Procedures for Contesting Decisions by the Commission Regarding the Funding and Recapture of Missouri Housing Trust Fund Funds

PURPOSE: This rule provides the proper procedures to be used by a grantee in order to dispute any decision made by the commission staff to recapture Missouri Housing Trust Fund funds previously awarded to a grantee. (1) All disputes regarding the recapture of Missouri Housing Trust Fund (MHTF) funds shall be handled as informally as practicable, consistent with the fundamental principles of fairness, using the following procedures: (A) In the event the commission staff orders a recapture of MHTF funds pursuant to 4 CSR 170-7.500(9), the grantee shall have thirty (30) days from the date on which notice is delivered to it to exercise its rights under this subsection by sending notice to the trust fund manager indicating its intent to dispute the recapture of funds and requesting a hearing with the commission’s director of operations; (B) If the grantee fails to contest the commission staff’s decision within thirty (30) days from the date upon which it receives notice of the commission staff’s intent to recapture, the opportunity of the grantee to exercise the rights provided for in this section shall be deemed waived and the decision of the commission staff to recapture MHTF funds from the grantee shall be deemed final; (C) If the grantee provides a timely response to the notice and exercises its right to a hearing with the director of operations, the director of operations shall hold a hearing with the grantee within thirty (30) days of the date on which the request for a hearing is received by the trust fund manager. The deadline for conducting a hearing may be extended for one (1) additional thirty (30) day period upon written request of either the director of operations or the grantee requesting the hearing, provided that notice of the request for extension must be provided to all parties; (D) The following guidelines shall apply to the hearing held by the director of operations: 1. The hearing shall not be considered a contested case; 2. The hearing shall be informal and no formal rules of evidence or procedure shall apply; 3. The commission may have its counsel present at the hearing; 4. The grantee may be represented by counsel at the hearing and shall have the right to present evidence or arguments relevant to the grounds upon which the recapture action is based. If the grantee elects to be represented by counsel at the hearing, it shall notify the director of operations of this intent at least five (5) days prior to the scheduled hearing; and 5. The director of operations, in reaching his/her decision may consider information from any source which is relevant to the recapture of grant funds and shall consider all facts and circumstances upon which the proposed recapture of funds is based; (E) Within thirty (30) days of the date on which the hearing is held, the director of Development Commission operations shall issue a decision in writing to the grantee, which decision shall be mailed to the grantee by certified mail, return receipt requested. 1. If the director of operations determines that recapture of MHTF funds is not warranted, the decision shall notify the grantee that its MHTF funds will not be recaptured on the grounds for which the hearing was held. 2. If the director of operations determines that recapture of MHTF funds is warranted, it shall notify the grantee of the grounds upon which such decision was reached. It shall further notify the grantee of its right to appeal the decision to the committee of directors pursuant to subsection 4 CSR 170.7-600(1)(G), as well as the time within which such request for a hearing with the committee of directors must be provided to the director of operations. The time for the filing of such request shall be thirty (30) days from the date on which the decision of the director of operations is received by the grantee; (F) If the grantee fails to contest the director of operations’ decision within thirty (30) days from the date upon which it receives notice of such decision, the grantee’s right to appeal the decision shall be deemed waived and the decision of the director of operations shall be deemed final; (G) If the grantee provides a timely response to the notice and exercises its right to appeal the decision of the director of operations, the committee of directors shall hold a hearing with the grantee within thirty (30) days of the date on which the request for a hearing is received by the director of operations. The deadline for conducting a hearing may be extended for one (1) additional thirty (30) day period upon written request of either the committee of directors or the grantee requesting the hearing, provided that notice of the request for extension must be provided to all parties; (H) The following guidelines shall apply to the hearing held by the committee of directors: 1. The hearing shall not be considered a contested case; 2. The hearing shall be informal and no formal rules of evidence or procedure shall apply; 3. The commission may have its counsel present at the hearing; 4. The grantee may be represented by counsel at the hearing and shall have the right to present evidence or arguments relevant to the grounds upon which the recapture action is based. If the grantee elects to be represented by counsel at the hearing, it shall notify the committee of directors of this intent at least five (5) days prior to the scheduled hearing; and 5. The committee of directors, in reaching its decision may only consider items in the record of the hearing held by the director of operations. However, the committee of directors may also consider evidence that was not available at the initial hearing, but only if the party offering the additional evidence can show good cause for why it was not presented at the initial hearing. The committee of directors shall uphold the director of operations’ decision unless it determines that the director of operations’ decision was not based on competent and substantial evidence. If the committee of directors determines that the decision of the director of operations was not based on competent and substantial evidence, it may either— A. Overrule the decision of the director of operations and reinstate such amounts of the grantee’s funding under its grant agreement as the committee of directors may deem appropriate; or B. Remand the matter back to the director of operations if it determines that further investigation and fact gathering is necessary before a final conclusion may be reached. If the matter is remanded back to the director of operations, after the necessary additional investigation and/or fact gathering is completed, the director of operations will issue its determination, which shall be subject to appeal using the same procedures as set forth in subsections 4 CSR 1707.600(1)(E)–(H); and (I) Within thirty (30) days of the date upon which the appeal hearing is held, the committee of directors shall issue a decision in writing to the grantee, which shall be mailed by certified mail, return receipt requested. This decision shall be considered the final decision of the commission on the matter. However, this decision of the committee of directors shall not be considered final if it finds appropriate grounds to remand the matter back to the director of operations pursuant to subparagraph 4 CSR 170-7.600(1)(H)5.B. If the matter is remanded back to the director of operations, the same procedures spelled out in subsections 4 CSR 1707.600(1)(C)–(I) shall apply for all further proceedings with the director of operations and/or the committee of directors until a final decision is reached. AUTHORITY: section 215.030(5), (12), and (19), RSMo 2000.* Original rule filed Nov. 30, 2011, effective June 30, 2012. *Original authority: 215.030, RSMo 1969, amended 1974, 1982, 1985, 1989, 1993, 1995, 1998.