1.03 Miscellaneous Provisions Applicable to All Adjudicatory Proceedings

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 may adopt any appropriate amendments and additions to 801 CMR 1.00 in accordance with 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 a Court of competent jurisdiction finds any rule contained herein unconstitutional or invalid, the validity of the remaining rules will not be affected.

(4) Exemptions

Any agency wishing to be exempted from these rules 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 the Agency 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 the materials described in clauses (i) and (ii) of this subparagraph; and
4. a statement whether, in his or her opinion, the receipt of the ex parte communication disqualifies him or her from further participation in the Adjudicatory Proceeding, pursuant to 801 C.M.R. § 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 this subsection.
1. Upon receipt of a communication knowingly made or knowingly caused to be made by a Party in violation of this subsection, 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.
2. The prohibitions of this subsection shall apply beginning at the time at which an Adjudicatory Proceeding is initiated under 801 C.M.R. § 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.

801CMR 1.03 6A This subsection does not apply to consultation among Agency members concerning the Agency’s internal administrative functions or procedures.

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