12- 172 C.M.R. ch. 5, § 1

Current through 2024-50, December 11, 2024

Section 172-5-1 - Proceedings before the Division of Administrative Hearings and the Commission

A. Notice.

1. Notice of the right to appeal a determination made pursuant to section 1194, subsection 2; or section 1082, subsections 13 and 14; or section 1221; or section 1228; notice of the right to appeal an assessment made under section 1225; and notice of hearing to be held by the Division of Administrative Hearings and/or the commission shall be given as follows: By regular mail to the person or persons whose legal rights, duties, or privileges are at issue, sufficiently in advance of the hearing date to afford an adequate opportunity to prepare and submit evidence and argument and to request a hearing if so desired. The Unemployment Compensation tax field staff may hand deliver notices of appeal rights and will retain copies of all such deliveries.

2. All notices of hearing shall contain the following:

a. A statement of legal authority and jurisdiction under which the proceeding is being conducted;

b. A reference to the particular substantive statutory and rule provisions involved;

c. A short and plain statement of the nature and purpose of the proceeding and of the matters asserted;

d. A statement of the time and place of the hearing;

e. A statement of the manner and time within which evidence and argument may be submitted to the Division of Administrative Hearings or the Commission for consideration.

3. Notice of appeal rights must state the place and manner for taking an appeal and the period within which an appeal may be taken. As to the commission, notice of appeal rights shall state that the commission is not required to hold a hearing and that it is the burden of the appealing party to show a need for such a hearing.

B. Disposition without full hearing.

1. The commission or the Division of Administrative Hearings may make informal disposition of any adjudicatory proceeding by default when the appealing party fails to appear at the scheduled hearing, provided notice of the consequences of such failure to appear has been given said party. Any such default may be set aside by the commission or Division of Administrative Hearings for good cause shown. The procedure for good cause hearings is as follows:

a. Upon written request setting forth the reasons for failing to appear, the Division of Administrative Hearings may provide a good cause hearing to the appealing party that failed to appear at the hearing before the Division of Administrative Hearings. If the Division of Administrative Hearings determines that good cause exists, it will conduct a hearing on the underlying substantive issues. Similarly, upon written request setting forth the reasons for failing to appear at a Commission hearing, the Commission may provide a good cause hearing to the appealing party that failed to appear. A hearing on the underlying substantive issues shall be conducted only if the Commission determines that good cause exists.

b. Upon written request setting forth the reasons for failing to appear, the Commission may provide a good cause hearing to the non-appealing party that failed to appear before the Division of Administrative Hearings. If the Commission determines that good cause exists, it will conduct a hearing on the underlying substantive issues.

c. If it is decided, upon the reasons set forth in the written request and/or immediately upon completion of a good cause hearing, that a party did not have good cause for its nonappearance, no evidence will be taken on the substantive issues, which will have been rendered moot.

2. The commission or Division of Administrative Hearings may limit the issues to be heard or vary any procedure prescribed by these rules or the Maine Administrative Procedure Act if the parties and the commission or Division of Administrative Hearings agree to such limitation or variation, or if no prejudice to any party will result.

C. Ex parte Communications; Separation of Functions

1. In any adjudicatory proceeding, no commission or member or Administrative Hearing Officer authorized to take final action or to make findings of fact and conclusions of law shall communicate directly or indirectly, in connection with any issue of fact, law or procedure, with any party or other persons legally interested in the outcome of the proceeding, except upon notice and opportunity for all parties to participate.

2. This subsection shall not prohibit any commission member from:

a. Communicating in any respect with other members of the commission; or

b. Having the aid or advice of those members of his or her own staff, counsel or consultants retained by the commission who have not participated and will not participate in the commission proceeding in an advocate capacity.

3. This subsection shall not prohibit any Adminis­trative Hearing Officer from:

a. Communicating in any respect with other members of the Division of Administrative Hearings; or

b. Having the aid or advice of those members of his or her own staff, counsel or consultants retained by the Division of Administrative Hearings who have not participated and will not participate in the Division of Administrative Hearings proceeding in an advocate capacity.

D. Opportunity to be heard.

1. The opportunity for hearing shall be afforded without undue delay. Hearings should be speedy, simple and inexpensive.

2. Unless limited by agreement under subsection (B)(2) of this section or unless otherwise limited by the commission or Division of Administrative Hearings to prevent repetition or unreasonable delay in proceedings, every party shall have the right to present evidence and arguments on all issues, and at any hearing to call and examine witnesses and to make oral cross-examination of any person present and testifying.

3. For the purposes of subsection 3 of Section 1194 of the Employment Security Law, the "appealing party," who is required to appear at the hearing before the Division of Administrative Hearings prior to initiating further appeal before the Commission, includes either the claimant, the employer or the deputy who is appealing an adverse Administrative Hearings to the Commission, provided that a non-appearing deputy may initiate an appeal before the Commission upon the approval of the Director of Unemployment Compensation.

4. Sequestration of Witnesses. All witnesses present, not including any interested party and his or her designated representative who have not yet testified in the proceeding before the Commission or Division of Administrative Hearings must be sequestered. Witnesses who have testified but who may be recalled to testify further may be sequestered at the request of any party or upon the initiative of the Commission or the Division of Administrative Hearings.

5. Alternative Dispute Resolution. Notwithstanding paragraph 2 of this subsection, no appeal initiated before the Division of Administrative Hearings may be settled by agreement between the parties at any time prior to, during, or subsequent to a full administrative hearing on the merits of the case unless such settlement includes a stipulation of sufficient facts to support a finding consistent with the payment or denial of benefits in accordance with the requirements of the Employment Security Law. All such settlements shall be prepared in the form of a regular decision of the Division of Administrative Hearings, and shall require Commission approval in order to become effective. The Commission shall give priority to such settlements and shall act expeditiously on them.

E. Evidence.

1. The commission and Division of Administrative Hearings need not observe the rules of evidence observed by the courts, but shall observe the rules of privilege recognized by law.

2. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The commission or Division of Administrative Hearings may exclude irrelevant or unduly repetitious evidence.

3. All witnesses shall be sworn.

4. Subject to these requirements, the Commission and Division of Administrative Hearings may, for the purposes of expediting adjudicatory proceedings, require the prefiling of all or part of the testimony of any witness in written form. Every such witness shall be subject to oral cross-examination.

5. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

F. Official Notice.

1. The commission and the Division of Administrative Hearings may take official notice of any facts of which judicial notice could be taken, and in addition may take official notice of general, technical or scientific matters within their specialized knowledge and of statutes, regulations and nonconfidential agency records. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed.

2. Facts officially noticed shall be included and indicated as such in the record.

3. Notwithstanding the foregoing, the commission and the Division of Administrative Hearings may utilized their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them.

G. Record.

1. In all adjudicatory proceedings the commission and the Division of Administrative Hearings shall make a record consisting of the following:

a. All applications, pleadings, motions, preliminary and interlocutory rulings and orders;

b. Evidence received or considered;

c. A statement of facts officially noticed;

d. Offers of proof, objections and rulings thereon;

e. Proposed findings and exceptions, if any;

f. The decision of the commission or the Division of Administrative Hearings; and

g. All staff memoranda submitted to the members of the commission or the Division of Administrative Hearings by staff in connection with their consideration of the case, except memoranda of counsel to the commission or the Division of Administrative Hearings.

2. The commission and the Division of Administrative Hearings shall record all hearings in a form susceptible to transcription. Portions of the record as required and specified in subsection (G)(1) of this section may be included in the recording. The commission and the Division of Administrative Hearings shall transcribe the recording when necessary for the prosecution of an appeal.

3. The commission shall make a copy of the record, including recordings made pursuant to subsection (G)(2) of this section, available at the office of the Unemployment Insurance Commission, 40 Forest Falls Drive, Yarmouth, Maine 04096, and the Division of Administrative Hearings shall make a copy of the record, including recordings made pursuant to subsection (G)(2) of this section, available at the Maine Department of Labor, 2 Anthony Avenue, Suite #1, Augusta, Maine 04330, for inspection by any person during normal business hours; and shall make copies of the record, copies of recordings or transcriptions of recordings available to any person for a reasonable fee. Notwithstanding the provisions of this subsection, the commission and the Division of Administrative Hearings shall withhold, obliterate or otherwise prevent the dissemination of any portions of the record which are made confidential by State or federal statute, but shall do so in the least restrictive manner feasible. All decisions of the commission and Division of Administrative Hearings shall be kept on file for a period of three years.

4. All material, including records, reports and documents in the possession of the commission or the Division of Administrative Hearings, of which it desires to avail itself as evidence in making a decision, shall be offered and made part of the record, and no other factual information or evidence shall be considered in rendering a decision.

5. Documentary evidence may be incorporated in the record by reference when materials so incorporated are made available for examination by the parties before being received in evidence.

6. Orders for supplying information from the records of the commission or the Department:

a. Orders for supplying information from the records of the commission or the Department to interested parties to the extent necessary for a proper hearing on the issues involved in a claim shall be issued only upon application therefor, setting forth the reasons therefor. All applications for information from the records of the commission or the Department shall state as nearly as possible the nature of the information desired.

b. In all cases where application to supply an interested party with information from records of the commission or the Department is granted, other interested parties shall be furnished with a copy of such information.

H. Subpoena.

1. In any adjudicatory proceeding, any party shall be entitled as of right to the issuance of a subpoena in the name of the Unemployment Insurance Commission or the Division of Administrative Hearings, as appropriate. to require the attendance and testimony of witnesses and the production of any evidence relating to any issue of fact in the proceeding.

2. Authorized subpoenas shall be issued in accordance with the following:

a. The form of the subpoena shall adhere, insofar as practicable, to the form used in civil cases before the courts. Witnesses shall be subpoenaed within the territorial limits and in the same manner as witnesses in civil cases before the courts, unless another territory or manner is provided by law. Subpoenas may be served by certified mail, return receipt requested, and also by first class mail. If circumstances so require, the subpoena shall be served personally on the witness, according to the Maine Rules of Civil Procedure.

b. Witnesses subpoenaed for any hearing before the commission or Division of Administrative Hearings shall be paid witness and mileage fees by the commission in accordance with the following schedule, except that no attendance or mileage fee shall be due or payable when a subpoena is issued to compel an employing unit to appear and produce records and reports for the purpose of making a determination as to liability or for the purpose of completing routine reports as provided under the Maine Employment Security Law:

$10.00 for each day's attendance and $0.22 for each mile's travel between the witness' residence and the hearing location.

c. The subpoena shall show on its face the name and address of the party at whose request it was issued.

d. Any witness subpoenaed may petition the commission or Division of Administrative Hearings to vacate or modify a subpoena issued in its name. The commission or Division of Administrative Hearings shall give prompt notice to the party who requested issuance of the subpoena. After such investigation as the commission or the Division of Administrative Hearings considers appropriate, it may grant the petition in whole or in part upon a finding that the testimony or the evidence whose production is required does not relate with reasonable directness to any matter in question, or 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.

e. Pursuant to Title 5 M.R.S.A. Section9060(1)(D) failure to comply with a subpoena lawfully issued and not revoked or modified shall be punishable as for contempt of court. Any person who without just cause fails or refuses to obey a subpoena lawfully issued, if it is in that person's power to do so, shall be guilty of a Class E crime, in accordance with subsection 9-A of Section 1082 of the Employment Security Law.

I. Decisions.

1. Every decision of the commission and Division of Administrative Hearings made at the conclusion of an adjudicatory proceeding shall be in writing and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision. A copy of the decision shall be delivered or promptly mailed to each party to the proceeding or his or her representative of record. Written notice of the party's rights to review or appeal of the decision to the commission or review of the decision by the courts, as the case may be, and of the action required and the time within which such action must be taken in order to exercise the right of review or appeal, shall be given to each party with the decision.

2. The commission shall maintain a record of the vote of each member of the commission with respect to the commission decision.

3. Upon proper notice to the parties, each decision made by the Division of Administrative Hearings and the commission will include discussion of all legal issues fairly raised by the evidence. Multiple decisions shall not be issued in cases involving a single set of facts.

J. Disqualifications; Duties; Reports; Conflicts of Interest.

1. Whenever a commission member or Administrative Hearing Officer is disqualified or it becomes impracticable for him or her to continue the hearing, the remaining commission members or another Administrative Hearing Officer may continue with the hearing; provided that, if it is shown substantial prejudice to any party will thereby result , the remaining commission members or substitute Administrative Hearing Officer shall commence the hearing anew.

2. It shall be the duty of the commission and Division of Administrative Hearings to:

a. Administer oaths and affirmations;

b. Rule on the admissibility of evidence;

c. Regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing of evidence, briefs and other written submissions; and

d. Take other action authorized by statute or these rules.

3. In the event that the commission or the Division of Administrative Hearings prepares any report or proposed findings, the report or findings shall be in writing. A copy of the report or findings shall be provided to each party and an opportunity shall be provided for response or exceptions to be filed by each party.

4. Hearings shall be conducted in a impartial manner. Upon the filing in good faith by a party of a timely charge of bias or personal or financial interest, direct or indirect, of a commission member or Administrative Hearing Officer in the proceeding requesting that that person disqualify himself or herself, that person shall determine the matter as part of the record.

K. Representation before the commission and Division of Administrative Hearings.

1. Any individual may appear on his or her own behalf in any proceeding before the Division of Administrative Hearings and/or the commission. Any partnership may be represented by any of its members or a duly authorized representative.

2. Any interested party may be represented by an attorney-at-law who is admitted to practice before the highest court of this State or the highest court of any state or territory of the United States, or by an authorized agent.

3. The commission or Division of Administrative Hearings may, in its discretion, refuse to allow any person to represent others in any proceeding before it who persists in unethical conduct or who intentionally and repeatedly fails to observe the provisions of the Maine Employment Security Law or these rules or proper instructions of the commission or Administrative Hearing Officer.

L. Attorney and Authorized Agent Fees.

1. When an attorney or other duly authorized agent is retained by a claimant to represent such claimant in any proceeding before the commission or a court, such attorney or agent shall submit a statement of his or her fees to the commission, in duplicate, for approval for payment by the claimant.

1-A. When an attorney is retained by a claimant for the purpose of prosecuting an appeal from a decision of the commission, and the final decision of such court results in a reversal, in whole or in part, of the decision appealed from, such attorney, following the decision of the court, shall submit s statement of his or her fees to the commission, in duplicate, for approval for payment by the commissioner, in accordance with subsection 2 of section 1044 of the Employment Security Law.

1-B. A statement required by paragraphs 1 and 1-A of this subsection shall be itemized setting forth the hourly fee rate and the time consumed in conferences, correspondence, preparation for and attendance at court or a commission hearing, or any other related services rendered and expenses incurred in connection with the case.

2. Upon receipt of the attorney's or authorized agent's statement of fees, the commission shall review the statement and render a written decision which shall be mailed to the attorney or authorized agent by regular mail, postage prepaid. Costs and fees associated with any appeal by a claimant where the appeal is found to have been made in bad faith or frivolously shall not be approved. In determining whether to approve a fee under subsection 2 of section 1044 of the Employment Security Law, the commission will consider, but not be limited to, the following factors:

a. The hourly rate;

b. The amount of hours expended;

c. The complexity of the issues;

d. Whether hearings were conducted before both the commission and the Division of Administrative Hearings and whether and how much duplication of evidence resulted;

e. The amount of fees requested in light of the final amount of benefits awarded to the claimant; and

f. The experience of the attorney requesting the fee in the area of the Employment Security Law.

3. Within thirty (30) days after receipt of the commission's decision, an attorney may request a hearing before the commission if he or she is not satisfied with the original decision.

4. When a request for a hearing to determine attorney fees is made in a timely fashion, a hearing shall be held by the commission pursuant to 5M.R.S.A. Sections9051et seq.

5. The commission, after reviewing the record of the hearing, will notify the attorney or authorized agent by written decision, sent by regular mail, postage prepaid.

6. Any further appeal shall be made pursuant to 5 M.R.S.A. Sections11001et seq.

M. Telephone Hearings.

1. The commission or the Division of Administrative Hearings may conduct a hearing by telephone. In determining whether to conduct a hearing by telephone, the factors to be considered include, but are not limited to the following:

a. Whether a party has timely and reasonably requested that a hearing be held in-person;

b. The location of the hearing if it were to be held in-person;

c. The number of hearings that otherwise could feasibly be scheduled at the same location as the in-person hearing;

d. The cost factors involved to the commission, the Division of Administrative Hearings, and the parties in holding a hearing in-person as opposed to by telephone;

e. The number of witnesses and/or exhibits required to be introduced;

f. Whether credibility issues require that a hearing be held in-person; and

g. The seasonal weather conditions.

2. Evidence at a telephone hearing shall be provided as follows:

a. Documents and other non-testimonial exhibits.

i. A party desiring to offer exhibits as evidence shall provide a copy to the commission or Division of Administrative Hearings and to the other party before the date of the scheduled telephone hearing or within a time prescribed by the commission or the Division of Administrative Hearings after the hearing.

ii. The commission or Division of Administrative Hearings shall mark such exhibits and rule on their admissibility at the telephone hearing.

b. Witnesses.

i. Witnesses shall state their full name and address for the record before testifying. In the event a witness misrepresents his or her identity and the party calling the witness knows of the misrepresentation, that party will have waived his or her right to present further evidence and argument. The presiding officer may make informal disposition of the adjudicatory proceeding based on the then existing record.

ii. Witnesses must testify from their own recollection.

12- 172 C.M.R. ch. 5, § 1