Section 10.09 - Hearings and Conferences(a)Pre-hearing Conference. The Presiding Officer may upon his own initiative or upon the application of any Party, call upon the Parties to appear for a conference to consider: 1. the simplification or clarification of the issues;2. the possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreement which willavoid unnecessary proof;3. the limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;4. the possibility of agreement disposing of all or any of the issues in dispute; and5. such other matters as may aid in the disposition of the Adjudicatory Proceeding. Those matters agreed upon by the Parties shall be electronically recorded in the presence of the Parties and/or reduced to writing and shall be signed by the Parties, and shall thereafter constitute part of the record.
The scheduling of a Pre-hearing Conference shall be solely within the discretion of the Presiding Officer.
(b)Pretrial Preparation. At a time scheduled by the Presiding Officer prior to the hearing, the Parties may be required to submit Pretrial memoranda setting forth the:1. legal issue presented;3. factual representations to be proven;4. witnesses to be called and the purpose of their testimony;5. documents intended to be introduced at the hearing. Such documentation must be filed with the pre-trial memorandum;6. such other material or representations as the Presiding Officer may direct. Failure to comply with this requirement may result in a default judgment being entered, or refusal by the Presiding Officer to admit material or hear witnesses or such other appropriate relief as the Presiding Officer may direct.
(c)Authentication of Documents. After receipt of pretrial memoranda, including all documents listed, the Presiding Officer may require a Party to file any objections as to the authenticity of any document listed. Such objection, unless otherwise ordered, must be filed at least 10 days prior to the hearing. Failure to object to the authenticity of a document may be deemed a waiver of any such objection at the hearing.(d)Submission Without a Hearing. A Party other than the Division may elect to waive a hearing and to submit its case upon the record. Submission of a case without a hearing does not relieve the Parties from the necessity of proving the facts supporting their allegations or defenses.(e)Hearings, When and Where Held. Hearings will be held at a location designated by the Division. Any Party may, by motion, request that a hearing be held at some place other than that designated, due to disability or infirmity of any Party or witness, or where justice and equity would best be served. Upon motion of any Party and upon good cause shown, the Presiding Officer may in his or her discretion advance a case for hearing.
(f)Conduct of Hearings. 1. General. Hearings shall be as informal as may be reasonable and appropriate under the circumstances.2. Decorum. All Parties, Authorized Representatives, witnesses and other Persons present at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in any court. Where such decorum is not observed, the Division or Presiding Officer may take appropriate action.3. Duties of Presiding Officer. The Presiding Officer shall conduct the hearing, make all decisions regarding admission or exclusion of evidence or any other procedural matters, and administer an oath or affirmation to all witnesses.(g)Order of Proceedings.1. Opening. Except as otherwise required by law, it shall be the usual practice that in proceedings initiated by the Notice of Adjudicatory Proceedings, the Division shall open.2. Discretion of Presiding Officer. Where evidence is peculiarly within the knowledge of one Party, or in cases in which Adjudicatory Proceedings have been consolidated, or where there are multiple Parties, the Presiding Officer may direct who shall open and shall designate the order of presentation.(h)Presentation. 1. Rights of Parties. All Parties shall have the right to present evidence, cross-examine, make objections, bring motions and make oral arguments. Cross-examination shall occur immediately after any witness' testimony has been received. Whenever appropriate, the Presiding Officer shall permit redirect and recross.2. First Presentation. The Party opening the hearing shall have the right to present his position through evidence and testimony first.3. Second Presentation. The Party taking the position contrary to that of the Party opening shall have the right to present his position upon completion of the opening Party's case.(i)Witnesses and Evidence.1. Oath. A witness' testimony shall be under oath or affirmation.2. Evidence. Unless otherwise provided by any law, the Presiding Officer need not observe the rules of evidence observed by courts but shall observe the rules of privilege recognized by law. Evidence maybe admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. Weight to be given evidence presented will be within the discretion of the Presiding Officer.3. Offer of Proof. An offer of proof made in connection with an objection taken to a ruling of the Presiding Officer rejecting or excluding preferred testimony shall consist of a statement of the substance of the evidence which the Party contends would be adduced by such testimony; and if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall constitute the offer of proof.(j)Evidence Included. All evidence, including any records, investigative reports, documents, and stipulations which is to be relied upon in making a decision must be offered and made a part of the record. Documentary evidence may be received in evidence in the form of copies or excerpts, or by incorporation by reference.(k)Administrative Notice. The Presiding Officer may take notice of any fact which may be judicially noticed by the courts of this Commonwealth or of general technical or scientific facts within the Presiding Officer's specialized knowledge only if the Parties are notified of the material so noticed and are given an opportunity to contest the facts so noticed.(l)Subpoenas. In conducting Adjudicatory Proceedings, the Presiding Officers may issue, vacate, modify and enforce subpoenas requiring the attendance and testimony of witnesses and/or the production of documents or other evidence in accordance with the following provisions: 1. Issuance. A Party may make written application to the Presiding Officer, which may issue the subpoena requested in the name of the Division. The Presiding Officer may issue the subpoena. Where it appears to the Presiding Officer that the subpoena sought may be unreasonable, oppressive, excessive in scope, or unduly burdensome, he may in his discretion, as a condition precedent to the issuance of the subpoena, require the person seeking the subpoena to show the general relevance and reasonable scope of the testimony or other evidence sought. In the event the person requested to issue the subpoena shall after consideration of all the circumstances determine that the subpoena or any of its terms are unreasonable, oppressive, excessive in scope, or unduly burdensome, he may refuse to issue the subpoena, or issue it only upon such conditions as fairness requires. Every subpoena shall show on its face the name and address of the requesting Party. Notice shall not be required for issuance of a subpoena. The form of subpoena shall adhere to the form used in civil cases before the courts.2. Motion to Vacate or Modify. Any Person to whom a subpoena is directed may, within a reasonable period, file in writing a motion that the subpoena be vacated or modified. The Presiding Officer shall give prompt notice to the Party who requested issuance of the subpoena. The Presiding Officer may grant such petition in whole, or in part, upon a finding that the testimony, or the evidence, whose production is requested, does not relate with reasonable directness to any matter in question or upon a finding that a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive, or has not been issued a reasonable period in advance of the time when the evidence is requested.3. Costs. Except for witnesses requested by the Division, witnesses summoned by the Presiding Officer shall be paid the same fees for attendance and travel as in civil cases before the courts. Except for witnesses requested by the Division, the requesting Party shall pay all costs involved with the subpoena, including fees for attendance and travel.(m)Transcript of Proceedings. 1. Recording and Transcripts. Testimony and argument at the hearing shall be either recorded electronically or stenographically. Transcripts of the proceedings shall be supplied to any Party, upon request, at his own expense. Any Party, upon motion, may request a stenographer to transcribe the proceedings, at his own expense. In such event, a stenographic record shall be provided to the Presiding Officer at no expense to the Division, and upon such other terms as the Presiding Officer shall order.2. Correction of Transcript. Corrections in the official transcript may be made only to make it conform to the evidence presented at the hearing. Transcript corrections, agreed to by opposing Parties, may be incorporated into the record, if and when approved by the Presiding Officer, at any time during the hearing, or after the close of evidence, but not more than ten days or such other time as shall be allowed by the Presiding Officer from the date of receipt of the transcript. The Presiding Officer may call for the submission of proposed corrections and may make disposition thereof at appropriate times during the course of the proceeding.(n)Briefs. At the close of the taking of testimony, the Presiding Officer may fix a time for the filing of briefs.(o)Settling the Record.1. Contents of Record. The record of the proceeding may consist of the following items: pleadings, pre-hearing conference memoranda, magnetic tapes, orders, briefs, memoranda, answers to interrogatories, depositions, transcripts, exhibits, and other papers or documents which the Presiding Officer has specifically designated be made a part of the record. The record shall at all reasonable times be available for inspection by the Parties. The Presiding Officer may accept legible photocopies of originals.2. Evidence After Completion. No evidence shall be admitted after completion of a hearing or after a case submitted on the record, unless otherwise ordered by the Presiding Officer.3. Weight of Evidence. The weight to be attached to any evidence in the record will rest within the sound discretion of the Presiding Officer. The Presiding Officer may in any case require either Party, with appropriate notice to the other Party, to submit additional evidence on any matter relevant to the Adjudicatory Proceeding.4. Exceptions. Formal exceptions to rulings on evidence and procedure are unnecessary. It is sufficient that a Party, at the time that a ruling is made or sought, makes known his objection to such action and his grounds, therefor, provided that, if a Party has no opportunity to object to a ruling at the time it is made, or to request a particular ruling at an appropriate time, such Party, within three days of notification of action taken or refused, shall state his objection and his grounds therefor.(p)Decisions and Final Orders. Every decision and final order shall be in writing and shall be signed by the Director. If a person other the the Director is serving as Presiding Officer, he or she shall prepare recommended findings of fact and conclusion of law to be submitted to the Director. The Director shall review the recommendation and shall be responsible for the issuance of the decision and final order. Every decision and final order shall contain a statement of the reasons therefor, including a determination of every issue of fact or law necessary to the decision and final order. The Director may approve, reject or modify the recommendation of the hearing officer or may refer the matter back to the hearing officer for further proceeding as the Director may decide. The final decision and order shall be mailed to all parties within ten days of signing by the Director.(q)Reopening of Hearings. On its own motion or on motion of any Party, the Presiding Officer may at any time before a final decision and order are issued request that the hearing be reopened for the purpose of receiving new evidence.(r)Motion for Reconsideration. Any Party may file a Motion for Reconsideration, setting forth specifically the grounds or statutory provision relied upon to sustain the Motion, within ten days from the date a copy of the final decision and order is mailed to the Parties by the Presiding Officer and the Parties shall be notified of their right to appeal as set forth in M.G.L. c. 30A.(s)Further Appeal. After the issuance of a final decision and order, any Party who has the right to seek administrative or judicial review of the decision may file an appeal with the appropriate court.(t)Withdrawal of Exhibits. After a decision has become final and all appeal periods have lapsed, the Director may in his/her discretion, upon motion, permit the withdrawal of original exhibits or any part thereof by the Party or Person entitled thereto.