South Carolina Code of Regulations
Chapter 65 - SOUTH CAROLINA HUMAN AFFAIRS COMMISSION
Subchapter 1 - HUMAN AFFAIRS LAW
Section 65-8 - Procedure for Hearing as Provided by Section 1-13-90(c) of the Act

Universal Citation: SC Code Regs 65-8

Current through Register Vol. 48, 12, December 27, 2024

A. Hearings.

(1) After a finding of reasonable cause to credit the allegations of the complaint and if attempts to eliminate or otherwise resolve the alleged unlawful employment practice fail, the results of the investigation shall be reported along with the recommendation on scheduling a hearing to the supervisory commission member.

(2) The Chairman shall thereafter appoint three (3) members of the Commission to serve as hearing commissioners. The Chairman shall appoint one of the three as chief hearing commissioner. No Commission member shall be appointed as a hearing commissioner for a case in which he/she served as the supervisory commission member.

B. Notice of Hearing. The notice of hearing shall include:

(1) a statement of the time, place and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) a reference to the particular section of the statutes and rules involved;

(4) a short and plain statement of the matters asserted; and

(5) a statement notifying the respondent of its right to be represented by an attorney and that failure to answer the complaint will result in default.

C. Service of the Notice of Hearing.

(1) The supervisory commission member shall within ten (10) days after receiving the recommendation of the investigator serve the notice of hearing and the complaint by registered or certified mail or by personal delivery on the respondent at least thirty (30) days before the date of the hearing, and the complainant, hearing commissioners and Attorney General shall be furnished a copy of the notice of hearing and complaint, as amended.

(2) If the respondent is represented by an attorney, service of the notice of hearing and the complaint on the respondent's attorney will be deemed proper service on the respondent.

D. Place of Hearing.

The place of hearing shall be at the Commission office at 2611 Forest Drive, Suite 200, Columbia, or such other place as the hearing commissioners may designate.

E. Complaint.

(1) The Commission shall prepare a formal complaint that must accompany the notice of hearing. The formal complaint shall be prepared in a form that complies with the rules governing complaints in the courts of law in this State. All complainants filed under this section shall be verified by the complainant.

(2) Contents. The complaint shall state clearly and concisely each allegation asserted. The complaint must be in writing and signed by the supervisory commission member.

F. Answer.

(1) The respondent shall answer the complaint or amended complaint that is served on it with the notice of hearing. The answer shall be in writing and signed by the respondent or its attorney.

(2) Contents. The answer shall state clearly and concisely the defenses to each claim asserted and shall admit or deny the allegations in the complaint. The answer shall contain the mailing address of the respondent or its attorney.

(3) Service of the Answer.
(a) No later than twenty (20) days after service of the complaint, the respondent shall serve two (2) copies of the answer on the Commissioner at the Commission office at 2611 Forest Drive, Suite 200, Columbia, and one (1) copy of the answer on the complainant. Extensions of time for filing the answer may be granted by the Commissioner upon good cause shown, provided that no request for an extension of time shall be granted unless such request is received by the Commission at least three (3) days prior to the date upon which the answer is otherwise due.

(b) The answer shall be served upon the Commissioner and the complaint by registered or certified mail or by personal delivery.

(4) Failure to Deny or Admit. Failure to deny or admit an allegation in the complaint, unless the respondent shall state in the answer that it is without knowledge or information sufficient to form a belief, shall be deemed an admission of such allegation.

(5) Defense and New Matter. Any allegation of new matter contained in the answer shall be deemed denied without the necessity of a reply.

(6) Amendment of Answer. The answer or any part thereof may be amended once as a matter of right at any time before the hearing and thereafter in the discretion of the chief hearing commissioner. The amended answer shall be served in the same manner as the original answer.

(7) Default. Upon application, the chief hearing commissioner may, for good cause shown, set aside the default of a respondent to answer a complaint in a timely manner. If a default is set aside pursuant to this subsection, the respondent shall file an answer within the time prescribed by the chief hearing commissioner, but in no case later than ten (10) days from the date on which the default is set aside.

G. Pre-Hearing Discovery.

(1) Either party may cause to be taken the depositions of witnesses within or without the State. Such depositions shall be taken in accordance with and subject to the same provisions, conditions and restrictions as apply to the taking of like depositions in civil actions at law in the courts of common pleas of this State; and the same rules with respect to the giving of notice to the opposite party, the taking and transcribing of testimony, the transmission and certification thereof and matters of practice relating thereto shall apply.

(2) The chief hearing commissioner shall on its own behalf or, upon request, on behalf of any other party to the case, issue in the name of the Commission subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers and records.

(3) The court of common pleas shall, on application of the Commission, enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and records and shall have the power to punish as for contempt of court, by a fine or imprisonment or both, the unexcused failure or refusal to attend and give testimony or produce books, papers and records as may have been required in any subpoena issued by the Commission. The Commission may issue to the sheriff of the county in which any hearing is held a warrant requiring him to produce at the hearing any witness who shall have ignored or failed to comply with any subpoena issued by the Commission and duly served upon such witness. Such a warrant shall authorize the sheriff to arrest and produce at the hearing such witness, and it shall be his duty to do so; but the failure of a witness to so appear in response to any such subpoena may be excused on the same grounds as provided by law in the courts of this State as to the attendance of witnesses and jurors.

H. Hearing Procedures.

(1) Powers and Duties of the Chief Hearing Commissioner. The chief hearing commissioner shall have full authority to control procedure of a hearing, to admit or exclude testimony or other evidence, and to rule upon all motions and objections. The chief hearing commissioner shall make full inquiry into all the facts in issue and shall obtain a full and complete record of all facts necessary for a fair determination of the issues. The chief hearing commissioner may call and examine witnesses, direct the production of papers or documents, and introduce the same into the record of the proceedings.

(2) Appearances. The complainant or the party on whose behalf the complaint was filed shall appear at the hearing, with or without counsel, and may submit testimony, examine and cross-examine witnesses and present evidence. If the complainant requests to be represented by his/her own attorney at the hearing, he/she may file a notice of appearance stating the wishes to be represented by his/her own attorney and including the name and address of his/her attorney no later than five (5) days before the hearing. The respondent may appear at the hearing with or without counsel and if an answer has been filed may examine and cross-examine witnesses, submit testimony and present evidence. The Attorney General and, in the discretion of the chief hearing commissioner, any other person may intervene, examine and cross-examine witnesses, submit testimony and present evidence.

(3) Conduct of Hearing.
(a) The case in support of the complaint shall be presented before the hearing commissioners by a Commission attorney or by the complainant or his attorney.

(b) The case in support of the respondent shall be presented before the hearing commissioners by the respondent or its attorney.

(c) Evidentiary matters.
(i) Irrelevant, immaterial or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the court of common pleas shall be followed. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;

(ii) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare their copy with the original;

(iii) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the Commission's specialized knowledge. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material notice including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The Commission's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence.

(iv) No testimony or evidence shall be given or received at any hearing concerning any offers or counter-offers made in an effort to conciliate any alleged unlawful employment practice.

(v) All testimony shall be given under oath or affirmation and records of the proceedings shall be made and kept.

(vi) Any party may conduct cross-examination.

(d) Joining Complaints. Two or more proceedings under the Act involving the same respondent may be joined by the hearing commissioners in their discretion if such joinder does not deprive any party of any right otherwise available under this section.

(e) Stipulations. The parties may file stipulations as to facts, in which event the same shall be numbered and used at the hearing. In addition, oral stipulations may be made at the hearing and shall be included in the record of the hearing. Such stipulations shall not preclude the offering of additional evidence by any party. However, a stipulation may be withdrawn by any party in the event evidence is presented at the hearing which is inconsistent with the stipulation.

(f) Motions and Objections. Motions made during a hearing and objections with respect to the conduct of a hearing, including objections to the introduction of evidence, shall be stated in writing or orally and shall be included in the record of the hearing.

(g) Oral Arguments and Briefs. The chief hearing commissioner shall permit the parties or their attorneys to argue orally before the hearing commissioners and to file briefs within such time limits as the chief hearing commissioner may establish. Oral arguments shall not be included in the record unless the chief hearing commissioner shall so direct or unless requested by any party.

(h) Sequestration of Witnesses. Witnesses shall not be in the hearing room except when testifying.

(i) Public Hearings. All Commission hearings shall be open to the public unless the chief hearing commissioner for good cause directs a closed hearing.

(j) Waiver of Hearing. With the consent in writing of the respondent and notice to all parties, an order may be entered without holding any hearing or the making of any findings of fact or conclusions of law.

(k) Continuation and Adjournments. The hearing commissioners may continue a hearing from day to day or adjourn it to a later date or to a different place by announcement thereof at the hearing or by appropriate notice to all parties.

(l) Improper Conduct. The chief commissioner may exclude from the hearing room or from further participation in the proceeding any person who engages in improper conduct before the hearing commissioners.

(4) Record of the Hearing. The record of the hearing shall include:
(a) all pleadings, motions, intermediate rulings and depositions;

(b) all evidence received or considered;

(c) a statement of matters officially noticed;

(d) questions and offers of proof, objections and rulings thereon;

(e) proposed findings and exceptions; and

(f) any decision, opinion or report by the presiding hearing commissioner.

I. Hearing Commissioner's Order.

(1) Issuance of Order.
(a) If upon all the evidence, the hearing commissioners shall find that a respondent had engaged in any unlawful employment practice, the hearing commissioners shall state their findings of fact, conclusions of law and shall make a recommendation on the basis of which the Commission may issue and cause to be delivered to respondent an order requiring such respondent to cease and desist from such unlawful employment practice and to take such affirmative action as in the judgment of the Commission will carry out the purposes of the Act. Affirmative action orders may include the remedies enumerated in the Act.

(b) If upon all the evidence, the hearing commissioners shall find that a respondent has not engaged in any unlawful employment practice, the hearing commissioners shall state their findings of fact and conclusions of law and make a recommendation on the basis of which the Commission may issue an order dismissing the complaint.

(2) Contents of Order. An order of the Commission shall be in writing or stated in the record and shall separately set forth the findings of fact and conclusions of law of the hearing commissioners, the Commission's final decision, and an opinion containing the reasons for said decision. Such decisions as to whether an unlawful employment practice occurred shall be reached by a majority vote of the hearing commissioners. Concurring and dissenting opinions of individual hearing commissioners shall be included in the order.

(3) Filing of Order.
(a) The parties shall be notified and provided a copy of the order either by personal delivery or by registered or certified mail.

(b) All orders shall be filed in the Commission office at 2611 Forest Drive, Suite 200, Columbia and a copy of all orders shall be provided to the Attorney General.

J. Reconsideration of Order.

(1) Request for Reconsideration. After a hearing and the issuance of a final order, the hearing commissioners may, upon their own motion or upon application of any party or intervenor for good cause shown or whenever justice so requires or where an order of determination or decision was made upon default of a party affected thereby, reconsider any closed proceeding upon notice to all parties, intervenors and the Attorney General, and take such action as it may deem necessary.

(2) Time Limitation for Filing Reconsideration Request. No application for reconsideration shall be considered unless filed within fourteen (14) days from the date the order of the Commission was rendered.

K. Transcript of the Record. The Commission's copy of the written transcript of the record shall be available during the regular office hours of the Commission to the complainant and respondent for examination without cost, for the purpose of appeal to the circuit court from the order of the Commission. The Commission's copy of the testimony shall, in the discretion of the Commissioner or the Chairman, also be available to intervenors and other persons, for such purposes to such an extent and for such fee as the Commissioner or the Chairman may determine.

L. Judicial Review.

(1) Who May Apply. A complainant or respondent aggrieved by an order of the Commission may seek judicial review of the order.

(2) Forum. A proceeding for judicial review may be brought within thirty (30) days of issuance of the order of the Commission in the court of common pleas in the county in which the alleged unlawful practice which is the subject of the order occurs or the county in which the hearing was conducted.

(3) Procedures.
(a) A copy of the petition for review shall be served on the Commission and all parties of record.

(b) If, before the date set for the circuit court hearing of the petition, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the Commission, the court may order that the additional evidence be taken before the Commission upon conditions determined by the court. The Commission may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

(c) Within thirty (30) days of service of the petition for review, or, within further time allowed by the court, the Commission shall transmit to the reviewing court the original or a certified copy of the entire record of the case. By stipulation of all parties to the review proceedings, the Commission may submit to the court a verified list of all documents and other materials composing the official record in place of the record itself. In such cases, the Commission shall submit to the court those parts of the record designated by any party to the review.

(d) The review shall be conducted by the court without a jury and shall be confined to matters in the record. In cases of alleged irregularities in procedure before the Commission, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.

M. Petitions for Enforcement.

(1) After thirty (30) days from the date the Commission order is issued, the Commission may file a petition for enforcement of its order in the court of common pleas of the county in which the hearing occurred or wherein any party subject to the order resides or transacts business if the Commission believes judicial enforcement is necessary to ensure compliance with its order.

(2) A petition for review filed pursuant to Section L above shall operate as a supersedeas for thirty (30) days only, unless otherwise ordered by the court, and thereafter the respondent shall be required to comply with the order of the Commission until the appeal is decided.

(3) If no request for review is filed, the Commission's petition for enforcement shall be granted upon a showing that a copy of the petition was served upon the party subject to the provisions of the Commission's order.

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