Md. Code Regs. 14.03.05.08

Current through Register Vol. 51, No. 21, October 18, 2024

Section 14.03.05.08 - Investigative Process

A. Investigations.

(1) Upon the authorization of a complaint, the Executive Director or designee, within 30 days after the filing of the complaint, shall assign, or cause to be assigned, the investigation of the complaint to an investigative unit.

(2) Commission staff shall direct and conduct investigations in a manner consistent with State Government Article, §§ 20-207, 20-1005, and 20-1006, Annotated Code of Maryland.

(3) In determining whether to proceed further with an investigation and in making findings, the Commission staff may consider any evidence provided by the complainant or the respondent as to the following factors:

(a) Whether there was an intent to discriminate on the part of the respondent;

(b) Whether there was a pattern and practice of discrimination on the part of the respondent;

(c) Any actions taken by the respondent to remedy the alleged discrimination;

(d) The effectiveness of any prior attempts by the respondent to remedy the discrimination;

(e) Whether the respondent has procured goods or services from or otherwise engaged in business with persons or entities of the same protected class as the complainant to an extent sufficient to demonstrate that the respondent has not discriminated against that protected class in the overall context of its business; and

(f) Any other evidence considered relevant by the Commission.

(4) The Commission may request assignment of additional State personnel or outside consultants as may be reasonably necessary or appropriate to conduct an investigation.

B. Systemic Processing.

(1) The Executive Director or designee may identify the complaint for systemic processing when the Executive Director or designee determines that:

(a) The alleged commercial discrimination or retaliation practices contained in the complaint are pervasive within a particular industry or institutional in nature;

(b) The processing of the complaint will involve complex issues, or novel questions of law or fact; or

(c) A large number of business entities within a particular industry will be affected.

(2) The determination in §B(1) of this regulation may be based on the facts of the complaint or on information gathered in connection with an investigation.

(3) A systemic investigation may focus on:

(a) Documenting facts involved in the alleged commercial discrimination or retaliation practice that is the subject of the complaint; and

(b) Reviewing other policies and procedures related to the matters under investigation, to ensure their compliance with the commercial nondiscrimination and retaliation requirements of State Finance and Procurement Article, §§ 19-101 -19-120, Annotated Code of Maryland.

C. Conduct of Investigation.

(1) Fact-Finding Conference. The Commission staff may require that the complainant and respondent appear at a fact-finding conference convened to:

(a) Define the issues contained in a complaint;

(b) Determine which elements are undisputed; and

(c) Resolve those issues that can be resolved and ascertain whether or not there is a basis for a negotiated settlement of the complaint.

(2) Request for Information.

(a) The Commission staff shall exercise reasonable judgment in seeking relevant evidence from the complainant, the respondent, and as necessary, external sources.

(b) The Commission staff shall require the respondent or an external source to promptly provide answers to requests for information that will be used to assist in determining the merits of the allegations contained in the complaint.

(c) The request for information shall be accompanied by the following:

(i) A copy of the charge; and

(ii) The date on which the response shall be submitted.

(d) Additional requests for information may be made to further the investigation.

(3) Interrogatories-Content and Response.

(a) The Commission staff may serve, upon authorization by the Executive Director or designee, interrogatories on a respondent by registered or certified mail, or by personal service.

(b) The interrogatories shall be accompanied by the following:

(i) The date by which a response is required, which date may not be less than 30 days after the date on which the interrogatories were delivered to the respondent; and

(ii) A statement describing the consequences to the respondent if the respondent fails to answer the interrogatories, as set forth in Regulation .09 of this chapter.

(c) The interrogatories shall be answered within the time prescribed in the accompanying notice and shall be under oath.

(d) Time extensions shall be granted for good cause shown and upon a written request submitted to the Commission's Executive Director or designee.

(e) Upon a determination that they are relevant or necessary to complete the administrative process, subsequent interrogatories may be authorized and promulgated by the Commission's staff.

(4) Motion to Strike or Exceptions.

(a) The respondent may file a motion to strike or exceptions to the interrogatories within the time period set forth in §C(3)(b)(i) of this regulation.

(b) The motion or exceptions shall state the reason for them and be supported by a memorandum of points and authorities.

(c) The Executive Director or designee shall rule on the motion papers without oral argument.

(d) If the motion or exceptions are granted, the interrogatories may be limited, modified, or stricken in accordance with the order of the Executive Director or designee.

(e) If the motion or exceptions are denied, or if the order of the Executive Director or designee requires the respondent to answer any portion of the interrogatories, the respondent shall be given not more than 10 days from the date of receipt of the order to answer the interrogatories.

(5) Investigatory Subpoena.

(a) Pursuant to its authority under State Government Article, § 20-1010, Annotated Code of Maryland, Commission staff may issue a subpoena upon written authorization of the Executive Director or designee.

(b) If completion of an investigation requires the issuance of a subpoena, the Commission staff may, upon written authorization of the Executive Director or designee, issue a subpoena to compel the:

(i) Attendance and testimony of a witness; or

(ii) Production of books, papers, records, and documents relevant or necessary to the investigation.

(c) Service of this subpoena shall be made in accordance with State Government Article, § 20-1010(b), Annotated Code of Maryland.

(d) The subpoena shall contain the following:

(i) The name of the person whose testimony is required;

(ii) Identification of the books, papers, records, and documents to be submitted;

(iii) The time, date, and location where the person subpoenaed is directed to appear and produce the information sought, which date may not be less than 15 days after the date on which the subpoena was served; and

(iv) The signature of the Executive Director authorizing the issuance of the subpoena.

(e) Upon failure by the person subpoenaed to appear, or to produce the requested records, documents, papers, or books, the Executive Director or designee may apply to the circuit court in the city or county having jurisdiction for an order requiring the attendance and testimony of the person subpoenaed, or the production of the requested records, documents, papers, or books.

(6) Confidentiality.

(a) In accordance with State Government Article, § 20-1101, Annotated Code of Maryland, the Public Information Act, and the Open Meetings Act, the Commission shall protect the confidential nature of information relating to an investigation.

(b) Permissive Disclosure of Information. Information relating to an investigation may be disclosed in the following circumstances:

(i) Any information may be released at any time if the release has been agreed to in writing by both the complainant and the respondent;

(ii) The identity of the complainant may be disclosed to the respondent at any time; and

(iii) Information may be disclosed if a party requests a contested case hearing.

(c) Protective Orders.

(i) The Commission may issue a protective order for good cause to limit, or otherwise impose conditions on, access by any person to any document in the possession of a party.

(ii) A protective order issued under this regulation may include a document in the possession of the State or otherwise in the record that is not a public record and information disclosed in accordance with State Finance and Procurement Article, §§ 19-101 -19-120, Annotated Code of Maryland.

Md. Code Regs. 14.03.05.08

Regulation .08A, C amended effective April 18, 2011 (38:8 Md. R. 507)