(a) Direct Agency Decisions
The Agency may by regulation elect to preside at the reception of evidence in all cases. In the absence of such regulation, the Agency may elect to preside at the reception of evidence in particular cases and shall exercise this election by so stating in the notice scheduling the time and place for the Adjudicatory Proceeding in the particular case. The decision of the Agency as Presiding Officer shall be the final Agency decision.
(b) Initial Decisions
A Presiding Officer other than the Agency who presided at the reception of evidence shall render a decision as provided in M.G.L. c. 30A § 11(8). The decision of the Presiding Officer shall be called an initial decision. The Presiding Officer shall promptly provide the parties with a copy of his or her decision when filed with the Agency.
(c) Tentative Decisions
If the Agency elects to render a decision on the record without having presided at the reception of evidence, either by regulation or by statement in the notice scheduling the hearing, the initial decision shall also become a tentative decision.
- Objections and Response: The Parties shall have the opportunity to file written objections to the tentative decision with the Agency, which may be accompanied by supporting briefs. The Parties shall have 30 days from the filing of the tentative decision or the transcript corrections under 801 CMR 1.01(10)(i)2., whichever occurs last, to file written objections. Parties may file responses to objections within 20 days of receipt of a copy of the objections. The Agency may order or allow the Parties to argue orally. A Party requesting oral argument shall file the request with the Party's written objections or response.
- Agency Action on the Tentative Decision: The Agency may affirm and adopt the tentative decision in whole or in part, and it may recommit the tentative decision to the Presiding Officer for further findings as it may direct. The same procedural provisions applicable to the initial filing of the tentative decision shall apply to any re-filed tentative decision after recommittal. If the Agency does not accept the whole of the tentative decision, it shall provide an adequate reason for rejecting those portions of the tentative decision it does not affirm and adopt. However, the Agency may not reject a Presiding Officer's tentative determinations of credibility of witnesses personally appearing. The Agency's decision shall be on the record, including the Presiding Officer's tentative decision, and shall be the final decision of the Agency not subject to further Agency review.
- Failure to Issue Final Decision: If the Agency fails to issue a final decision within 180 days of the filing or re-filing of the tentative decision, the initial decision shall become the final decision of the Agency, not subject to further Agency review.
(d) Final Decisions
Every decision shall be made as required in M.G.L. c. 30A § 11(8), and shall be mechanically or electronically printed, and signed by the Presiding Officer or by those members of the Agency making the decision. A majority of the members constituting the Agency or the Agency panel authorized by the Agency to decide the case shall make direct Agency decisions. A final decision shall incorporate by reference those portions of an initial or tentative decision that are affirmed and adopted, and may expressly incorporate other portions it modifies or rejects with its reasons therefor. A final decision by an Agency under 801 CMR 1.01(11)(c) shall make appropriate response to any objections filed in regard to an initial or tentative decision.
(e) Decision Maker Unavailable
When a Presiding Officer becomes unavailable before completing the preparation of the initial decision, the Agency shall appoint a successor to assume the case and render the initial decision. If the presentation of evidence has been completed and the record is closed, the successor shall decide the case on the basis of the record. Otherwise, the successor may either proceed with evidence or require presentation of evidence again from the beginning. The Agency shall provide without cost to all Parties and the successor a copy of the official verbatim transcript, or completed portions thereof, if not previously provided.
(f) Notice of Decision
The Agency or Presiding Officer shall promptly provide all Parties with a copy of every Agency decision or order when filed and otherwise give prompt notice of all Agency actions from which any time limitation commences.
This information was last updated on 12/22/2008.