Current through Register 1537, December 20, 2024
(a)
Pre-hearing Conference. The Presiding Officer may upon
his own initiative or upon the application of any Party, 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 documents, understandings on matters already of
record, or similar agreement which willavoid unnecessary proof;
3. the limitation of the number of expert
witnesses, or avoidance of similar cumulative evidence, if the case is to be
heard;
4. the possibility of
agreement disposing of all or any of the 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
electronically recorded in the presence of the Parties and/or reduced to
writing and shall be signed by the Parties, and shall thereafter constitute
part of the record.
The scheduling of a Pre-hearing Conference shall be solely
within the discretion of the Presiding Officer.
(b)
Pretrial
Preparation. At a time scheduled by the Presiding Officer prior to
the hearing, the Parties may be required to submit Pretrial memoranda setting
forth the:
1. legal issue presented;
3. factual representations to be
proven;
4. witnesses to be called
and the purpose of their testimony;
5. documents intended to be introduced at the
hearing. Such documentation must be filed with the pre-trial
memorandum;
6. such other material
or representations as the Presiding Officer may direct.
Failure to comply with this requirement may result in a default
judgment being entered, or refusal by the Presiding Officer to admit material
or hear witnesses or such other appropriate relief as the Presiding Officer may
direct.
(c)
Authentication of Documents. After receipt of pretrial
memoranda, including all documents listed, the Presiding Officer may require a
Party to file any objections as to the authenticity of any document listed.
Such objection, unless otherwise ordered, must be filed at least 10 days prior
to the hearing. Failure to object to the authenticity of a document may be
deemed a waiver of any such objection at the hearing.
(d)
Submission Without a
Hearing. A Party other than the Division may elect to waive a
hearing and to submit its case upon the record. Submission of a case without a
hearing does not relieve the Parties from the necessity of proving the facts
supporting their allegations or defenses.
(e)
Hearings, When and Where
Held. Hearings will be held at a location designated by the
Division. Any Party may, by motion, request that a hearing be held at some
place other than that designated, due to disability or infirmity of any Party
or witness, or where justice and equity would best be served.
Upon motion of any Party and upon good cause shown, the
Presiding Officer may in his or her discretion advance a case for
hearing.
(f)
Conduct of Hearings.
1. General. Hearings shall be as informal as
may be reasonable and appropriate under the circumstances.
2. Decorum. All Parties, 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 Division or
Presiding Officer may take appropriate action.
3. Duties of Presiding Officer. The Presiding
Officer shall conduct the hearing, make all decisions regarding admission or
exclusion of evidence or any other procedural matters, and administer an oath
or affirmation to all witnesses.
(g)
Order of
Proceedings.
1. Opening. Except
as otherwise required by law, it shall be the usual practice that in
proceedings initiated by the Notice of Adjudicatory Proceedings, the Division
shall open.
2. Discretion of
Presiding Officer. Where evidence is peculiarly within the knowledge of one
Party, or in cases in which Adjudicatory Proceedings have been consolidated, or
where there are multiple Parties, the Presiding Officer may direct who shall
open and shall designate the order of presentation.
(h)
Presentation.
1. Rights of Parties. All Parties shall have
the right to present evidence, cross-examine, make objections, bring motions
and make oral arguments. Cross-examination shall occur immediately after any
witness' testimony has been received. Whenever appropriate, the Presiding
Officer shall permit redirect and recross.
2. First Presentation. The Party opening the
hearing shall have the right to present his position through evidence and
testimony first.
3. Second
Presentation. The Party taking the position contrary to that of the Party
opening shall have the right to present his position upon completion of the
opening Party's case.
(i)
Witnesses and
Evidence.
1. Oath. A witness'
testimony shall be under oath or affirmation.
2. Evidence. Unless otherwise provided by any
law, the Presiding Officer need not observe the rules of evidence observed by
courts but shall observe the rules of privilege recognized by law. Evidence
maybe 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. Weight to be given evidence presented will be within the discretion of
the Presiding Officer.
3. Offer of
Proof. An offer of proof made in connection with an objection taken to a ruling
of the Presiding Officer rejecting or excluding preferred testimony shall
consist of a statement of the substance of the evidence which the Party
contends would be adduced by such testimony; and if the excluded evidence
consists of evidence in documentary or written form or of reference to
documents or records, a copy of such evidence shall be marked for
identification and shall constitute the offer of proof.
(j)
Evidence
Included. All evidence, including any records, investigative
reports, documents, and stipulations which is to be relied upon in making a
decision must be offered and made a part of the record. Documentary evidence
may be received in evidence in the form of copies or excerpts, or by
incorporation by reference.
(k)
Administrative Notice. The Presiding Officer may take
notice of any fact which may be judicially noticed by the courts of this
Commonwealth or of general technical or scientific facts within the Presiding
Officer's specialized knowledge only if the Parties are notified of the
material so noticed and are given an opportunity to contest the facts so
noticed.
(l)
Subpoenas. In conducting Adjudicatory Proceedings, the
Presiding Officers may issue, vacate, modify and enforce subpoenas requiring
the attendance and testimony of witnesses and/or the production of documents or
other evidence in accordance with the following provisions:
1. Issuance. A Party may make written
application to the Presiding Officer, which may issue the subpoena requested in
the name of the Division. The Presiding Officer may issue the subpoena. Where
it appears to the Presiding Officer that the subpoena sought may be
unreasonable, oppressive, excessive in scope, or unduly burdensome, he may in
his discretion, as a condition precedent to the issuance of the subpoena,
require the person seeking the subpoena to show the general relevance and
reasonable scope of the testimony or other evidence sought. In the event the
person requested to issue the subpoena shall after consideration of all the
circumstances determine that the subpoena or any of its terms are unreasonable,
oppressive, excessive in scope, or unduly burdensome, he may refuse to issue
the subpoena, or issue it only upon such conditions as fairness requires. Every
subpoena shall show on its face the name and address of the requesting Party.
Notice shall not be required for issuance of a subpoena. The form of subpoena
shall adhere to the form used in civil cases before the courts.
2. Motion to Vacate or Modify. Any Person to
whom a subpoena is directed may, within a reasonable period, file in writing a
motion that the subpoena be vacated or modified. The Presiding Officer shall
give prompt notice to the Party who requested issuance of the subpoena. The
Presiding Officer may grant such petition in whole, or in part, upon a finding
that the testimony, or the evidence, whose production is requested, does not
relate with reasonable directness to any matter in question or upon a finding
that a subpoena for the attendance of a witness or the production of evidence
is unreasonable or oppressive, or has not been issued a reasonable period in
advance of the time when the evidence is requested.
3. Costs. Except for witnesses requested by
the Division, witnesses summoned by the Presiding Officer shall be paid the
same fees for attendance and travel as in civil cases before the courts. Except
for witnesses requested by the Division, the requesting Party shall pay all
costs involved with the subpoena, including fees for attendance and
travel.
(m)
Transcript of Proceedings.
1. Recording and Transcripts. Testimony and
argument at the hearing shall be either recorded electronically or
stenographically. Transcripts of the proceedings shall be supplied to any
Party, upon request, at his own expense. Any Party, upon motion, may request a
stenographer to transcribe the proceedings, at his own expense. In such event,
a stenographic record shall be provided to the Presiding Officer at no expense
to the Division, and upon such other terms as the Presiding Officer shall
order.
2. Correction of Transcript.
Corrections in the official 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, at any time during the hearing, or after the close of
evidence, but not more than ten days or such other time as shall be allowed by
the Presiding Officer from the date of receipt of the transcript. The Presiding
Officer may call for the submission of proposed corrections and may make
disposition thereof at appropriate times during the course of the
proceeding.
(n)
Briefs. At the close of the taking of testimony, the
Presiding Officer may fix a time for the filing of briefs.
(o)
Settling the
Record.
1. Contents of Record.
The record of the proceeding may consist of the following items: pleadings,
pre-hearing conference memoranda, magnetic tapes, orders, briefs, memoranda,
answers to interrogatories, depositions, transcripts, exhibits, and other
papers or documents which the Presiding Officer has specifically designated be
made a part of the record. The record shall at all reasonable times be
available for inspection by the Parties. The Presiding Officer may accept
legible photocopies of originals.
2. Evidence After Completion. No evidence
shall be admitted after completion of a hearing or after a case submitted on
the record, unless otherwise ordered by the Presiding Officer.
3. Weight of Evidence. The weight to be
attached to any evidence in the record will rest within the sound discretion of
the Presiding Officer. The Presiding Officer may in any case require either
Party, with appropriate notice to the other Party, to submit additional
evidence on any matter relevant to the Adjudicatory Proceeding.
4. 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 objection to such
action and his grounds, therefor, provided that, if a Party has no opportunity
to object to a ruling at the time it is made, or to request a particular ruling
at an appropriate time, such Party, within three days of notification of action
taken or refused, shall state his objection and his grounds therefor.
(p)
Decisions and
Final Orders. Every decision and final order shall be in writing
and shall be signed by the Director. If a person other the the Director is
serving as Presiding Officer, he or she shall prepare recommended findings of
fact and conclusion of law to be submitted to the Director. The Director shall
review the recommendation and shall be responsible for the issuance of the
decision and final order. Every decision and final order shall contain a
statement of the reasons therefor, including a determination of every issue of
fact or law necessary to the decision and final order. The Director may
approve, reject or modify the recommendation of the hearing officer or may
refer the matter back to the hearing officer for further proceeding as the
Director may decide. The final decision and order shall be mailed to all
parties within ten days of signing by the Director.
(q)
Reopening of
Hearings. On its own motion or on motion of any Party, the
Presiding Officer may at any time before a final decision and order are issued
request that the hearing be reopened for the purpose of receiving new
evidence.
(r)
Motion
for Reconsideration. Any Party may file a Motion for
Reconsideration, setting forth specifically the grounds or statutory provision
relied upon to sustain the Motion, within ten days from the date a copy of the
final decision and order is mailed to the Parties by the Presiding Officer and
the Parties shall be notified of their right to appeal as set forth in M.G.L.
c. 30A.
(s)
Further
Appeal. After the issuance of a final decision and order, any
Party who has the right to seek administrative or judicial review of the
decision may file an appeal with the appropriate court.
(t)
Withdrawal of
Exhibits. After a decision has become final and all appeal periods
have lapsed, the Director may in his/her discretion, upon motion, permit the
withdrawal of original exhibits or any part thereof by the Party or Person
entitled thereto.
