Current through Register Vol. 46, No. 39, September 25, 2024
(a) The
hearing must be conducted by an impartial hearing officer who is employed by
the department for that purpose and who has not been involved in any way with
the action in question. The hearing officer has all the powers conferred by law
and the regulations of the department to administer oaths, issue subpoenas,
require the attendance of witnesses and the production of books and records,
rule upon requests for adjournment, rule upon evidentiary matters 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; or
(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;
and
(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 or the general counsel's
designee will be made part of the record.
