CP-019: Alternative Dispute Resolution

Use of Alternative Dispute Resolution

The Commission encourages the use of Alternative Dispute Resolution (ADR) procedures to resolve internal and external disputes under the agency’s jurisdiction, as provided in the Governmental Dispute Resolution Act (Gov’t Code, Chapter 2009).

ADR uses a wide variety of processes, both informal and formal, that are intended to achieve conflict resolution through agreement of the parties to the conflict. Those processes include but are not limited to mediation, arbitration, conciliation, consensus building, information exchange, public hearings, and facilitated meetings.

TPWD will determine whether ADR is appropriate for use in a dispute and may consult with other entities, such as the Office of the Attorney General.

Alternative Dispute Resolution Procedures

The ADR procedures used by TPWD shall conform with Gov’t Code, Chapter 2009, and to the extent possible, the Alternative Dispute Resolution Guidelines developed by the State Office of Administrative Hearings.

ADR procedures used under this policy supplement and do not limit other dispute resolution procedures available for use by TPWD.  Any resolutions reached will be by the voluntary agreement of the parties.

Alternative Dispute Resolution Coordinator

The TPWD General Counsel or another appropriate agency employee shall serve as the TPWD ADR Coordinator. The ADR Coordinator shall implement this policy, serve as a resource for training needed to implement this policy, and collect data concerning the effectiveness of ADR used by TPWD.

In addition, as appropriate and to the extent that funds are available, TPWD may contract with a qualified neutral third party to facilitate an ADR process. In facilitating an alternative dispute resolution process, the ADR Coordinator and any neutral third party with whom TPWD contracts will comply with applicable professional standards and guidelines.

Types of Disputes

Among the matters that should be considered for ADR are rule development, contract disputes, contested cases, employment disputes, and litigation, subject to the following:

  • Vendor and contract dispute resolution: The resolution of claims brought by bidders or contractors who are aggrieved in connection with a contract solicitation, evaluation, or award process will conform with the Commission’s rule in 31 TAC §51.350.  The resolution of certain breach of contract claims by contractors will conform with the requirements of Gov’t Code, Chapter 2260 and the Commission’s rules in 31 TAC Chapter 51, Subchapter J. 
  • Employment dispute resolution: The resolution of personnel complaints and disciplinary matters will be handled in accordance with the applicable Human Resources and Personnel policies. 

Rulemaking

To the extent possible and practicable, in developing rules, TPWD staff is encouraged to seek input from the public and from persons and groups that may be impacted by the rule. Such input should be obtained in a manner that is likely to provide the most meaningful participation by the public and by impacted persons or groups. Such input should be in addition to the notice and comment requirements of the rulemaking provisions of the Administrative Procedure Act (Gov’t Code, Chapter 2001). The mechanisms that staff are encouraged to employ in seeking input include but are not limited to the following:

  • solicitation of input through the TPWD website or surveys; 
  • informal meetings with potentially impacted persons and groups; 
  • meetings with the appropriate advisory committee appointed by the Chair or an ad hoc committee of experts or interested persons or representatives of the public appointed by the Director in accordance with TPWD’s rules regarding advisory committees (31 TAC §51.601); and
  • negotiated rulemaking in accordance with the Negotiated Rulemaking Act (Gov’t Code, Chapter 2008).

In determining whether to solicit input in developing a recommendation for proposed rule, staff should consider the significance of the anticipated rule and the scope of its impact. If it is determined that the solicitation of input is appropriate in developing a rulemaking recommendation, staff should strive to select a method of soliciting input that is most likely to obtain meaningful and representative input. In determining the appropriate method of soliciting input, staff should consider, among other things, the size and location of the population impacted by the rule (including whether the impact is localized or statewide), the nature of the impact (e.g., financial, recreational), the extent of the impact, whether there are competing interests, and the degree to which persons impacted are sophisticated in the rulemaking process.