Current through Register Vol. 50, No. 9, September 20, 2024
A. Specific person(s) should be identified by
the Department of Labor to function in a quasi-judicial capacity in relation to
the hearing process. Each party will be notified as to the hearing officer(s)
selected to conduct their appeal or hearing at least 10 days prior to the
hearing. Standards to be applied in selection of these persons are as follows.
1. They should have independence in obtaining
facts and making decisions.
2. The
hearing officer(s) must be in a position to render impartial decisions that are
fair.
B. If either party
to the complaint is aware of facts or circumstances which put the designated
hearing officer's independence and impartiality in question, the appointing
body should be notified within five days of receiving notice. An alternate(s)
will be appointed if deemed appropriate by the Department of Labor. In all
cases, documentation regarding the allegation and how it was handled should be
included in the file.
C.
Responsibilities within the scope of the designated hearing officer(s) are:
1. directs preparation of and reviews a
complete file on the case prior to the hearing;
2. directs parties to appear at
hearing;
3. holds
hearing;
4. receives
evidence;
5. disposes of procedural
requests;
6. questions witnesses
and parties, as required;
7.
considers and evaluates facts, evidence and arguments to determine
credibility;
8. renders decision
and issues it in writing to all parties involved; and
9. provides the complete record including:
a. all pleadings, motions and intermediate
rulings;
b. detailed minutes of the
oral testimony plus all other evidence received or considered;
c. a statement of matters officially
noted;
d. all staff memoranda or
date submitted to the decision maker in connection with their consideration of
the case;
e. findings of fact based
on the evidence submitted at the hearing;
f. notification of further appeal procedures,
if applicable; and
g. final
decision of the hearing officer.
D. The hearing may be conducted informally.
Unnecessary technicalities (i.e., legal requirements that would be appropriate
in court proceedings) should be avoided. It will provide the flexibility to
enable adjustment to the circumstances presented. The following guidance is
provided in respect to the hearings.
1. Full
regard should be given to the requirements of due process to ensure a fair and
impartial hearing.
2. All testimony
at any hearing before the hearing officer(s) designated at the state level
shall be mechanically recorded.
3.
The hearing officer should begin the hearing by summarizing the record and the
issues, affording both parties an opportunity to review such record, and should
explain the manner in which the hearing will be conducted, making sure that
everyone involved understands the proceedings. Such explanation should be
adapted to the needs of the specific situation. The hearing officer shall take
testimony under oath or affirmation to give some assurances of veracity to the
hearing.
4. The burden of proof
should be reasonable and flexible, dependent upon the circumstances of the case
involved. The hearing officer(s) determines the order of proof. Generally, the
agency making the complaint has the obligation of establishing its case, and
should be examined first.
5. The
parties involved may be represented, but are responsible for securing such
representation. Otherwise, he/she is limited to his/her own abilities and those
of the hearing officer(s) in obtaining testimony in the case.
6. It is important that the hearing
officer(s) obtain the fullest information for the record. If the parties
involved, or their representatives, do not know how to ask the right or
pertinent question, in pursuing their right to due process, it shall be
necessary for the hearing officer(s) to assist in having all the material and
relevant facts elicited.
7. The
practice in informal hearings is generally not to apply strict rules of
evidence in obtaining facts. However, the quantity of evidence required to
support a decision on an issue should be sufficiently credible that a court,
upon reviewing the decision, would conclude that it is supported by substantial
evidence.
8. The general rules in
law should be applied in decision on remedies, which should be reasonable and
fit the problem and/or violation.
9. The hearing officer(s) may accept any
resolution of the issue agreeable to all parties at any time prior to the
rendering of a decision, as long as such agreement does not violate state or
federal law.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
23:66 et
seq.
