06-096 C.M.R. ch. 534, § 15 - General Conduct of Hearings

A. Opening statement. The Presiding Officer will open the hearing by describing in general terms the purpose of and general procedure for the hearing and by reading the notice of the alleged violation.

B. Issues resolved at the hearing. The issues at the hearing will be limited to those outlined in the applicable statute, rule, order, or Certification and will be stated for the record by the Presiding Officer at the beginning of the hearing.

C. Hearings recorded. All hearings will be recorded in a form susceptible to transcription. The Department will transcribe the recording upon the filing of an appeal.

D. Ex parte communication. The Presiding Officer may not communicate directly or indirectly in connection with any issue of fact, law, or procedure with any party or other persons legally interested in the outcome of the proceeding, except upon notice and opportunity for all parties to participate.

(1) A Presiding Officer may:

a. Communicate in any respect with other members of the agency or other presiding officers; or

b. Have the aid or advice of those members of the Department staff, counsel or consultants retained by the agency who have not participated and will not participate in the proceeding in an advocate capacity.

E. Presentation of evidence; official notice.

(1) Relevancy. Evidence will be admitted if it is relevant and material to the subject matter of the hearing and is of a kind upon which reasonable persons are accustomed to rely on in the conduct of serious affairs. Evidence that is irrelevant, immaterial, or unduly repetitious may be excluded. The Department's experience, technical expertise, and specialized knowledge may be utilized in the evaluation of all evidence.

(2) Privileges. The rules of evidence observed by courts do not apply; however, the rules of privilege recognized by law will be observed.

(3) Official notice. Official notice may be taken of any facts of which judicial notice could be taken; of any general, technical, or scientific matters within the Department's specialized knowledge; and of statutes, regulations, and non-confidential agency records. Parties will be notified of material so noticed and will be afforded an opportunity to contest the substance or materiality of the matters noticed. Facts officially noticed will be included and indicated as such in the record.

(4) Documentary evidence. All documents, materials, and objects offered into evidence as exhibits must be uniquely numbered or otherwise identified. Documentary evidence may be received in the form of copies and excerpts if the original is not readily available. Exhibits submitted in electronic format typically must be accompanied by a paper copy of the content unless the Presiding Officer determines that a paper copy is not needed or is impractical. The Presiding Officer will prescribe the number of copies of exhibits required. Where an exhibit is not easily reproduced due to its form, size, or character, the Presiding Officer may allow copies to be provided in alternate formats.

(5) Pre-hearing objections. Objections to evidence submitted prior to the hearing must be made within ten (10) working days of service of the evidence on the objecting party, unless otherwise specified by the Presiding Officer.

(6) Offer of proof. An offer of proof will be allowed in connection with an objection to any testimony, evidence, or question of a witness. Such offer of proof must consist of a summary statement of the substance of the proffered evidence or that which is expected to be shown by the answer of the witness. Comment or argument by any party will be allowed on the offer of proof.

F. Testimony and questions.

(1) Testimony will be received in the following order:

a. Direct Testimony:

i. Department staff and Consultants;

ii. Other Departmental Witnesses;

iii. Operator or Representative;

iv. Operator's Witnesses;

v. Intervenors, if approved to provide testimony; and

vi. Intervenors' witnesses, if intervenors are approved to provide witnesses.

b. Cross Examination and additional questioning. At the conclusion of the direct testimony of each witness, the questioning of witnesses will be in the following order:

i. The Department;

ii. The Operator or Representative;

iii. Intervenors, if approved to question witnesses;

iv. The Department, Operator, or intervenors that have been approved to question witnesses may request to question a witness related to information provided during cross examination.

G. Objections during hearing. All objections to rulings made by the Presiding Officer during the course of the hearing regarding evidence or procedure and the grounds therefore must be timely made during the course of the hearing. Only objections made to Presiding Officer rulings pursuant to their authority in section 14(C)(1)-(5) are appealable to the Commissioner.

H. Record.

(1) The Presiding Officer will make a record consisting of:

a. All applications, filings, motions, preliminary and interlocutory rulings and orders;

b. Evidence received or considered;

c. A statement of any facts or documents officially noticed;

d. Offers of proof, objections and rulings thereon;

e. Proposed findings and exceptions, if any;

f. Staff memoranda, excluding memoranda of counsel to the agency;

g. The draft decision by the Presiding Officer;

h. Comments received relating to the draft decision; and

i. The Commissioner or designee's final order.

(2) Copies of recordings, any made transcriptions of recordings, and copies of the full record will be available to any person at actual cost. Affected parties may object to the release of confidential, proprietary, or otherwise protected material or information pursuant to 5 M.R.S. §9057(6).

Notes

06-096 C.M.R. ch. 534, § 15