Current through Register Vol. 39, No. 6, September 16, 2024
(a) The Board shall
use the following procedure to issue a subpoena pursuant to the authority
granted the Board by
G.S.
150B-39:
(1)
Subpoenas shall be issued in duplicate, with a "Return of Service" form
attached to each copy. The person serving the subpoena shall fill out the
"Return of Service" form for each copy and promptly return one copy of the
subpoena, with the attached "Return of Service" form completed to the
Board;
(2) Subpoenas shall be
served by the sheriff of the county in which the person subpoenaed resides,
when the party requesting such subpoena prepays the Sheriff's service
fee;
(3) In accordance with
G.S.
150B-39, the Board may quash any subpoena
issued in a case for which the Board is conducting a hearing. Any person
receiving a subpoena in such case may object thereto by filing a written
objection to the subpoena with the Board by mailing same to the Board
office;
(4) Such objection shall
include a concise, but complete, statement of reasons why the subpoena should
be revoked or modified. These reasons may include lack of relevancy of the
evidence sought, lack of particularity in the description of the evidence
sought, or any other reason sufficient in law for holding the subpoena invalid,
such as that the evidence is privileged, that appearance or production would be
so disruptive as to be unreasonable in light of the significance of the
evidence sought, or other undue hardship.
(5) Any such objection to a subpoena must be
served on the party who requested the subpoena simultaneously with the filing
of the objection with the Board.
(6) The party who requested the subpoena, in
such time as may be granted by the Board, may file a written response to the
objection. The written response shall be served by the requesting party on the
objecting witness simultaneously with filing the response with the
Board.
(7) After receipt of the
objection and response thereto, if any, the Board shall issue a notice to the
party who requested the subpoena and the party who is challenging it, and may
notify all other parties of an open hearing, to be scheduled as soon as
practicable, at which time evidence and testimony may be presented, limited to
the narrow questions raised by the objection and response, if any.
(8) Promptly after the close of such hearing,
the Board shall rule on the challenge and issue a written decision. A copy of
the decision shall be issued to all parties and made a part of the
record.
(9) Subpoenas shall contain
the following:
(A) the caption of the
case;
(B) the name and address of
the person subpoenaed;
(C) the
date, hour and location of the hearing in which the witness is commanded to
appear;
(D) a particularized
description of the books, papers, records or objects the witness is directed to
bring with him to the hearing, if any;
(E) the identity of the party on whose
application the subpoena was issued, and the date of issue;
(F) the signature of the person issuing the
subpoena; and
(G) a return of
service form, fully executed, which shows the name and capacity of the person
serving the subpoena, the date on which the subpoena was delivered to the
person directed to make service, the date on which service was made, the person
on whom service was made, the location and manner in which service was made,
and the signature of the person making service.
(b) Where the Board grants a request for
hearing and elects to conduct the evidentiary hearing without referral,
subpoenas may be issued by the attorney for any party in accordance with the
provisions of
G.S.
1A-1, Rule 45. Upon objection by any person
receiving a subpoena in such case, the Board may quash the subpoena after
following the procedure specified in Part (A) of this Rule.
(c) Where the Board grants a request for
hearing and elects to refer the contested case to the Office of Administrative
Hearings for the designation of an administrative law judge to preside at the
hearing, the issuance or quashing of subpoenas will be governed by
G.S.
150B-27 or other applicable rules of the
Office of Administrative Hearings.
Authority
G.S.
89E-5;
89E-20;
150B-38;
150B-39;
150B-40;
Eff.
February 1, 1986;
Amended Eff. April 1, 2003; April 1,
1989;
Pursuant to
G.S.
150B-21.3A, rule is necessary without
substantive public interest Eff. December 16,
2014.
