Sec. 12.03.01.16. Disciplinary Proceeding Procedures — Preliminary Review — Defendant Request for Representation

A. A defendant referred to the hearing officer for a disciplinary proceeding may elect to request representation to assist the defendant during the disciplinary proceeding.

(1) If a defendant requests representation for the inmate disciplinary process and the request is subsequently approved:

(a) All responsibilities established under this chapter for the defendant during the preliminary hearing, case presentation, and sanctioning phase of the disciplinary proceeding become the defendant’s representative’s responsibilities;

(b) The defendant agrees that the defendant’s representative is the agent of the defendant;

(c) The defendant, on review, is bound by the decisions, actions, and presentation of the defendant’s representative.

B. Defendant Representation Request.

(1) When a defendant is served with the Notice of Inmate Rule Violation form and Notice of Inmate Disciplinary Hearing form, the defendant is required to list the name of the defendant’s requested representative in the section of the facility’s copy of the Notice of Inmate Disciplinary Hearing form designated for the name of the representative.

(2) The defendant’s failure to list the name of the requested representative at the time of service shall be a waiver of defendant’s opportunity for representation.

C. Upon the appearance of the defendant before the hearing officer for a preliminary review of the defendant’s Notice of Inmate Rule Violation form and Notice of Inmate Disciplinary Hearing form, the hearing officer shall determine if the:

(1) Inmate did list the name of a requested representative at service; and

(2) Individual listed is permitted to represent the defendant according to requirements of this regulation.

D. The facility representative, if designated, or facility staff may make an objection to the defendant’s requested representative.

(1) If an objection is raised, the hearing officer shall:

(a) Permit the facility representative, if designated, or facility staff to state the reason or cause the defendant’s requested representative is not eligible to represent the defendant;

(b) Permit the defendant an opportunity to address the facility representative’s, if designated, or facility staff’s objection to the defendant’s requested representative; and

(c) After reviewing the facility representative’s, if designated, or facility staff’s objection and the defendant’s response, determine if the objection is sustained or overruled and advise the facility representative, if designated, or facility staff and defendant of the decision.

(2) If the facility representative’s, if designated, or facility staff’s objection is sustained, the defendant may request that the hearing officer postpone the disciplinary proceeding to permit the defendant an opportunity to obtain another representative or to permit the defendant more time to prepare to proceed without representation.

(3) If the disciplinary proceeding is postponed due to an issue with a defendant’s representative and a subsequent request for a defendant representative is denied or the defendant’s approved representative is unprepared, the hearing officer shall find that the defendant has waived the right to request representation and the hearing officer shall proceed with the defendant’s disciplinary proceeding.

(4) The hearing officer is not obligated to grant a postponement requested by the defendant in accordance with provisions of this regulation.

E. The appearance of a defendant’s requested representative at a disciplinary proceeding is voluntary on the part of the requested representative.

F. If a requested representative declines to appear at the defendant’s disciplinary proceeding or represent the defendant at the disciplinary proceeding, the hearing officer may not compel a requested representative to appear at the defendant’s disciplinary proceeding or act as the defendant’s representative.

G. The hearing officer shall only permit a willing individual to appear as the defendant’s representative who is:

(1) An inmate:

(a) Assigned to the general population of the facility where the defendant’s disciplinary proceeding is to take place; and

(b) Permitted under this regulation and by the managing official, or a designee, to represent the defendant;

(2) A staff member:

(a) Employed at the facility where the defendant’s disciplinary proceeding is to take place; and

(b) Permitted under this regulation and by the managing official, or a designee, to represent the defendant; or

(3) A protective custody inmate:

(a) Approved by the managing official, or a designee, to represent another protective custody defendant; and

(b) Assigned to the facility where the defendant’s disciplinary proceeding is to take place.

H. A hearing officer may not permit an individual requested to be a defendant’s representative if the requested individual is:

(1) Banned as a defendant representative by the Secretary, Deputy Secretary, Executive Director, Field Support Services, managing official, or a respective designee;

(2) Identified as a threat to the security of the facility, Department, or community or safety of an inmate, staff, or an individual;

(3) Assigned to disciplinary or administrative segregation, cell restriction, or medical or mental health housing or status;

(4) A protective custody inmate requested to represent a defendant who is not assigned to protective custody;

(5) An attorney or paralegal;

(6) A visitor to the facility; or

(7) In a location where staff escort or vehicular transportation to the defendant’s disciplinary proceeding is required.

I. If the defendant does not request representation at service and subsequently requests representation at the defendant’s appearance before a hearing officer, the hearing officer may elect to permit the request for representation only if:

(1) The requested individual is permitted under this regulation to represent a defendant;

(2) The requested individual is present at the time and location where the defendant’s disciplinary proceeding is to take place;

(3) There is no request for postponement by the requested representative; and

(4) The defendant’s representative and the defendant are prepared to proceed with and participate in the defendant’s disciplinary proceeding.

J. If the defendant requested representation at service and is subsequently informed that the requested representative declined to represent the defendant or is unavailable and the defendant requests the opportunity to obtain another representative and a postponement to obtain representation, the hearing officer may:

(1) Permit the request and postpone the defendant’s disciplinary proceeding for one calendar day; or

(2) Deny the defendant’s request and proceed with the defendant’s disciplinary proceeding.

K. The hearing officer when permitting a postponement under §J(1) of this regulation may not grant a subsequent postponement request if the defendant does not obtain representation.

L. If an approved defendant’s representative makes an appearance at the defendant’s disciplinary proceeding, the defendant’s representative is obligated to remain at the defendant’s disciplinary hearing until released by the hearing officer.

M. If the defendant’s representative, during the defendant’s disciplinary proceeding, voluntarily elects not to continue as the defendant’s representative or is removed from the disciplinary proceeding due to the representative’s conduct or threat to the security of the facility, Department, or community or safety of an inmate, staff, or an individual, the hearing officer shall:

(1) Conclude that the defendant has waived representation; and

(2) Continue the defendant’s disciplinary proceeding with no consideration for a postponement.

N. Defendant Preparation.

(1) The facility is not required to:

(a) Permit the defendant access to the defendant’s representative in preparation for the defendant’s disciplinary proceeding; and

(b) Make special arrangements for the defendant or the defendant’s representative to have access to materials to prepare for the defendant’s case presentation.

(2) The hearing officer may not grant a postponement solely to allow the defendant and the defendant’s representative time to confer concerning the inmate disciplinary process.