(a)
Definitions
For the purposes of this section, the following terms shall be
defined as they are defined in section
4-166 of the
Connecticut General Statutes: contested case, final decision, hearing officer,
presiding officer, intervenor, license, licensing, party and proposed final
decision. The following terms shall be defined as they are defined in section
22a-133v-1 of the
Regulations of Connecticut State Agencies: applicant, application, Board,
examination, licensee, licensed environmental professional, and person. For the
purposes of this section, the term "Board" shall, unless the context indicates
otherwise, include a designee appointed by the Board to conduct a
hearing.
(b)
Scope
and Applicability
(1) Unless otherwise
provided by law, this section governs all hearings to be conducted by the
Board.
(2) Notwithstanding the
action of any person acting as its agent, the Board shall retain its authority
to take any action authorized by law including the authority to take any action
a presiding officer may take. Any action of the Board shall preempt the action
of the hearing officer or other agent of the Board.
(c)
Commencement and Termination of
Proceedings
(1) Pursuant to section
22a-133v
of the Connecticut General Statutes, a proceeding commences when the Board
issues notice of the proposed revocation or suspension of a license, notice of
the proposed sanction of a licensee or notice proposing to deny a license to an
applicant on grounds other than the applicant's failure to pass the examination
required by section
22a-133v
of the Connecticut General Statutes.
(2) A proceeding terminates when (A) the
Commissioner takes action in conformance with a final decision of the Board
regarding the revocation, suspension or denial of a license or any other
sanctions imposed upon a licensee; (B) a licensee or applicant withdraws a
request for hearing filed pursuant to subsection (r) of this section; (C) the
lawful time for filing a request for hearing pursuant to subsection (r) of this
section has expired without the filing of such request; or (D) the Board
otherwise determines that the proceeding has terminated.
(d)
Computation of Time
In computing any period of time prescribed under this section
for a ruling, a proposed final decision, an approval, or other action of the
Board, the day of the act, event or default from which the designated period of
time begins to run shall not be included. The last day of the period so
computed shall be included unless it is a Saturday, a Sunday, or a Connecticut
or federal holiday, in which case such period runs until the end of the next
day which is not a Saturday, a Sunday, or a Connecticut or federal
holiday.
(e)
Media
Any hearing conducted pursuant to this section which is open to
the public may be recorded, photographed, broadcast, or recorded for broadcast
in accordance with the provisions of subsection (a) of section 1-21a of the
Connecticut General Statutes, provided the hearing is not so disturbed as to
impair any person's ability to hear or be heard or to present evidence or
argument. In order to minimize disruption of a hearing, the hearing officer or
Board may impose reasonable limits on any person engaged in recording,
photographing, broadcasting, or recording for broadcast.
(f)
Attendance
Any person who attends a hearing conducted pursuant to this
section but who is not a party or a witness for a party and who does not intend
to speak shall not be required to give his name or any other information or to
satisfy any condition precedent to his attending the hearing.
(g)
Recording of Hearings
Hearings conducted pursuant to this section shall be recorded
either stenographically or electronically. The recording of a hearing or any
part thereof shall be transcribed by or through the Board (1) on request of any
person, provided such person shall pay the cost of transcription and recording,
or (2) in accordance with section
22a-6d
of the Connecticut General Statutes. Subject to the reasonable control of the
Board, a party or an intervenor may record any portion of a hearing in which
the Board participates. Settlement discussions conducted under subsection (s)
of this section do not constitute a portion of a hearing under these
regulations and shall not be recorded unless all of the participants in such
discussions consent to recording.
(h)
Suspension and Reconvening of
Hearings
Except as provided in subdivision (s)(2) and subparagraph
(hh)(3)(B) of this section, the Board, as it deems appropriate, may continue a
hearing to another time and place.
(i)
Disruption of Hearings
If any person disrupts a hearing or otherwise interferes with
the orderly conduct of such hearing, the Board may order such person to leave
such hearing or may suspend the hearing and reconvene it at an appropriate
place and time.
(j)
Electronic Filing
Except as provided for in subdivision (k)(8) of this section,
no document submitted to the Board and no petition, request or motion may be
electronically filed without the Board's consent and the consent of all parties
to such proceeding.
(k)
Filing, Service, and Form of Pleadings
(1) Except as otherwise provided in this
subdivision, the original of any pleading which is required or allowed to be
filed under this section shall be filed with the Board.
(2) The first page of every pleading shall
contain a caption identifying the applicant or licensee and the application or
license number or any other designation prescribed by the Board.
(3) Every pleading shall be signed by the
person filing or by his attorney or other representative, if any. The signature
constitutes a representation by the signer that he has read the pleading, that
to the best of his knowledge, information and belief the statements made
therein are true and complete, and that the pleading is not filed for the
purpose of delay or harassment.
(4)
The initial pleading filed by any person shall contain the name, address and
telephone number of the person filing and of his attorney or other
representative, if any. Any change in this information shall, within seven (7)
days after such person becomes aware of such change, be communicated in writing
to the Board and to all persons upon whom pleadings shall be served under
subdivision (5) of this subsection.
(5) A copy of every pleading shall be served
personally or by mail upon all parties and intervenors and upon any person who,
to the knowledge of the pleader, has filed a request for status as a party or
intervenor but whose request has not yet been disposed of. Every pleading filed
shall be accompanied by a certification in substantially the following form:
I (name) hereby certify that a copy hereof was (personally
delivered) (mailed in a properly addressed, first-class postage pre-paid
envelope) on (date) to the following persons at the following addresses:
(signature of person making service)
(6) Service of pleadings shall be complete
upon personal delivery or mailing. When a pleading is served by mail, three (3)
days shall be added to any time allowed for the filing of a responsive
pleading.
(7) The date of the
filing of any pleading required or allowed under this section shall be the date
such pleading is received by the Board.
(8) No pleading shall be filed electronically
without the consent of the Board and the other parties and intervenors, and no
pleading shall be served electronically on any party or other person without
the consent of such party or person.
(9) The Board may reject any filing for
failure to comply with any requirement of this subsection.
(l)
Orders, Rulings and
Decisions
(1) Unless otherwise provided
by law, the notice or order regarding the suspension, revocation or denial of a
license, or any other sanctions imposed upon a licensee under section
22a-133v
of the Connecticut General Statutes shall be served by personal delivery, by a
sheriff or other indifferent person, by certified mail, return receipt
requested, by first-class mail, or in the manner provided by law for service of
civil process. A written ruling shall, unless distributed to all parties and
intervenors at the hearing, pre-hearing conference, or oral argument, be issued
by first-class mail, and three (3) days shall be added to any time allowed for
the filing of a pleading responding to a ruling which has been
mailed.
(2) Unless otherwise
provided by law, a ruling, proposed final decision, or final decision shall be
deemed issued upon mailing or personal delivery.
(m)
Powers and Duties of the
Board
(1) The Board shall conduct a
fair and impartial hearing, assure that the relevant facts are fully elicited,
adjudicate issues of law and fact, and prevent delay and harassment.
(2) In addition to any other powers provided
by law, the Board or its designee shall have the power to:
(A) Determine the scope of the
hearing;
(B) Dispose of motions and
requests and make all necessary or appropriate rulings;
(C) Administer oaths and
affirmations;
(D) Subpoena
witnesses and evidence, examine witnesses, and control the examination of
witnesses;
(E) Admit or exclude
evidence and rule on objections to evidence;
(F) Impose sanctions in accordance with
subsection (n) of this section;
(G)
Consolidate proceedings or portions thereof;
(H) Issue final decisions, or as appropriate,
proposed final decisions; and
(I)
Do any other acts and take any other measures appropriate to administer this
section, expedite proceedings, and maintain order.
(n)
Hearing Sanctions
If a party or intervenor or the attorney or other
representative of a party or intervenor fails to comply with the provisions of
this section governing the conduct of hearings or with a ruling of the Board,
the Board may, on motion or on its own initiative, impose sanctions, including
but not limited to continuance or termination of the proceeding, exclusion of
testimony or other evidence, the drawing of an adverse inference against the
non-complying party or intervenor.
(o)
Burdens of Proof
Unless otherwise provided by law, in a hearing to revoke,
suspend or deny a license, or impose any other sanctions upon a licensee the
Board shall have the burden of going forward with evidence and the burden of
persuasion. In a hearing to deny an applicant a license, the applicant shall
have the burden of going forward with evidence and the burden of persuasion
with respect to each issue which the Board is required by law to consider in
deciding whether to authorize the Commissioner to issue or deny such license.
Each factual issue in controversy shall be determined upon a preponderance of
the evidence.
(p)
Representatives
A party or intervenor may appear in person or by an attorney or
other representative. Attorneys shall conform to the standards of conduct and
ethics required of practitioners before the courts of Connecticut.
(q)
Motions
(1) A motion is any request to the
Board.
(2) All motions shall (A) be
in writing unless made orally on the record, (B) state with particularity the
grounds therefor, and (C) set forth the relief or ruling sought.
(3) Within seven (7) days of service of a
written motion or such other time as the Board may prescribe, any party or
intervenor may file a response supporting or opposing the motion. The movant
shall have no right to reply except as permitted by the Board.
(4) The movant shall have the burden of
demonstrating that the relief or ruling sought in the motion should be
granted.
(r)
Requests for Hearing
(1) A
request for a hearing regarding the Board's issuance of a notice to revoke,
suspend or deny a license, or impose any other sanctions upon a licensee shall
be filed with the Board within twenty (20) days of the Board's issuance of such
notice. The request for a hearing shall be in writing and shall include a copy
of the Board's notice of revocation, suspension, or denial of a
license.
(2) A request for hearing
shall state specifically any findings to which the licensee or applicant
objects and any other grounds for contesting the Board's action to revoke,
suspend or deny a license or impose any other sanctions upon a licensee. The
Board may require, or any party or intervenor may file a motion requesting, a
more particular statement from the licensee or applicant if the request for
hearing does not give adequate notice of the grounds for contesting the Board's
action to revoke, suspend, or deny a license.
(3) An application by a licensee or applicant
for a more definite and detailed statement pursuant to subsection
4-177(b)
of the Connecticut General Statutes shall be made no later than the date by
which the request for hearing shall be filed under subdivision (1) of this
subsection. The filing of such an application shall not stop the running of the
time period for filing a request for hearing. The applicant may amend his or
her request for hearing within twenty (20) days after the Board serves a more
definite and detailed statement.
(4) Any applicant or licensee may withdraw
any such request for a hearing at any time.
(s)
Scheduling Hearings and Settlement
Conferences
(1)
(A) Unless the notice to revoke, suspend or
deny a license or impose any other sanctions upon a licensee includes notice of
a scheduled hearing date, the Board may, upon the filing of a request for
hearing under subdivision (1) of subsection (r) of this section, solicit
comments from the parties and intervenors concerning an appropriate date and
location for a hearing. Upon receipt of comments the Board shall set a date for
hearing, taking into consideration any threat to public health, safety, welfare
or the environment posed by the violations or conditions alleged in the notice
and the parties' and intervenors' schedules.
(B) Upon scheduling the hearing, the Board
shall mail notice of the time, place, and nature of the hearing to all parties
and intervenors and to any person who has filed a request for status as a party
or intervenor but whose request has not yet been disposed of.
(C) Upon scheduling the hearing, the Board
may schedule a settlement conference. The purpose of the settlement conference
is to determine whether the dispute can be resolved without a hearing and to
facilitate such a resolution.
(D)
If the Board determines during the settlement conference that resolution of the
dispute without a hearing is likely, it may reschedule the hearing.
(E) Each party and intervenor shall appear at
any settlement conference which is scheduled. If any party fails without good
cause to appear, the Board may proceed with the conference.
(F) At least one of the attorneys or other
representatives for each party and intervenor participating in the settlement
conference shall have authority to enter into agreements and stipulations
regarding all matters that the participants should reasonably anticipate may be
discussed at the settlement conference.
(G) If no appearance is made by or on behalf
of a party or intervenor at the settlement conference, or if a party or
intervenor or his attorney or other representative is substantially unprepared
or is unauthorized to participate fully in the conference or fails to
participate in good faith, the Board may impose sanctions in accordance with
subsection (n) of this section.
(H)
Nothing in this subsection shall preclude the Board from meeting, whether on
request or on its own initiative, with the parties and intervenors at any time
for the purpose of facilitating settlement.
(2) Neither a settlement conference nor a
hearing shall be continued at the request of a party or intervenor except upon
motion demonstrating that there is good cause for a continuance. In ruling on
such a motion, the Board shall consider whether a continuance would prejudice
the public health, safety or welfare, or the environment. Any continuance
granted shall be for a specific length of time.
(t)
Intervention
(1) A person shall be granted status as an
intervening party if:
(A) A statute, including
but not limited to sections
22a-19
and
22a-99
of the Connecticut General Statutes, confers a right to such status, provided
that any conditions for party status specified in such statute have been
satisfied; or
(B) Such person has
filed a written request stating facts which demonstrate that
(i) such person's legal rights, duties or
privileges will or may reasonably be expected to be affected by the decision in
the proceeding,
(ii) such person
will or may reasonably be expected to be significantly affected by the decision
in the proceeding, or
(iii) such
person's participation is necessary to the proper disposition of the
proceeding.
(2) A person may be granted status as an
intervenor if such person has filed a written request stating facts which
demonstrate that such person's participation is in the interests of justice and
will not impair the orderly conduct of the proceeding.
(3) A request for status as a party or
intervenor under this subsection shall be filed no later than five (5) days
before the date of the hearing, if one has been scheduled, except that such
five-day requirement may be waived by the Board at any time before or after the
commencement of the hearing for good cause shown. The request shall be served
upon all parties and intervenors and any person known to have filed a request
for status as a party or intervenor but whose request has not yet been disposed
of.
(4) Unless otherwise provided
by the Board, any objections to a request for party or intervenor status shall
be filed within seven (7) days of the service of the request for party or
intervenor status.
(5) The ruling
on a request for status as a party or intervenor shall be provided to the
person filing the request, all parties and intervenors, and any person who has
filed a request for status as a party or intervenor but whose request has not
yet been disposed of.
(6) The Board
may restrict the participation in the proceeding of a person granted intervenor
status under subdivision (2) of this subsection, although only to the extent
necessary to promote justice and the orderly conduct of the proceeding. If a
request for intervenor status under subdivision (2) of this subsection is
granted, the Board shall in its ruling on the request define (A) the issues
with respect to which the intervenor may participate and (B) the intervenor's
rights to discovery, to introduce evidence and offer argument, and to
cross-examine witnesses. The Board may at any time amend its initial ruling
concerning an intervenor's participation.
(7) Except for good cause shown, a person
granted status as a party or intervenor under this subsection is bound by the
Board's rulings issued as of the time such person files a request for party or
intervenor status. Unless otherwise restricted pursuant to subdivision (6) of
this subsection, after a person's request for party or intervenor has been
granted, such person shall have the same rights, obligations, and privileges as
all other parties and intervenors.
(u)
Notices to Appear and Subpoenas for
Hearing
(1) A party or intervenor may
compel the appearance at a hearing of, or the production of documents at a
hearing by, another party or intervenor by serving upon such party or
intervenor a notice to appear or produce. The notice, if a notice to produce,
shall state with particularity the documents which are to be produced. A copy
of a notice served under this subdivision shall be filed concurrently with the
Board. Except for good cause shown, a notice under this subdivision shall be
ineffective unless it is received by the Board or the person to whom it is
directed at least five (5) days before the time designated in the notice to
appear or produce.
(2) A party or
intervenor may compel the appearance at a hearing of, or the production of
documents at a hearing by, any person who is not a party or intervenor by the
issuance of a subpoena in accordance with the following:
(A) If the party or intervenor is represented
by an attorney, the attorney may issue such subpoena pursuant to section
51-85
of the Connecticut General Statutes. To prevent harassment or unnecessary
inconvenience to a subpoenaed witness, the Board may exclude the testimony of
such a witness if he or she did not receive the subpoena at least five (5) days
before the time designated therein to appear or produce.
(B) If the party or intervenor is not
represented by an attorney, he or she may move the Board or, if the Board has
designated another person to conduct the hearing, such other person to issue a
subpoena requiring the appearance of the person or the production of the
documents at the hearing. Except for good cause shown, such a motion shall be
filed no later than fourteen (14) days before the hearing commences. Such a
motion shall include the name and address of the person and a description of
any documents to be subpoenaed, and shall state the reason for the motion.
Unless the requested subpoena would be subject to quashing under subdivision
(9) of this subsection and unless the Board or its designee finds that the
testimony or documents sought are clearly inadmissible, he or she shall issue
the subpoena and mail or deliver it to the party or intervenor requesting it,
which party or intervenor shall arrange for its service. Except for good cause
shown, a subpoena issued under this subparagraph shall be ineffective unless it
is received by the person to whom it is directed no later than five (5) days
before the hearing commences.
(3) A subpoena issued by the Board or its
designee shall contain the name of the Board and the title of the proceeding,
and shall command the person to whom it is directed to appear to produce
specified documents at a designated time and place.
(4) Upon notice to the parties and
intervenors, the Board or its designee may on its own initiative issue a notice
or subpoena requiring the appearance of a party, intervenor, or other person or
the production of documents at a hearing. The form and service of such notice
or subpoena shall be as described in subdivision (1) or (3) of this subsection,
as the case may be, of this subsection, and such notice or subpoena shall be
subject to the provisions of subdivision (5) of this subsection.
(5) On motion made or on his or her own
initiative, the Board or its designee may:
(A) quash, modify, or issue a protective
order with respect to a subpoena to appear or produce issued by the Board or
its designee or a notice to appear if such notice or subpoena is unreasonable
or requests evidence that is irrelevant or immaterial or
(B) condition denial of the motion on such
terms as the Board or its designee deems appropriate.
(6) A subpoena to appear or produce issued by
the Board or its designee shall advise that such subpoena may be quashed,
modified, or subjected to a protective order in accordance with subdivision (5)
of this subsection.
(7) A notice to
appear or produce shall be personally served by a sheriff or other indifferent
person or by certified mail, return receipt requested. A subpoena to appear or
produce issued by the Board or its designee shall be personally served by a
sheriff or other indifferent person.
(8) If any party or intervenor fails to
comply with a notice to appear or produce, the Board or its designee may impose
sanctions in accordance with subsection (n) of this section. If any person
fails to comply with a subpoena it issues, the Board may apply to the superior
court for enforcement of the subpoena in accordance with section
4-177b
of the Connecticut General Statutes.
(9) A subpoena or notice to appear directed
to any member of the Board shall be quashed unless there is a clear showing by
the party or intervenor who served the notice to appear or on whose behalf the
subpoena was issued that such member of the Board has personal knowledge of
relevant and material facts, that no other person has knowledge of such facts,
and that it would work an injustice if such member of the Board did not
testify.
(v)
Discovery
(1) A party or
intervenor may obtain discovery only as provided in this subsection. Nothing in
this subsection shall require the disclosure of materials protected from
disclosure under section 1-19 of the Connecticut General Statutes or any other
provision of law.
(2) Discovery
under this subsection may commence after the filing of a request for hearing
under subsection (r) of this section or the scheduling of a hearing by the
Board.
(3)
(A) Except as provided in subparagraph (B) of
this subdivision, a party or intervenor may serve upon any other party or
intervenor a request to inspect, copy, photograph or otherwise reproduce
designated documents (including but not limited to writings, drawings, graphs,
charts, photographs, audio or video recordings, or computer records) which are
relevant and material to the subject of the proceeding, which are in the
possession, custody or control of the party, intervenor, or other person upon
whom the request is served, and which can be provided by the disclosing party,
intervenor, or person with substantially greater facility than they could
otherwise be obtained by the party or intervenor seeking disclosure. The
request shall clearly designate the documents to be inspected and copied and
shall specify a reasonable place and manner of making the inspection and
copies. A copy of the request shall be concurrently filed with the Board and
served on all other parties and intervenors. Unless the parties and intervenors
agree otherwise or the Board provides otherwise, the cost of copying documents
shall be borne by the party or intervenor requesting discovery. Nothing in this
section shall be construed to require that a party or intervenor conduct any
analysis or other manipulation of computer data.
(B) A party or intervenor may serve a
discovery request upon another party or intervenor who is not represented by
counsel only with the Board's prior approval. A motion to the Board seeking
such approval shall:
(i) include a copy of
the proposed discovery request, which request shall conform to the provisions
of subparagraph (A) of this subdivision; and
(ii) demonstrate that such request is
genuinely necessary and appropriate to achieve a just and expeditious
resolution of the proceeding.
(4) A party or intervenor upon whom a request
for discovery is served shall either:
(A)
Comply with the request within fourteen (14) days of service thereof;
or
(B) File an objection to the
request or any part thereof within seven (7) days of service thereof.
It shall not be ground for objection that the documents sought
will be inadmissible at hearing if they appear reasonably calculated to lead to
the discovery of admissible evidence. Compliance with a request for discovery
shall consist, at the discretion of the complying party or intervenor, either
of allowing inspection and copying or of providing the requester with clean,
legible copies of the originals, together with an affidavit by a person with
knowledge stating that the copies are true and accurate copies of the
originals. Objection to certain parts of a request for discovery shall not
relieve the objecting party or intervenor of the obligation to comply with
those parts of the request to which no objection has been made. An objection
shall state with particularity the grounds therefor. The party or intervenor
making the request, and any other party or intervenor, may file a response to
an objection within five (5) days of service thereof. If the Board overrules an
objection, compliance with the request shall be made at a time set by the
Board.
(5) All
evidentiary privileges recognized at common law or provided by the Connecticut
General Statutes, as well as the work product privilege as set forth in Chapter
8 of the Connecticut Superior Court Rules, shall apply to discovery under this
subsection.
(6) Whether compliance
with a request to inspect and copy documents is made by providing copies of
documents or by allowing inspection and copying, the complying party or
intervenor shall at the time of compliance furnish the requesting party or
intervenor with an affidavit by a person with knowledge stating that the
documents produced constitute a full and complete response to the
request.
(7) If at any time after
complying with a request for discovery, the complying party or intervenor
discovers that there are or may be additional or new documents responsive to
the request, within five (5) days of such discovery he or she shall supplement
his prior document production response.
(8) If a party or intervenor upon whom a
request for discovery has been served neither objects to the request nor
complies with it in good faith, or does not obey a ruling on an objection made
under subdivision (4) of this subsection, the Board may impose sanctions in
accordance with subsection (n) of this section. Except for good cause shown,
the Board shall not enforce multiple discovery requests by the same party or
intervenor.
(9) A party or
intervenor may move the Board or, if the Board has designated another person to
conduct the hearing, such other person to issue a subpoena requiring that a
person who is not a party or intervenor produce documents for the purpose of
discovery. Such motion shall include the name and address of the person to whom
the subpoena is to be directed and a description of the documents to be
subpoenaed, and shall state the reason for the motion. A motion under this
subdivision prepared by an attorney shall include a draft of the subpoena
requested. Any party or intervenor making a motion under this subdivision shall
serve a copy of such motion upon the person who is the subject of the requested
subpoena and shall give notice in the motion that such person may, within seven
(7) days of service thereof, file an objection to issuance of the subpoena.
Unless the Board or its designee finds that the material sought is irrelevant
and immaterial, it shall issue the subpoena and mail or deliver it to the party
or intervenor requesting it, which party or intervenor shall arrange for its
service. Except for good cause shown, a subpoena issued under this subdivision
shall be ineffective unless it is received by the person to whom it is directed
no later than five (5) days before the date prescribed for production of the
documents. A subpoena issued under this subdivision shall contain the
information described in subdivisions (3) and (6) of subsection (u) of this
section, shall be served in accordance with subdivision (7) of subsection (u)
of this section, and may be quashed, modified, or subjected to a protective
order in accordance with subdivision (5) of subsection (u) of this section. The
Board may enforce a subpoena issued under this subdivision in accordance with
subdivision (8) of subsection (u) of this section.
(w)
Preservation of Evidence
The Board may provide by any appropriate means, including the
taking of oral testimony by deposition, for the preservation of relevant and
material evidence when the Board determines that there is a serious likelihood
that such evidence will be unavailable at the time of the hearing. The Board or
its designee may issue subpoenas as necessary to carry out the provisions of
this subsection.
(x)
Prehearing Conferences
(1) The
Board may encourage prehearing conferences to simplify the hearing and aid in a
speedy and fair disposition of the proceeding. To those ends, the Board may, on
motion or on its own initiative, schedule and hold a prehearing conference
among the parties and intervenors to:
(A)
Clarify and simplify the factual issues for hearing, identify the legal issues
in dispute, and determine whether any legal issues should be briefed before the
hearing;
(B) Stipulate to facts and
the admissibility of testimony and other evidence;
(C) Identify and, as appropriate, limit
witnesses to be called and documents to be offered at the hearing, and identify
the matters about which each witness will testify;
(D) Mark exhibits to be admitted or offered
into evidence;
(E) Dispose of
pending motions and disputes about discovery; and
(F) Take such other actions as may aid in the
orderly and expeditious disposition of the proceeding.
(2) The prehearing conference shall, unless
impracticable, be held at least fourteen (14) days before the hearing
commences.
(3) Each party and
intervenor shall appear at the prehearing conference. If any party or
intervenor fails without good cause to appear, the Board may proceed with the
conference and may make decisions concerning all matters for which the
conference was scheduled, which decisions shall bind all parties and
intervenors.
(4) At least one of
the attorneys or other representatives for each party and intervenor
participating in the prehearing conference shall have authority to enter into
stipulations and to make admissions regarding all matters that the participants
should reasonably anticipate may be discussed at the prehearing
conference.
(5) After the
prehearing conference, the Board may, and at the request of any party or
intervenor shall, issue a prehearing conference order reciting the actions
taken at the prehearing conference. The prehearing conference order shall,
unless modified by the Board on the record, control the subsequent course of
the proceeding. A prehearing conference order shall be modified only for good
cause.
(6) If no appearance is made
by or on behalf of a party or intervenor at a prehearing conference, or if a
party or intervenor or his attorney or other representative is substantially
unprepared or is unauthorized to participate fully in the conference or fails
to participate in good faith, or if a party or intervenor or his attorney or
other representative fails to obey a prehearing conference order, the Board may
impose sanctions in accordance with subsection (n) of this section or may grant
an appropriate continuance to any party or intervenor prejudiced by the
disobedience, or both.
(y)
Advance Submission of Proposed
Evidence
(1) In a proceeding on an
application the applicant shall, regardless whether a prehearing conference is
held and unless an earlier filing is required by the Board or a later filing is
allowed for good cause shown, file no later than fifteen (15) days before the
hearing:
(A) A copy of all documents,
including the application and any amendments thereto, which the applicant plans
to offer into evidence at the hearing;
(B) A list of witnesses the applicant plans
to call at the hearing and a summary of the matters about which each witness
will testify; and
(C) For each
expert witness the applicant plans to call, a resume and a statement of the
facts and opinions about which the expert will testify and a summary of the
grounds for each opinion.
At the time the applicant files the foregoing papers, he or she
shall serve a copy thereof on all parties and intervenors.
(2) Prior to any hearing the Board
may, on motion or its own initiative, direct any party or intervenor to file
before the hearing the following materials, provided that a party or intervenor
planning to offer written testimony on direct examination shall be required to
file such testimony no later than ten (10) days before the hearing:
(A) A copy of all documents which the party
or intervenor plans to offer into evidence at the hearing;
(B) A list of witnesses the party or
intervenor plans to call at the hearing and a summary of the matters about
which each witness will testify;
(C) For each expert witness the party or
intervenor plans to call, a resume and a statement of the facts and opinions
about which the expert will testify and a summary of the grounds for each
opinion; and
(D) Any other or
additional material.
(3)
Upon objection by a party or intervenor, the Board shall not admit into
evidence any document or testimony which was not submitted or identified before
the hearing, in accordance with subdivision (1) of this subsection or a ruling
under subdivision (2) of this subsection, unless the party or intervenor
offering the document or testimony demonstrates good cause for the failure to
submit or identify it earlier. If the Board admits such document or testimony,
the Board may grant an appropriate continuance to any party or intervenor
prejudiced thereby.
(z)
Oaths
The Board shall administer the oath or affirmation, in
accordance with Chapter 4 of the Connecticut General Statutes, to each witness,
including a speaker who gives sworn testimony pursuant to subsection (bb) of
this section, before any evidence is taken from such witness.
(aa)
Evidence, Objections, Offers of
Proof
(1) Evidence shall be received in
accordance with section
4-178
of the Connecticut General Statutes. The Board shall not admit any evidence
which is irrelevant, immaterial, unduly repetitious, untrustworthy, or
unreliable.
(2) Subject to the
reasonable control of the Board, all parties shall have the right to
cross-examine any witness, including any speaker who gives sworn testimony
pursuant to subsection (bb) of this section.
(3) The Board may admit into evidence, in
lieu of oral testimony on direct examination, a written statement of fact or
opinion prepared by a witness, other than a speaker who gives sworn testimony
pursuant to subsection (bb) of this section, provided that any requirements for
prehearing submission of documents have been satisfied. The admissibility of
the contents of the statement shall be subject to the same evidentiary rules as
if such contents were presented as oral testimony. Before any such statement is
read or admitted into evidence, the witness shall provide a copy of the
statement to the Board, the court reporter if there is one, and all parties and
intervenors. The witness presenting the statement shall swear to or affirm the
statement and shall be subject to cross-examination on the contents
thereof.
(4) Any objection to the
admission of evidence shall be supported by a concise statement of the grounds
therefor. The Board's ruling on the objection shall be part of the
record.
(5) Whenever evidence is
excluded, the party or intervenor offering the evidence may make an offer of
proof. An offer of proof for excluded testimony shall consist, at the
discretion of the Board, of either the excluded testimony or a summary thereof.
An offer of proof for excluded documents shall consist of the insertion in the
record of the documents excluded. At the discretion of the Board, an offer of
proof may be subject to cross-examination.
(bb)
Speakers
Any person who is not a party or intervenor nor called by a
party or intervenor as a witness may make an oral or written statement at the
hearing. Such a person shall be called a speaker. If the Board is going to
consider a speaker's statement of evidence or if the speaker wants his or her
statement to be considered evidence, the Board shall require that the statement
be made under oath or affirmation and shall permit the parties and intervenors
to cross-examine the speaker and to challenge or rebut the statement. A speaker
may decline to be cross-examined, but the Board shall strike from the record
any comments by such speaker relating to the subject on which he or she
declines to be cross-examined. The Board may control the time and duration of a
speaker's presentation, and may exclude irrelevant, immaterial, or unduly
repetitious comments by a speaker. A speaker shall not be entitled to
cross-examine parties, intervenors, or other speakers or to object to evidence
or procedure.
(cc)
Failure to Appear
(1) If an
applicant or a licensee fails to appear at a scheduled hearing, the request for
hearing filed under subdivision (1) of subsection (r) of this section shall be
deemed withdrawn and any right to a hearing waived. The applicant or licensee
may, within no more than fourteen (14) days after the scheduled hearing date,
move the Board to reopen the proceeding. Any such motion shall be denied unless
the movant demonstrates that there was compelling reason for his or her failure
to appear.
(2) If an applicant or a
licensee does not appear at a scheduled hearing and does not file a timely
motion to reopen, or files a timely motion to reopen but the motion is denied,
the Board shall authorize the Commissioner to revoke, suspend or deny such
license, as the case may be.
(3) If
a party or intervenor does not appear at an oral argument scheduled upon his or
her request, such request shall be deemed withdrawn and any right to oral
argument waived. Such party may, within no more than fourteen (14) days after
the scheduled oral argument date, move the Board to reschedule oral argument.
The motion shall be denied unless the movant demonstrates that there was
compelling reason for the failure to appear, and the Board may proceed to issue
the final decision.
(dd)
The Record
(1) In addition to the
items specified in section
4-177(d)
of the Connecticut General Statutes, for the purposes of a Board proceeding the
record shall include:
(A) Any briefs or
exceptions filed before or after issuance of the proposed final decision,
and
(B) Any correspondence between
the Board and any party, intervenor, or other person concerning the
proceeding.
(2) The
evidentiary record shall be maintained separately from the rest of the record.
The evidentiary record shall consist, in addition to the recording of the
hearing, of all documents offered into evidence (exhibits), regardless whether
they are admitted. Exhibits which are not admitted shall be marked "for
identification."
(3) The Board
shall not deem a transcript of a hearing to be part of the record, and shall
not transmit a transcript of a hearing to the superior court in the event of an
appeal from a Board proceeding, unless such transcript was prepared by or
through the Board and the sealed original of such transcript, if not prepared
by the Board, was delivered directly by the transcriber to the Board.
(ee)
Voluntary Termination
of Proceedings
The Board may voluntarily terminate proceedings by revoking a
notice issued in accordance with subsection (c) of this section at any time
before a final decision is issued, provided that it shall give notice to the
parties and intervenors of its intent to terminate any such proceedings.
Objections to such revocation may be filed with the Board within seven (7) days
of the service of such notice. Nothing herein shall preclude the Board from
revoking a notice issued in accordance with subsection (c) of this section
after a proceeding has terminated.
(ff)
New Evidence
Unless the Board rules otherwise, after the hearing no further
evidence shall be admitted unless it is relevant and material and there was
good cause for the failure to offer it at the hearing. Whenever new evidence is
admitted after the hearing, the other parties and intervenors shall be allowed
an opportunity to respond to the evidence, including, if appropriate, an
opportunity to cross-examine the person offering the evidence. Nothing in this
subsection shall affect the provisions and requirements of subsection (ii) of
this section.
(gg)
Post-Hearing Legal Submissions
The Board may require or allow the parties and intervenors to
file post-hearing briefs and proposed findings of fact and conclusions of law.
Any assertions of fact in such briefs and findings should be supported by
reference to specific portions of the evidentiary record supporting any such
assertion(s).
(hh)
Proposed Final Decisions and Final Decisions
(1) After the hearing and the filing of any
post-hearing legal submissions, the Board shall issue a final decision in
accordance with section
4-180
of the Connecticut General Statutes and subparagraph (3)(D) of this subsection
authorizing action by the Commissioner, provided that if a designee of the
Board conducted the hearing, the designee shall issue a proposed final decision
in accordance with section
4-179
of the Connecticut General Statutes; provided further that if the Board has
authorized such designee to issue a final decision, he shall issue a final
decision in accordance with such section and subparagraph authorizing action by
the Commissioner.
(2) At any time
after issuance of a proposed final decision but before oral argument held
pursuant to subdivision (3) of this subsection, the Board may correct such
decision for clerical errors and for errors of fact or law.
(3)
(A)
Unless otherwise specified by the Board, within fifteen (15) days after
personal delivery or mailing of the proposed final decision any party or
intervenor may file with the Board exceptions thereto. Exceptions shall state
with particularity the party's or intervenor's objections to the proposed final
decision, and may not raise legal issues or, subject to subsection (gg) of this
section, factual issues which could have been, but were not raised at the
hearing. Exceptions may be accompanied by a request for oral
argument.
(B) Upon receipt of
timely-filed exceptions or on its own initiative, the Board shall send notice
to all parties and intervenors of the date by which they may file briefs
concerning the proposed final decision. Upon receipt of a timely request for
oral argument or on its own initiative, the Board shall schedule oral argument
and send notice of the time and place thereof to all parties and intervenors.
Such notice shall also specify the date by which the parties and intervenors
may file briefs concerning the proposed final decision. Any assertions of fact
in briefs filed pursuant to this subparagraph should be supported by reference
to specific portions of the evidentiary record. The date for filing briefs or
for oral argument shall not be continued at the request of any party or
intervenor except upon motion demonstrating that there is good cause for a
continuance and that a continuance will not prejudice public health, safety, or
welfare or the environment.
(C)
Unless the Board rules otherwise, oral argument shall be limited to the issues
raised in timely-filed exceptions. The Board may control the oral argument so
as to allow all parties and intervenors a reasonable opportunity to present
argument.
(D) After the issuance of
the proposed final decision, the filing of any exceptions and briefs, and
presentation of any oral argument, the Board shall issue a written final
decision in accordance with section
4-180
of the Connecticut General Statutes authorizing action by the Commissioner. In
its final decision the Board may affirm, modify, or reverse the proposed final
decision, in whole or in part, or may remand to the Board for further
proceedings, including the taking of further evidence. Any such further
proceedings shall be governed by this section. Any final decision by the Board
may contain whatever conditions the Board deems appropriate, including, but not
limited to, conditions to be imposed by a license that the Board authorizes the
Commissioner to issue to an applicant or to a licensee.
(ii)
Reconsideration
(1) On motion made or its own initiative, the
Board may reconsider, reverse, modify, or correct a final decision in
accordance with section
4-181a
of the Connecticut General Statutes. In addition, the Board may open a final
decision upon a showing that:
(A) The final
decision was prejudiced by fraud, misrepresentation, or other misconduct of a
party or intervenor, or
(B) There
is another compelling reason for opening the final decision.
(2) Any further proceedings
required by a ruling under subdivision (1) of this subsection shall be
conducted in accordance with this section.
