Section 1.21 - Hearing Examiner's Decision as the Final Sex Offender Registry Board Decision(1) The Hearing Examiner's decision shall be the final Sex Offender Registry Board decision, except as expressly provided in 803 CMR 1.16(6) and (7) and 1.21.(2) Judicial review, pursuant to M.G.L. c. 30A, § 14, is not available to the Board to correct errors in a Hearing Examiner's decision. Pursuant to 803 CMR 1.21, the Board shall be authorized to review a Hearing Examiner's final decision or any finding or ruling within the final decision on its own initiative or upon request by the Board's General Counsel, when any of the following grounds are presented: (a) the decision is based upon an error of law;(b) the decision is not in conformity with procedural due process standards;(c) the decision is unsupported by substantial evidence;(d) the decision is the result of arbitrary or capricious conduct;(e) the decision is the result of an abuse of discretion; or(f) the decision is not in conformity with the law.(3) To request a review of a Hearing Examiner's decision, the Board's General Counsel or the General Counsel's designee shall file a written request for review. (a) The written request shall state the grounds for seeking review, as outlined in 803 CMR 1.21(2)(a) through (f), and the reason that review is appropriate, and cite to the information from the hearing record which supports the review requested. The written request for review shall be filed with the Chair or the Chair's designee within ten days of the issuance date of the Hearing Examiner's decision. Notice of the submission of a written request for review shall be made pursuant to 803 CMR 1.23(1). The offender or his or her authorized representative may file a response to the written request for review within ten days of receipt, addressing any of the matters contained in the request. The filing of a written request for review shall stay the effect of the Hearing Examiner's decision for purposes of judicial review, registration and dissemination.(b) The majority of the Board's sitting members shall determine whether to grant the written request for review. Notice of the Board's determination on whether to grant the written request for review shall be made pursuant to 803 CMR 1.23(1). If the Board grants the written request for review, the Hearing Examiner's decision shall continue to be stayed for purposes of judicial review, registration and dissemination.(4) If the Board grants review, the classification hearing shall be deemed re-opened. The Board may decide the issue based solely on the written request for review and the offender's response, if any, or may direct the parties to file additional memoranda of law before deciding the issue or issues before it. The majority of the Board's sitting members shall determine whether the Hearing Examiner's final decision was in error. The Board shall issue a written decision and shall notify the parties of its decision pursuant to 803 CMR 1.23(1). If the Board finds no error, the Hearing Examiner's decision shall become final. Notice of the Board's finding shall be made pursuant to 803 CMR 1.23(1). The date that the notice is received by the offender or his or her authorized representative shall govern the time for filing a petition for judicial review, the time for registration and the dissemination of offender information as mandated by the sex offender registry laws.(5) If the Board determines that the Hearing Examiner's decision was in error, in whole or in part, the Board shall proceed in one of two ways: (a) The Board may issue a decision setting aside a portion or portions of the Hearing Examiner's decision. In such cases, the Board shall issue a decision stating with specificity the portion or portions that it is setting aside and its reasons for setting them aside. The Board's decision shall incorporate by reference the portions of the original Hearing Examiner's decision that it intends to uphold. The Board's revised decision shall be the final agency decision. Notice of the Board's revised decision shall be made pursuant to 803 CMR 1.23(1). The date that the revised decision is received by the offender or his or her authorized representative, shall govern the time for filing a petition for judicial review, the time for registration and the dissemination of offender information as mandated by the sex offender registry laws.(b) The Board may issue a decision setting aside the Hearing Examiner's decision in its entirety. In such cases, the Board shall issue a decision stating with specificity the reasons for its action and remand the case back to the Hearing Examiner. Notice of the Board's decision shall be made pursuant to 803 CMR 1.23(1). The Hearing Examiner's new decision shall be the final agency decision. Notice of the Hearing Examiner's new decision shall be made pursuant to 803 CMR 1.23(1). The date that the new decision is received by the offender or his or her authorized representative, shall govern the time for filing a petition for judicial review, the time for registration and the dissemination of offender information as mandated by the sex offender registry laws.(6) The Board's General Counsel or General Counsel's designee may file a written request for Board review of the Hearing Examiner's new decision if, in the opinion of the General Counsel or the General Counsel's designee, the Hearing Examiner's new decision fails to correct the error or errors that caused the decision to be remanded or if the new decision contains additional errors that meet the criteria of 803 CMR 1.21(2). The same process set forth in 803 CMR 1.21(3) shall apply if a written request for review is submitted by the General Counsel or General Counsel's designee at this stage.(7) All documents considered by the Board during the review process described in 803 CMR 1.20 shall be included in the record that is filed by the Board's attorney in any judicial review case initiated pursuant to M.G.L. c. 30A, § 14.Amended by Mass Register Issue 1305, eff. 1/29/2016.