205 CMR, § 101.03 - Review by the Commission of Decisions of the Hearing Officer

(1) Any decision issued by a hearing officer in accordance with 205 CMR 101.02 may be appealed to the Commission for review. An appeal of the decision shall be filed with the clerk of the Commission on a form provided by the clerk. An appeal shall not operate as a stay of the decision of the hearing officer, unless specifically allowed by the Commission upon motion of the appellant. A request for a stay may be allowed at the Commission's discretion if one or both of the following two circumstances are present:

(a)

1. there is a likelihood that the party seeking the stay will prevail on the merits of the case; and

2. there is a likelihood that the moving party will be harmed irreparably absent a stay.

(b)

1. the consequences of the decision(s) to be made in the case are far-reaching;

2. the immediate impact upon the parties in a novel and complex case is substantial; or

3. a significant legal issue(s) is involved.

(2) In order to be considered by the Commission, the appeal must be filed no later than 30 days from the date the decision was served by the clerk in accordance with 205 CMR 101.02(16).

(3) The appeal shall include:

(a) contact information of the party requesting the appeal;

(b) of counsel representing the party requesting the appeal, if any;

(c) a brief description of the basis for the appeal; and

(d) a copy of the decision of the hearing officer that is the basis for the appeal.

(4) Upon receipt of the appeal by the Commission, the clerk shall docket the request and provide a copy of the administrative record to all parties involved in the matter to be reviewed by the Commission. The record may be provided electronically or via other similar means. The record shall include the decision of the hearing officer, any briefs submitted by the parties, the evidence submitted to the hearing officer and the transcript or audio recording of the adjudicatory hearing before the hearing officer. The record may only be expanded by the Commission upon petition by a party and a showing of good cause as to why the evidence was not included as part of the hearing record.

(5) The clerk shall schedule a date for review by the Commission. The clerk shall request that each party file a brief stating why the decision of the hearing officer should be affirmed, vacated or modified and the relief requested. Issues not raised before the hearing officer shall not be raised in a brief to the Commission. The briefing schedule shall be set by the Commission and shall be staggered to provide the appellee adequate time to address the matters raised in the appellant's brief prior to the scheduled hearing before the Commission. No brief shall be longer than 15 pages. The briefs shall be filed with the clerk. Each party shall serve a copy of its brief on the other party(ies) to the hearing.

(6) The clerk shall provide copies of the briefs and a copy of the written record to the Commission.

(7) A party may request permission to file a brief longer than 15 pages. Such request must be in writing. The clerk shall forward the request to the Commission. It shall be up to the discretion of the Commission as to whether to grant such a request. If the Commission grants a request for additional pages, the clerk shall forward a copy of the Commission's order to all parties to the hearing and all parties shall have the right to file such additional number of pages. Requests to file a brief longer than 15 pages may be granted by an order issued by a single commissioner appointed by the chairman to issue such orders.

(8) All requests for extensions of time to file a brief shall be made in writing to the clerk. The clerk shall forward the request for an extension of time to file a brief to the Commission. It shall be up to the discretion of the Commission as to whether to grant the request for an extension of time to file a brief. If the Commission grants the request for an extension of time to file a brief, the clerk shall forward a copy of the Commission's order to the parties and all parties shall have the extension of time to file a brief. Requests for an extension of time to file a brief may be granted by an order issued by a single commissioner appointed by the chairman to issue such orders.

(9) The Commission's review of the decision of the hearing officer shall be on the administrative record of the hearing conducted by the hearing officer. The Commission, in its sole discretion and upon its own motion, may request oral argument on the request to review the decision of the hearing officer.

(10) When reviewing a decision from the hearing officer, the Commission's determination shall be supported by substantial evidence, unless a different standard is required by M.G.L. c. 23K or M.G.L. c. 128A or M.G.L. c. 128C.

(11) The Commission shall conduct a de novo review of the decision of the hearing officer based upon the administrative record, provided however, that findings made by the hearing officer regarding credibility of witnesses shall be entitled to substantial deference by the Commission. As provided by M.G.L. c. 30A, § 10, such appeal shall comply with M.G.L. c. 30A, § 11(8). The procedures described in M.G.L. c. 30A, § 11(7) shall only apply if, where applicable, a party makes written request to the Commission in advance for a tentative or proposed decision.

(12) The Commission may, in whole or part, affirm the decision of the hearing officer, reverse the decision of the hearing officer, modify the decision of the hearing officer or remand the matter to the hearing officer for further action in accordance with the Commission's decision. Further, the Commission may add any condition reasonably calculated to ensure a person's compliance or faithful performance, to penalize for the violations, and/or to deter future violation including, but not limited to, fines. In making its decision, the Commission may rely on any evidence contained in the administrative record and is not limited to the evidence cited by the hearing officer in support of hearing officer's decision.

(13) The Commission shall issue a written decision as soon as administratively feasible and file it with the clerk. The decision shall advise the parties of their rights to review in accordance with M.G.L c. 23K and M.G.L. 30A, as applicable. The clerk will provide a copy of the Commission's decision to all parties.

Notes

205 CMR, § 101.03

Amended by Mass Register Issue 1289, eff. 6/19/2015. Amended by Mass Register Issue 1369, eff. 7/13/2018. Amended by Mass Register Issue 1409, eff. 1/24/2020.