Md. Code Regs. 09.32.06.02

Current through Register Vol. 51, No. 10, May 17, 2024

Section 09.32.06.02 - Hearings

A. Scheduling Authority. The scheduling authority in the case of an appeal or a petition for review pending before the Board of Appeals is the Board of Appeals or its designee.

B. Notice of Hearing.

(1) The Board of Appeals shall give interested parties at least 15 business days notice in writing of the time and place of any hearing before the Board of Appeals.

(2) Notice is sufficient when mailed to the party, postage prepaid, or otherwise delivered to the party in accordance with the format and procedures established by the Board of Appeals, at the last known address of the party.

(3) In the case of appeals or petitions for review filed under Regulation .01A(3) of this chapter, notice mailed or otherwise delivered to the attorney or authorized representative, plus notice mailed or otherwise delivered to each individual appellant who filed an individual appeal or a petition for review or to those persons who requested an individual notice, shall be sufficient notice to all parties represented by the attorney or authorized representative. This subsection shall also apply to notices of hearings in labor disputes in which the Board of Appeals has jurisdiction to issue original determinations.

(4) For notice purposes, the representation of a party by an attorney or authorized representative is effective on the date an appearance is entered in the case, or the date the appearance is noted in the appeal file, whichever is earlier.

C. Public Hearing. Hearings before the Board of Appeals shall be public. The record made in any appeal hearing is a public record. Media coverage of any hearing is permissible unless the Board of Appeals determines that it interferes with the hearing process.

D. Record. The record made by or at the direction of the Board of Appeals is the only official transcript of the oral hearing. Additional recordings or transcriptions may be made by the parties at the hearings, or by third parties, only at the discretion of the Board of Appeals or its designee.

E. Issues.

(1) The Board of Appeals shall inquire fully into the facts of the particular case. The Board of Appeals shall consider all issues expressly appealed by the party in the case and all issues expressly ruled upon in the decision of the hearing examiner. The appeal of a ruling under Labor and Employment Article, §§ 8-1001, 8-1002, 8-1002.1, or 8-1003, Annotated Code of Maryland, shall be considered an appeal raising all four disqualification issues.

(2) Notwithstanding §E(1) of this regulation, the Board of Appeals may hear and determine any issue in the case, even if not expressly ruled upon by the hearing examiner or indicated in the notice of hearing, if the speedy administration of justice, without prejudice to any party, will be substantially served by doing so.

F. Representation.

(1) An interested party may appear without representation in any proceeding before the Board of Appeals.

(2) A party may be represented by an attorney admitted to practice by the Maryland Court of Appeals. Attorneys admitted to practice before the courts of any other state or territory of the United States may represent a party subject to the rules of the Maryland Court of Appeals.

(3) A claimant may also be represented by an authorized representative other than an attorney, but the representative may not charge or accept payment for the representation.

(4) An employer may appear for itself, or be represented by any other authorized representative.

(5) The Board of Appeals may prohibit an individual from representing others in a hearing if the Board of Appeals finds, after a special hearing convened for that purpose, that the individual has committed unethical conduct in relation to unemployment insurance claims and appeals.

G. Appointment of Interpreter.

(1) If a party or witness is hearing-impaired or mute, and because of this impediment cannot readily understand or communicate the spoken language, or if the party or witness is unable to communicate in the English language, the party or witness may apply to the Board of Appeals for the appointment of a qualified interpreter to assist that person. The scheduling authority may appoint an interpreter on its own motion.

(2) Upon application of the party or witness, the Board of Appeals shall appoint a qualified interpreter to assist that person.

(3) In selecting a qualified interpreter for appointment, the Board of Appeals may consult any directory of interpreters which is maintained by any court in this State.

(4) An interpreter appointed pursuant to this section shall be allowed reasonable compensation subject to approval of the Board of Appeals.

H. Procedure at Hearing.

(1) Unless the Board of Appeals has denied a petition for review, appeals to the Board of Appeals shall be considered upon the evidence in the record based on the hearing before the hearing examiner, but the Board of Appeals may direct the taking of testimony in addition to that contained in the record, in its discretion, or, after notice to the parties, hear the case de novo and disregard testimony taken previously, or take testimony in addition to that contained in the record made before the Lower Appeals Division.

(2) The Board of Appeals shall have the power to call, examine, and cross-examine witnesses and to introduce into the record documentary or other evidence. As authorized by the Board of Appeals, the parties to the hearing may be given an opportunity to cross-examine witnesses, call witnesses on their own behalf, to inspect documents, and to offer evidence in explanation or rebuttal.

(3) The Board of Appeals may also order the taking of testimony in a hearing before a special examiner, unless a party objects in writing.

(4) Upon request of any party at a hearing, the Board of Appeals or its designee shall grant the interested parties a reasonable time for oral argument.

(5) The Chairman shall preside at the hearings before the Board of Appeals and shall make all evidentiary and procedural rulings at the hearings. If the Chairman is not present at a hearing, each associate member shall, on alternate hearing days, exercise the powers of the Chairman at the hearing.

(6) Two members of the Board of Appeals shall constitute a quorum for the purpose of any hearing under this regulation.

(7) If the decision of the three members of the Board of Appeals is not unanimous, the decision of the majority of the members shall control. The minority member may file a dissenting opinion, together with the reasons for that dissent. Each member of the Board of Appeals who participates in a Board of Appeals hearing shall sign the decision on the case and shall indicate his or her concurring opinion, and shall state the reasons for that concurrence.

I. Evidence.

(1) Rules of Evidence. The hearings shall be conducted informally in a manner to ascertain the substantial rights of the parties, and the Board of Appeals may not be bound by common law or statutory rules as to the admissibility of evidence or by technical rules of procedures. Witnesses shall testify under oath or affirmation.

(2) Electronically Stored Records. A party who seeks to enter into evidence video recordings, audio recordings, or other electronically stored records shall produce at the hearing the equipment necessary to allow review of the contents of the records. The party offering the records shall have the continuing obligation to produce the equipment necessary to review the records if further administrative proceedings occur. If the party offering the records fails to produce the equipment necessary to review the records, the Board of Appeals may exclude the records from consideration.

(3) Agency Records.

(a) The records of the Department of Labor, Licensing, and Regulation are public records and shall be competent evidence of the facts disclosed in the records. A witness is not required to introduce a public record into evidence. The burden shall be on the party objecting to any Department records being entered into evidence at the hearing to show by a preponderance of the credible evidence the legal reasons why the records should not be entered into evidence.

(b) Requests of any party to an appeal or petition for review for information from the records of the Department of Labor, Licensing, and Regulation or the Board of Appeals shall be forwarded to the Secretary so that relevant and pertinent information may be furnished by the Secretary. Upon request, any party shall be furnished with any information contained in the appeals records that may be pertinent or material to the case. Requests for this information shall be made at least 5 business days before the hearing and state, with particularity, the nature of the information desired. Requests for information made after the fifth business day prior to the hearing, will be granted only at the discretion of the scheduling authority.

(4) Evidence of Medical Condition. In any case when the medical condition of a party is at issue, the Board of Appeals, for good cause shown, may grant a party up to 10 days after the hearing to submit written medical documentation.

(5) Additional Records. The Board of Appeals, for good cause shown, may grant a party up to 10 calendar days after a hearing to submit additional records.

J. Subpoenas.

(1) The Board of Appeals may issue subpoenas, to be served by certified mail or by any individual who is not a party and who is 18 years old or older, to compel the attendance of witnesses and the production of books, papers, correspondence, and other records deemed necessary as evidence in writing.

(2) The scheduling authority may deny requests for subpoenas that it determines are frivolous or unreasonably burdensome to the other party, but requests may not be denied without substantial cause.

(3) Requests for subpoenas shall:

(a) Be in writing;

(b) State the name and address of the person to be subpoenaed;

(c) State the reason for the request;

(d) State with specificity the documents to be subpoenaed; and

(e) Be delivered to the scheduling authority at least 10 business days before the hearing date.

K. Continuance of Hearing. The Board of Appeals, in its sole discretion, may continue any hearing. Whenever it appears that an investigation as to any matter material to the issues involved in the proceedings is necessary to aid in the determination of the case, the Board of Appeals may order an investigation to be made and may continue the hearing pending the investigation.

L. Withdrawal of Appeals. At any time before the conclusion of a hearing before the Board of Appeals or before a decision is issued by the Board of Appeals, a party appealing from a hearing examiner's decision may request that its appeal be withdrawn, and the Board of Appeals may permit the withdrawal. An approved withdrawal is a final decision and is not subject to a request to reopen. Approved withdrawn appeals shall not be subject to further review by the Board of Appeals.

M. Dismissal of Appeal for Failure to Appear. If an appealing party fails to appear at a hearing after having been given the required notice of the hearing, the Board of Appeals may issue a decision on the facts available or may dismiss the appeal. A party's failure to be present at the location designated for the hearing within 10 minutes of the time scheduled is a failure to appear within the meaning of this section.

N. Reopening of Dismissed Case.

(1) A request for reopening of a dismissed case shall be in writing. If an attorney or authorized representative files a request on behalf of a party, the request shall include a notation that a copy of the reopening request was simultaneously mailed or delivered to the opposing parties. A failure to include this notation, however, does not affect the timeliness of the request.

(2) A request for the reopening of a case may be granted for the following reasons:

(a) The party received the hearing notice on or after the date of the hearing as a result of:

(i) An untimely or incorrect mailing or delivery of a hearing notice; or

(ii) (text unchanged)

(b) An emergency or other unforeseen and unavoidable circumstance that prevented a party from both attending the hearing and requesting a postponement of the hearing; or

(c) A party requested a postponement for the reasons listed in §N(2)(a) or (b) of this regulation, but the request was improperly denied.

(3) Misreading of a properly prepared hearing notice as to the date, time, and place of the hearing is not good cause for reopening a dismissed case.

(4) A dismissal issued by the Board of Appeals after a scheduled hearing may be reopened only by a majority vote of the Board of Appeals taken within 10 calendar days of the date of the dismissal.

(5) The decision of the Chief Hearing Examiner of the Lower Appeals Division that there is not good cause to reopen a dismissed case is appealable to the Board of Appeals.

(6) The decision of the Chief Hearing Examiner of the Lower Appeals Division that there is good cause to reopen a dismissed case is appealable to the Board of Appeals only at the time that a decision on the merits of the underlying case is rendered.

O. Failure to Appear Before Hearing Examiner.

(1) In the event that a party failed to appear for a hearing that resulted in a decision by a hearing examiner, the non-appearing party may request an opportunity to establish good cause for failing to appear for a hearing.

(2) A request for a hearing to determine if there is good cause for failing to appear shall be in writing, and shall be sent to the opposing party or parties. The Board of Appeals may order that a second hearing be held before a hearing examiner if the party establishes a reason listed in COMAR 09.32.11.02 for reopening a case or a procedural or due process violation.

P. Attorney's Fees.

(1) An attorney representing a claimant in a proceeding before the Board of Appeals may not charge a fee in excess of 200 percent of the claimant's weekly benefit amount per case without the approval of the Board of Appeals.

(2) Requests for approval of fees greater than 200 percent of the claimant's weekly benefit amount shall be accompanied by an itemized account of services rendered in the case. A request for the excess fee shall be submitted within 30 calendar days of the date of the issuance of the decision. The Board of Appeals shall have authority to approve a fee higher than the maximum allowed under §P(1) of this regulation based upon the complexity of the case and the reasonableness of the fees.

(3) The fee amounts set out in this subsection may be awarded in addition to any fees awarded by the Chief Hearing Examiner of the Lower Appeals Division.

Q. Conflict of Interest. A member of the Board of Appeals may not participate in a hearing or appeal in which the member has an interest. A challenge as to the interest of a particular Board member shall be decided by the other members of the Board of Appeals.

R. Postponement of Hearings.

(1) A request for the postponement of a case shall be in writing, addressed to the scheduling authority, and accompanied by a notation that a copy of the request was simultaneously mailed, or otherwise delivered in accordance with procedures established by the Board of Appeals, to the opposing party in the case.

(2) Unless the requirements of §R(5) of this regulation are met, a request for postponement shall be considered only if received by the scheduling authority at least 3 business days before the hearing date.

(3) The scheduling authority may postpone a hearing for good cause shown. The repeated inability of a party's attorney or authorized representative to appear on account of a conflicting court date is not good cause.

(4) Documentary proof of the reason for postponement may be required by the scheduling authority. This documentation must be received by the scheduling authority at least 3 business days before the date of the originally scheduled hearing.

(5) A request for a postponement that is not received by the scheduling authority at least 3 business days before the hearing may be granted for good cause if:

(a) The request for postponement was postmarked at least 5 calendar days before the hearing date but was not received by the Board of Appeals until after the time set in §R(2) of this regulation;

(b) An error on the part of the Board of Appeals has caused such a delay in the requesting party's receipt of the hearing notice that the requirement of §R(2) of this regulation could not reasonably be met, and the requesting party has taken timely and reasonable steps to request a postponement as soon as possible after receipt of the hearing notice; or

(c) The postponement is requested because of sudden and unforeseeable health problems, hazardous weather conditions, or the like, the emergency nature of which would cause a substantial hardship or injustice on a party if the case were not postponed.

S. Witness Fees. Upon written request, a witness not employed by the Department of Labor, Licensing, and Regulation who is subpoenaed for a hearing before the Board of Appeals shall be entitled to receive an attendance fee in the amount of $25 in a case when the witness is summoned to appear in the county where the witness lives or does business, or $50 in other cases. Fees for witnesses subpoenaed shall be paid by the Board of Appeals.

T. Telephone Conference Hearings Before Special Examiners.

(1) Testimony before a special examiner designated by the Board of Appeals may be taken by telephone.

(2) A party not wishing to present testimony and evidence by telephone may appear at the hearing and present evidence in person at the location from which the telephone hearing is generated.

(3) In all telephone hearings, documentary evidence that a party participating by telephone intends to offer must be provided to the special examiner and all other parties at least 5 calendar days before the hearing. The special examiner may refuse to consider evidence that is not timely provided. Before the acceptance into evidence of documents at a telephone hearing, the special examiner shall allow the opposing party to cross-examine the submitting party or witness concerning the nature and veracity of the proffered document.

(4) A party shall be afforded all rights at a telephone hearing to which the party would be entitled at a regular hearing, subject only to the limitations of the physical arrangement.

(5) A party's failure to call into a hearing, failure to answer the telephone, failure to have a telephone available for a hearing, or failure to be ready to proceed with the hearing shall be considered as a failure to appear at the hearing if these conditions exist for more than 10 minutes after the scheduled time for the hearing.

Md. Code Regs. 09.32.06.02

Regulation .02D amended effective March 30, 1977 (4:7 Md. R. 578)
Regulations .02 adopted effective December 1, 1986 (13:24 Md. R. 2562)
Regulation .02 amended effective April 5, 1999 (26:7 Md. R. 542)
Regulations .02 adopted effective December 13, 2010 (37:25 Md. R. 1737); amended and recodified from .03 effective 45:14 Md. R. 695, eff. 7/16/2018