49 Neb. Admin. Code, ch. 2, § 011 - HEARING

Current through December 27, 2021

011.01 Order
011.01A Evidence will be received in the following order:
011.01A1 The Department shall offer into evidence as exhibits copies of the application, notice of hearing, proof of publication of the notice of hearing, proof of payment of the application fee and all protests or other correspondence received pertaining to the application. Said exhibits shall not be offered to prove the truth of any statement contained therein.
011.01A2 Applicant.
011.01A3 Protestants.
011.01A4 Rebuttal by Applicant.
011.01A5 Rebuttal by Protestants.
011.01B A party to the hearing will be allowed to:
011.01B1 Make an opening statement;
011.01B2 Present evidence and argument thereto;
011.01B3 Cross examine witnesses;
011.01B4 Present rebuttal evidence;
011.01B5 Make relevant motions concerning the conduct of the proceedings or the introduction of evidence; and
011.01B6 Make a closing statement.
011.01C A person who has not filed a pleading in accordance with Sections 005 or 007 of this Rule will be given a reasonable period of time to make a statement at the public hearing. The hearing officer shall determine when statements by any such person may be made during the hearing. Such person shall not have any of the authority allowed a party under this Rule. Such person is subject to examination by the parties to the hearing, the Director, representatives of the Department, and the hearing officer.
011.01D The Director or hearing officer may establish time restrictions for the presentation of evidence upon the motion of any party or upon his or her own order.
011.02 Evidence
011.02A In application cases, the Director or hearing officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and may exclude incompetent, irrelevant, immaterial and unduly cumulative or repetitious evidence.
011.02B Any party to an application hearing before the Department may request that the parties be bound by the rules of evidence applicable in district court by delivering to the Department at least three days prior to the holding of the hearing a written request therefore. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services.
011.02C Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.
011.02C1 The foundation for exhibits, including an application submitted pursuant to this Rule shall be supported orally or in writing. Any party desiring to lay foundation to an exhibit by oral testimony shall give written notice to the Department and all other parties at the time the exhibit is submitted pursuant to Section 010.02 of this Rule. An application submitted pursuant to this Rule will be considered as substantive evidence.
011.02C2 Parties shall furnish accurate copies of all documentary evidence offered at the hearing to the Official Reporter, to the Director or hearing officer, and to all parties to the proceeding.
011.02C3 When documents are numerous, such as bank records or negotiable instruments, the Director or hearing officer may refuse to receive in evidence more than a limited number alleged and appearing to be representative. The party will be required to abstract in orderly fashion the relevant data from these documents, affording other parties reasonable opportunity to examine both the documents and the abstract, and thereupon offer the abstract in evidence in exhibit form.
011.02C4 Relevant portions of books, papers or documents shall be plainly designated and distinguished from all irrelevant portions before the relevant material may be offered into evidence. Where the irrelevant material in the book, paper or document is voluminous so as to encumber the record, the book, paper or document may be marked for identification and the relevant material read into the record. Upon direction of the Director or hearing officer, a true copy of the relevant matter may be received as an exhibit, provided that copies are delivered to all parties of record and provided all parties of record are afforded an opportunity to examine the book, paper or document and to offer in evidence in like manner other portions thereof, if found to be material and relevant.
011.02C5 All of the exhibits introduced in evidence shall be confined to a maximum size of 8 1/2 inches x 11 inches or be placed upon paper which may be folded to such size.
011.02C5(1) Enlarged charts of exhibits may be utilized at the hearing but the exhibit to be made a part of the record shall be of such size as heretofore stated.
011.02C6 Exhibits may be sealed upon a determination by the Director or hearing officer that the exhibits contain information which is confidential in nature and which, if made public, could harm any person.
011.02D All evidence including records and documents in the possession of the Department of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case.
011.02D1 The Director or any person or persons designated by the Director may make such investigations as deemed necessary to assist in the determination of matters pending before the Department. Any finding or exhibits resulting from such investigation which the Director uses in making a decision shall be included and become a part of the evidence of such matter.
011.02D2 Any party desiring to introduce into evidence any part or parts of official files of the Department shall obtain certified copies thereof from the Department in advance of the hearing.
011.02E A hearing officer or designee may administer oaths and issue subpoenas in accordance with the rules of civil procedure except as may otherwise be prescribed by law.
011.02F The Department shall give effect to the rules of privilege recognized by law.
011.02G The Department may take administrative notice of cognizable facts and in addition may take administrative notice of general, technical, or scientific facts within its specialized knowledge and its rules adopted and promulgated pursuant to the APA.
011.02G1 Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.
011.02G2 Parties shall be afforded an opportunity to contest facts so noticed.
011.02G3 The record shall contain a written record of every fact or item administratively noticed.
011.02H The Department may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.
011.02I Parties to any proceeding may agree upon any facts involved in the controversy, either by written stipulation entered into the record as an exhibit, or by oral agreement stated on the record; provided, that the Department shall not be irrevocably bound by such stipulation.
011.02J During any proceedings, the Director or hearing officer may request any party to furnish and serve designated late filed exhibits. Such exhibits shall be filed within such time as specified by the Director or hearing officer.
011.02K Any party may appear in his/her own behalf at the hearing. An individual may appear on behalf of a party only if he or she:
011.02K1 Is an officer, director, or shareholder of a party which is the applicant in an application case to which no protest has been filed;
011.02K2 Is admitted to practice law before the Nebraska Supreme Court; or
011.02K3 Is admitted to and engaged in the practice of law in the courts of record of another state, the District of Columbia, or a territory of the United States, and has associated with and is appearing with an attorney who is a resident of Nebraska, duly and regularly admitted to practice in the courts of record of this state, and upon whom service may be had in all matters connected with the action with the same force and effect as if personally made on such foreign attorney within this state, upon the filing of an appropriate pro hac vice motion with the Department.
011.02L The Director, hearing officer, or any person designated by the hearing officer shall administer an oath to all witnesses providing testimony in an administrative case prior to their testimony.
011.02L1 Every party to a contested case shall have the right to cross-examine each witness who testifies at a hearing. Where it appears that the cross-examination by one party will protect the rights of all parties similarly situated, the hearing officer may limit cross-examination to one party on either side of an issue.
011.02L2 A subpoena requiring the attendance of a witness shall be issued by the Director or hearing officer, on good cause shown, for the purpose of taking evidence or compelling the production of any papers, books, accounts, and documents which are relevant and material to the hearing.
011.02L2(a) A party directed to produce accounts, books, documents, or papers shall furnish and deliver the same at the time and place to the person specified in the subpoena.
011.02L2(b) A subpoena issued pursuant to this Rule may be served in any manner permitted by law including service by certified or registered mail, return receipt requested.
011.02L2(c) In the case of disobedience of a subpoena, the Director may invoke the aid of the applicable District Court in requiring the attendance and testimony of witnesses and in the production of accounts, books, documents, or papers.
011.02L2(d) Charges for serving a subpoena are to be paid prior to the date set for hearing by the party at whose instance the subpoena is issued.
011.02L3 Any witness who is subpoenaed and who responds thereto is entitled to the same fee as is paid for like service in the District Courts of Nebraska. Such fee is to be paid by the party at whose instance the witness's testimony is to be taken.
011.02L4 Sequestration of witnesses shall not be permitted in application cases.
011.03 Post hearing submissions
011.03A Submission of briefs may be required, or permitted at the request of a party, by the Director or the hearing officer. The time in which briefs shall be filed and the number of copies required will be fixed at the close of the hearing by the Director or the hearing officer. Briefs submitted to the Department shall be on white paper, 8 ½ x 11 inches, with margins of at least 1 inch on all sides, and shall be double spaced. No brief shall be longer than 25 pages. The Department will not consider any portion of the brief which exceeds the page limitation.
011.03B The hearing officer may request the parties to submit proposed findings of fact and conclusions of law in lieu of, or in addition to, briefs pursuant to Section 011.03A of this Rule. The hearing officer shall establish the time schedule for such filing and any other restrictions that he or she deems appropriate under the circumstances.
011.04 Conducting the hearing by electronic means

The Director or hearing officer may conduct all or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in the entire proceeding while it is taking place.

011.05 Official record
011.05A The Department shall prepare an official record, which shall include testimony and exhibits, in each application case, but it shall not be necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by the Department upon request and tender of the cost of preparation.
011.05B The Department shall maintain an official record of each application case under the APA for at least four years following the date of the final order.
011.05C The Department record shall consist only of the following:
011.05C1 Notices of all proceedings;
011.05C2 The application, and any protest, pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Department pertaining to the application case;
011.05C3 The record of the hearing before the Department, including all exhibits and evidence introduced during such hearing, a statement of matters administratively noticed by the Director or hearing officer during the proceeding, and all proffers of proof and objections and rulings thereon; and
011.05C4 The final order.
011.05D As provided in Section 004.03 of this Rule, the hearing officer or Director, or Department employee who is or may reasonably be expected to be involved in the decision making process of the application case who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that Section shall make the appropriate filings which shall be included in the official record of the application case.
011.05E Except to the extent that the APA or another statute provides otherwise, the Department record shall constitute the exclusive basis for Department action in application cases pursuant to this Rule and for judicial review thereof.
011.05F In proceedings where a record is not required by law, any party may request and obtain an official record of the proceedings, provided said request is in writing and delivered to the Director at least five days prior to the date of hearing. The cost of preparing the official record shall be born by the parties requesting its preparation.
011.06 The costs of the hearing, including, but not limited to, court reporter fees, fees for the Director's time, and fees and expenses of the hearing officer, shall be apportioned by the Department between the parties based upon their proportionate involvement in the hearing, unless a party has requested the rules of evidence under Section 011.02B of this Rule.

Notes

49 Neb. Admin. Code, ch. 2, § 011

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