52 NSU STUDENT HANDBOOK 2022-23 5. Hearings 5.1. Institutions shall provide for a live hearing conducted before a hearing examiner using the contested case proceedings set forth in SDCL chapter 1-26. However, the use of the procedures afforded to contested case proceedings under SDCL chapter 1-26 is not determinative as to the matters status as a contested case under South Dakota law. The individual facts and circumstances shall determine whether or not the matter meets the legal threshold for a contested case, regardless of the process afforded herein. Live hearings may be conducted with all parties physically present in the same geographic location or, at the institution’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. The institution shall create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review. 5.2. Institutions shall provide notice to both parties at least 15 days in advance of the live hearing, which notice shall include: 5.2.1. A statement of the time, place, and nature of the hearing; 5.2.2. A statement regarding the legal authority and jurisdiction under which the hearing is to be held; 5.2.3. A reference to the particular policy, rules or laws involved; 5.2.4. A short and plain statement of the allegations asserted; 5.2.5. A statement of any action authorized, which may affect the parties, as a result of any decision made at the hearing; 5.2.6. A statement that the hearing is an adversarial proceeding and that a party has the right at the hearing, to be present, to be represented by an attorney, and that these and other due process rights will be forfeited if they are not exercised at the hearing; 5.2.7. A statement that if the amount in controversy exceeds two thousand five hundred dollars or if a property right may be terminated, any party may require the use of the Office of Hearing Examiners by giving notice of the request to the institution no later than ten (10) days after service of the notice required by this section; and 5.2.8. A statement that the final decision may be appealed to circuit court and the South Dakota Supreme Court as provided by law. 5.3. If a party does not have an advisor present at the live hearing, the institution must provide without fee or charge to that party, an advisor of the institution’s choice, who may be, but is not required to be an attorney. Without limiting the due process provided for contested case proceedings pursuant to SDCL chapter 1-26, the live hearing must: 5.3.1. Permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. 5.3.2. Require cross-examination to be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. 5.3.3. If requested by either party, provide for the live hearing to occur with the parties located in separate rooms with technology enabling the hearing examiner and parties to simultaneously see and hear the party or the witness answering questions. 5.3.4. Require the hearing examiner to determine whether any question asked of a complainant, respondent, or witness is relevant before they may answer the question and explain any decision to exclude a question as not relevant before a party or witness answers a cross-examination or other question.
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