(1) Preamble

801 CMR 1.03 is applicable to all proceedings held under 801 CMR 1.01 and 1.02.

(2) Amendments

The Secretary of Administration and Finance (ANF) may adopt any appropriate amendments and additions to 801 CMR 1.00 in accordance with M.G.L c. 30A, § 9. Any Agency may make application to the Secretary of Administration and Finance for amendments to 801 CMR 1.00.

(3) Severability

If any rule contained herein is found to be unconstitutional or invalid by a Court of competent jurisdiction, the validity of the remaining rules will not be so affected.

(4) Exemptions

Any agency wishing to be exempted from 801 CMR 1.00 shall apply for exemption to the Secretary of Administration and Finance.

(5) Conflicts

No Presiding Officer who has a direct or indirect interest, personal involvement or bias in an Adjudicatory Proceeding shall conduct a hearing or participate in decision-making for the relevant Adjudicatory Proceeding.

(6) Ex Parte Communications

  1. General Provisions: In any Adjudicatory Proceeding:
    1. Any member of the body comprising the Agency, Presiding Officer, or other Agency employee who is or may reasonably be expected to be involved in the decisional process of the Adjudicatory Proceeding:
      1. shall not make or receive an ex parte communication to or from any interested person outside theAgency relevant to the merits of the Adjudicatory Proceeding; and
      2. shall place on the public record of the Adjudicatory Proceeding:
        1. all prohibited written communications made or received;
        2. memoranda stating the substance of all prohibited oral communications made or received; and
        3. all written responses, and memoranda stating the substance of all oral responses, to thematerials described in 801 CMR 1.03(6)(a)1.b.i. and .ii.; and
        4. a statement whether, in his or her opinion, the receipt of the ex parte communicationdisqualifies him or her from further participation in the Adjudicatory Proceeding, pursuant to 801 CMR 1.03 (5).
    2. The Presiding Officer may, upon the motion of any Party or on his or her own motion, accept or require the submission of additional evidence of the substance of a communication prohibited by 801 CMR 1.03(6).
    3. Upon receipt of a communication knowingly made or knowingly caused to be made by a Party in violation of 801 CMR 1.03(6), the Presiding Officer may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the Party to show cause why his claim or interest in the Adjudicatory Proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.
    4. The prohibitions of 801 CMR 1.03(6) shall apply beginning at the time at which an Adjudicatory Proceeding is initiated under 801 CMR 1.01(6) or 1.02(6) unless the person responsible for the communication knows or reasonably should know that the Adjudicatory Proceeding will be initiated, in which case the prohibitions shall apply beginning at the time of such person's acquisition of such actual or constructive knowledge.
  2. Exception: 801 CMR 1.03(6)(a) does not apply to consultation among Agency members concerning the Agency's internal administrative functions or procedures.

This information was last updated on 12/22/2008.