19 Del. Admin. Code § 3002-7.0 - Formal Hearings

7.1 Hearings Generally

7.1.1 The purpose of hearings under Regulation 7 is to develop a full and factual record upon which the Executive Director may make a decision. The party filing a complaint shall have the burden of proving the allegations of the complaint by a preponderance of the evidence. The principles of relevancy and materiality are paramount. The technical rules of evidence do not apply. The procedures set forth in Regulation 7 shall apply to all hearings.

7.1.2 All hearings shall be open to the public unless otherwise ordered by the Board.

7.1.3 All hearings shall be conducted by the Executive Director or his designated Hearing Officer, unless the Board delegates one of its members as the Hearing Officer or the Board decides the Board as a whole shall conduct a hearing, or these regulations provide for a hearing before the Board or a fact-finder. If a person other than the Executive Director conducts a hearing, he shall have the same powers and duties as the Executive Director possesses in connection with the conduct of the hearing. The Hearing Officer in any matter shall also be responsible for writing the decision on the matter heard.

7.1.4 An official record shall be made of all formal hearings, and as may otherwise be ordered by the Board. The official record shall be made by stenographer, tape recording or other method determined appropriate by the Board. If no objections to such transcript are filed with the Board within five (5) days of its issuance, the transcript shall become part of the record. Objections shall specify the matter objected to, the basis for the objection and the relief sought. The Board may, in its discretion, order a hearing on the objections. The Board shall make such changes as may be necessary to conform the transcript to the occurrences at the hearing and the conformed transcript shall then be duly certified by the Executive Director and shall be filed as a part of the record in the case. The certified transcript shall be treated as official and a part of such record for purposes of review upon appeal and shall be considered as prima facie accurate whenever thereafter offered in evidence.

7.1.5 The cost of the official record of the proceedings and the transcript required by the Board for its use shall be the responsibility of the Board. Additional transcripts obtained from the Board shall be at the expense of the requesting party.

7.1.6 The Hearing Officer shall have full authority to control the conduct of the hearing, including authority to admit or exclude evidence, question witnesses, rule upon motions and objections, and determine the order in which evidence shall be presented. The Hearing Officer in conducting a hearing shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure. The Hearing Officer may exclude plainly irrelevant evidence, unduly repetitive evidence, rebuttal and cross examination. The testimony of witnesses shall be under oath and witnesses shall be sworn by the Hearing Officer, who shall also have the authority to take any action during the progress of the hearing which will properly effectuate the policy of the Acts.

7.2 Decisions and Orders. Within thirty (30) days after the close of the record, the Executive Director shall issue a decision. The decision shall be in writing and contain a statement of the case, findings of fact, conclusions of law, and the appropriate remedy. A copy of the decision will be served upon each of the parties.

7.3 Briefs/Oral Argument. Prior to the issuance of a decision, the Executive Director may require the parties to submit briefs or present oral argument as to questions of law and appropriate remedies. The Executive Director shall establish, when necessary, appropriate guidelines for briefs, including schedule and length.

7.4 Review of the Executive Director's Decision. The Executive Director's decision shall be subject to review by the Board at the request of any party, or upon the Board's own motion. Such a request for review by a party must be filed with the Board within five (5) days of the date upon which the party is served with the decision. If the Board, in its discretion, decides to hold a hearing in connection with its review of the Executive Director's decision, such hearing shall be conducted in accordance with Section 7 herein. The Board shall render a decision within thirty (30) days from the date of the official close of the appeal record, or the receipt of briefs, or the receipt of the official transcript, or from the date of its receipt of the appeal, whichever is appropriate.

7.5 Contemptuous Conduct. Contemptuous conduct shall be grounds for exclusion from the hearing and the refusal of a witness to answer any question which has been ruled to be proper shall be grounds for striking out all testimony previously given by such witnesses on related matters. Misconduct of an aggravated character, when engaged in by an attorney or other representative of a party, shall be grounds, after due notice and hearing before the Board, for suspension or disbarment by the Board from further practice before it.

7.6 Depositions

7.6.1 Witnesses at all hearings shall be examined orally under oath or affirmation, and a record of the proceeding shall be made and maintained by the Board. If any witness resides outside of the State or through illness or other cause is unable to testify before the Board, his or her testimony may, upon application, be taken by deposition.

7.6.2 Application to take depositions under this section shall be in writing or may be made orally at a hearing. The application shall set forth the reasons why such deposition should be taken, the name and post office address with zip code of the witness, and the time and place proposed for taking of the deposition. Such order shall be served on all parties. Such deposition may be taken before any court reporter authorized to administer oaths by laws of the State or of the United States or of the place where the examination is held. The cost of the deposition shall be borne by the party at whose request the deposition is ordered.

7.6.3 During the deposition all objections to the form of questions or evidence shall be waived unless made at the examination of the witness. The court reporter shall note any objection on the deposition. The testimony shall be subscribed by the witness in the presence of the court reporter, who shall attach his/her certificate stating that the witness was duly sworn or affirmed by him, and that the deposition is a true record of the testimony and exhibits given by the witness. If the deposition is not signed by the witness because he/she is ill, dead, cannot be found, refuses to sign it, or waives the right to sign it, such fact shall be included in the certificate of the court reporter and the deposition may then be used as fully as though signed. The court reporter shall immediately deliver an original and a copy of the transcript, together with his/her certificate, in person or by United States mail to the Board. The Board shall rule upon the admissibility of the deposition or any part of such deposition if offered in evidence or otherwise used at the hearing.

7.6.4 All errors or irregularities of compliance with the provisions of this section shall be deemed waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is ascertained, or, with due diligence, might have been ascertained.

7.7 Witnesses and Subpoenas. The Board shall, where it deems necessary, subpoena witnesses and issue subpoenas requiring the production and examination of books, papers, or other documents it deems relevant to the issue before it. The parties involved in a hearing may, no later than seven (7) days before the hearing to which the subpoena pertains, request that the Board issue subpoenas. The Board may decline to honor such request for a subpoena if the Board determines that the evidence sought does not relate to the matter to be heard, that such subpoena request does not describe with sufficient particularity the evidence whose production is requested, or that the subpoena seeks to compel the appearance of witnesses who would offer testimony which would merely be repetitive of other witnesses who will be produced.

Notes

19 Del. Admin. Code § 3002-7.0