Ariz. Admin. Code § 6-3-1502

Current through Register Vol. 30, No. 25, June 21, 2024

Section R6-3-1502 - Appeals Process, General

A. The Board or a hearing officer in the Department's Office of Appeals may informally dispose of an appeal or petition without further appellate review on the merits:

1. By withdrawal, if the appellant withdraws the appeal in writing or on the record at any time before the decision is issued; or

2. By dismissal, if the appellant fails to file the appeal within the time permitted by the Employment Security Law or Department rules; or

3. By stipulation, if the parties agree on the record or in writing at any time before the decision is issued, subject to approval by the Appeals Tribunal; or

4. By default, if the appellant fails to appear or waives appearance at the scheduled hearing.

B. Notice of hearing

1. Place of hearing. Hearings shall be held at those regularly established hearing locations most convenient to the interested parties, or, at the discretion of the presiding officer, by telephone. Written notice will advise any interested party that the party has a right to be present in person or through counsel, or both, or to send written questions to the hearing officer, who will ensure that the questions are asked of the other party or appropriate witnesses, provided the questions are received prior to the designated hearing date and are germane to the issues to be decided.

2. Time and contents of notice. All interested parties to a hearing shall be given at least 10 business days' notice of hearing, except that any interested party may waive, either in writing or on the record, the right to notice. The notice shall contain the time and place of hearing, the issues involved, and the name of the hearing officer who will hold the hearing, but if, by reason of the nature of the proceedings, the issues cannot be fully stated in advance of the hearing, or if subsequent amendment of the issues is necessary, the issues shall be fully stated as soon as practicable. In any event, reasonable opportunity shall be afforded all parties to become aware of the issues and to present evidence and argument with respect thereto.

3. Continued, reopened, or rescheduled hearings. Notice of time, place and purpose of any continued, reopened, or rescheduled hearing shall be given to all interested parties.

4. Mailing of notices. Notices of hearings shall be mailed to the interested parties by regular mail, 1st class, postage prepaid.

C. Consolidation of cases. When the same or substantially similar evidence is relevant and material to the issues in more than one case, proceedings thereon may be conducted jointly, a single record of the proceedings made and evidence introduced with respect to one case considered as introduced in the others, unless the hearing officer determines that such consolidation would be prejudicial to the interests or rights of any interested party.

D. Witnesses and subpoenas

1. An interested party shall arrange for the presence of that party's witnesses at a hearing.

2. A notice to attend a hearing, or a subpoena, may be issued by the hearing officer on the hearing officer's own motion.

3. Subpoenas requiring the attendance of witnesses or the production of documentary evidence at a hearing may be issued by the hearing officer on the hearing officer's own motion or upon written application by an interested party or the Deputy. Such request shall contain the name of the individual or documents desired, the address at which the subpoena may be served, and a brief statement of the facts which the applicant expects to prove by the individual or documents requested. The application shall be submitted to the Department at least 5 calendar days before the hearing to permit preparation and service of the subpoena before the hearing.

4. Witnesses subpoenaed who attend hearings shall be allowed fees at the same rate as paid by the Superior Court.

E. Information. In any hearing in which a claimant appears before the Appeals Board, the employing unit shall submit sworn or unsworn reports with respect to such person employed by it, which the Board deems necessary for the proper presentation of the claimant's claim.

F. Postponement of hearing. A hearing officer shall determine and order hearing postponements as prescribed in A.R.S. § 23-681(A) and (B).

G. Disqualification for cause. No person shall participate on behalf of the Department in any case in which the person is an interested party. A challenge regarding the interest of a hearing officer may be heard and decided by that hearing officer, or, upon written request by the party making the challenge, referred to the hearing officer's immediate supervisor. Challenges regarding the interest of a member of the Appeals Board shall be decided by the remaining members of the Board, based upon A.R.S. § 38-503. When a challenge is sustained, or the member voluntarily withdraws from the case, the Chairman of the Board shall so advise the Director, who may appoint an individual to act for the member of the Board in the particular case.

H. Change of hearing officer. Not later than 5 days prior to the date set for the hearing, any interested party may file a written request for change of hearing officer. The Appeal Tribunal shall immediately transfer the matter to another hearing officer who shall conduct the hearing. No more than 1 change of hearing officer shall be granted to any 1 party.

I. Representation of interested parties.

1. In proceedings before the Board or a hearing officer, parties may be represented as authorized by Supreme Court rules.

2. An Appeal Tribunal or the Appeals Board may refuse to allow any person who intentionally and repeatedly interferes with the orderly conduct of a proceeding before an Appeal Tribunal or the Board or who fails to comply with the provisions of the Employment Security Law or the rules or orders of the Department to represent an interested party in the proceeding.

J. Fees. To determine the reasonableness of a proposed fee in excess of $750, the Appeal Tribunal or Board shall consider the following factors:.

1. The amount of time devoted to the representation,

2. The difficulty of the case and the novelty or complexity of the issues,

3. The experience of the attorney or agent handling the case,

4. The merits of the claims or defenses presented by the opposing party,

5. Whether the attorney or agent's efforts were superfluous to the results achieved in the case,

6. The results achieved by the agent or attorney, and

7. Any other relevant factors.

K. Written statement. Within 10 days prior to the hearing, an interested party may submit to the Department a written statement setting forth the facts of the case.

L. Hearings. All interested parties shall be ready and present with all witnesses and documents at the time and place specified in the notice of hearing and shall be prepared at such time to dispose of all issues and questions involved in the appeal or petition.

1. Public hearings. All hearings before an Appeal Tribunal or the Appeals Board shall be open to the public, but the hearing officer conducting a hearing may close the hearing to other than interested parties to the extent necessary to protect the interests and rights of the interested parties, within the requirements of A.R.S. §§ 23-722, 38-431.01, and 38-431.03.

2. Stipulations. The parties to an appeal, with the consent of the hearing officer, may stipulate to the facts involved in writing or in open forum and may also waive the hearing. The case may be decided based on such stipulations, or such additional evidence may be required or obtained as necessary to render a fair and complete decision.

3. Record of the hearing. A full and complete record, including properly identified exhibits, shall be kept of all proceedings in connection with an appeal or petition, and such record shall be open for inspection by any interested party. When a transcript of the proceedings is made for the Department's use or for further proceedings, a copy may, upon written request be furnished to interested parties.

4. Oral arguments and briefs. At the conclusion of any hearing, the interested parties shall be granted a reasonable opportunity to present argument on all issues of fact and law to be decided. The hearing officer shall afford interested parties an opportunity either to present oral argument or to file briefs, or both; however, any party not represented as set forth in subsection (I)(1) shall be permitted oral argument. The hearing officer may limit the time of oral argument.

5. Continuances or re-openings. The hearing officer may, on the hearing officer's own motion or at the request of any interested party, upon a showing of good cause, continue the hearing to a future time or reopen a hearing before a decision is issued to take additional evidence.

M. Decision.

1. Contents of the decision. All evidence, including records and documents of the Department which the Tribunal or Appeals Board makes a part of the record of the hearing shall be considered in determination of the case. Pursuant to A.R.S. § 23-674, every decision shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law.

2. Mailing to interested parties; notice of appeal rights. A copy of such decision, together with an explanation of appeal rights, shall be personally delivered or sent by either regular 1st class, postage prepaid mail or certified mail to each interested party or the party's representative or attorney of record.

Ariz. Admin. Code § R6-3-1502

Former Regulation 20-1; Amended as an emergency effective April 28, 1976 (Supp. 76-2). Former Section R6-3-1502 repealed, new Section R6-3-1502 adopted as an emergency effective August 1, 1979, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 79-4). Former emergency adoption now adopted and amended effective March 11, 1980 (Supp. 80-2). Amended subsections (C) and (J) effective September 23, 1981 (Supp. 81-5). Amended effective September 25, 1991 (Supp. 91-3). Amended effective December 20, 1995 (Supp. 95-4).