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.