1 Del. Admin. Code § 601-8.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 601-8.0 - Hearings

8.1 The purpose of a hearing is:

8.1.1 to hear argument;

8.1.2 where appropriate, to receive evidence and determine facts; and

8.1.3 in all events to render an adjudication in accordance with applicable law.

8.2 If a complaint cannot be resolved through conciliation, as provided in Section 4508(c) of the Delaware Equal Accommodations Law, the Commission shall appoint a Panel to hold a public hearing within 60 days after the expiration of the 120-day period for investigation and conciliation. The deadlines provided in Section 4508(c) and Section 4508(e) may be extended by the Chairperson or if a Panel has been appointed by the Panel Chair at the request of any Party or Staff upon a showing of good cause.

8.3 The date, time, place and a brief description of the subject matter of the hearing shall be included in the Notice of Hearing sent to all Parties, the Panel and the Attorney General's representative, as well as other information required by the Administrative Procedures Act.

8.4 The Hearing shall be held within the county in which the discriminatory practice is alleged to have occurred.

8.5 As provided in 6 Del.C. § 4510, a subpoena shall be issued upon written request by any Party, Staff, or a Panel Member. Such requests shall be submitted no later than twenty (20) days in advance of the Hearing. Witnesses and documents must be clearly described in writing. The consequence of failure to request a subpoena in a timely fashion shall be in the discretion of the Panel.

8.5.1 Any individual or entity served with a subpoena may apply to the Panel to quash or modify the subpoena on any legal basis including but not limited to the following: that the subpoena does not adequately describe the evidence requested; is not relevant to the complaint; covers an unreasonable period of time; requires disclosure of a trade secret, confidential research, development or commercial information, or privileged or other protected matter and no exception or waiver applies; subjects a person to undue burden or hardship; or requires disclosure of the opinion of an expert not retained for a hearing or information not describing specific events or occurrences in dispute.

8.5.2 Where a person fails or neglects to attend and testify or to produce records or other evidence in obedience to a subpoena or other lawful order, the Commission may petition the Superior Court for an order requiring the person to appear to produce evidence or give testimony. Failure to obey such order may be punishable by the Court as contempt.

8.6 Subpoenas may be served by any sheriff, deputy sheriff, constable or any member of the Commission or employee of the Division of Human Relations. The return of service of each subpoena shall be promptly filed at the appropriate Division office.

8.7 No fewer than three (3) Commissioners shall constitute a quorum for all Commission Panel hearings. In the absence of any duly appointed Panel member, the Chairperson or his or her designee shall be empowered to make a substitution, without notice to the parties, provided the Hearing has not yet begun.

8.8 A written list of witnesses a Party intends to call during a panel hearing must be delivered to the office of the Division of Human Relations where the complaint was filed and to all other Parties at least ten (10) days prior to a hearing.

8.8.1 The Panel, in its discretion, may refuse to receive into evidence any testimony of a witness who has not been named on the witness list.

8.9 All motions shall be delivered to the office of the Division of Human Relations where the complaint was filed and to all other Parties at least ten (10) days prior to the hearing. Motions filed beyond this time limit may not be considered at the discretion of the Panel. Opposing Parties may file a response to the motion or may present opposition at the hearing. Replies to responses to motions are not permitted.

8.10 Copies or photographs of all exhibits, except exhibits intended solely for impeachment, must be delivered to the office of the Division of Human Relations where the complaint was filed and to all other parties at least ten (10) days prior to the Hearing. The Panel shall consider such exhibits without formal proof unless the parties and the Commission have been notified at least five (5) days prior to the Hearing that an adverse Party intends to raise an issue concerning the authenticity of the exhibit.

8.10.1 The Panel may refuse to receive into evidence any exhibit, a copy or photographs of which has not been delivered to the Commission and to an adverse Party as provided herein. After commencement of the hearing, the Panel, in its discretion, may view or inspect exhibits or the location involved in a case.

8.10.2 Exhibits submitted at Panel Hearings are to be kept by the Commission during the passage of time for judicial review under § 4511 of the Delaware Equal Accommodations Law or until all relevant proceedings have been concluded, whichever is later. The exhibits shall then be returned to the Party which submitted such or, at the request of that Party, destroyed.

8.11 The hearing shall be conducted by the Panel Chair. Individuals and business organizations may be represented by counsel. Individuals and business organizations may be represented by counsel. A business organization may also be represented by an non-attorney employee. Every hearing shall be recorded by electronic instrument or court reporter.

8.12 Certain Hearings may address purely legal issues, in which event all Parties or their counsel may, at the discretion of the Panel, have an opportunity to present oral argument.

8.13 In evidentiary hearings, all Parties or their counsel shall be given the opportunity to make a brief opening statement prior to the introduction of any evidence in the case. The Panel Chair shall explain to the Parties that they may make a general statement of what they intend to prove through testimony and exhibits but that they are not permitted at this time to testify or to present argument to the Panel. The Panel Chair shall interrupt a Party who attempts to testify or present argument during an opening statement and inform the Party that such testimony or argument can be provided at the appropriate time during the hearing. The Panel Chair will then offer the opposing Party the opportunity to present an opening statement if the opposing Party has not already done so or shall move to the next stage of the proceedings.

8.14 Testimony shall be under oath or affirmation administered by the court reporter. If a court reporter is not present, witnesses shall be sworn in by the Panel Chair.

8.15 Staff shall be required to attend the Hearing in order to assist in the proceedings, or, where appropriate, to be a witness.

8.16 The Panel Chair shall have full authority to control the hearing proceedings, including, but not limited to the authority to call and examine witnesses; to admit or exclude evidence; and to rule upon all motions and objections subject to the following:

8.16.1 Formal rules of evidence will not be strictly followed.

8.16.2 Direct and cross examination shall be preserved and may be conducted by the Parties or their attorney(s), or Panel Members or the Deputy Attorney General representing the panel may question any witness.

8.16.3 Testimony from any person may be allowed at the discretion of the Panel.

8.16.4 Witnesses may be sequestered at the discretion of the Panel Chair upon the request of any Party(ies).

8.16.5 Evidence on the behalf of the Complainant(s) should ordinarily be introduced first, to be followed by the Respondent(s)' evidence, then allowing rebuttal, if any.

8.16.6 The Panel may continue a hearing from day to day or adjourn it to a later date or to a different place by so announcing at the Hearing or by appropriate notice to all Parties.

8.16.7 Following the presentation of the evidence, an opportunity shall be given to each Party to make a closing statement.

8.16.8 The Panel may recall the Parties for further testimony if necessary to reach a decision.

8.16.9 Deliberations of the Panel typically commence immediately following the hearing, and are not open to the public.

8.17 A written transcript shall be prepared, if and as required, on the written request of any Party, provided that such Party pays for the cost of preparing the transcript. Staff shall coordinate this process under State contract. A deposit may be required. Such recordings and transcripts shall be preserved with the official file record of a case.

1 Del. Admin. Code § 601-8.0

12 DE Reg. 505 (10/01/08)