Current through Register Vol. 51, No. 19, September 20, 2024
A. Scheduling Authority. The scheduling
authority in the case of an appeal pending before a Hearing Examiner is the
Chief Hearing Examiner or the Chief Hearing Examiner's designee.
B. Notice of Hearing.
(1) The interested parties shall be given at
least 7 business days notice in writing of the time and place of any hearing
before the Hearing Examiner.
(2)
Notice is sufficient when mailed to the party, postage prepaid, at the last
known post office address of the party or by electronic means in a format
approved by the Chief Hearing Examiner, if the party has opted to receive
notice by electronic means.
(3) In
the case of appeals filed under Regulation .01A(2) of this chapter, notice sent
in accordance with §B(2) of this regulation to the attorney or authorized
representative, and to each individual appellant who filed an individual appeal
or who requested individual notice, shall be sufficient notice to all parties
represented by the attorney or authorized representative.
(4) (text unchanged)
C. Pretrial Conference. In appeals of review
determinations resolving issues arising under Labor and Employment Article,
§8-602(a)(2)
and (5), Annotated Code of Maryland, the Chief Hearing Examiner may consider a
motion of a party requesting a scheduling conference to resolve preliminary
issues including, but not limited to, the exchange of documentation, the
exchange of lists of potential witnesses, and proposed stipulations.
D. Public Hearing. Hearings before the
Hearing Examiner shall be public. The record made in any appeal hearing is a
public record. Media coverage of any hearing is permissible unless the Hearing
Examiner determines that it interferes with the hearing process.
E. Record. The recording made by or at the
direction of the Hearing Examiner is the only official record of the oral
hearing. Additional recordings or transcriptions may be made by the parties at
the hearing, or by third parties, only at the discretion of the Hearing
Examiner hearing the case.
F. Issues. The Hearing
Examiner shall inquire fully into the facts of the particular case. A Hearing
Examiner shall consider the issue expressly ruled upon in the determination of
the claims examiner or the review determination from which the appeal was
filed.
G. Representation.
(1) An interested party may appear without
representation in any proceeding before a Hearing Examiner.
(2) A party may be represented by an attorney
admitted to practice by the Maryland Court of Appeals or by an authorized
representative.Attorneys admitted to practice before the courts of any other
state or territory of the United States may represent a party subject to the
rules of the Maryland Court of Appeals.
(3) A claimant may also be represented by an
authorized representative other than an attorney, but the representative may
not charge or accept payment for the representation.
(4) An employer may appear for itself, or be
represented by any other authorized representative.
(5) The Chief Hearing Examiner may prohibit
an individual from representing others in a hearing if the Chief Hearing
Examiner finds, after a special hearing convened for that purpose, that the
individual has committed unethical conduct in relation to unemployment
insurance claims or appeals.
H. Attorney's Fees.
(1) An attorney representing a claimant in
any proceeding before a Hearing Examiner may not charge a fee in excess of 200
percent of the claimant's weekly benefit amount per case without the approval
of the Chief Hearing Examiner.
(2)
Requests for approval of fees greater than 200 percent of the claimant's weekly
benefit amount shall be accompanied by an itemized account of services rendered
in the case. A request for the excess fee shall be submitted within 30 calendar
days of the date of the issuance of the decision. The Chief Hearing Examiner
shall have authority to approve a fee higher than the maximum allowed under
§H(1) of this regulation based upon the complexity of the case and the
reasonableness of the fee. The fee shall be reviewable by the Board of Appeals
upon written protest of either the claimant or the attorney.
(3) The fee amounts set out in §H(1) and
(2) of this regulation may be awarded for each level of appeal.
(4) Although the maximum fee allowed is
governed by these regulations, payment of the fee allowed is a private matter
left solely to the claimant and the claimant's attorney.
I. Appointment of Interpreter.
(1) If a party or witness is hearing-impaired
or mute, and because of this impediment cannot readily understand or
communicate the spoken language, or if the party or witness is unable to
communicate in the English language, the party or witness may apply to the
Chief Hearing Examiner for the appointment of a qualified interpreter to assist
that person.
(2) Upon application
of the party or witness, the Chief Hearing Examiner shall appoint a qualified
interpreter to assist that person. The Chief Hearing Examiner may also appoint
an interpreter on his or her own motion.
(3) In selecting a qualified interpreter for
appointment, the Chief Hearing Examiner may consult any directory of
interpreters maintained by any court in this State.
(4) An interpreter, appointed pursuant to
this section, shall be allowed reasonable compensation subject to approval of
the Chief Hearing Examiner.
J. Evidence.
(1) Rules of Evidence. The hearings shall be
conducted informally in a manner to ascertain the substantial rights of the
parties.The Hearing Examiner is not bound by common law or statutory rules as
to the admissibility of evidence or by technical rules of procedures. Witnesses
shall testify under oath or affirmation.
(2) Electronically Stored Records. A party
who seeks to enter into evidence videotapes, audiotapes, or other
electronically stored records shall produce at the hearing the equipment
necessary to allow review of the contents of the records. The party offering
the records shall have the continuing obligation to produce the equipment
necessary to review the records if further administrative proceedings occur. If
the party offering the records fails to produce the equipment necessary to
review the records, the Hearing Examiner may exclude the records from
consideration.
K.
Subpoenas.
(1) The Hearing Examiner may issue
subpoenas, to be served by first-class mail, or by any individual who is not a
party and who is at least 18 years of age, to compel the attendance of
witnesses and the production of books, papers, correspondence, and other
records deemed necessary as evidence in writing.
(2) The scheduling authority may deny
requests for subpoenas that request irrelevant information, or are frivolous or
unreasonably burdensome to the other party.A request for a subpoena may not be
denied without substantial cause.
(3) Requests for subpoenas shall:
(a) Be in writing;
(b) State the name and address of the person
to be subpoenaed;
(c) State with
specificity the documents to be produced;
(d) State the reason for the request;
and
(e) Be delivered to the
scheduling authority at least 5 business days before the date of the
hearing.
L.
Procedure at Hearing. The Hearing Examiner may call, examine, and cross-examine
witnesses and may introduce into the record documentary or other evidence. The
parties to the hearing shall be given an opportunity to call witnesses on their
own behalf, cross-examine witnesses, inspect documents, and offer evidence in
explanation or rebuttal. The Hearing Examiner may order the taking of
additional testimony as the Hearing Examiner considers necessary. Upon the
request of any party at the hearing, the Hearing Examiner shall grant a
reasonable time for oral argument by the interested parties.
M. Continuance of Hearing. The Hearing
Examiner may continue any hearing and make any direction or instruction
necessary for the efficient disposition of the matter at the Hearing Examiner's
discretion.
N. Withdrawal of Appeals. At any time before the
hearing, a party appealing from a determination of a claims examiner or
appealing a review determination may request that the appeal be withdrawn, and
the Hearing Examiner shall permit the withdrawal. After the hearing has
commenced or concluded, a withdrawal may be permitted for good cause shown. A
request for withdrawal shall be submitted in writing or placed on the record
during a hearing. An approved withdrawal is a final decision and is not subject
to a request to reopen.
O. Dismissal of Appeal
When Appealing Party Fails to Appear. If a party appealing the determination of
a claims examiner or appealing a review determination fails to appear at a
hearing after having been given the required notice, the Hearing Examiner may
issue a decision on the facts available or may dismiss the appeal. Failure to
be present at the location designated for the hearing within 10 minutes of the
time scheduled shall be considered a failure to appear within the meaning of
this section.
P Request by
Appealing Party to Reopen Dismissed Case.
(1)
A request to reopen a dismissed case shall be in writing and a copy shall be
sent to the opposing party.Failure to notify the opposing party does not affect
the timeliness of the request.
(2)
A request to reopen a case may be granted for the following reasons:
(a) The party received the hearing notice on
or after the date of the hearing as a result of:
(i) An untimely or incorrect mailing or
electronic transmission of a hearing notice; or
(ii) A delay in the delivery of a hearing
notice by the United States Postal Service;
(b) An emergency or other unforeseen and
unavoidable circumstance that prevented a party from both attending the hearing
and requesting a postponement of the hearing; or
(c) A party requested a postponement for the
reasons listed in §P(2)(a) or (b) of this regulation, but it was
improperly denied.
(3)
Misreading of a properly prepared hearing notice as to the date, time, and
place of the hearing is not good cause for reopening a dismissed
case.
(4) A request to reopen a
case dismissed by a Hearing Examiner shall be delivered or postmarked within 7
business days after the date the dismissal was mailed to the last known address
of the requesting party. The Chief Hearing Examiner may:
(a) Grant the requesting party up to 10
calendar days to provide documentary evidence of the reason for the requested
reopening; or
(b) Deny a request to
reopen in writing or grant a further hearing to determine if good cause
exists.
(5)
Documentation submitted in support of a request to reopen a case shall become
part of the record of that case.
(6) A further hearing granted to determine if
there is good cause for reopening a case may be consolidated with a further
hearing on the merits unless, in the judgment of the Chief Hearing Examiner,
this consolidation would result in substantial inconvenience for either
party.
(7) A decision by the Chief
Hearing Examiner that there is not good cause to reopen a dismissed appeal is
appealable to the Board of Appeals.
(8) A decision by the Chief Hearing Examiner
that there is good cause to reopen a dismissed case is appealable to the Board
of Appeals only at the time that a decision on the merits is also
reached.
Q. Conflicts of
Interest.
(1) A Hearing Examiner may not
participate in a hearing in which the Hearing Examiner or a family member has a
personal financial interest.The challenge to the interest of a Hearing Examiner
shall be decided by the Chief Hearing Examiner.The challenge to the interest of
the Chief Hearing Examiner, when the Chief Hearing Examiner is hearing a case,
shall be decided by the Board of Appeals.
(2) A decisions by the Chief Hearing Examiner
as to a conflict of interest of a Hearing Examiner, and a challenge to the
interest of the Chief Hearing Examiner may be appealed to the Board of Appeals
but only at the time that a decision on the merits is also reached.
R. Postponement of Hearings.
(1) A request for the postponement of a case
shall be in writing, addressed to the Chief Hearing Examiner, and submitted to
the Lower Appeals Division by mail, fax, or hand delivery.A copy of the request
shall be simultaneously mailed to the opposing party in the case.
(2) Subject to the requirements of §R(5)
of this regulation, a request for postponement shall be considered only if the
request is received by the Chief Hearing Examiner at least 3 business days
before the hearing.
(3) The Chief
Hearing Examiner may postpone a hearing for good cause shown. The repeated
inability of a party's attorney or authorized representative to appear on
account of a conflicting court date shall not constitute good cause.
(4) The Chief Hearing Examiner may require
documentary proof of the reason for the postponement. This documentation must
be received by the Chief Hearing Examiner at least 3 business days before the
date of the originally scheduled hearing.
(5) A request for a postponement that is not
received by the Chief Hearing Examiner at least 3 business days before the
hearing may be granted for good cause if:
(a)
The request for postponement was postmarked at least 5 calendar days before the
hearing date but was not received by the Lower Appeals Division until after the
time set in §R(2) of this regulation;
(b) An error on the part of the Lower Appeals
Division has caused such a delay in the requesting party's receipt of the
hearing notice that the requirement of §R(2) of this regulation could not
reasonably be met, and the requesting party has taken timely and reasonable
steps to request a postponement as soon as possible after receipt of the
hearing notice; or
(c) The
postponement request is based on sudden and unforeseeable health problems,
hazardous weather conditions, or the like, the emergency nature of which would
cause a substantial hardship or injustice on a party if the case were not
postponed.
S.
Witness Fees.
(1) Upon written request, a
witness not employed by the Department of Labor, Licensing, and Regulation, who
is subpoenaed for a hearing before a Hearing Examiner, shall be entitled to
receive an attendance fee in the amount of $25 in a case when the witness is
summoned to appear in the county where the witness lives or does business, or
$50 in other cases.
(2) Fees
allowed in accordance with §S(1) of this regulation for witnesses
subpoenaed shall be paid by the Lower Appeals Division.
T. Telephone Conference Hearings.
(1) Testimony before a Hearing Examiner may
be taken by telephone.
(2) A party
not wishing to present testimony and evidence by telephone has a right to
appear at the hearing and present evidence in person at the location from which
the telephone hearing is being generated.
(3) In all telephone hearings, documentary
evidence which a party intends to offer shall be mailed, or sent via electronic
means in a format approved by the Chief Hearing Examiner if the parties have
opted to receive notice by electronic means, to the Hearing Examiner and all
other parties before the hearing. The Hearing Examiner may refuse to consider
evidence that is not timely sent to or received by the Hearing Examiner and all
parties before the hearing. Before the acceptance of any evidence, the Hearing
Examiner shall allow the opposing party to cross-examine the submitting party
or witness concerning the nature and authenticity of the proffered evidence. A
party shall be afforded all rights at a telephone hearing to which the party
would be entitled at a regular hearing, subject only to the limitations of the
physical arrangement.
(4) In the
case of a telephone hearing, the failure to answer the telephone, the failure
to have a telephone available for the hearing, or the failure to be ready to
proceed with the hearing shall be considered as a failure to appear at the
hearing if these conditions exist for more than 10 minutes after the scheduled
time for the hearing.
