Code of Massachusetts Regulations
804 CMR - MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION
Title 804 CMR 1.00 - Rules of Procedure
Section 1.12 - Public Hearings

Universal Citation: 804 MA Code of Regs 804.1

Current through Register 1531, September 27, 2024

(1) Who May Adjudicate. The public hearing shall be governed by M.G.L. 151B, § 5 and 804 CMR 1.12, and shall be conducted by a Hearing Commissioner.

(2) Substitution of Hearing Commissioner. In the event of the unavailability of the Hearing Commissioner to issue a written decision pursuant to 804 CMR 1.12(18), the Chairperson shall assign another Hearing Commissioner to hear any remaining evidence and to review the record, including the hearing transcript, resulting in one of the following outcomes:

(a) In the event the resolution of disputed issues of material fact rests on findings of witness credibility, and a decision cannot be rendered without such findings, the case shall be reassigned for a new hearing. Prior to scheduling a new hearing, the Commission shall hold a status conference with the parties and make good faith efforts at resolving the matter.

(b) In cases where the decision does not rest on credibility findings, a substitute Hearing Commissioner may render the decision. Prior to the issuance of a final decision, the parties may make written requests for proposed findings of fact and conclusions of law and an order, and shall be afforded a reasonable opportunity to file objections thereto. Any proposed findings of fact and conclusions of law or proposed orders shall be submitted in paper and electronic form, unless otherwise ordered by the Hearing Commissioner.

(3) Waiver Required. M.G.L. c. 151B, § 9 makes available to the complainant a trial in court as an alternative to public hearing before the Commission. Accordingly, the complainant shall waive the right to remove the complaint prior to the commencement of the public hearing.

(4) Conduct. All parties, witnesses, counsel and others present at a public hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the courts of the Commonwealth. Where such standards are not observed, the Commission may take such action as it deems appropriate, including assessing monetary sanctions against a non-complying person and adjourning the proceedings.

(5) Request for Clarification. The Hearing Commissioner, upon written request of a party or sua sponte, may seek clarification of the complaint and certification order. In the event there remains a dispute about which issues are certified to hearing, the Hearing Commissioner may proceed to hear evidence on any and all claims presented and may amend the complaint to conform to the evidence as established at the hearing.

(6) Continuance. Any party requesting a continuance shall make such request in writing to the Hearing Commissioner by motion pursuant to 804 CMR 1.13. Continuances shall be granted only upon a showing of changed circumstances or good cause. In any instance in which a continuance results in fees or costs to the Commission or another party, the party requesting the continuance may be required by the Commission to incur such costs.

(7) Settlement after Commencement of Public Hearing. If after the commencement of a public hearing the matter in dispute before the Commission is settled between the parties and the settlement is acceptable to the Commission, the Hearing Commissioner shall dismiss the matter.

(8) Ex Parte Communications. In any proceeding held pursuant to 804 CMR 1.12 or in any appeal therefrom, neither a party nor a party's authorized representative shall communicate ex parte with the Hearing Commissioner for any reason on any matter related to the proceeding prior to the issuance of a hearing decision.

(9) Protective Orders. A party may move for a protective order to prevent the public disclosure of information at public hearing or within the record of public hearing for good cause shown, and the Hearing Commissioner may allow such motion if it is in the public interest. A protective order may provide for the exclusion, limitation, redacting or impounding of documentary or testimonial evidence at public hearing or within the public hearing record.

(10) Public Hearing Default Rules.

(a) Entry of Default. Whenever any party duly notified of the time and place of a public hearing fails to appear at the hearing either in person or by appearance of counsel, the Hearing Commissioner shall enter the party's default on the record. Written notice of the entry of default and of the consequences shall be served upon the defaulting party within ten days of the entry of the default.

(b) Consequences of Default. If the party in default is the complainant, the Hearing Commissioner shall dismiss the complaint, for which there shall be no remedy other than a petition for removal of default. If the party in default is the respondent, the Hearing Commissioner shall conduct a default hearing on the date scheduled for the public hearing.

(c) Default Hearing. At a default hearing, the Hearing Commissioner shall receive any relevant evidence proffered by the complainant, shall decide liability, and, where appropriate, shall determine the amount of any damages or other relief to be ordered. After the default hearing, the Hearing Commissioner shall enter a final decision and order.

(d) Removal of Default. Within ten days of receipt of the notice of entry of the default, the party in default may petition the Hearing Commissioner to vacate the entry of default, remove the consequences of the default and reopen the case for good cause shown. The assertion of good cause of the party in default shall be in affidavit form under the pains and penalties of perjury. In any instance in which a case is reopened after entry of default, the party in default may be ordered to bear the reasonable costs incurred as a result of the default.

(11) Transcript and Record. The record shall consist of either an electronic recording or a transcript of the hearing, as well as the exhibits in evidence including, if submitted, the certification to public hearing, complaint, stipulations, motions and the dispositions thereof. Testimony offered at a public hearing shall be either transcribed by stenographer retained by a party or parties or electronically recorded by the Commission, subject to the following provisions:

(a) If a party arranges to have a stenographer present at the public hearing, the Commission and the parties shall agree that the stenographic record shall be the official record of the proceedings and that the Commission shall not create an electronic recording.

(b) The party arranging for the stenographer shall furnish the Commission with a certified copy of the transcript within ten days of receipt of the transcript from the stenographer.

(c) In the case of an electronically recorded hearing, a party desiring a copy of the recording shall make a request in writing to the Clerk's Office in Boston and agree to pay the cost thereof.

(d) Any transcription of the electronic record made by a party subsequent to the hearing shall be filed with the Clerk's Office in Boston and may be cited if the Commission and all parties agree to accept the transcription as the official record. A party waives any objection to the accuracy of such transcript if not made within 20 days of its filing.

(12) Stipulations. Written stipulations may be introduced in evidence, if signed by the persons sought to be bound thereby, or by their authorized representatives. Oral stipulations may be made on the record during the course of a public hearing.

(13) Evidence. The Commission shall not be bound by the rules of evidence observed by courts except for the rules of privilege. The Commission may permit the admission of records, reports, statements or data compilations of public agencies setting forth factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information indicate lack of trustworthiness. Evidence unrelated to the issues certified to public hearing may be deemed irrelevant or not probative of the issues to be decided and, therefore, inadmissible.

(14) Administrative Notice. The Hearing Commissioner may take administrative notice of matters as might be judicially noticed by the courts of the United States or of the Commonwealth, and of technical or general facts within its specialized areas of knowledge.

(15) Oral Argument. The Hearing Commissioner may allow a reasonable time to the parties for oral argument.

(16) Briefs and Proposed Findings of Fact and Conclusions of Law. Briefs and proposed findings of fact and conclusions of law and a proposed order may be filed by parties or by any interested person before or during the course of a hearing, or within such time thereafter as the Hearing Commissioner may designate. Any brief or proposed findings of fact and conclusions of law and proposed order shall be submitted in paper and electronic form, unless otherwise ordered by the Hearing Commissioner.

(17) Other Submissions. The Hearing Commissioner may allow the parties, after a showing of good cause, to file additional evidentiary documents or exhibits within a reasonable time subsequent to the completion of the hearing. If a request for such filing is granted, on or before the date set for filing, the requesting party shall send copies of all documents or exhibits to all other parties. If providing copies is impracticable, the Hearing Commissioner may, in the alternative, allow reasonable inspection of the original by all parties. The Hearing Commissioner may also require that the parties file additional evidentiary documents or exhibits, including stipulations concerning damages, subsequent to the completion of the hearing.

(18) Finding and Order. The Hearing Commissioner shall issue a decision in writing either dismissing the complaint or granting relief to the aggrieved party for the purposes of effectuating the laws under its jurisdiction, pursuant to M.G.L. c. 151B, § 5. The decision shall contain all findings of fact and conclusions of law necessary to address each and every issue certified to public hearing or addressed at the public hearing. The parties shall be notified in writing of their rights to appeal such decision. A copy of the decision shall be served upon each party, the attorneys of record, and the Attorney General.

(19) Request for Award of Attorneys' Fees and Costs. Where the complainant prevails at public hearing, the complainant may, within 15 days of receipt of the hearing decision, petition the Hearing Commissioner for an award of reasonable attorneys' fees and costs. Such petition shall include detailed, contemporaneous time records, a breakdown of costs and a supporting affidavit. A respondent may file a written opposition within 15 days of receipt of said petition. The Hearing Commissioner shall decide the matter. To the extent that the respondent appeals an order on a petition for attorney's fees pursuant to 804 CMR 1.23(1)(a), such appeal shall be consolidated with a pending appeal on the merits to the Full Commission, if any. A Hearing Commissioner decision on a request for award of attorneys' fees and costs is a final decision appealable to the Full Commission pursuant to 804 CMR 1.23(1)(a), regardless of whether a party has appealed the underlying hearing decision to the Full Commission.

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