Conn. Agencies Regs. § 22a-3a-6 - Contested cases
Part A-General
(a)
Scope and applicability
This section governs proceedings in all contested cases. Except as otherwise provided in these Rules of Practice, all rights, obligations and privileges of a party under this part apply equally to the Staff, and the term "party" shall be deemed to include the Staff.
(b)
Filing, service, and form of
pleadings
(1) Except as otherwise
provided in these Rules of Practice, the original of any pleading which is
required or allowed to be filed under this section shall be filed in the Office
of Adjudications.
(2) The first
page of every pleading shall contain a caption identifying the respondent,
applicant, or declaratory ruling petitioner and the number of the order,
application, or declaratory ruling petition which is the subject of the
proceeding.
(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 days after such person
becomes aware of such change, be communicated in writing to the Office of
Adjudications 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:
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(6) Service of pleadings shall be complete
upon personal delivery or mailing. When a pleading is served by mail, three
days shall be added to any time allowed for the filing of a responsive
pleading.
(7) The date of filing of
any pleading required or allowed under this section shall be the date such
pleading is received in the Office of Adjudications.
(8) No pleading shall be filed electronically
without the consent of the hearing officer 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 Office of Adjudications or a hearing
officer may reject any filing for failure to comply with this
subsection.
(c)
Orders, rulings, and decisions
(1) Unless otherwise provided by law, an
order, other than an order issued under section
22a-7
of the General Statutes, shall be served by personal delivery by a sheriff or
other indifferent person or by certified mail, return receipt requested, or by
first-class mail, or in the manner provided by law for service of civil
process. An order issued under section
22a-7
of the General Statutes shall be served in accordance with the provisions of
Public Act 91-301. 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 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, an order, ruling, proposed final decision, or final decision
shall be deemed issued upon mailing or personal delivery.
(3) At any time after the issuance of an
order, the Commissioner may correct such order for clerical errors.
(d)
Powers and duties of
hearing officer
(1) The hearing
officer shall conduct a fair and impartial proceeding, 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 hearing officer 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 (e) of this section and subsection (n) of section
22a-3a-2 of these Rules
of Practice;
(G) Consolidate
proceedings or portions thereof;
(H) Issue proposed final decisions and, when
authorized, final decisions; and
(I) Do any other acts and take any other
measures to administer this section, expedite proceedings, and maintain
order.
(e)
Sanctions
If a party or intervenor or the attorney or other
representative of a party or intervenor fails to comply with these Rules of
Practice or with a ruling of the
(f)
Burdens of Proof
Unless otherwise provided by law, in a proceeding on an order
to enforce a statute, regulation or
(g)
Representatives
A party or intervenor may appear in
(h)
Motions
(1) A motion is any request to a hearing
officer or the Commissioner .
(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 days of
service of a written motion or such other time as the hearing officer 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
hearing officer.
(4) The movant
shall have the burden of demonstrating that the relief or ruling sought in the
motion should be granted.
Part B-Prehearing Procedures
(i)
Answers and requests for
hearing
(1) Whenever any statute,
regulation, or order provides for the filing of an answer or request for
hearing with respect to an order, the answer or request for hearing shall be
filed with the Office of Adjudications within the time prescribed by the
applicable statute; and if not prescribed therein, by an applicable regulation
other than this section; and if not prescribed therein, by the order; and if
not prescribed therein, within thirty days of issuance of the order. The
respondent shall attach to the answer a copy of the order.
(2) Whenever any statute or regulation
provides for the filing of a request for hearing concerning the Commissioner 's
disposition of an application, the request shall be filed with the Office of
Adjudications within the time prescribed by the applicable statute; and if not
prescribed therein, by an applicable regulation other than this section; and if
not prescribed therein, within thirty days of the Commissioner 's action. The
requester shall attach to the request a copy of the Commissioner 's letter or
other document disposing of the application.
(3) An answer to an order shall be deemed a
request for hearing unless the answer specifically states otherwise.
(4) An answer or request for hearing shall
state specifically any findings to which the respondent objects and any other
grounds for contesting the order or the Commissioner 's disposition of the
application. The hearing officer may require, or any party or intervenor may
file a motion requesting, a more particular statement from the respondent or
applicant if the answer or request for hearing does not give adequate notice of
the grounds for contesting the order or the disposition of the
application.
(5) An application by
a respondent to the Commissioner pursuant to section
4-177(b)
of the General Statutes for a more definite and detailed statement shall be
made no later than the date by which the answer or request for hearing must be
filed under subdivision (1) of this subsection. The filing of such an
application shall not stop the running of the time period under such
subdivision for filing an answer or request for hearing. The respondent may
amend his answer or request for hearing within twenty days after the
Commissioner issues a more definite and detailed statement.
(j)
Scheduling hearings and
settlement conferences
(1)
(A) Unless when issuing an order or disposing
of an application the Commissioner also issues notice of a scheduled hearing
date on such order or application, the Director of the Office of Adjudications
shall, upon the filing of an answer or request for hearing under subdivision
(i) (1) or (2) of this section, solicit comments from the parties and
intervenors concerning an appropriate date and, with respect to an application,
location for hearing. Upon receipt of comments the Director shall set a date
for hearing, taking into consideration the threat to the environment or public
health posed by the violations or conditions alleged in the order and the
parties' and intervenors' schedules.
(B) Upon scheduling the hearing, the Director
of the Office of Adjudications 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 Director of the Office of Adjudications may schedule a
settlement conference. Any settlement conference shall be conducted by a
referee. 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 referee
determines during the settlement conference that resolution of the dispute
without a hearing is likely, he may recommend to the assigned hearing officer
that the scheduled hearing be continued to afford the parties an opportunity to
submit to the hearing officer a proposed consent order or agreed draft decision
under subdivisionl (2) or (3) of this section.
(E) Each party and intervenor shall appear at
any settlement conference which is scheduled. If any party or intervenor fails
without good cause to appear, the referee 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 referee may recommend to the hearing officer or,
if a hearing officer has not been assigned, to the Director of the Office of
Adjudications that the hearing officer or Director impose sanctions in
accordance with subsection (e) of this section. Upon a recommendation of the
referee, the hearing officer or Director may issue an appropriate
ruling.
(H) Nothing in this
subsection shall preclude the referee from meeting, whether on request or on
his own initiative, with the parties and intervenors at any time for the
purpose of facilitating settlement, and nothing in this subsection shall
preclude the parties from filing a proposed consent order or an agreed draft
decision at any time pursuant to subsection (l) of this
section.
(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 hearing officer or, if a
hearing officer has not been assigned, the Director of the Office of
Adjudications 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.
(k)
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 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) his legal rights,
duties or privileges will or may reasonably be expected to be affected by the
decision in the proceeding, (ii) he will or may reasonably be expected to be
significantly affected by the decision in the proceeding, or (iii) his
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 his 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 days before the date of the hearing, if one has been scheduled,
except that such five-day requirement may be waived by the hearing officer or
the Commissioner , as appropriate, 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) If a request for status as
a party or intervenor is filed before an answer or request for hearing has been
filed or the proceeding has been referred by the Staff to the Office of
Adjudications, the Commissioner shall rule on the request; if the request is
filed after an answer or request for hearing has been filed or the proceeding
has been referred to the Office of Adjudications but before a hearing officer
has been assigned, the Director of the Office of Adjudications shall rule on
the request; if the request is filed after a hearing officer has been assigned,
the hearing officer shall rule on the request; if the request is filed after a
proposed final decision has been rendered but before a final decision has been
rendered, the Commissioner shall rule on the request; if the request is filed
after a motion for reconsideration under subsection (z) of this section has
been made but before the Commissioner has disposed of such motion, the
Commissioner shall rule on the request.
(5) Unless otherwise provided by the hearing
officer, any objections to a request for party or intervenor status shall be
filed within seven days of the date the objecter learns of the
request.
(6) 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 status but whose request has not
yet been disposed of. A request under this subsection shall be construed
liberally so as to further the policies and purposes of the Connecticut
Environmental Protection Act, sections
22a-14
through
22a-20
of the General Statutes, and the statutes and regulations administered by the
Department .
(7) The hearing officer
or Commissioner , as appropriate, may restrict the participation in the
proceeding of a person granted intervenor status under subdivision (2) of this
section, 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 hearing officer or
Commissioner , as appropriate, shall in his 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 hearing officer or Commissioner , as
appropriate, may amend his initial ruling concerning an intervenor's
participation.
(8) Except for good
cause shown, a person granted status as a party or intervenor under this
subsection is bound by the hearing officer's and Commissioner 's rulings issued
as of the time such person filed his request for party or intervenor status.
After his request has been granted, such person shall have the same rights,
obligations, and privileges as all other parties and intervenors.
(l)
Disposition of
proceeding by agreement
(1) The
Department encourages disposition of proceedings by agreement when the
agreement is consistent with the policies and purposes of relevant provisions
of law. Settlement discussions among parties shall not affect the obligation to
file a timely answer or request for hearing.
(2) With respect to an order, after the
respondent has filed a timely answer or request for hearing pursuant to
subdivision (i) (1) of this section, the proceeding may be disposed of by
agreement, in whole or in part, only as follows:
(A)
(i) The
Staff and the respondent shall file a proposed consent order, signed by at
least the respondent, which sets out the terms of the agreement between the
Staff and the respondent.
(ii) If
no person has been granted status as a party or intervenor under subsection (k)
of this section, or if a person has been granted such status but does not
object to the proposed consent order, the hearing officer shall either (1)
accept the proposed consent order, or (2) reject it and proceed with the
hearing or as is otherwise appropriate; provided that if the hearing was
scheduled because of a public request therefor or for the purpose of allowing
public comment, the hearing officer shall not act on the proposed consent order
until after the hearing. If the hearing officer accepts the proposed consent
order and is authorized to render a final decision, he shall issue the proposed
consent order as his final decision; if the hearing officer accepts the
proposed consent order and is not authorized to render a final decision, he
shall refer the proposed consent order, with his recommendation, to the
Commissioner .
(B) If any
person granted status as a party or intervenor under subsection (k) of this
section objects to the proposed consent order, he shall, within seven days of
service thereof, file his objection in writing or make it orally on the record,
stating with particularity the grounds for the objection. With respect to an
intervenor's objection, the hearing officer shall determine whether to hold a
hearing on the objection. With respect to a party's objection, the hearing
officer shall hold a hearing on the objection, unless it is manifestly
frivolous. If the hearing officer, over the objection of a party or intervenor,
issues the proposed consent order or refers it to the Commissioner , the hearing
officer shall prepare a final decision or proposed final decision containing
findings of fact and conclusions of law.
(3) With respect to an application, after the
applicant has filed a timely request for hearing pursuant to subparagraph (i)
(2) of this section or the Department has on its own initiative scheduled a
hearing, the proceeding may be disposed of by agreement only as follows:
(A)
(i) The
Staff and applicant shall file an agreed draft decision, signed by at least the
applicant, which sets out the terms of the agreement between the Staff and the
applicant, including the full text of a draft license if a license is proposed
to be issued or an existing license modified.
(ii) If no person has been granted status as
a party or intervenor under subsection (k) of this section, or if a person has
been granted such status but does not object to the agreed draft decision, the
hearing officer shall either (1) accept the agreed draft decision, or (2)
reject it and proceed with the hearing or as is otherwise appropriate; provided
that if the hearing was scheduled because of a public request therefor or for
the purpose of allowing public comment, the hearing officer shall not act on
the agreed draft decision until after the hearing. If the hearing officer
accepts the agreed draft decision, he shall issue it as his proposed final
decision or final decision.
(B) If any person granted status as a party
or intervenor under subsection (k) of this section objects to the agreed draft
decision, he shall, within seven days of service thereof, file his objection in
writing or make it orally on the record, stating with particularity the grounds
for the objection. With respect to an intervenor's objection, the hearing
officer shall determine whether to hold a hearing on the objection. With
respect to a party's objection, the hearing officer shall hold a hearing on the
objection, unless it is manifestly frivolous. If the hearing officer, over the
objection of a party or intervenor, accepts the agreed draft decision, the
hearing officer shall include findings of fact and conclusions of law in his
proposed final decision or final decision.
(4) Upon the filing of a proposed consent
order or agreed draft decision, the hearing officer may require that the Staff,
the respondent, and any other parties and intervenors answer questions relating
to such order or decision.
(5) In a
hearing held on the hearing officer's initiative under subparagraph (2) (A)
(ii) or (3) (A) (ii) of this subsection or because of the objection of a party
or intervenor under subparagraph (2) (B) or (3) (B) of this subsection, the
parties and intervenors may raise any relevant issues.
(m)
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
Office of Adjudications. Except for good cause shown, a notice under this
subdivision shall be ineffective unless it is received by the person or Staff
to whom it is directed at least five 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 General Statutes. To prevent harassment or unnecessary inconvenience to
a subpoenaed witness, the hearing officer may exclude the testimony of such a
witness if he did not receive the subpoena at least five days before the time
designated therein to appear or produce.
(B) If the party or intervenor is not
represented by an attorney, he may move the hearing officer 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 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 (10) of this subsection and unless the
hearing officer finds that the testimony or documents sought are clearly
inadmissible, he 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 days before the hearing commences.
(3) Notwithstanding the provisions of
subdivisions (1) and (2) of this subsection, in a proceeding on a cease and
desist order pursuant to section
22a-7
of the General Statutes, the hearing officer shall, except for good cause
shown, allow testimony from, or admit into evidence documents produced by, a
witness to whom a notice or subpoena to appear or produce was directed under
this subsection so long as such witness received the notice or subpoena at
least 18 hours before the time designated in the notice or subpoena to appear
or produce.
(4) A subpoena issued
by the hearing officer shall contain the name of the Department 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.
(5) Upon notice to the parties and
intervenors, the hearing officer may on his 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 (4), as the case may
be, of this subsection, and such notice or subpoena shall be subject to the
provisions of subdivision (6) of this subsection.
(6) On motion made or on his own initiative,
the hearing officer may:
(A) quash, modify,
or issue a protective order with respect to a subpoena to appear or produce
issued by the hearing officer 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 he deems appropriate.
(7) A subpoena to appear or produce issued by
the hearing officer shall advise that such subpoena may be quashed, modified,
or subjected to a protective order in accordance with subdivision (6) of this
subsection.
(8) 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 hearing officer shall be personally served by a sheriff or other
indifferent person .
(9) If any
party or intervenor fails to comply with a notice to appear or produce the
hearing officer may impose sanctions in accordance with subsection (e) of this
section. If any person fails to comply with a subpoena issued by the hearing
officer, the Commissioner may apply to the superior court for enforcement of
the subpoena in accordance with section
4-177b
of the General Statutes.
(10) A
subpoena issued by the hearing officer or a notice to appear directed to any
state commissioner personally or to his deputy 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 commissioner or deputy has
personal knowledge of relevant and material facts, that no Department employee
or other person has knowledge of such facts, and that it would work an
injustice if the commissioner or deputy did not testify.
(n)
Discovery
(1) A party or intervenor may obtain
discovery only if provided in this subsection. Nothing in this subsection shall
require the disclosure of materials protected from disclosure under section
1-19 of the General Statutes or any other provision of law.
(2) Discovery under this subsection may
commence after (A) the filing of an answer or request for hearing with respect
to an order, (B) the filing of a request for hearing with respect to an
application, (C) the scheduling by the Department on its own initiative of a
hearing on an application, or (D) the scheduling of a hearing on a petition for
declaratory ruling.
(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 in the Office of
Adjudications and served on all other parties and intervenors. Unless the
parties and intervenors agree otherwise or the hearing officer 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 hearing officer's prior approval. A
motion to the hearing officer 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 14 days
of service thereof or (B) file an objection to the request or any part thereof
within seven 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 he has not objected. 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 days of service thereof. If the hearing
officer overrules an objection, compliance with the request shall be made at a
time set by him.
(5) All
evidentiary privileges recognized at common law or provided by the 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
determines that there are additional or new documents responsive to the
request, within five days of such time he shall supplement his prior document
production.
(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 hearing officer
may impose sanctions in accordance with subsection (e) of this section. Except
for good cause shown, the hearing officer shall not enforce multiple discovery
requests by the same party or intervenor.
(9) A party or intervenor may move the
hearing officer 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 days of service
thereof, file an objection to issuance of the subpoena. Unless the hearing
officer finds that the material sought is irrelevant and immaterial, he 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
days before the date prescribed for production of the documents. A subpoena
issued under this subdivision shall contain the information described in
subdivisions (m) (4) and (7) of this section, shall be served in accordance
with subdivision (m) (8) of this section, and may be quashed, modified, or
subjected to a protective order in accordance with subdivision (m) (6) of this
section. The Commissioner may enforce a subpoena issued under this subdivision
in accordance with subdivision (m) (9) of this section.
(o)
Preservation of evidence
The hearing officer may provide by any appropriate means,
including the taking of oral testimony by deposition, for the preservation of
relevant and
(p)
Prehearing conferences
(1) The Department encourages prehearing
conferences to simplify the hearing and aid in a speedy and fair disposition of
the proceeding. To those ends, a hearing officer may, on motion or on his 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 pre-hearing conference. If any party or
intervenor fails without good cause to appear, the hearing officer 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 hearing officer 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 hearing officer 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 hearing officer may impose sanctions in accordance with subsection
(e) of this section or may grant an appropriate continuance to any party or
intervenor prejudiced by the disobedience, or both.
(q)
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 hearing officer or a later
filing is allowed for good cause shown, file no later than 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 shall serve a copy thereof on all parties and intervenors.
(2) In any proceeding the hearing
officer may, on motion or his 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 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 hearing officer shall not admit
into evidence any document or testimony which was not submitted or identified
before the hearing in accordance with subdivision (1) 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 hearing officer admits such document or testimony,
he may grant an appropriate continuance to any party or intervenor prejudiced
thereby.
Part C-Hearing Procedures
(r)
Oaths
The hearing officer shall administer the oath or affirmation, in accordance with chapter 4 of the General Statutes, to each witness, including a speaker who gives sworn testimony pursuant to subsection (t) of this section, before any evidence is taken from such witness.
(s)
Evidence, objections, offers of
proof
(1) Evidence shall be received in
accordance with section
4-178
of the General Statutes. The hearing officer shall not admit any evidence which
is irrelevant, immaterial, unduly repetitious, untrustworthy, or
unreliable.
(2) Subject to the
reasonable control of the hearing officer, all parties shall have the right to
cross-examine any witness, including any speaker who gives sworn testimony
pursuant to subsection (t) of this section.
(3) The hearing officer 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 (t) 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 hearing officer, 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
hearing officer'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 hearing officer, 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
hearing officer, an offer of proof may be subject to
cross-examination.
(t)
Speakers
Any
(u)
Failure to appear
(1) If an applicant or declaratory ruling
petitioner fails to appear at a scheduled hearing, the application or petition
shall be deemed withdrawn and any right to a hearing waived. If a respondent to
an order fails to appear at a scheduled hearing, the respondent's answer or
request for hearing filed under subdivision (i) (1) of this section shall be
deemed withdrawn and any right to a hearing waived. The applicant, petitioner,
or respondent may, within no more than 14 days after the scheduled hearing
date, move the hearing officer to reopen the proceeding; the motion shall be
denied unless the movant demonstrates that there was compelling reason for his
failure to appear.
(2) If a
respondent does not appear at a scheduled hearing and does not file a timely
motion to reopen, the order shall become final on the fifteenth day after the
scheduled hearing date. If a respondent does not appear at a scheduled hearing
and files a timely motion to reopen but the motion is denied, the order shall
become final upon the issuance of the denial of the motion.
(3) If a party or intervenor does not appear
at an oral argument scheduled upon his request, such request shall be deemed
withdrawn and any right to oral argument waived. Such party may, within no more
than 14 days after the scheduled oral argument date, move the Commissioner 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 Commissioner may proceed to issue the final decision.
(v)
The record
(1) In addition to the items specified in
section
4-177(d)
of the General Statutes, for the purposes of a Department 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 hearing
officer or Commissioner 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 Department
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 Department proceeding, unless such transcript was prepared by or
through the Office of Adjudications and the sealed original of which
transcript, if not prepared by the Office of Adjudications, was delivered
directly by the transcriber to the Office of Adjudications.
Subpart D-Post-hearing Procedures
(w)
New
evidence
Unless the hearing officer or the
(x)
Post-hearing legal
submissions
The hearing officer 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.
(y)
Proposed
final decisions and final decisions
(1)
After the hearing and the filing of any post-hearing legal submissions, the
hearing officer shall, unless he has been designated by the Commissioner to
issue a final decision, issue a written proposed final decision in accordance
with section
4-179
of the General Statutes. If the hearing officer has been designated to issue a
final decision, he shall do so in writing in accordance with section
4-180
of the General Statutes.
(2) At any
time after issuance of a proposed final decision but before oral argument held
pursuant to subdivision (3) of this subsection, the hearing officer may correct
such decision for clerical errors and for errors of fact or law.
(3)
(A)
Unless otherwise specified by the Commissioner , within 15 days after personal
delivery or mailing of the proposed final decision any party or intervenor may
file with the Commissioner 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 (w) 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 his own initiative, the Commissioner 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 his own initiative, the Commissioner 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 Commissioner rules otherwise,
oral argument shall be limited to the issues raised in timely-filed exceptions.
The Commissioner 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 Commissioner shall issue a written final decision in accordance
with section
4-180
of the General Statutes. In his final decision the Commissioner may affirm,
modify, or reverse the proposed final decision, in whole or in part, or may
remand to the hearing officer for further proceedings, including the taking of
further evidence.
(E) If in a final
decision the Commissioner remands for further proceedings, such proceedings
shall be governed by this section.
(z)
Reconsideration
(1) On motion made or his own initiative, the
Commissioner may reconsider, reverse, modify, or correct a final decision in
accordance with section
4-181a
of the General Statutes. In addition, the Commissioner 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
other compelling reason for opening the final decision.
(2) Any Department proceedings required by a
ruling under subdivision (1) of this subsection shall be conducted in
accordance with this section.
Notes
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