(1)
An officer whose certification is suspended by the commission pursuant to 555
CMR 1.06 or 1.08 may request a hearing before a single commissioner pursuant to
M.G.L. c. 6E, § 9(d) in accordance with 555 CMR 1.09.
(2) All requests for a hearing pursuant to
555 CMR 1.09 must be filed by the officer or their counsel or other
representative with the executive director no later than five days from the
date of the officer's notice of the commission's suspension, unless the officer
is granted an extension of the time to request a hearing. Such a request for an
extension of time shall be made in writing to the commission within the same
period of five days, and shall include the bases for the request. A request for
an extension of time shall be determined by a single commissioner upon review
of the request, and shall be granted only upon a demonstration of good cause.
The failure to timely request a hearing or an extension of time to request a
hearing may result in a waiver of the right to a hearing.
(3) The request for a hearing shall include:
(a) The name and contact information of the
officer and the commission certification identification number of the
officer;
(b) the name and contact
information of counsel or other individual representing the officer, if
any;
(c) the agency at which the
officer was employed when the complaint was filed and the head of that
agency;
(d) a brief description of
the basis for the request for the hearing; and
(e) a statement regarding whether the officer
seeks to invoke or waive the officer's right under M.G.L. c. 6E, § 9(d) to
a hearing within 15 days of the effective date of the suspension.
(4) The executive director shall,
immediately upon a receipt of a request for a hearing under 555 CMR 1.09:
notify the chair of that request; schedule a hearing not less than five days
and not more than 15 days after the effective date of the suspension if the
officer has not waived the right to a hearing in the time frame set forth in
M.G.L. c. 6E, § 9(d); and notify the requesting party and the chair of the
date thereof. The chair shall, within two days after receiving the request for
a hearing and the scheduled hearing date from the executive director, assign
any single commissioner to conduct the requested hearing.
(5) The single commissioner assigned to
conduct a hearing under 555 CMR 1.09 shall be selected pursuant to a policy to
be established by the commission.
(6) Hearings held before a single
commissioner pursuant to 555 CMR 1.09 shall be adjudicatory proceedings
conducted in accordance with M.G.L. c. 30A, §§ 1, 8 and 10 through
14. All hearings shall comply with 555 CMR 1.05, as applicable, and
801 CMR 1.01:
Formal Rules, except that the provisions of
801 CMR 1.01(1), (2), (6), (11) and
(14) shall not apply, and that the following
additional rules shall supersede any inconsistent rules provided in
801 CMR 1.01:
(a)
Standard of
Proof. The single commissioner shall affirm the suspension of the
certification of an officer unless the single commissioner determines by a
preponderance of the evidence presented to the commission and additional
evidence provided by the officer, the suspension is not warranted. If the
single commissioner so determines, the single commissioner shall stay the
commission's suspension of the officer's certification.
1. The rules of evidence observed by courts
shall not apply to hearings held by the single commissioner, but the rules of
privilege recognized by law shall be observed.
2. Evidence may be admitted and given
probative effect only if it is the kind of evidence on which reasonable persons
are accustomed to rely on in the conduct of serious affairs. The single
commissioner may exclude irrelevant, unreliable, and repetitive
evidence.
(b)
Discovery. No discovery shall be permitted in
connection with a hearing held pursuant to 555 CMR 1.09 except upon a motion
made to the single commissioner at least seven days before such hearing, which
motion shall be granted for good cause shown.
(c)
Public Access.
1.
Records. The
single commissioner shall treat all documents submitted to or created by them
as confidential to the extent permitted by law, including by, but not limited
to, withholding or redacting such records pursuant to M.G.L. c. 4, § 7,
twenty-sixth, the exemptions to the definition of public records.
2.
Hearings. During
the course of an adjudicatory hearing conducted under 555 CMR 1.10, the single
commissioner shall make all reasonable efforts to protect the confidentiality
of any documents submitted or considered during the course of a hearing, to the
extent permitted by law and as described in 555 CMR 1.09(6)(c)1. A hearing
conducted under 555 CMR 1.09 shall be open to the public unless the single
commissioner determines that closure is necessary to protect privacy interests
and will not be contrary to the public interest.
(d)
Decisions. Upon
completion of the hearing, the single commissioner shall render a written
decision as promptly as administratively feasible, in accordance with M.G.L. c.
30A, § 11(8). The written decision of the single commissioner shall be the
final decision of that single commissioner. The filing of any appeal of a final
decision of the single commissioner shall be to the Superior Court in
accordance with M.G.L. c. 30A, § 14.
(e)
Judicial Review
. Appeals to the Superior Court shall not stay enforcement of the single
commissioner's decision, but by motion to the commission within ten days of the
single commissioner's decision, the commission may for good cause lift the stay
of the single commissioner pending appeal to the Superior Court, or pending the
final decision of the commission pursuant to 555 CMR 1.10.
(f)
Administrative Record for
Judicial Review. Pursuant to M.G.L. c. 30A, § 11(4), all
documents, testimony and other evidence offered and accepted into evidence by
the single commissioner shall become part of the administrative record. For
purposes of judicial review, the record shall include the final decision issued
pursuant to 555 CMR 1.09(6)(d). Any evidence offered at the hearing, but not
accepted by the single commissioner, will be marked for identification purposes
only and be included in the record.
