12-181 C.M.R. ch. 1, § 8 - Hearings

A. Notice of hearings to be held by the Maine Apprenticeship Program shall be given as follows:

1. Within 10 working day of receipt of a request for a hearing, notice will be given by registered mail, return receipt requested, to the person or person's 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.

B. All Notices of Hearings shall contain the following:

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

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

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

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

5. A statement of the manner and time within which evidence and argument may be submitted to the agency for consideration.

C. Disposition without full hearing

1. The Maine Apprenticeship Program may make informal disposition of any adjudicatory proceeding by default when any party fails to appear at the scheduled hearing, provided that notice of the consequences of such failure to appear has been given to said party. Any such default may be set aside by the Maine Apprenticeship Program for good cause shown.

2. The Maine Apprenticeship Program may limit the issues to be heard or vary any procedure prescribed by Maine Apprenticeship rule or the Administrative Procedure Act if the parties and Maine Apprenticeship Program agree to such limitation or variation, or if no prejudice to any party will result.

D. Ex Parte Communications: Separation of Functions,

1. In any adjudicatory proceeding, no panel members authorized to take final action or presiding officers designated by the Maine Apprenticeship Program 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 person, except upon notice and opportunity for all parties to participate.

2. This section shall not prohibit the panel member or other presiding office described above from:

a. Communicating in any respect with other members of the panel or other presiding officer; or

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

E. Opportunity to be Heard

1. The opportunity for hearing shall be afforded without undue delay.

F. Evidence

1. The panel 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 submitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The panel may exclude irrelevant or unduly repetitious evidence.

3. All witnesses shall be sworn.

4. Subject to these requirements, the Committee 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 crossexamination.

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

G. Official Notice

1. The Maine Apprenticeship Program 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 panel may utilize their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them.

H. Record

1. In all adjudicatory proceedings the Maine Apprenticeship Program 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 recommended decision, opinion or report, if any, by the presiding officer;

g. The decision of the Maine Apprenticeship Program; and

h. All staff memoranda submitted to the members of the Maine Apprenticeship Program or other presiding officers by Maine Apprenticeship Program staff in connection with their consideration of the case, except memoranda of counsel to the Maine Apprenticeship Program.

2. The Maine Apprenticeship Program shall record all hearings in a form susceptible to transcription. Portions of the record as required and specified in subsection 1 of this rule may be included in the recording. The Maine Apprenticeship Program shall transcribe the recording when necessary for the prosecution of an appeal.

3. The Maine Apprenticeship Program shall make a copy of the record, including recordings made pursuant to subsection 2 of this rule, available at the office of the Maine Department of Labor for inspection by any person during normal business hours; and make copies of the recordings or transcriptions or recordings available to any person at actual cost. Notwithstanding the provisions of this subsection, the Maine Apprenticeship Program 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.

4. All material, including record, reports, and documents in possession of the Maine Apprenticeship Program, 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.

I. Subpoenas

1. Pursuant to Title 5 MRSA §9060, the Board may issue a subpoena if it first obtains the approval of the Attorney General or of any deputy attorney general. Any party to the proceeding may request that a subpoena be issued.

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 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.

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

c. Any witness subpoenaed may petition the Maine Apprenticeship Program to vacate or modify a subpoena in its name. The Maine Apprenticeship Program shall give prompt notice to the party who requested issuance of the subpoena.

After such investigation as the agency 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.

d. Pursuant to Title 5 MRSA §9060(1) (D) failure to comply with a subpoena lawfully issued and not revoked or modified shall be punishable by a fine of not less than $500.00 and not more than $5,000, or by imprisonment not to exceed 30 days, or both.

J. Decisions

1. Every Maine Apprenticeship Program decision made at the conclusion of an adjudicatory proceeding shall be in writing or stated in the record, 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 representative of record. Written notice of the party's rights to review or appeal of the decision within the agency 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 Maine Apprenticeship Program shall maintain a record of the vote of each member of the agency with respect to the agency decision.

K. Presiding Officers

1. The Chairman of the Committee will act as the presiding officer in any hearing.

2. Whenever a presiding officer is disqualified or it becomes impracticable for him to continue with the hearing, another presiding officer may be assigned to continue with the hearing; provided that, if it is shown substantial prejudice to any party will thereby result, the substitute officer shall commence the hearing anew.

3. It shall be the duty of the presiding officer 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 filing of evidence, briefs and other written submissions; and

d. Take other action authorized by statute or Committee rule.

4. In the event that the presiding officer prepares any report or proposed finding for the Committee, 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.

5. Hearings 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 or Committee member in the proceeding requesting that that person disqualify himself, that person shall determine the matter as a part of the record.

L. Advisory Rulings

1. Advisory rulings may be made with respect to the applicability of any statute or rule administered by the Maine Apprenticeship Program to an interested person or his property or actual state of facts.

2. An interested person means any apprentice or sponsor over whom the Maine Apprenticeship Program has authority to inspect and enforce its safety standards.

3. All requests for advisory rulings shall be made in writing and submitted to the Director of Apprenticeship Standards, 55 State House Station, Augusta, Maine, 04333-0055. Such requests shall state the facts and statutes or rules on which the ruling is requested.

4. The Director of Apprenticeship Standards may request from any person seeking an advisory ruling any additional information that is necessary. Failure to supply such additional information shall be cause for the Committee to decline to issue an advisory ruling.

5. The Committee may decline to issue an advisory ruling if a citation or penalty has been issued against the person requesting the ruling on the same factual grounds. The Committee may also decline to issue an advisory ruling if such ruling may harm the Committee's interest in any litigation in which it is or may be a party.

6. All advisory rulings shall be issued, in writing no later than 30 days from the date all information necessary to make a ruling has been received by the Director of Apprenticeship Standards.

7. No advisory ruling shall be binding upon the Committee provided that in any subsequent enforcement action initiated by the Committee, any person's reliance on such a ruling shall be considered in mitigation of any penalty sought to be assessed.

Notes

12-181 C.M.R. ch. 1, § 8