned pro rata among the parties, unless otherwise agreed upon by the parties, and shall be paid directly to the ITP.
§175.107.Responsibilities of Impartial Third Parties.
(a) The ITP shall complete the minimum training standards set forth in §154.052 of the GDRA, prior to starting any ADR procedure for the VLB through programs approved by the ADR Coordinator, unless the required training is waived by the ADR Coordinator.
(b) The ITP shall have the following responsibilities:
(1) to facilitate the ADR procedure; and
(2) to encourage and assist the parties in reaching a voluntary settlement of their dispute.
§175.108.Commencement of the ADR Process and ADR Procedures.
(a) To initiate the ADR process, a party to a contested matter must submit a written ADR proposal form to the ADR Coordinator. The ADR proposal form can be found on the VLB's website at www.glo.state.tx.us/vlb/. Upon completion of the form, it should be submitted to the ADR Coordinator at the website address or fax number listed with copies sent to any other parties to the dispute.
(b) ADR procedures under this subchapter may begin, at the discretion of the ADR Coordinator, anytime after a party to a contested matter submits a written ADR proposal requesting the use of ADR procedures to resolve a dispute with the VLB.
(c) The ADR Coordinator shall provide the Commissioner a copy of the ADR proposal for review, discuss it with the interested parties, as appropriate, and assess whether ADR would assist in fairly and expeditiously resolving the dispute.
(d) If the parties, including the Commissioner and the ADR Coordinator, cannot agree on whether the ADR procedure should be used or on the particulars of the ADR procedure, the ADR Coordinator will notify the affected parties of that outcome and the proposal will be dismissed without opportunity for resubmission to the ADR Coordinator in the future.
(e) The ADR Coordinator will promptly notify all affected parties within ten (10) business days of receiving the ADR proposal, or as soon as reasonably possible if a pertinent or impending deadline is indicated in the ADR proposal, whether or not the dispute will be referred for the ADR process. If the ADR Coordinator determines not to refer the dispute to ADR, the notice shall include the reasons that the dispute was not referred. If the ADR Coordinator determines to refer the dispute to ADR, the notice shall include the starting date for the selected ADR.
§175.109.Partial Settlement Agreements through ADR.
When ADR procedures do not result in the full settlement of a contested matter, the parties, in conjunction with the ITP, shall limit the contested issues through the entry of written stipulations. Such stipulations shall be forwarded or formally presented to the judge assigned to conduct the hearing on the merits and shall be included in the hearing record.
§175.110.Complete Settlement Agreements through ADR.
(a) All parties participating in an ADR procedure are expected to make a good faith effort to reach agreement.
(b) All parties participating must have the authority to reach an agreement to make a final recommendation to resolve the dispute.
(c) The Commissioner will abide by an agreed upon resolution to the dispute and either approve the agreement or offer the recommendation to the VLB, if Board authorization is needed.
(d) The decision to reach an agreement by all parties is voluntary.
(e) Each party to a resolution resulting from ADR must execute a written agreement reflecting the resolution. The agreement is enforceable in the same manner as any other written agreement of the same nature with the State.
(f) The Commissioner must approve a written agreement, to which the VLB Executive Secretary or the VLB Board members are signatories resulting from the ADR procedure and it is subject to the Public Information Act, Chapter 552, Texas Government Code.
§175.111.Confidentiality of Communications in ADR Procedures.
(a) Except as provided in subsections (c) and (d) of this section, communications, records, conduct and demeanor of an ITP and parties relating to the subject matter made by a party in an ADR procedure, whether before or after the initiation of formal proceedings, is confidential, is not subject to disclosure, and may not be used as evidence in any further proceeding.
(b) Any notes or record made of an ADR procedure are confidential, and parties, including the ITP, may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to processes requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.
(c) An oral communication or written material used in or made a part of an ADR procedure is admissible or discoverable only if it is admissible or discoverable independent of the procedure.
(d) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the judge to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure.
(e) The ITP may not, directly or indirectly, communicate with anyone on any aspect of ADR negotiations made confidential by this section unless all the parties consent to the disclosure, or upon issuance of an opinion from the Office of the Attorney General that the evidence is subject to the Public Information Act.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 29, 2009.
TRD-200900346
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs, General Land Office
Texas Veterans Land Board
Earliest possible date of adoption: March 15, 2009
For further information, please call: (512) 475-1859