(a) Pre-Hearing Conference
The Presiding Officer may initiate or upon the application of any Party, may call upon the Parties to appear for a conference to consider;
- the simplification or clarification of the issues;
- the possibility of obtaining stipulations, admissions, agreements on matters already of record, or similar agreements which will reduce or eliminate the need of proof;
- the limitation of the number of expert witnesses, or avoidance of cumulative evidence, if the case is to be heard;
- the possibility of an agreement disposing of any or all issues in dispute; and
- such other matters as may aid in the disposition of the Adjudicatory Proceeding.
Those matters agreed upon by the Parties shall be reduced to writing and signed by them, and the signed writing shall constitute a part of the record. The scheduling of a pre-hearing conference shall be according to Agency rule or, in the absence of rules, solely within the discretion of the Presiding Officer.
In the discretion of the Presiding Officer, the Parties may, by written stipulation filed with the Presiding Officer at any stage of the proceeding, or by oral stipulation made at a hearing, agree as to the truth of any fact pertinent to the proceeding. The Presiding Officer may require parties to propose stipulations. In making findings, the Presiding Officer need not be bound by a stipulation which is in contravention of law or erroneous on its face.
(c) Submission Without a Hearing
Any Party may elect to waive a hearing and submit his case upon written submissions. Submission of a case without a hearing does not relieve the Parties from the necessity of proving the facts supporting their allegations or defenses on which a Party has the burden of proof.
(d) Conduct of Hearing
- Decorum: All Parties, their 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 Presiding Officer may take appropriate action. Appropriate action may include refusal to allow a disruptive Person to remain in the hearing room and, if such Person is a Party, to allow participation by representative only.
- Duties of Presiding Officer: The Presiding Officer shall conduct the hearing, administering an oath or affirmation to all witnesses, making all decisions on the admission or exclusion of evidence and resolving questions of procedure. The Presiding Officer shall file a decision or recommended decision with the Agency within a reasonable time after the close of the hearing.
(e) Order of Proceedings
- Opening: In the usual case, except as otherwise required by law, in hearings resulting from a notice of claim of an adjudicatory proceeding, the Party filing the claim shall open and first present evidence; in hearings resulting from orders to show cause, the Agency issuing the order shall open and first present evidence.
- Order of 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.
- Closing: The Party opening shall argue last in summation.
- Discretion of the Presiding Officer: The Presiding Officer may, when the evidence is peculiarly within the knowledge of one Party, or when there are multiple Petitioners, or when he or she otherwise determines appropriate, direct who shall open and may otherwise determine the order of presentation.
(f) Presentation of Evidence
All Parties shall have the right to present documentary and oral evidence, to cross-examine adverse or hostile witnesses, to interpose objections, to make motions and oral arguments. Cross-examination is to follow the direct testimony of a witness. Whenever appropriate, the Presiding Officer shall permit reasonable redirect and recross-examination and allow a Party an adequate opportunity to submit rebuttal evidence. Except as otherwise provided, evidence of the Respondent shall be presented after the presentation of the Petitioner's case in chief. The Respondent shall first argue in summation.
- Oath: A witness's testimony shall be under oath or affirmation.
- Offer of Proof: An offer of proof made in connection with a ruling of the Presiding Officer rejecting or excluding proffered testimony shall consist of a statement of the substance of the evidence which the Party contends would be adduced by the testimony. If the excluded evidence consists of evidence in documentary or written form, it shall be filed and marked for identification and shall constitute the offer of proof.
The Agency or Presiding Officer may issue, vacate or modify subpoenas, in accordance with the provisions of M.G.L. c. 30A, § 12.
(h) Administrative Notice
The Presiding Officer may take notice of fact(s), pursuant to the requirements of M.G.L. c. 30A, § 11(5).
(i) Transcript of Proceedings
- Stenographic or Recorded Records and Transcripts: Except where a Party elects to provide a public stenographer as provided herein, the testimony and argument at the hearing shall be recorded either stenographically or by Electronic Medium. The Presiding Officer shall arrange for verbatim transcripts of the proceedings to be supplied at cost to any Party upon request, at the Party's own expense. The Agency may elect to supply a copy of the tape, disc or other audio-visual preserving medium employed at the proceeding to record its events in lieu of a verbatim transcript. Any Party, upon motion, may be allowed to provide a public stenographer to transcribe the proceedings at the Party's own expense upon terms ordered by the Presiding Officer. In this event, a verbatim transcript shall be supplied to the Presiding Officer at no expense to the Agency.
- Correction of Transcript: Corrections of the official hearing 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. If opposing Parties cannot agree on transcript corrections, any Party may report the fact to the Presiding Officer, who may call for the submission of proposed corrections and shall determine what corrections, if any, are to be made with reliance on his own notes.
(j) Hearing Briefs
At the close of the taking of testimony and prior to his rendering a decision, the Presiding Officer may in his discretion call for and fix the terms of the filing of written summaries and arguments on the evidence and/or proposed findings of fact and conclusions of law.
(k) Settling the Record
- Contents of Record: The record of the proceeding shall consist of the following items: notices of all proceedings; all motions, pleadings, briefs, memoranda, petitions, objections, requests and rulings; evidence received, including deposition transcripts, and offers of proof with the arguments; statements of matters officially noticed if not otherwise documented; interrogatories and the answers; all findings, decisions and orders presented whether recommended or final; transcripts of the hearing testimony, argument, comments or discussions of record or the tape, disc or preserving medium; and any other item the Presiding Officer has specifically designated be made a part of the record. The record shall at all reasonable times be available at the offices of the Agency or other designated location for inspection by the Parties.
- Evidence after Record Closed: No evidence shall be admitted after the close of the record unless the Presiding Officer reopens the record.
- 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 and grounds for any action taken. If a Party does not have an opportunity to object to a ruling at the time it is made, or to request a particular ruling at an appropriate time, the Party may submit a written statement of his specific objections and grounds within three days of notification of action taken or refused. Oral or written objections to evidentiary rulings shall be part of the record.
This information was last updated on 12/22/2008.