Current through Register 1531, September 27, 2024
(1)
Applicability. The following types of adjudicatory
hearings shall be held by the full commission, but may, in the chair's
discretion, be heard in the first instance by a presiding officer selected
pursuant to a policy established by the commission:
(a) M.G.L. c. 6E, § 10(a) hearings
regarding mandatory revocation of an officer's certification;
(b) M.G.L. c. 6E, § 10(b) hearings
regarding discretionary revocation or suspension of an officer's
certification;
(c) M.G.L. c. 6E,
§ 10(d) hearings regarding officer retraining; and
(d) Appeals of a decision by the commission
declining to certify or recertify a law enforcement officer pursuant to M.G.L.
c. 6E, § 4.
(2)
Timing of Revocation or Suspension Hearings.
(a) The commission shall not institute a
revocation or suspension hearing regarding a complaint against an officer until
an officer's appointing agency has issued a final disposition regarding a
complaint or one year has elapsed since the incident was reported to the
commission, whichever is sooner.
(b) If the officer notifies the commission
that the officer wishes to suspend such hearing pending an appeal or
arbitration of the appointing agency's final disposition, the commission shall
suspend the hearing. Any such suspension of the hearing shall not exceed one
year from the officer's notice to the commission; provided, however, that at
any time during which the hearing is so suspended and upon a showing of good
cause by the officer, the commission shall further suspend the hearing for a
period of not less than six months and not more than the commission determines
is reasonable; provided, however, that any delay in instituting a revocation or
suspension hearing shall not exceed one year from the officer's request for
further suspension.
(c) If the
officer notifies the commission that the officer wishes to suspend such hearing
pending the resolution of criminal charges, including any conviction, the
commission shall suspend the hearing; provided, however, that the officer's
certification shall be suspended during the pendency of any suspension in the
hearing.
(3)
Timing of Appeals from a Decision Declining to Certify or
Recertify.
(a) An officer whose
certification has not been granted or renewed by the commission pursuant to
M.G.L. c. 6E, § 4 may request a hearing, which shall be conducted in
accordance with
555
CMR 1.10(4).
(b) All requests for a hearing pursuant to
this section
555
CMR 1.10(3) must be filed
by the officer or their counsel or other representative with the executive
director no later than 30 days from the date of the commission's
decision.
(c) The request for a
hearing shall include:
1. The name and contact
information of the officer and the commission certification identification
number of the officer,
2. the name
and contact information of the officer's counsel or other representative, if
any; and
3. a brief description of
the basis for the request for the hearing.
(4)
Conduct of
Hearings. Hearings held pursuant to
555
CMR 1.10 shall be adjudicatory proceedings
conducted in accordance with M.G.L. c. 30A, §§ 1, 8 and 10 to 14,
inclusive. All hearings shall further comply with
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 those provided in
801
CMR 1.01: (prescribed by M.G.L. c. 6E,
§10(f)).
(a)
Public
Access.
1.
Records. The commission shall treat all documents
submitted to or created by the presiding officer or commission 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 presiding officer and
commission shall make all reasonable efforts to protect the confidentiality of
any documents submitted or considered during the course of an adjudicatory
hearing, to the extent permitted by law and as described in
555
CMR 1.10(4)(a)1. An
adjudicatory hearing conducted under
555
CMR 1.10, except deliberations by a panel of
presiding officers or the commission regarding a decision, shall be public
except where the presiding officer or presiding officers determine that closure
is necessary to protect privacy interests and will not be contrary to the
public interest. All deliberations by a panel of presiding officers or the
commission regarding a decision following an adjudicatory hearing conducted
under
555
CMR 1.10 shall be closed to the
public.
(b)
Evidence.
1. The
rules of evidence observed by courts shall not apply to hearings held under
555
CMR 1.10, 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 presiding
officer may exclude irrelevant, unreliable, and repetitive evidence.
(c)
Standard of
Proof.1. The commission may not
order the revocation or suspension of an officer's certification unless the
commission finds by clear and convincing evidence that such revocation or
suspension is warranted pursuant to M.G.L. c. 6E, § 10(a) or §
10(b).
2. The commission may not
order the retraining of an officer unless the commission determines, based on
substantial evidence, that retraining is warranted pursuant to M.G.L. c. 6E,
§ 10(d).
3. The commission may
not reverse a prior decision to deny the certification or recertification of an
officer unless the commission determines, based on substantial evidence, that
certification is warranted pursuant to M.G.L. c. 6E, § 4.
(d)
Collection of
Information, Subpoenas and Testimony for Use in Hearings. The
commission is authorized to use the same investigatory tools, including the
collection of documents, issuance of subpoenas, and requirement for testimony
under oath in connection with hearings under
555
CMR 1.10 as it is permitted to use with
respect to preliminary inquiries pursuant to
555
CMR 1.05.
(e)
Decisions.
1. Upon completion of a hearing held before
the full commission, the commission 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 full commission shall be the final decision of the
commission. The filing of any appeal of a final decision of the full commission
shall be to the Superior Court in accordance with M.G.L. c. 30A, § 14.
Appeals to the Superior Court shall not stay enforcement of the commission's
decision, but by motion to the commission within ten days of the commission's
decision, the commission may for good cause shown stay enforcement pending
appeal to the Superior Court. A motion for reconsideration before the full
commission shall not toll the 30-day requirement for the filing of any appeal
of a final decision of the full commission to the Superior Court in accordance
with M.G.L. c. 30A, § 14.
2.
Upon completion of a hearing held before a presiding officer other than the
full commission, the presiding officer shall render a decision as provided in
M.G.L. c. 30A § 11(8). The decision of the presiding officer shall be
called an "initial decision".
a. The presiding
officer shall promptly provide the officer, the officer's counsel or other
authorized representative, the head of the officer's agency, the head of the
officer's collective bargaining unit, and a district attorney of competent
jurisdiction with a copy of the presiding officer's initial decision and file a
copy of the same with the commission.
b. Upon receipt of the presiding officer's
initial decision, if there is objection by the officer in writing to the
executive director regarding the presiding officer's findings and
recommendations, the commission shall set dates for submission of briefs and
for any further hearing which the commission in its discretion deems necessary.
The commission shall review, and may revise, the findings of fact, conclusions
of law and recommendation of the presiding officer, giving deference to the
presiding officer's evaluation of the credibility of the testimony and other
evidence presented at the hearing. Failure by the officer to object to the
presiding officer's initial decision within 30 days shall constitute a waiver
of the officer's right to appeal under M.G.L. c. 30A, § 14.
c. The commission may affirm and adopt the
initial decision in whole or in part, and it may recommit the matter to the
presiding officer for further findings or a revised initial decision as it may
direct. The same procedural provisions applicable to the initial filing of the
initial decision shall apply to any refiled or revised initial decision after
recommittal. If the commission does not affirm and adopt the whole of the
initial decision, as originally submitted or as revised, it shall provide an
adequate reason for rejecting those portions of the initial decision it does
not affirm and adopt.
d. The final
written decision of the commission upon review of the initial decision shall be
the final decision of the commission. The filing of any appeal of a final
decision of the commission shall not stay enforcement of the commission's
decision, but by motion to the commission within ten days of the commission's
decision, the commission may for good cause shown stay enforcement pending
appeal to the Superior Court.
e. The
commission shall issue a final decision within 180 days or (30 days in the case
of the denial of certification or recertification) of the presiding officer's
filing or refiling of the initial decision. In the event that the commission is
unable to issue a final decision within the 180 or 30 day period, the executive
director shall notify all parties.
(5)
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 presiding officer shall become part of the administrative record. For
purposes of judicial review, the record shall include the final decision issued
pursuant to
555
CMR 1.10(4)(e). Any evidence
offered at the hearing, but not accepted by the presiding officer, will be
marked for identification purposes only and be included in the
record.