12-181 C.M.R. ch. 3, § 1.8 - Hearings

A. The Director of the Bureau of Employment Services shall be the Presiding Officer for any hearing in accordance with this Rule.

B. Notice of hearings to be held by the Bureau Director shall be given as follows:

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

C. 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 time and place of hearing;

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

D. Disposition without full hearing

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

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

E. Ex Parte Communications: Separation of Functions

1. In any adjudicatory proceeding, the Bureau Director shall not 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 Bureau Director from having the aid or advice of those members of their own staff, the Council, legal counsel or consultants who have not participated and will not participate in the proceeding in an advocate capacity.

F. Opportunity to be Heard

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

G. Evidence

1. The Bureau Director 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 Bureau Director may exclude irrelevant or unduly repetitious evidence.

3. All witnesses shall be sworn.

4. Subject to these requirements, the Bureau Director 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 cross examination.

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

H. Official Notice

1. The Bureau Director 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 Bureau Director may utilize their experience, technical competency, and specialized knowledge in the evaluation of the evidence presented to them.

I. Record

1. In all adjudicatory proceedings the Bureau Director shall make a record consisting of the following:

a. All applications, pleadings, motions, preliminary and interlocutory rules 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; and

g. The decision of the Bureau Director

2. The Bureau Director 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 Bureau Director shall transcribe the recording when necessary for the prosecution of an appeal.

3. The Bureau Director 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 Bureau Director 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 Bureau Director, of which it desires to avail itself as evidence in decision making, 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.

J. Subpoenas

1. Pursuant to 5 M.R.S. §9060, the Bureau Director may issue a subpoena if the approval of the Attorney General or of any deputy attorney general is obtained prior to issuance. 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 Bureau Director to vacate or modify a subpoena in its name. The Bureau Director 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 5 MRSA Section 9060(l)(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 and not more than $5,000 or by imprisonment not to exceed 30 days, or both.

K. Decisions

1. Every 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.

Notes

12-181 C.M.R. ch. 3, § 1.8