Current through Register 1531, September 27, 2024
(1)
Preamble. 801 CMR 1.01 of the Standard Rules of
Adjudicatory Practice and Procedure is a self-contained segregable body of
regulations of general applicability for proceedings in which formal rules are
desired. An Agency must determine for any class of hearing whether to hold
hearings under 801 CMR 1.01 or
801 CMR
1.02 Informal/ Fair Hearing Rules. Agencies
shall determine based on such factors as: the volume of cases held; whether
claimants are represented by counsel; the complexity of the issues; or the
applicability of Federal fair hearings procedures. All notices from which an
Adjudicatory Proceeding can be claimed shall state which rules apply, whether
formal under 801 CMR 1.01, or informal under
801 CMR
1.02. In addition, all notices shall contain
a notice printed in English, Spanish, Portuguese, Italian, Greek, French and
Chinese that informs the reader that the document is important and should be
translated immediately.
(2)
Scope, Construction and Definitions.
(a)
Scope801 CMR 1.00 governs the
conduct of formal Adjudicatory Proceedings of all Commonwealth agencies
governed by M.G.L. c. 30A.
(b)
Construction.
801 CMR 1.00 shall be
construed to secure a just and speedy determination of every
proceeding.
(c)
Definitions. Refer to all definitions included in
M.G.L. c 30A. In addition, the following words when used in 801 CMR 1.01 shall
have the following meanings:
Authorized Representative. An
attorney, legal guardian or other person authorized by a Party to represent him
in an Adjudicatory Proceeding.
Electronic Medium. Any device used to
transmit information electronically, including but not limited to facsimile and
e-mail.
Hand Delivery. Delivery by any method
other than pre-paid U.S. mail, including but not limited to private mail
services.
Petitioner The Party or Agency who
initiates an Adjudicatory Proceeding.
Presiding Officer The individual(s)
authorized by law or designated by the Agency to conduct an Adjudicatory
Proceeding.
Respondent. The Party or Agency who
must answer in an Adjudicatory Proceeding.
(3)
Representation
(a)
Appearance. An
individual may appear in his or her own behalf, or may be accompanied,
represented and advised by an Authorized Representative. An authorized officer
or employee may represent a corporation, an authorized member may represent a
partnership or joint venture, and an authorized trustee may represent a
trust.
(b)
Notice of
Appearance. An Authorized Representative shall appear by filing a
written notice with the Agency or Presiding Officer. Notice shall contain the
name, address and telephone number, as well as facsimile number and email
address of the Authorized Representative and of the Party represented, and may
limit the purpose of the appearance. The filing by an attorney of any pleading,
motion or other paper shall constitute an appearance by the attorney who sent
it, unless otherwise stated.
(4)
Timely Filing.
Parties must file papers required or permitted to be filed with the Agency
under
801 CMR 1.00, or any provision
of applicable law, within the time provided by statute or Agency rule. Unless
otherwise provided by applicable statute or regulation, Parties must file
papers at an office of the Agency or with the Presiding Officer.
(a)
Manner of
Filing. All documents must be filed by email, unless otherwise
ordered by the Presiding Officer for good cause or the Respondent or Petitioner
lacks access to sufficient Electronic Medium. Agencies must use all reasonable
efforts to inform the general public of the appropriate email address where
documents will be accepted, such as posting the email address on the Agency
website or by other means. Papers filed by Electronic Medium shall be deemed
filed at the office of the Agency or with the Presiding Officer on the date
received by the Agency or Officer during usual business hours, but not later
than 5:00 P.M. Parties are reminded of the prohibition concerning ex
parte communications contained in
801
CMR 1.03(6). Parties must
refrain from contacting the Presiding Officer about a matter, unless permission
is granted by the Presiding Officer and a copy of the communication is sent to
all other parties. If a party lacks access to sufficient Electronic Medium,
Papers filed by U.S. mail shall be deemed filed on the date contained in the
U.S. postal cancellation stamp or U.S. postmark, and not the date contained on
a postal meter stamp. Papers filed by all other means shall be considered
hand-delivered, and shall be deemed filed on the date received by the Agency
during usual business hours. Any recipient of papers filed as provided in 801
CMR 1.01(4)(a) shall stamp papers with the date received. The recipient shall
provide on request date receipts to Persons filing papers by hand-delivery
during business hours. The Presiding Officer shall make his or her best efforts
to process filings delivered by mail and conduct hearings in a reasonable and
timely manner.
(b) Papers received
after usual business hours shall be deemed filed on the following business
day.
(c)
Notice of
Agency Actions. Notice of actions and other communications from
the Presiding Officer or adjudicating Agency, or its designee, shall be
delivered by email, unless otherwise agreed upon by the parties, or directed by
the Presiding Officer for good cause, or the Respondent or Petitioner lacks
access to sufficient Electronic Medium. Notice of actions and other
communications by mail shall be presumed to be received upon the day of
hand-delivery or, if mailed, three days after deposit in the U.S. mail. The
postmark shall be evidence of the date of mailing.
(d)
Computation of
Time. Unless otherwise specifically provided by
801 CMR 1.00 or by other
applicable law, computation of any time period referred to in
801 CMR 1.00 shall begin with
the first day following the act which initiates the running of the time period.
The last day of the time period is included, unless it is a Saturday, Sunday,
or legal holiday or any other day on which the office of the Agency is closed,
when the period shall run until the end of the next following business day.
When the time period is less than seven days, intervening days when the Agency
is closed shall be excluded.
(e)
Extension of Time. The Agency or Presiding Officer
may, for good cause shown, extend any time limit contained in
801 CMR 1.00, unless otherwise
restricted by law. All requests for extensions of time shall be made by motion
before the expiration of the original or next previous extended time period.
The filing of such motion shall toll the time period sought to be extended
until the Presiding Officer acts on the motion. 801 CMR 1.01(4)(e) shall not
apply to any limitation of time prescribed by statute, unless extensions are
permitted by the applicable statute
(5)
Filing Format.
(a)
Title. Papers
filed with an Agency shall be titled with the name of the Agency, the docket
number of the case if known, the names of the Parties and the nature of the
filing.
(b)
Signatures. Documents filed by email will be deemed to
be signed by the sender, and must include the sender's email address, street
address, and telephone number. Papers filed with an Agency shall be signed and
dated by an unrepresented Party, or by a Party's Authorized Representative, and
shall state the address and telephone number of the Person signing the
document. Such signature constitutes the signer's certification that he has
read the document and knows the content thereof, that statements contained
therein are believed to be true, that it is not interposed for delay and that
if the document has been signed by an Authorized Representative that he has
full power and authority to do so.
(c)
Designation of
Agency. An Agency designated as a Party to Adjudicatory
Proceedings shall be designated by its name and not by the individual names of
those constituting the Agency. If while the Adjudicatory Proceeding is pending,
a change of employees occurs within the Agency, the Adjudicatory Proceeding
shall not abate, and no substitution of Parties shall be necessary.
(d)
Form.
1.
Size and Printing
Requirements. All papers filed for possible inclusion in the
record shall be clear and legible and shall be presented in accordance with the
standards of the Presiding Officer, if any, or on Agency forms whenever
available.
2.
Agency
Format. An Agency may provide forms to be used for specific
purposes by any Person or Party and use of forms provided shall be
mandatory.
(e)
Maintenance of Files. The papers filed in a given case
shall be consolidated and maintained in an individual folder under a unique
case or docket number with additional copies as the Agency or applicable
statute may require.
(f)
Service of Copies. In addition to the filing of any
papers with the Agency, the Party filing papers shall serve a copy on all other
Parties to the proceedings by email, unless a party lacks access to sufficient
Electronic Medium or the Presiding Officer has ordered that papers may be filed
by a method other than email, such as either delivery in hand or prepaid U.S.
Mail. All papers filed with the Agency shall be accompanied by a statement
certifying the date copies have been served, specifying the mode of service,
the name of the Party served and the address of service. Papers served by
Electronic Medium shall indicate the date transmitted and the telephone number
or electronic address used for transmittal. Failure to comply with this rule
shall be grounds for the Agency to refuse to accept papers for filing. The
means of service of copies should take no longer than the means of
filing.
(6)
Initiation of Formal Adjudicatory Proceedings.
(a)
Agency Notice of
Action. When an Agency initiates a proceeding against a Person
regarding an Agency action or intended action, the Agency shall provide the
Person with notice of the action or an order to show cause why the action
should not be taken. The notice or order shall state the reason for the action.
It shall specify in numbered paragraphs the specific facts relied upon as the
basis for the action, the statute(s) or regulations authorizing the Agency to
take action, and, in the case of a notice, any right to request an Adjudicatory
Proceeding.
(b)
Claim
for Adjudicatory Proceeding. Any Person with the right to initiate
an Adjudicatory Proceeding may file a notice of claim for an Adjudicatory
Proceeding with the Agency within the time prescribed by statute or Agency
rule. In the absence of a prescribed time, the notice of claim must be filed
within 30 days from the date that the Agency notice of action is sent to a
Party.
(c)
Form and
Content of Claims. The notice of claim for an Adjudicatory
Proceeding shall identify the basis for the claim. The notice shall state
clearly and concisely the facts upon which the Party is relying as grounds, the
relief sought and any additional information required by statute or Agency
rule.
(d)
Answer.
1.
Answer to Claim. Except as statute or Agency rule may
otherwise prescribe, within 21 days of receipt of a notice of claim for an
Adjudicatory Proceeding, a Respondent shall file an answer to the initiating
pleading. The answer shall contain full, direct and specific answers. The
answer shall admit, deny, further explain, or state that the Respondent has
insufficient knowledge to answer with specificity the initiating Party's
allegations or claims. An allegation of inability to admit or deny for lack of
information shall be treated as a denial. The answer shall also contain all
affirmative defenses which the Respondent claims and may cite any supporting
statute or regulation. All allegations contained in an initiating pleading
which are neither admitted nor denied in the answer shall be deemed
denied.
2.
Answer to
Order to Show Cause. Except as statute or Agency rule may
otherwise prescribe, within 21 days of receipt of an order to show cause, a
Respondent shall file an answer thereto. The answer shall contain full, direct
and specific answers. The answer shall admit, deny, further explain, or state
that the Respondent has insufficient knowledge to answer with specificity the
initiating Party's allegations or claims. An allegation of inability to admit
or deny for lack of information shall be treated as a denial. The answer shall
also contain all affirmative defenses which the Respondent claims and may cite
any supporting statute or regulation. All allegations contained in an
initiating pleading which are neither admitted nor denied in the answer shall
be deemed denied.
(e)
Agency Answer. An Agency shall not be required to file
an answer if, at the time the Agency took the action being appealed, the Agency
disclosed to the Petitioner the material facts on which the Agency relied in
taking such action and the statutes and/or regulations which authorized or
required the Agency to take such action.
(f)
Joinder of Additional Parties
and Amendments of Pleadings. If a Person is later joined or
allowed to intervene, or allowed as a substitute Party, the Presiding Officer,
upon his or her own initiative or upon the motion of any Party, may establish
reasonable times for the filing of pleadings or other documents by any
additional Party. The Presiding Officer may allow the amendment of any pleading
previously filed by a Party upon conditions just to all Parties, and may order
any Party to file an Answer or other pleading, or to reply to any
pleading.
(g)
Withdrawal. Any Party may, by motion, apply to
withdraw a claim, a defense, or a request for action or for review, upon terms
established by Agency rule, or which the Presiding Officer may allow in
fairness to all Parties.
(7)
Motions.
(a)
General
Requirements.
1.
Presentations and Responses. An Agency or Party may by
motion request the Presiding Officer to issue any order or take any action not
inconsistent with law or
801 CMR 1.00. Motions may be
made in writing at any time after the commencement of an Adjudicatory
Proceeding or orally during a hearing. Each motion shall set forth the grounds
for the desired order or action and state whether a hearing is desired. Within
seven days after a written motion is filed with the Presiding Officer, any
other Agency or Party may file written responses to the motion and may request
a hearing. Responses to oral motions may be made orally at the hearing or in
writing filed within seven days according to the discretion of the Presiding
Officer.
2.
Action on
Motions. The Agency or Presiding Officer shall, unless the Parties
otherwise agree, give at least three days' notice of the time and place for the
hearing when the Agency or Presiding Officer determines that a hearing on the
motion is warranted. The Agency or Presiding Officer may grant requests for
continuances for good cause shown or may, in the event of unexcused absence of
a Party who received notice, permit the hearing to proceed. The unexcused
Party's written motion or objections, if any, are to be regarded as submitted
on the written papers. The Agency or Presiding Officer may rule on a motion
without holding a hearing if delay would seriously injure a Party, or if
presentation of testimony or oral argument would not advance the Agency or
Presiding Officer's understanding of the issues involved, or if disposition
without a hearing would best serve the public interest. The Agency or Presiding
Officer may otherwise act on a motion when all Parties have responded or the
deadline for response has expired, whichever occurs first. If the Agency or
Presiding Officer acts on the motion before all Parties have responded and the
time has not expired, the ruling may be subject to modification or rescission
upon the filing of one or more subsequent but timely responses.
3.
Scope of Factual Basis for
Hearing on Motions. The Parties may offer at a hearing on a motion
evidence relevant to the particular motion. This evidence may consist of
statements which are presented orally by sworn testimony, by affidavit, or
which appear in admissible records, files, depositions or answers to
interrogatories.
(b)
Motion for More Definite Statement. If a pleading to
which a responsive pleading is required is so vague or ambiguous that a Party
cannot reasonably frame a response, the Party may, within the time permitted
for such response, move for a more definite statement before
filing its answer. The motion shall set forth the defects complained of and the
details desired. If the motion is granted, the more definite statement shall be
filed within ten days of the order allowing the motion or within the deadline
determined by the Agency or Presiding Officer.
(c)
Motion to
Strike. A Party may move to strike from any pleading, or the
Agency or Presiding Officer may on its own motion strike, any insufficient
allegation or defense, or any redundant, immaterial, impertinent or scandalous
matter.
(d)
Motion to
Continue. For good cause shown a scheduled hearing may be
continued to another date:
1. by agreement of
all Parties with the permission of the Presiding Officer, provided the
Presiding Officer receives a letter confirming the request and agreement before
the hearing date; or
2. by written
motion to continue made by a Party at least three days prior to the hearing
date; or
3. by the Presiding
Officer on his or her own motion or upon a motion to continue made at the
scheduled hearing.
(e)
Motion to Change Venue. Any Party may move to have a
hearing held in a place other than the scheduled location. In deciding such
motions the Presiding Officer shall consider the objections of Parties, the
transportation expenses of the Presiding Officer, the possibility of conducting
the hearing by means of telecommunication facilities, the availability of
either stenographic services or a suitable recording system, the availability
of a neutral and appropriate hearing site, the availability of witnesses
because of their place of residence or state of health, and other appropriate
matters.
(f)
Motion for
Speedy Hearing. Upon motion of any Party and upon good cause
shown, the Presiding Officer may advance a case for hearing.
(g)
Motion to
Dismiss.
1.
Grounds. Upon completion by the Petitioner of the
presentation of his or her evidence, the Respondent may move to dismiss on the
ground that upon the evidence, or the law, or both, the Petitioner has not
established his or her case. The Presiding Officer may act upon the dismissal
motion when presented, or during a stay or continuance of proceedings, or may
wait until the close of all the evidence.
2.
Failure to Prosecute or
Defend. When the record discloses the failure of a Party to file
documents required by statute or by
801 CMR 1.00, to respond to
notices or correspondence, to comply with orders of the Presiding Officer, or
otherwise indicates an intention not to continue with the prosecution of a
claim, the Presiding Officer may initiate or a Party may move for an order
requiring the Party to show cause why the claim shall not be dismissed for lack
of prosecution. If a Party fails to respond to such order within ten days, or a
Party's response fails to establish such cause, the Presiding Officer may
dismiss the claim with or without prejudice.
3.
Dismissal for Other Good
Cause. The Presiding Officer may at any time, on his or her own
motion or that of a Party, dismiss a case for lack of jurisdiction to decide
the matter, for failure of the Petitioner to state a claim upon which relief
can be granted or because of the pendency of a prior, related action in any
tribunal that should first be decided.
(h)
Motion for Summary
Decision. When a Party is of the opinion there is no genuine issue
of fact relating to all or part of a claim or defense and he or she is entitled
to prevail as a matter of law, the Party may move, with or without supporting
affidavits, for summary decision on the claim or defense. If the motion is
granted as to part of a claim or defense that is not dispositive of the case,
further proceedings shall be held on the remaining issues.
(i)
Substitution of
Parties. The Agency or Presiding Officer may, on motion, at any
time in the course of a proceeding, permit substitution of Parties as justice
or convenience may require.
(j)
Consolidation of Proceedings. If there are multiple
proceedings which involve common issues, a Party shall notify the Agency or
Presiding Officer of this fact, stating with particularity the common issues.
The Agency or Presiding Officer may with the concurrence of all parties and any
other tribunal that may be involved, consolidate the proceedings.
(k)
Motion to
Reopen. At any time after the close of a hearing and prior to a
decision being rendered, a Party may move to reopen the record if there is new
evidence to be introduced. New evidence consists of newly discovered evidence
which by due diligence could not have been discovered at the time of the
hearing by the Party seeking to offer it. A motion to reopen shall describe the
new evidence which the Party wishes to introduce.
(l)
Motion for
Reconsideration. After a decision has been rendered and before the
expiration of the time for filing a request for review or appeal, a Party may
move for reconsideration. The motion must identify a clerical or mechanical
error in the decision or a significant factor the Agency or the Presiding
Officer may have overlooked in deciding the case. A motion for reconsideration
shall be deemed a motion for rehearing in accordance with M.G.L. c. 30A, §
14(1) for the purposes of tolling the time for appeal.
(8)
Discovery.
(a)
General Policy and Protective
Orders. The Parties are encouraged to engage in voluntary
discovery procedures. In connection with document requests, interrogatories,
depositions or other means of discovery, the Presiding Officer may make any
order which justice requires to protect a Party or Person from annoyance,
embarrassment, oppression, or undue burden or expense. Orders may include
limitations on the method, time, place and scope of discovery and provisions
for protecting the secrecy of confidential information or documents.
(b)
Document Request Procedure
and Costs. After a request for an Adjudicatory Proceeding has been
filed or an order to show cause issued, a Party may serve another Party or
Agency with a document request which lists with reasonable specificity items
requested for inspection which are in the possession, custody or control of the
Party or Agency requested to provide them. A Party or Agency served with a
document request shall respond within 30 days or as otherwise determined by the
Presiding Officer. The Presiding Officer may require a Party requesting
documents to pay the Party or Agency responding to a document request the fee
per page determined by the Executive Office for Administration and
Finance.
(c)
Depositions: When Permitted. After a request for an
Adjudicatory Proceeding has been filed or an order to show cause issued, the
Presiding Officer may, upon motion by a Party, order the taking of the
testimony of any Person by deposition before any officer authorized to
administer oaths. The motion shall specify the name and address of each
deponent and the reasons for the deposition. The Presiding Officer shall allow
the motion only upon showing that the parties have agreed to submit the
deposition in lieu of testimony by the witness, or the witness cannot appear
before the Presiding Officer without substantial hardship. The motion shall
only be allowed upon a showing by the moving Party that the testimony sought is
significant, relevant, and not discoverable by alternative means. Motions for
depositions shall be considered and acted upon in accordance with 801 CMR
1.01(7)(a).
(d)
Depositions: How Taken, Signing. Depositions shall be
taken orally before an officer having power to administer oaths. Each deponent
shall be duly sworn. In instances where sincere scruple forbids the taking of
an oath, a person may affirm with the same legal effect as having been sworn.
Any Party shall have the right to cross-examine. The questions asked, the
answers given, and any objections shall be recorded. The Presiding Officer
shall rule only on objections accompanied by a reason and only in regard to the
stated reason. Each deponent shall have the option of reviewing and affirming
the deposition transcript and of indicating an affirmance in whole or in part
by signing a statement to that effect on the title page of the transcript. The
deponent may waive the reviewing and signing, in which case the officer shall
state the fact of the waiver in the officer's certification, and the transcript
shall then have the same status as if signed by the deponent. Subject to
appropriate rulings on objections, the Presiding Officer may receive the
deposition in evidence, as if the testimony contained therein had been given by
a witness in the proceeding.
(e)
Recording by Other than Stenographic Means. The
Presiding Officer may on motion permit the testimony at a deposition to be
recorded by other than stenographic means, in which event the Presiding
Officer's authorization shall designate the manner of recording, preserving,
and filing of the record of the deposition and may include other provisions to
assure that the recorded testimony will be accurately preserved.
(f)
Certification of
Transcript. A duplicate transcript of the deposition shall be
certified by the officer before whom the deposition was taken. When the
deposition is introduced into evidence, the Party requesting the deposition
shall order a duplicate copy of the transcript and forward a copy to the
Presiding Officer.
(g)
Interrogatories. With the approval of the Agency or
Presiding Officer, after a requestfor an Adjudicatory Proceeding has been filed
or an order to show cause issued, a Party may serve written interrogatories
upon any other Party for the purpose of discovering relevant information not
privileged and not previously supplied through voluntary discovery.
Interrogatories may be served by Hand-delivery, pre-paid U.S. mail or
Electronic Medium. A duplicate of all interrogatories shall be simultaneously
filed with the Presiding Officer. No Party, without the approval of the
Presiding Officer, shall serve more than a total of 30 interrogatories either
concurrently or serially including subsidiary or incidental questions. A Party
may not serve any interrogatories less than 45 days before the scheduled
hearing, without the approval of the Agency or Presiding Officer.
(h)
Answers to
Interrogatories. Each interrogatory shall be separately and fully
answered under the penalties of perjury, unless an objection to the
interrogatory with supporting reasons are stated in lieu of an
answer. An answer shall be served within 30 days of receipt of an
interrogatory, or within such other time as the Presiding Officer may specify.
A duplicate of all answers to interrogatories shall be simultaneously filed
with the Presiding Officer.
(i)
Motion for Order Compelling Discovery. A Party may
file with the Presiding Officer, subject to 801 CMR 1.01(7)(a), a motion to
compel discovery if a discovery request is not honored, or only partially
honored, or interrogatories or questions at deposition are not fully answered.
If the motion is granted and the other Party fails without good cause to obey
an order to provide or permit discovery, the Presiding Officer, before whom the
action is pending, may make orders in regard to the failure as are just,
including one or more of the following:
1. An
order that designated facts shall be established adversely to the Party failing
to comply with the order; or
2. An
order refusing to allow the disobedient Party to support or oppose designated
claims or defenses, or prohibiting him or her from introducing evidence on
designated matters.
(9)
Intervention and
Participation.
(a)
Intervention. Any Person not initially a Party, who
may be substantially and specifically affected thereby and wishes to intervene
or participate in an Adjudicatory Proceeding shall file a written petition for
leave to be allowed to do so. Except as otherwise provided in 801 CMR 1.01(9),
the petition shall be subject to 801CMR 1.01(7)(a).
(b)
Form and
Content. The petition shall state the name and address of the
Person filing the petition. It shall describe the manner in which the Person
making the petition may be affected by the proceeding. It shall state why the
Agency or Presiding Officer should allow intervention or participation, any
relief sought, and any supporting law.
(c)
Filing the
Petition. The petition may be filed at any time following a
request for an Adjudicatory Proceeding or an order to show cause, but in no
event later than the date of hearing. Petitions may be allowed at the
discretion of the Presiding Officer, for any Person who is likely to be
substantially and specifically affected by the proceeding, provided all
existing Parties are given notice and an opportunity to respond pursuant to 801
CMR 1.01(7)(a).
(d)
Rights of Intervenors. The Presiding Officer may
permit any Person who is likely to be substantially and specifically affected
by the proceeding. Any Person permitted to intervene shall have all the rights
of a Party, subject to the discretion of the Presiding Officer to avoid undue
delay or unnecessary duplication of evidence, and shall be subject to all
limitations imposed upon a Party.
(e)
Rights of
Participants. The Presiding Officer may permit any Person who may
be affected by a proceeding may be permitted to participate. Permission to
participate shall be limited to the right to argue orally at the close of a
hearing and to file an amicus brief, but shall not necessarily make the Person
allowed to participate a Party in interest who may be aggrieved by any result
of the proceeding. A Person who petitioned to intervene and who was allowed
only to participate may participate without waiving his or her rights to
administrative or judicial review of the denial of his or her motion to
intervene.
(f)
Intervention to Protect the Environment. Any group of
ten or more Persons may intervene collectively as a Party in any Adjudicatory
Proceeding according to M.G.L. c. 30A, § 10A, provided that intervention
is limited to the issue of actual or probable damage to the environment as
defined in M.G.L. c. 214 § 7A, and the elimination or reduction thereof.
The petition to intervene pursuant to M.G.L. c. 30A, § 10A shall also
state the names and addresses of the members of the group and identify the
member of the group, or the group's attorney, or the group's agent, who will be
the group's representative before the Presiding Officer. The representative
shall have the sole authority to sign papers for the group and to accept
service for the group. Any Paper served on the representative of the group
shall be deemed served on the entire group. If no representative is
specifically stated in the petition, the first Person mentioned in the motion
to intervene as a member of the group shall be deemed the representative of the
group. A group that is permitted to intervene as a Party shall be collectively
deemed a single Party as defined in
801 CMR 1.00.
(g)
Permissive
Reference. When a Party to an action relies upon any rule or
regulation issued by an Agency, other than the one conducting the proceeding as
grounds for a claim or defense, the Agency having promulgated the rule or
regulation on timely application by a Party and in the discretion of the
Presiding Officer, or at the initiative of the Presiding Officer, may offer a
relevant construction, interpretation or application of the rule or regulation
in aid of the resolution of one or more of the issues involved in the
Adjudicatory Proceeding. Any request to the promulgating Agency shall be in
writing and present a neutral statement of the issue or issues possibly
affected by the rule or regulation. The promulgating Agency may respond in
writing as promptly as its resources allow, but in no event later than 30 days
from its receipt of the request. The promulgating Agency may expressly decline
to respond and need not justify its position, and its failure to respond within
the time limited shall be deemed a declination to do so.
(10)
Hearings and
Conferences.
(a)
Pre-hearing Conference. The Presiding Officer may
initiate or upon the application of any Party, may call upon the Parties to
appear for a conference to consider;
1. the
simplification or clarification of the issues;
2. the possibility of obtaining stipulations,
admissions, agreements on matters already of record, or similar agreements
which will reduce or eliminate the need of proof;
3. the limitation of the number of expert
witnesses, or avoidance of cumulative evidence, if the case is to be
heard;
4. the possibility of an
agreement disposing of any or all issues in dispute; and
5. such other matters as may aid in the
disposition of the Adjudicatory Proceeding.
Those matters agreed upon by the Parties shall be reduced to
writing and signed by them, and the signed writing shall constitute a part of
the record. The scheduling of a pre-hearing conference shall be according to
Agency rule or, in the absence of rules, solely within the discretion of the
Presiding Officer.
(b)
Stipulations. In
the discretion of the Presiding Officer, the Parties may, by written
stipulation filed with the Presiding Officer at any stage of the proceeding, or
by oral stipulation made at a hearing, agree as to the truth of any fact
pertinent to the proceeding. The Presiding Officer may require parties to
propose stipulations. In making findings, the Presiding Officer need not be
bound by a stipulation which is in contravention of law or erroneous on its
face.
(c)
Submission
without a Hearing. Any Party may elect to waive a hearing and
submit his or her case upon written submissions. Submission of a case without a
hearing does not relieve the Parties from the necessity of proving the facts
supporting their allegations or defenses on which a Party has the burden of
proof.
(d)
Conduct of
Hearing.
1.
Decorum. All Parties, their Authorized
Representatives, witnesses and other Persons present at a hearing shall conduct
themselves in a manner consistent with the standards of decorum commonly
observed in any court. Where such decorum is not observed, the Presiding
Officer may take appropriate action. Appropriate action may include refusal to
allow a disruptive Person to remain in the hearing room and, if such Person is
a Party, to allow participation by representative only.
2.
Duties of Presiding
Officer. The Presiding Officer shall conduct the hearing,
administering an oath or affirmation to all witnesses, making all decisions on
the admission or exclusion of evidence and resolving questions of procedure.
The Presiding Officer shall file a decision or recommended decision with the
Agency within a reasonable time after the close of the hearing.
(e)
Order of
Proceedings.
1.
Opening. In the usual case, except as otherwise
required by law, in hearings resulting from a notice of claim of an
adjudicatory proceeding, the Party filing the claim shall open and first
present evidence; in hearings resulting from orders to show cause, the Agency
issuing the order shall open and first present evidence.
2.
Order of
Presentation. The Party taking the position contrary to that of
the Party opening shall have the right to present his or her position upon
completion of the opening Party's case.
3.
Closing. The
Party opening shall argue last in summation.
4.
Discretion of the Presiding
Officer. The Presiding Officer may, when the evidence is
peculiarly within the knowledge of one Party, or when there are multiple
Petitioners, or when he or she otherwise determines appropriate, direct who
shall open and may otherwise determine the order of presentation.
(f)
Presentation of
Evidence. All Parties shall have the right to present documentary
and oral evidence, to cross-examine adverse or hostile witnesses, to interpose
objections, to make motions and oral arguments. Cross-examination is to follow
the direct testimony of a witness. Whenever appropriate, the Presiding Officer
shall permit reasonable redirect and recross-examination and allow a Party an
adequate opportunity to submit rebuttal evidence. Except as otherwise provided,
evidence of the Respondent shall be presented after the presentation of the
Petitioner's case in chief. The Respondent shall first argue in summation.
1.
Oath. A witness's
testimony shall be under oath or affirmation.
2.
Offer of Proof.
An offer of proof made in connection with a ruling of the Presiding Officer
rejecting or excluding proffered testimony shall consist of a statement of the
substance of the evidence which the Party contends would be adduced by the
testimony. If the excluded evidence consists of evidence in documentary or
written form, it shall be filed and marked for identification and shall
constitute the offer of proof.
(g)
Subpoenas. The
Agency or Presiding Officer may issue, vacate or modify subpoenas, in
accordance with the provisions of M.G.L. c. 30A, § 12.
(h)
Administrative
Notice. The Presiding Officer may take notice of fact(s), pursuant
to the requirements of M.G.L. c. 30A, § 11(5).
(i)
Transcript of
Proceedings.
1.
Stenographic or Recorded Records and Transcripts.
Except where a Party elects to provide a public stenographer as provided
herein, the testimony and argument at the hearing shall be recorded either
stenographically or by Electronic Medium. The Presiding Officer shall arrange
for verbatim transcripts of the proceedings to be supplied at cost to any Party
upon request, at the Party's own expense. The Agency may elect to supply a copy
of the tape, disc or other audio-visual preserving medium employed at the
proceeding to record its events in lieu of a verbatim
transcript. Any Party, upon motion, may be allowed to provide a public
stenographer to transcribe the proceedings at the Party's own expense upon
terms ordered by the Presiding Officer. In this event, a verbatim transcript
shall be supplied to the Presiding Officer at no expense to the
Agency.
2.
Correction
of Transcript. Corrections of the official hearing transcript may
be made only to make it conform to the evidence presented at the hearing.
Transcript corrections, agreed to by opposing Parties, may be incorporated into
the record, if and when approved by the Presiding Officer. If opposing Parties
cannot agree on transcript corrections, any Party may report the fact to the
Presiding Officer, who may call for the submission of proposed corrections and
shall determine what corrections, if any, are to be made with reliance on his
or her own notes.
(j)
Hearing Briefs. At the close of the taking of
testimony and prior to his or her rendering a decision, the Presiding Officer
may in his or her discretion call for and fix the terms of the filing of
written summaries and arguments on the evidence and/or proposed findings of
fact and conclusions of law.
(k)
Settling the Record.
1.
Contents of
Record. The record of the proceeding shall consist of the
following items: notices of all proceedings; all motions, pleadings, briefs,
memoranda, petitions, objections, requests and rulings; evidence received,
including deposition transcripts, and offers of proof with the arguments;
statements of matters officially noticed if not otherwise documented;
interrogatories and the answers; all findings, decisions and orders presented
whether recommended or final; transcripts of the hearing testimony, argument,
comments or discussions of record or the tape, disc or preserving medium; and
any other item the Presiding Officer has specifically designated be made a part
of the record. The record shall at all reasonable times be available at the
offices of the Agency or other designated location for inspection by the
Parties.
2.
Evidence
after Record Closed. No evidence shall be admitted after the close
of the record, unless the Presiding Officer reopens the record.
3.
Exceptions.
Formal exceptions to rulings on evidence and procedure are unnecessary. It is
sufficient that a Party, at the time that a ruling is made or sought, makes
known his or her objection to and grounds for any action taken. If a Party does
not have an opportunity to object to a ruling at the time it is made, or to
request a particular ruling at an appropriate time, the Party may submit a
written statement of his or her specific objections and grounds within three
days of notification of action taken or refused. Oral or written objections to
evidentiary rulings shall be part of the record.
(11)
Decisions. Unless otherwise provided by statute,
decisions shall be made as follows:
(a)
Direct Agency Decisions. The Agency may by regulation
elect to preside at the reception of evidence in all cases. In the absence of
such regulation, the Agency may elect to preside at the reception of evidence
in particular cases and shall exercise this election by so stating in the
notice scheduling the time and place for the Adjudicatory Proceeding in the
particular case. The decision of the Agency as Presiding Officer shall be the
final Agency decision.
(b)
Initial Decisions. A Presiding Officer other than the
Agency who presided at the reception of evidence 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. The Presiding Officer shall promptly
provide the parties with a copy of his or her decision when filed with the
Agency.
(c)
Tentative
Decisions. If the Agency elects to render a decision on the record
without having presided at the reception of evidence, either by regulation or
by statement in the notice scheduling the hearing, the initial decision shall
also become a tentative decision.
1.
Objections and Response. The Parties shall have the
opportunity to file written objections to the tentative decision with the
Agency, which may be accompanied by supporting briefs. The Parties shall have
30 days from the filing of the tentative decision or the transcript corrections
under 801 CMR 1.01(10)(i)2., whichever occurs last, to file written objections.
Parties may file responses to objections within 20 days of receipt of a copy of
the objections. The Agency may order or allow the Parties to argue orally. A
Party requesting oral argument shall file the request with the Party's written
objections or response.
2.
Agency Action on the Tentative Decision. The Agency
may affirm and adopt the tentative decision in whole or in part, and it may
recommit the tentative decision to the Presiding Officer for further findings
as it may direct. The same procedural provisions applicable to the initial
filing of the tentative decision shall apply to any refiled tentative decision
after recommittal. If the Agency does not accept the whole of the tentative
decision, it shall provide an adequate reason for rejecting those portions of
the tentative decision it does not affirm and adopt. However, the Agency may
not reject a Presiding Officer's tentative determinations of credibility of
witnesses personally appearing. The Agency's decision shall be on the record,
including the Presiding Officer's tentative decision, and shall be the final
decision of the Agency not subject to further Agency review.
3.
Failure to Issue Final
Decision. If the Agency fails to issue a final decision within 180
days of the filing or refiling of the tentative decision, the initial decision
shall become the final decision of the Agency, not subject to further Agency
review.
(d)
Final Decisions. Every decision shall be made as
required in M.G.L. c. 30A § 11(8), and shall be mechanically or
electronically printed, and signed by the Presiding Officer or by those members
of the Agency making the decision. A majority of the members constituting the
Agency or the Agency panel authorized by the Agency to decide the case shall
make direct Agency decisions. A final decision shall incorporate by reference
those portions of an initial or tentative decision that are affirmed and
adopted, and may expressly incorporate other portions it modifies or rejects
with its reasons therefor. A final decision by an Agency under 801 CMR
1.01(11)(c) shall make appropriate response to any objections filed in regard
to an initial or tentative decision.
(e)
Decision Maker
Unavailable. When a Presiding Officer becomes unavailable before
completing the preparation of the initial decision, the Agency shall appoint a
successor to assume the case and render the initial decision. If the
presentation of evidence has been completed and the record is closed, the
successor shall decide the case on the basis of the record. Otherwise, the
successor may either proceed with evidence or require presentation of evidence
again from the beginning. The Agency shall provide without cost to all Parties
and the successor a copy of the official verbatim transcript, or completed
portions thereof, if not previously provided.
(f)
Notice of
Decision. The Agency or Presiding Officer shall promptly provide
all Parties with a copy of every Agency decision or order when filed and
otherwise give prompt notice of all Agency actions from which any time
limitation commences.
(12)
Telecommunications. The Presiding Officer may
designate that all or a portion of a hearing be conducted with one or more
participants situated in different locations and communicating through the
medium of one or more telecommunication devices, including telephone and video
conferencing, unless the Respondent or Petitioner lacks access to sufficient
Electronic Medium.
(13)
Further Appeal. After the issuance of a final
decision, except so far as any provision of law expressly precludes judicial
review, any person or appointing authority aggrieved by a final decision of any
Agency in an Adjudicatory Proceeding shall be entitled to a judicial review
thereof in accordance with M.G.L. c. 30A, § 14.
(14)
Withdrawal of Exhibits and
Recording Media. Three years after a decision in a given case has
become final and all periods for requesting further review, whether
administrative or judicial, which may require reference to original exhibits or
the reproduction or transcription of events recorded stenographically or by
Electronic Medium, have lapsed, an Agency or Presiding Officer may in its
discretion:
(a) permit the withdrawal of
original exhibits or any part thereof by the Party or Person entitled thereto;
and
(b) withdraw from its file
stenographic or electronic media employed to record the events of the
Adjudicatory Proceedings before it and dispose of them as it sees
fit.