(1)
Purpose. The
following procedures shall be used for all Board hearings not related to
disability applications including, but not limited to, matters involving M.G.L.
c. 32, §§ 15, 16 (involuntary superannuation), 91, and 91A.
(2)
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.
(3)
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/or copy,
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.
(4)
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 pre and/or post hearing
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 the discretion of the presiding officer, any party
may be permitted to record the hearing (except, in the case of those hearings
taking place at a meeting of the retirement board, those portions of the
hearing which may be held in executive session) 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. If a hearing occurs at a meeting of the retirement board,
and if the subject of the hearing is such that the matter may proceed in
executive session the board must first convene in open session for which notice
has been given, a majority of the members of the board must vote to go into
executive session and the vote of each member must be recorded on a roll call
vote and entered into the minutes, the presiding officer must have stated the
purpose for an executive session, and stated before the executive session if
the board will reconvene after the executive session. 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. 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 upon. 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. If a
witness cannot, as a practical matter, be available in person the witness shall
be available and testify remotely using adequate electronic means as 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 at
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 the
hearing.
2.
Request to
Vacate. Any person subpoenaed may file a written request to 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.
4.
Failure to Comply with
Subpoena. 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.
(5)
Written Decision. The presiding officer shall issue a
written decision to the retirement board following the conclusion of the
hearing. The Board shall vote and issue a decision following receipt of the
Presiding Officer's decision and provide the parties with the appropriate
appeal rights.
