Current through Register Vol. 46, No. 39, September 25, 2024
(a) The
hearing must be conducted by a hearing officer who is an attorney employed by
the department for that purpose, and has not been involved in any way with the
action in question. The hearing officer has all the powers conferred by law and
regulations of the department to administer oaths, issue subpoenas, require the
attendance of witnesses and the production of records, rule upon requests for
adjournment, rule upon objections to the introduction of evidence and to
otherwise regulate the hearing, preserve requirements of due process and
effectuate the purpose and provisions of applicable law.
(b) A party to a hearing may make a request
to a hearing officer that the hearing officer remove himself or herself from
presiding at the hearing.
(1) The grounds for
removing a hearing officer are that such hearing officer has:
(i) previously dealt in any way with the
substance of the matter which is the subject of the hearing except in the
capacity of hearing officer;
(ii)
any interest in the matter, financial or otherwise, direct or indirect, which
will impair the independent judgment of the hearing officer; or
(iii) displayed bias or partiality to any
party to the hearing.
(2) The hearing officer may independently
determine to remove himself or herself from presiding at a hearing on the
grounds set forth in paragraph (1) of this subdivision.
(3) The request for removal made by a party
must:
(i) be made in good faith;
(ii) be made at the hearing in writing or
orally on the record; and
(iii)
describe in detail the grounds for requesting that the hearing officer be
removed.
(4) Upon
receipt of a request for removal, the hearing officer must determine on the
record whether to remove himself or herself from the hearing.
(5) If the hearing officer determines not to
remove himself or herself from presiding at the hearing, the hearing officer
must advise the party requesting removal that the hearing will continue but the
request for removal will automatically be reviewed by the general counsel or
the general counsel's designee.
(6)
The determination of the hearing officer not to remove himself or herself will
be reviewed by the general counsel or the general counsel's designee. Such
review will include review of written documents submitted by the parties and
the transcript of the hearing.
(7)
The general counsel or the general counsel's designee must issue a written
determination of whether the hearing officer should be removed from presiding
at the hearing within 15 business days of the close of the hearing.
(8) The written determination of the general
counsel of the general counsel's designee will be made part of the
record.
