65- 407 C.M.R. ch. 110, § 8

Current through 2024-25, June 19, 2024

Section 407-110-8 - ADJUDICATORY PROCEEDINGS: GENERAL PROVISIONS

A.Notices

1.Notice of Proceeding

Upon commencement of an adjudicatory proceeding, notice shall be given as follows:

a. in investigations pursuant to Chapter 13 of Title 35-A of the Maine Revised Statutes and in other proceedings in which the legal rights, duties or privileges of persons are at issue, to those persons, within 15 days after commencement of the proceeding, unless another period is required by statute or rule;

b. in any proceeding found by the Commission to involve the determination of issues of substantial public interest, to the public sufficiently in advance of the anticipated time of the decision to afford interested persons an adequate opportunity to prepare and submit evidence and argument, to petition for intervention, to request notification of hearings and to request a hearing if so desired;

c. in any proceeding initiated by a public utility, with the proposed effect of increasing rates by more than 1%, or pursuant to Commission order in any other adjudicatory proceeding in which a utility is a party, by the utility, to each of its ratepayers affected by the proceeding and to each party to the utility's last general rate case proceeding or general rate design proceeding. Notice by this provision shall be given, not later than 15 days after, nor earlier than 90 days before the commencement of the general rate case or general rate design proceeding or such other time as the Commission may order. Additionally, the Commission may require a public utility to give notice to its ratepayers if, during the course of a proceeding, it appears that one or more parties has proposed a change in rates or rate design which could have a significant impact on ratepayers if accepted. Before preparing its notice, the public utility shall inquire of the Administrative Director whether a deadline for intervention has been set, in order that the date may be included in the notice.

2.Notice of Hearings

Notice of hearings shall be given as required in 5 M.R.S.A. §9052.

3.Notice Following Decision

Upon termination of a proceeding by Commission order, within 45 days following expiration of applicable appeals periods, the utility or utilities that increase rates by more than 1% shall provide notice to each of its ratepayers or other utilities affected by the order or decision. The notice shall include the following:

a. a prominent statement setting forth the total amount of any rate increase or decrease and the percent by which the rates ordered differ from existing rates for each existing customer class or class of service; and

b. a statement of the effective date of each rate change for each customer class or class of service.

B.Participation in Proceeding

1.Mandatory Intervention

Upon the filing of a timely petition to intervene according to section 8(B)(3),(a) any person that is or may be, or that is a member of a class which is or may be substantially and directly affected by the proceeding and (b) any agency of federal, state or local government, shall be allowed to intervene as a party to the proceeding. A person joined as a necessary party pursuant to the provisions of Maine Rule of Civil Procedure 19 shall be treated as an intervenor pursuant to this section.

2.Discretionary Intervention

Any interested person not entitled to intervene pursuant to section 1 may in the discretion of the Commission be allowed to intervene and participate as a full or limited party to the proceeding. This provision shall not be construed to limit public participation in the proceeding in any other capacity.

3.Petition to Intervene

a. A petition to intervene pursuant to either section 1 or section 2 above must be filed within the time allowed by the Commission notice. All such petitions must state the name, address, email address and telephone number of the person desiring to intervene and the manner in which that person is affected by or interested in the proceeding.

b. Petitions to intervene, other than from an agency of government under section 8(B)(1), must also include a short and plain statement of the nature and extent of the participation sought, and a statement of the nature of the evidence or argument that the petitioner intends to submit.

c. Parties may respond to the petition within the time allowed by the Commission or within seven days if no specific time is designated. Failure to respond shall be held to constitute consent to the petition.

4.Participation Limited or Denied

a. The Commission may deny intervention of any person filing a timely petition for mandatory intervention on the grounds that the petitioner failed to show a direct and substantial interest in the proceeding. The Commission may deny or limit intervention of any person filing an untimely petition for mandatory intervention. The Commission may deny or limit intervention of any person petitioning for discretionary intervention for any reason, including, but not limited to, considerations of the petitioner's likely contribution to the development of relevant issues, the petitioner's participation in previous cases, and the timeliness of the petition.

b. The Commission may limit the participation of any person petitioning for mandatory intervention when a petitioner for intervention is found by the Commission to have a right to intervene only with respect to a portion of the subject matter of a case.

c. When participation of any person is limited or denied the Commission shall include in the record an entry to that effect and the reasons therefore.

5.Consolidation of Presentations

Where appropriate, the Commission or presiding officer may require consolidation of discovery, presentation of evidence and argument by members of a class entitled to intervene under section 8(B)(1) or by persons allowed to intervene under section 8(B)(2). In determining that any party shall be required to consolidate its discovery, presentation or arguments, the Commission or the presiding officer shall consider the number of parties, the interests of each party, whether they propose to offer testimony or participate only by cross-examination, the nature and extent of their proposed testimony, and, if applicable, whether they are in the same or in separate rate classifications, either existing or proposed. No party shall be required to consolidate its presentation or arguments where it is clear that the party will, as a consequence of such consolidation, be unable to make an adequate presentation of that party's position.

6.Public Witness Participation

Persons desiring to present their own testimony or argument in an adjudicatory proceeding may, in the discretion of the Commission or presiding officer, be allowed to testify or argue without appearing as a party to the proceeding. Such public witnesses may give sworn testimony or may present argument without being sworn. The Commission or presiding officer may (a) designate a particular time and place for the hearing of such persons and (b) limit the length of time that each public witness may speak.

C.Subpoenas

1.Authority

In any adjudicatory proceeding, any party upon application shall be entitled as of right to the issuance of subpoenas in the name of the Commission to require the attendance and testimony of witnesses and the production of any evidence relating to any issue of fact in the proceeding. Such subpoenas may be signed and issued in blank by any member of the Commission, the Administrative Director or a presiding officer. Subpoenas shall be issued in a form prescribed by the Commission.

2.Issuance

Subpoenas may be issued by the Commission in accordance with the following provisions:

a. Witnesses shall be subpoenaed only 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. Witnesses subpoenaed shall be paid the fees for attendance and travel as set forth in 16 M.R.S.A. §251, except as otherwise provided by 35-A M.R.S.A. §1312. Such fees shall be paid by the party requesting the subpoena.

b. Any subpoena issued shall show on its face the name, address and telephone number of the party who requested that it be issued.

c. Any witness subpoenaed may petition the Commission to vacate or modify a subpoena issued in its name. After prompt notice to the party who requested issuance of the subpoena and such investigation as the Commission 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 the proceeding, or that a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive or has not been issued reasonably in advance of the time when the evidence is requested.

d. Failure to comply with a subpoena lawfully issued in the name of the Commission and not revoked or modified as provided in subsection (c) shall be punishable as for contempt of court.

D.Termination or Limitation of Proceedings by Stipulation

The Commission may dispose of all or part of any adjudicatory proceeding by approving a stipulation of one or more issues entered into between two or more parties in accordance with the provisions of sections 1 through 7 below.

1.Participation of Parties

All parties shall be given an opportunity to participate in stipulation discussions. Accordingly, persons initiating such discussions should provide reasonable notice of discussions to all other parties where feasible, hold discussions at the office of the Public Utilities Commission where practicable and defer execution of comprehensive stipulations until the deadline for petitions to intervene, if any, has passed. In addition, all parties and proposed intervenors must be provided sufficient opportunity to review any executed stipulation in order to allow reasonable opportunity to object to the stipulation.

2.Participation of Commission's Advisory Staff

a.Agreement of Parties. Where parties request participation of advisory staff in settlement discussions, all parties must either affirmatively agree to the participation of advisory staff or be given an opportunity to object by a date certain. The agreement or result of the opportunity to object must be documented in a procedural order.

b.Staff participation during negotiations. The advisory staff will only participate in negotiations/discussions that have been noticed to all parties with an opportunity for all parties to attend. If for any reason parties wish to have discussions with staff with less than all parties, all parties must agree to this or be given an opportunity to object and the circumstances described in a procedural order prior to discussions taking place.

c.Sharing of Negotiation Documents. Any documents provided by advisory staff or parties must be shared with all parties attending settlement discussions unless all parties have agreed to another arrangement or been given an opportunity to object to the arrangement. Any such arrangement must be documented in a procedural order.

3.Participation of Staff Advocates

The Commission may assign one or more staff members to serve as advocates to facilitate negotiated settlements. If the Commission receives a written request from all of the parties in an adjudicatory proceeding that staff advocates be appointed to facilitate negotiations, the Commission shall grant the request or issue a written order explaining the reasons why the Commission denies the request.

4.Information Accompanying all Stipulations

To facilitate the review process for all stipulations, stipulations should be accompanied by a cover letter and memorandum containing the following information.

a.Cover letter

i. the names of the parties joining in the stipulation, those opposing and those neither for nor against;

ii. a description of the process leading to the stipulation (e.g., number of negotiating sessions, who was involved, etc.); and

iii. whether the parties have agreed to allow the Commission staff to make a recommendation to the Commissioners concerning the stipulation without a hearing examiner's report, thereby agreeing to waive 5 M.R.S.A. §9062 and Chapter 110 § 8(F)(4).

b.Memorandum

i. the major provisions agreed upon;

ii. why the provisions are in the public interest; and

iii. the statutory authority for the Commission to adopt the stipulation provisions and a description of any departures from Commission precedent contained in the stipulation.

5.Consideration of Uncontested Stipulations

The Commission may accept an uncontested stipulation in any proceeding if it determines the stipulation meets the criteria set forth in 8(D)(7) below. The Commission may require that an uncontested stipulation be accepted only following notice to the parties and/or a hearing on the stipulation. If the Commission rejects the stipulation, the adjudicatory proceeding shall be resumed.

6.Consideration of Contested Stipulations

a. In the event that fewer than all of the parties to a proceeding have entered into a stipulation, the Commission shall provide an opportunity to be heard to all non-signatory parties. The Commission may accept a contested stipulation in any proceeding if it determines the stipulation meets the criteria set forth in 8(D)(7) below. The Commission may require that an contested stipulation be accepted only following notice to the parties and/or a hearing on the stipulation. If the Commission rejects the Stipulation, the adjudicatory proceeding shall be resumed.

b. In proceedings where portions of a stipulation are contested and remaining portions are uncontested, the Commission may rule upon uncontested provisions pursuant to section 8(D)(5). Contested portions shall be treated as described in 6(a) above.

7.Approval of Either a Contested or Uncontested Stipulation

In deciding whether to approve a stipulation, the Commission will consider the following criteria:

a. Whether the parties joining the stipulation represent a sufficiently broad spectrum of interests that the Commission can be sure that there is no appearance or reality of disenfranchisement;

b. Whether the process that led to the stipulation was fair to all parties;

c. Whether the stipulated result is reasonable and is not contrary to legislative mandate; and

d. Whether the overall stipulated result is in the public interest.

E.Withdrawal or Dismissal

1.Voluntary Withdrawal or Dismissal

Except for petitions brought pursuant to 35-A M.R.S.A. §1302(1), proceedings may be dismissed by the petitioner without order of the Commission by filing a notice of dismissal A petition filed under 35-A M.R.S.A §1302(1) may be dismissed upon a representation by the lead complainant that the cause of the complaint no longer exists.. Unless otherwise specified by the commission, an order, dismissing a complaint shall be without prejudice.

2.Involuntary Dismissal

a. The Commission, on its own motion, after notice to the parties, and in the absence of a showing of good cause to the contrary, may dismiss an action for want of prosecution at any time more than two years after the last docket entry showing any action taken therein.

b. The Commission may dismiss any proceeding for failure of the party initiating the proceeding to comply with these rules, other required action or any order of the Commission, provided that notice has been given that failure to take the required action may result in dismissal. Any such dismissal may be set aside by the Commission for good cause shown.

F.Presiding Officer

1.Powers of Presiding Officer

Presiding officers may:

a. administer oaths and affirmations;

b. rule on the admissibility of evidence, and admit into the record material relied upon by the Commission pursuant to section 8(I) 4, provided that the presiding officer is either authorized to practice before the Maine Supreme Judicial Court or a Commissioner;

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

d. examine witnesses;

e. issue subpoenas;

f. require the production of books, accounts, papers, documents and testimony;

g. rule on motions or petitions made pursuant to the Maine Rules of Civil Procedure or this Chapter, except that rulings on motions to dismiss, motions for summary judgment or denials of petitions to intervene shall be made by the Commission;

h. prepare written reports with the assistance of the advisory staff, as set forth in section 8(G) 4; and

i. perform such other duties as may be assigned to them.

2.Presiding Officer to Conduct Hearing; Substitute Officer

One or more presiding officers may be designated to preside over a hearing. Whenever a presiding officer is disqualified or it becomes impracticable for him or her to preside over a hearing, another presiding officer may be assigned to preside, provided that, if it is shown that substantial prejudice to any party will thereby result, the substitute officer shall commence the hearing anew.

3.Use of Advisory Staff and Consultants

a. If an advisory staff member or consultant relies upon facts not otherwise in the record or presents to the Commission any independent financial or technical analysis not otherwise in the record, the staff member or consultant:

i. shall place any such information into the record;

ii. is subject to discovery; and

iii. must be available to answer questions regarding those facts or analysis, in the same manner as witnesses in the proceeding, at a time sufficient to permit parties to respond.

b. This paragraph does not apply to reviews, evaluations or examinations of information, data, studies, analyses or computer modeling placed into the record by other parties or other aid or advice provided by advisory staff members or consultants. Compliance with this paragraph does not render the advisory staff member or consultant an advocate under the Maine Administrative Procedure Act.

4.Report of Presiding Officer

a. In the event that the presiding officer prepares any report or proposed findings for the agency, the report or findings shall be in writing. For purposes of this section a report includes recommended decisions, conclusions of law and discretionary policy determinations. A report does not include the oral recounting of evidence, the furnishing of materials which will aid in finding, interpreting or evaluating evidence, providing the Commission with legal advice or other aid or advice of the presiding officer an advisor or other staff member or consultant.

b. 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. The presiding office shall set the time within which exceptions may be filed.

c. When a report has been prepared and time for filing of exceptions has elapsed the presiding officer, other advisors, other members of the staff or consultants may, upon request of the Commission, comment upon the proceeding, the presiding officer's report, and the exceptions thereto.

5.Bias of Presiding Officer, Advisory Staff or Commission Member

Proceedings shall be conducted in an impartial manner. Upon the filing in good faith by a party of a timely charge of bias or of personal or financial interest, direct or indirect, of a presiding officer, advisory staff member, or Commissioner in the proceeding, requesting that the person disqualify him or herself, the person whose disqualification is sought shall determine the matter as a part of the record.

G.Ex Parte Communications

1.Ex Parte Communications Prohibited

a. Throughout any adjudicatory proceeding:

i. no commissioner, presiding officer, or other advisory staff member in a proceeding shall communicate, directly or indirectly with any party, including a proposed intervenor, or any other person legally interested in the outcome of the proceeding; and

ii. no party, including a proposed intervenor or person legally interested in the outcome of a proceeding shall communicate, directly or indirectly, with any commissioner, presiding officer, or other advisory staff member in connection with any potential decision in the case or any issue of fact, law or procedure, except upon notice and opportunity for all parties to participate as provided in these rules or pursuant to order of the presiding officer.

b. Any Commissioner, presiding officer, other advisory staff member, party or representative of a party making or receiving an ex parte communication prohibited by this section shall, within 48 hours after first having reason to believe the communication was prohibited, disclose the substance of such communication to all parties to the proceeding.

2.Prohibited Communications after Issuance of Presiding Officer's Report

a. In an adjudicatory proceeding, after the issuance of the presiding officer's report or proposed findings, no person shall make any direct or indirect communication to any commissioner, presiding officer, or other advisory staff member in connection with any potential or proposed decision in the proceeding or any issue of fact, law or procedure, except for the filing by a party of a response or exceptions to the report or proposed findings as permitted by section 752(b), or except as permitted by order or prior approval of the Commission or presiding officer, or except as by motion pursuant to section 1004. In the event any of the above receive such a communication it should be disclosed as required in Section F(A)(2) above.

b. In the event that the Commission receives a communication that violates the prohibition contained in subsection (a), the communication shall be disclosed as required in (G)(1)(b) above.

c. No party in a proceeding shall request, encourage, suggest, or provide any assistance to any other person to make a communication that would violate subsection (a) of this section.

3.Communications Permitted

This section shall not prohibit:

a. Any commissioner or presiding officer from communicating in any respect with commissioners or presiding officers; or

b. Any commissioner or presiding officer from having the aid or advice of those members of the Commission staff, counsel or consultants retained by the Commission who have not participated and will not participate in the Commission proceeding in an advocate capacity; or

c. Inquiry by a party, a commissioner, a presiding officer, or other advisory staff member concerning the status of any event contained in the procedural schedule, any filing, or any order.

d. Individual communications between any party and members of the Commission's advocacy staff or between any party and any staff members in a non-adjudicatory proceeding.

4.Proposed Findings or Decisions

No party or representative of any party shall prepare and forward proposed or draft findings or final decisions of any matter pending before the Commission to any Commissioner, presiding officer or advisory staff member unless such party or representative has been requested to do so by the Commissioner or presiding officer. Any party making a procedural motion to the Commission or presiding officer may append a proposed procedural order to the motion.

H.Record

1.Contents of Record

In an adjudicatory proceeding, the Administrative Director shall maintain and preserve a record which shall consist of:

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

b. evidence received or considered ;

c. a statement of facts officially noticed;

d. offers of proof, objections and ruling thereon;

e. presiding officer's report or reports, if any;

f. exceptions, if any, to report or reports;

g. the decision of the Commission; and

h. all briefs and other memoranda submitted to the Commission or presiding officer by parties.

2.Hearings Recorded

The Commission shall record all adjudicatory hearings in a form capable of transcription.

3.Availability of Record

The transcript of adjudicatory hearings shall be available through the Commission's electronic filing system.

4.Decision Based on the Record

All material, including records, reports and documents in the possession of the Commission, that it desires to use in making a decision, shall be offered and made a part of the record as evidence. Factual information shall be considered in rendering a decision only if such information is in the record as evidence.

5.Documentary Evidence

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

6.Specialized Agency Knowledge

The Commission may use its experience, technical competence and specialized knowledge, including that of the members of its advisory staff, in the decision- making process, for the purpose of evaluating the evidence presented to it.

65- 407 C.M.R. ch. 110, § 8