(1)
Notice. The retirement board shall give all parties at
least 30 days notice of the time and place for the hearing and of the issues
involved in the hearing. If the issues cannot be fully stated in advance of the
hearing, they shall be fully stated as soon as practicable. In all cases of
delayed statements, or where subsequent amendment of the issues is necessary,
sufficient time shall be allowed after full statement or amendment to afford
all parties reasonable opportunity to prepare and present evidence and argument
respecting the issues.
(2)
Discovery. Any party and any authorized representative
shall, at any time after a hearing has been requested or ordered and after
reasonable notice to the retirement board, be permitted to examine and copy or
photocopy, at cost and during normal business hours, any document in the case
file pertaining to the member's file or the record of the hearing. All other
discovery shall be at the discretion of the retirement board. A request for
discovery may be made by any party at any time after a hearing has been
requested or ordered.
(3)
Conduct of Hearing. Hearings shall be conducted in an
informal manner that affords all parties an opportunity to present all
information and argument relevant to the proceeding.
(a)
Presiding
Officer. The chairperson of the retirement board, any other member
of the board acting as chairperson, or any individual designated by the board,
shall be the presiding officer and shall assure parties the right to call and
question witnesses and introduce exhibits, and to present argument, relevant to
the proceeding. The presiding officer shall assure an orderly presentation of
the evidence and argument and that a record is made of the hearing.
(b)
Continuances.
The presiding officer may change the date, time or place of the hearing on his
or her own motion or on the request of any party, upon due notice to all other
parties, and may continue the hearing to a subsequent date to permit any party
to present additional evidence, witnesses or other materials. At any time prior
to decision, the presiding officer may reconvene the hearing for any purpose
upon ten days written notice to all parties, stating therein the purposes for
reconvening, and the date, time and place of the reconvened hearing.
(c)
Oaths; Rulings;
Briefs. The presiding officer shall administer the oath or
affirmation to witnesses, shall rule upon the admissibility of evidence and
upon any requests for rulings, and may order that written briefs be submitted
by the parties.
(d)
The
Record. All proceedings in connection with the hearing shall be
recorded by electronic or stenographic means and such record shall be
maintained as part of the hearing record. Transcripts or duplicate tapes of the
proceedings shall be supplied to any party, upon request, at that party's
expense. At the discretion of the presiding officer, any party may be permitted
to maintain a record so long as this does not interfere with the conduct of the
proceedings. All documents and other evidence received shall also become part
of the record.
(e)
Executive Session. Since the principal purpose of a
hearing on a disability retirement application is to discuss and evaluate the
physical condition or mental health of the member, the hearing shall be held in
executive session unless the member requests that the meeting be open. In such
executive session only the retirement board, the secretary and the retirement
board's counsel, the parties and their authorized representatives and such
other persons as the presiding officer shall deem necessary for the conduct of
the hearing shall be permitted to be present. In emotional disability cases the
hearing officer shall have discretion to limit attendance during the
proceedings. No executive session shall be held until the retirement board has
first convened in open session for which notice has been given, a majority of
the members of the board have voted to go into executive session and the vote
of each member is recorded on a roll call vote and entered into the minutes,
the presiding officer has stated the purpose for an executive session, and has
stated before the executive session if the board will reconvene after the
executive session. The records of the hearing in executive session shall not be
made available to the public except in accordance with the board's regulations
on privacy and confidentiality and such other laws or regulations as may be
applicable to such records.
(f)
Evidence.
1.
General. The retirement board need not observe the
rules of evidence observed by courts but shall observe the rules of privilege
recognized by law. Evidence shall be admitted and given probative effect only
if it is the kind of evidence on which reasonable persons are accustomed to
rely in the conduct of serious affairs. Unduly repetitious evidence may be
excluded.
2.
Testimony;
Stipulation. Witnesses shall testify under oath or affirmation and
shall be available for questions by all parties. In cases involving a claim for
emotional disability the hearing officer may require that questions by the
parties be directed through the hearing officer to the witness. If a witness
cannot, as a practical matter, be available in person the witness shall be
available and testify by telephone conference call, or by any other reasonable
means ordered by the presiding officer. Stipulations by the parties as to any
fact or as to the testimony that would be given by an absent witness may be
offered and received as evidence.
3.
Documentary
Evidence. Documentary evidence may be received in the form of
copies or excerpts or by incorporation by reference in the discretion of the
presiding officer.
4.
Taking Notice of Facts. The retirement board may take
notice of any fact which may be judicially noticed by the courts, and any fact
within the retirement board's specialized knowledge. Parties shall be notified
and afforded an opportunity to contest any facts so noticed.
5.
Evidence to Be Part of
Record. All evidence, including any records, reports and documents
of the retirement board, to be considered in making a decision shall be offered
and made a part of the record of the proceeding and the record shall at all
times be open for inspection by any party or authorized representative during
business hours. The retirement board may, with notice to all parties, require
any party to submit additional evidence for the record and shall afford parties
an opportunity to submit rebuttal evidence.
(g)
Subpoenas.
1.
Issuance. The
presiding officer shall, within five days of a written request of a party,
issue a subpoena requiring the attendance and testimony of a witness or the
production of any evidence including books, records, correspondence or
documents relating to any matter in question at a hearing on a disability
application.
2.
Request
to Vacate. Any person subpoenaed may file a written request
requesting the presiding officer to vacate or modify the subpoena.
3.
Decision on Request to Vacate
or Modify Subpoena. The presiding officer shall notify all parties
of the request to vacate or modify the subpoena and afford parties a reasonable
time to respond. The presiding officer shall grant the request to vacate or
modify the subpoena if the testimony or evidence subpoenaed does not relate
with reasonable directness to any matter at issue in the proceeding or if the
subpoena is otherwise unreasonable or oppressive.
(h) If any person fails to comply with a
properly issued subpoena, the retirement board or the party requesting the
issuance of the subpoena may petition the superior court for an order requiring
compliance.