Conn. Agencies Regs. § 22a-133v-7 - Hearings

Current through March 4, 2022

(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.

Notes

Conn. Agencies Regs. § 22a-133v-7
Effective June 2, 1997; Amended August 6, 2012; Amended August 7, 2015

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