| (a) Disciplinary action generally. The comptroller
is authorized to remove an arbitrator from the registry or, in the
comptroller's discretion, to render lesser disciplinary actions including
warnings, restriction of arbitrator eligibility for certain counties,
or removal from individual arbitrations.
(b) Disciplinary history. The determination to discipline
may be based solely on the information or complaint at issue or on
a combination of the information or complaint and the arbitrator's
disciplinary history.
(c) Good cause for removal. Good cause for removal
includes the following grounds:
(1) the individual engaged in repeated instances of
bias or misconduct while acting as an arbitrator;
(2) the individual engaged in fraudulent conduct;
(3) the individual is disqualified or becomes disqualified
under §9.4260 of this title;
(4) the individual accepts a case in violation of §9.4263
of this title;
(5) the individual violates §9.4212 or §9.4264
of this title while acting as an arbitrator;
(6) the individual fails or declines to renew the agreement
to serve as an arbitrator in the manner required under §9.4262
of this title; or
(7) the comptroller finds that inclusion of the applicant
in the arbitration registry would not be in the interest of impartial
arbitration proceedings.
(d) Disciplinary discretion. The comptroller may take
appropriate disciplinary action where the comptroller finds clear
and convincing evidence of a violation, even if that violation does
not rise to the level of good cause to justify removal under subsection
(c) of this section. In determining the level of discipline, the comptroller
may consider not only the complaint at issue, but any disciplinary
history in the arbitrator's file. Good cause for disciplinary action
includes the following grounds:
(1) the individual is disqualified or becomes disqualified
under §9.4262 of this title;
(2) the individual fails to respond to or refuses to
comply with communications and requests for information from the comptroller's
office by the deadline established in the communication; or
(3) the individual has violated one or more provisions
of this subchapter.
(e) Clear and convincing evidence. For purposes of
this section, clear and convincing evidence means the measure or degree
of proof that produces a firm belief or conviction of the truth of
the allegations regarding the arbitrator.
(f) Filing a complaint. An individual may file a complaint
concerning an arbitrator with the comptroller within 60 calendar days
of the last incident giving rise to the complaint. The complaint must
contain the following items:
(1) a letter, addressed to the division director and
signed by the requestor, that identifies the arbitrator complained
of and the alleged grounds for removal or discipline;
(2) for grounds for removal under subsection (c) of
this section, at least one affidavit or unsworn declaration meeting
the requirements of Civil Practice and Remedies Code, §132.001,
from an individual with first-hand knowledge of the alleged conduct
that supports the complaint; and
(3) as applicable, copies of all available communications
exchanged between the arbitrator and the parties, including emails,
documents, and any other materials, such as video or audio recordings,
that support the complaint.
(g) Confidentiality. Information reviewed under this
section that is made confidential by law may not be disclosed except
as provided by law. That portion of the materials considered confidential
must be designated as such to protect it from disclosure.
(h) Dismissal. Complaints shall be dismissed under
the following conditions:
(1) the conduct complained of does not meet the requirements
of this section;
(2) the complaint is not timely or otherwise fails
to meet the requirements of subsection (f) of this section; or
(3) the complaint is based on one or more substantive
arbitration issues, including evidentiary considerations and the resulting
award.
(i) Initial review of complaints. Within 30 calendar
days after submission of a complaint under this section, the comptroller
shall notify the complainant whether the complaint is under review
or dismissed. The dismissal of a complaint is final and may not be
appealed. If the complaint is under review, all materials the complainant
submitted will be forwarded electronically, by U.S. Postal Service,
or by a private third-party service such as FedEx or United Parcel
Service (UPS), as long as proof of delivery is provided, to the arbitrator
who is the subject of the complaint for a response.
(j) Arbitrator response. The arbitrator has 30 calendar
days from delivery of the materials to respond to the comptroller,
explaining why a finding of good cause should not be made.
(k) Post-response review and determination. Within
30 calendar days after receipt of the arbitrator's response, the comptroller
shall determine whether clear and convincing evidence supports a finding
of good cause for removal of the arbitrator from the registry or disciplinary
action. The comptroller shall promptly notify the complainant and
the arbitrator of the comptroller's determination.
(l) Removal or disciplinary action. If good cause for
removal of the arbitrator from the registry under subsection (c) of
this section is found, the arbitrator shall be removed from the registry
for a period of two years from the date of the determination. If,
in the comptroller's discretion, clear and convincing evidence of
a violation is established, however, after reviewing the violation
and the arbitrator's file, the comptroller does not find it rises
to the level of good cause for removal, the comptroller may issue
disciplinary action. Prior disciplinary action may be considered in
future complaints. If there is neither good cause for removal nor
clear and convincing evidence of a violation, no disciplinary action
will be taken.
(m) No appeal. The comptroller's determination and
a removal or disciplinary action is final and may not be appealed.
An arbitrator removed from the registry under subsection (c) of this
section may reapply for inclusion in the registry two years after
the date of the removal determination. The circumstances giving rise
to the removal under this section may be considered in evaluating
the reapplication.
(n) No effect on determinations and awards. Any disciplinary
action taken shall not affect the determinations and awards made by
the arbitrator during the period that the arbitrator is listed in
active status in the registry.
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