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456 Code of Massachusetts Regulations (CMR) |
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13.00: CONDUCT OF HEARINGS
The provisions of 456 CMR 13.00 are applicable to all hearings before the Commission, except hearings on petitions filed pursuant to 456 CMR 14.00. Hearings on petitions filed pursuant to 456 CMR 14.00 shall be governed by the procedures in 456 CMR 14.08. 13.02: Hearings and Recommended Findings (1) The Commission in its discretion may designate that the allegations set forth in a complaint shall be decided by the Commission in the first instance, or by a hearing officer, and shall notify the parties of such designation or redesignation. (2) A hearing that has been designated for a Commission decision in the first instance shall be presided over by a Commission member or by a hearing officer. The Commission shall decide the case in a written decision based on the record of the proceedings. The Commission may direct the hearing officer or Commission member who has observed the witnesses to issue written recommended findings of facts and/or recommended conclusions of law prior to the Commission's consideration of the case. Within ten days after notice thereof, or within 15 days of receipt of a copy of the taped recording or stenographic transcription of the hearing if a timely request for same has been made after receipt of a hearing officer's or Commission member's recommended factual findings and/or conclusions of law, whichever is later, any party may submit to the Commission an original and four copies of a written challenge of the hearing officer's or Commission member's recommended findings of fact and/or conclusions of law. Challenges to a hearing officer's or Commission member's recommended factual findings must identify the specific recommended findings alleged to be erroneous and must clearly identify all record evidence that supports a contrary factual finding. Challenges to a hearing officer's or Commission member's recommended conclusions of law must identify the specific recommended conclusions challenged and must explain the basis for the challenging party's challenge. Within ten days of receipt of the challenging party's challenge, any other party to the proceeding may submit an original and four copies of a written response to the challenge. The record of the proceedings will include the hearing officer's or Commission member's recommended factual findings and/or conclusions of law along with any written challenges and responses submitted to the Commission. The authority exercised by the hearing officer or Commission member shall be as set forth in 456 CMR 13.06. (3) A hearing that has been designated for a hearing officer decision in the first instance shall be presided over by a hearing officer who shall have, in addition to the authority set forth in 456 CMR 13.06, the authority to make all rulings and orders necessary to decide the case based on the record of the proceedings. Final decisions and orders of the hearing officer shall be in writing and may be appealed to the Commission in accordance with 456 CMR 13.15. (1) Prior to the close of a hearing, a party may seek relief from a ruling or order of the hearing officer in the following manner: (a) the motion for relief must be in writing and addressed to the Executive Secretary; (b) the motion must set forth with specificity the ruling or order from which relief is sought and grounds on which the party believes that it is entitled to relief, including why review following the close of the hearing is not an adequate remedy. (2) Such a motion for review shall not operate to delay or interrupt the hearing. The ruling of the hearing officer shall remain in effect until and unless modified or overruled by the Commission. The Commission may, at its discretion, defer any ruling on such motion until the close of the hearing. 13.04: Right to Counsel and to Offer Evidence Any party to a proceeding shall have the right to appear at such proceeding in person, by counsel or by other representative, to call, examine and cross-examine witnesses and to introduce into the record documentary or other evidence. Any hearing conducted pursuant to this chapter shall be open to the public except in extraordinary situations or circumstances as the Commission, in its discretion, may determine. 13.06: Authority of Commission Agent Presiding at Hearing The Commission, member or hearing officer presiding at a hearing shall have the right to inquire fully into the facts relevant to the subject matter of the hearing and shall not be bound by the rules of evidence observed by courts. The Commission, member or hearing officer shall have the authority: (1) to administer oaths and affirmations; (2) to issue subpoenas; (3) to rule upon motions to revoke or modify subpoenas; (4) to rule upon offers of proof and receive relevant evidence; (5) to permit depositions to be taken when appropriate; (6) to limit the examination and cross-examination of each witness to one representative for each party; (7) to hold conferences for the settlement or clarification of the issues; (8) to dispose of procedural requests or similar matters; (9) to require the parties to identify prospective witnesses at least ten days prior to a scheduled hearing whenever possible and to call, examine and cross-examine witnesses and to introduce into the record documentary or other evidence; (10) to request the parties at any time during the hearing to state their respective positions concerning any issue in the case or theory in support thereof or to request the parties to submit proposed findings of fact, conclusions of law and/or requests for remedial relief; (11) to continue the hearing from day to day or to adjourn the hearing to a later date or to a different place, by announcement thereof at the hearing or by other appropriate notice; (12) to rule on the admissibility of evidence; and (13) to take any other action authorized by 456 CMR 13.00. All motions made prior to or subsequent to the hearing shall be filed in writing with the Commission in accordance with the provisions of 456 CMR 12.11 and shall state the order or relief applied for and the grounds for the motion. Within seven days of service of the motion, any other party to the proceeding may file a response with the Commission, unless directed otherwise by the Commission or its agent. The Commission or hearing officer may defer ruling on any motions until the close of the hearing and may direct the parties to proceed with the hearing while the motion is pending. All motions made at the hearing shall be stated orally, unless otherwise diected by the Commission or the hearing officer, and shall be included in the record of the hearing. Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, shall be stated orally, together with a short statement of the grounds of such objection, and shall be included in the record of the hearing. No such objection shall be deemed waived by further participation in the proceedings. Witnesses shall be examined orally under oath or affirmation, except if they reside outside of the State or because of illness or other cause are unable to testify before the Commission. In such situations, the Commission or its agent may direct that the testimony be taken within or without this State in such manner and in such form as is permitted by law. In any proceeding, stipulations of fact may be introduced in evidence with respect to any issue. (1) Except for good cause shown, all hearings conducted pursuant to 456 CMR 13.00 shall be recorded by one of the following methods: audio tape, stenographic transcription, handwritten transcription, or other equivalent method approved by the Commission. (2) Copies of any official audio tape, stenographic transcription, handwritten transcription or other equivalent record prepared by the Commission or its agents shall be made available to all parties for purchase and may be made available for the parties to review at the Commission's offices. (3) Any party desiring a copy of the above-referenced record of the hearing before the Commission may submit a written request for same to the Executive Secretary of the Commission. (4) Any party may request permission of the hearing officer, or if one has not yet been designated, of the Commission, to record the hearing by means of audio tape or stenographic transcription, or through other means that will not disrupt the proceedings. Any party may request the Commission to designate a written transcript of the proceeding as the official record of the proceeding subject to the following requirements: (a) A copy of the written transcript has been made available to all other parties to the proceeding and all have had the opportunity to specify any objections to the accuracy of the transcript to the Commission; (b) A copy of the written transcript will be made available for purchase to all other parties for a reasonable fee reflective of the cost of the transcript; (c) A copy of the written transcript is provided without charge to the Commission with the understanding that the Commission will make the transcript available to the public pursuant to the provisions of state law. The Commission may refer such a request to the hearing officer for resolution. (1) Any party to a proceeding under this chapter may request the issuance of a subpoena to compel the attendance of witnesses or the production of books, records, documents or correspondence. (2) The party requesting a subpoena shall submit a written request to the hearing officer assigned to the proceeding or, if no hearing officer has been assigned, to the Executive Secretary. The request shall be submitted on a form authorized by the Commission and shall include: (a) the Commission case number and caption of the proceeding; (b) the name, address and telephone number of the party requesting the subpoena; (c) the date, time and location of the proceeding; (d) the name and address of the witness whose testimony is sought; and, (e) a specific description of the books, records, correspondence or documents sought. (3) The hearing officer, the Executive Secretary, or a Commission member shall be authorized to grant or deny requests for subpoenas and shall be authorized to affix the seal of the Commission. A request for issuance of a subpoena shall be denied only if such request fails to comply with 456 CMR 13.12(2) or if the request is overbroad, oppressive or otherwise legally defective. (4) The party requesting the subpoena shall be responsible for service of the subpoena and shall assume all costs of service, witness fees and mileage. Subpoenas shall be served in person by a disinterested person or by certified or registered mail. Witnesses shall be paid the same fees for attendance and travel as in civil cases in the courts of the Commonwealth and such fees shall be paid at the time of service. (5)(a) At or prior to the time at which the subpoena compels attendance, but not later than five days after service of the subpoena, any witness under subpoena may file a motion for revocation or modification of any subpoena by submitting a written motion to the hearing officer, or, if no hearing officer has been designated, to the Executive Secretary. The motion shall include a statement of the grounds for revocation or modification of the subpoena. (b) Upon receipt of a motion for revocation or modification of a subpoena, the hearing officer or the Commission shall rule upon the motion. Prior to such ruling, an investigation, pursuant to the provisions of M.G.L. c. 30A, s. 12(4) as amended, shall be conducted. The Commission may defer ruling on the motion pending designation of a hearing officer. (6) In the event of failure of a witness to comply with a subpoena, the Commission may initiate proceedings in Superior Court to compel compliance, or may decline to initiate such proceedings. If the Commission declines both to quash the subpoena and to initiate proceedings in court nothing in these regulations will prohibit the party at whose request the subpoena was issued from seeking enforcement of the subpoena in court pursuant to M.G.L. c. 30A, s. 12(5). 13.13: Oral Argument or Briefs (1) The parties shall be entitled to oral arguments at the close of the hearing or may be given permission by the hearing officer or the Commission to file briefs or written statements. The time for oral argument shall be fixed by the Commission or hearing officer. (2) Any party permitted to file a brief shall submit the original and four copies within ten days after the close of the hearing, unless otherwise directed by the hearing officer or Commission. (3) Requests for additional time in which to file a brief shall be made in writing to the hearing officer in a hearing pursuant to 456 CMR 13.02(3) and to the Executive Secretary in a hearing pursuant to 456 CMR 13.02(2), and shall be filed with same no later than three days before the date such briefs are due. (4) No reply briefs may be filed except by permission either of the hearing officer in a hearing pursuant to 456 CMR 13.02(3) or of the Commission in a hearing pursuant to 456 CMR 13.02(2). The Commission or hearing officer may reopen the hearing and receive further evidence or otherwise dispose of the matter prior to the issuance of a final decision. The Commission or hearing officer shall notify the parties of the time and place of hearings reopened under this section. 13.15: Appeal of Hearing Officer Decisions Pursuant to 456 CMR 13.02(3) (1) The decision of the hearing officer in a hearing designated for a hearing officer's decision pursuant to 456 CMR 13.02(3) shall become final and binding on the parties unless, within ten days after notice thereof, any party requests a review by the Commission. This procedure is the exclusive method by which the parties may request review by the Commission of the decision of the hearing officer. (2) The decision of a hearing officer shall include the findings of fact and conclusions of law upon which the hearing officer based the decision. (3) Any party seeking review of a decision of a hearing officer must file a notice of appeal with the Executive Secretary not later than ten days after notice of the decision of the hearing officer. The notice of appeal shall be in writing and contain the case name and number, the date of the decision of the hearing officer and a statement that the party requests review by the Commission. (4) Within ten days after notice of the hearing officer's decision, or within 15 days after receipt of a copy of the taped recording or stenographic transcription of the hearing if a timely request for same has been made pursuant to 456 CMR 13.15(7), whichever is later, any party appealing to the Commission shall file an original and four copies of a supplementary statement. Within ten days of service thereof, any other party to the proceeding may file an original and four copies of a supplementary statement responding to matters raised by the appealing party. (5) Supplementary statements shall state with specificity the basis of the appeal. A party claiming that the hearing officer has made erroneous findings of fact shall identify the specific findings challenged and clearly identify all record evidence supporting the party's proposed findings of fact. The findings of fact made by the hearing officer may be adopted summarily by the Commission unless specifically objected to by a timely filed supplementary statement. Only disputes as to material issues of fact need be resolved by the Commission on appeal. When a party claims that the hearing officer has made errors of law, the supplementary statement shall identify the challenged conclusions and must explain the basis upon which the party believes the conclusions to be erroneous. Failure to provide the above-described information may result in summary dismissal of the appeal. (6) The record on review before the Commission shall consist of the hearing officer's decision, the supplementary statements of the parties, if any, such portions of the record before the hearing officer as are necessary to resolve factual disputes and such other evidence as the Commission may require. (7) The parties may request a copy of the taped recording or stenographic transcription of the hearing following the close of the hearing. If the hearing has been recorded by audio tape, a request for a copy of the audio tape shall be made to the Executive Secretary together with payment. A request for a copy of either the audio tape or stenographic transcription filed more than ten days after notice of the hearing officer's decision will not extend the period for filing a supplementary statement. A request for a copy of the audio tape or stenographic transcription filed within ten days after notice of the hearing officer's decision shall stay the time for filing supplementary statements until 15 days after a copy of the audio tape or stenographic transcription has been made available to the party so requesting. |
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