This General Rule is intended to establish standards for
ethical conduct of hearing officers, and guidelines and oversight for
administrative hearing officers in the Executive Branch. It consists of a Code
of Conduct containing broad statements called Canons, specific rules set forth
in Sections under each Canon; and Agency Procedure Guidelines, Application, and
Terminology Sections. The text of the Canons and the Sections, including the
Application and Terminology Sections, is authoritative.
CODE FOR ADMINISTRATIVE HEARING OFFICERS
Preamble.
The Executive Branch administrative law system is based on
the principle that independent, fair, and competent hearing officers will
interpret and apply applicable laws consistent with American concepts of
justice. Intrinsic to all sections of this Code are the precepts that hearing
officers, individually and collectively, must respect and honor their office as
a public trust and strive to enhance and maintain confidence in the Executive
Branch administrative law system.
This Code is not intended as an exhaustive guide for the
conduct of hearing officers, but describes the standards of professionalism
that every hearing officer should strive to achieve. It does not supersede
state law, collective bargaining agreement, or performance expectations of
management, and should be applied consistent with constitutional requirements,
statutes, administrative rules and decisional law and in the context of all
relevant circumstances.
Except where modified, this Code follows the language of the
Model Code of Judicial Conduct for State Administrative Law Judges developed by
the National Association of Administrative
Law Judiciary.
Canon
1 A Hearing Officer Shall Uphold the Integrity and Independence of
the Administrative Hearing Process.
1-101. A
hearing officer shall participate in establishing, maintaining and enforcing
high standards of conduct and shall personally observe those standards of
conduct so that the integrity and independence of the administrative hearing
process will be preserved. The provisions of this Code should be construed and
applied to further that objective.
Canon 2 A Hearing Officer Shall Avoid
Impropriety and the Appearance of Impropriety in all Activities.
2-101. A hearing officer shall respect and
comply with the law and shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the administrative
process.
2-102. A hearing officer
shall not allow financial interests, or family, social, political or other
relationships to influence the officer's official conduct or judgment. A
hearing officer shall not lend the prestige of the office to advance the
private interests of the hearing officer or others, nor convey or permit others
to convey the impression that they are in a special position of
influence.
Canon 3 A
Hearing Officer Shall Uphold the Integrity and Impartiality of the
Administrative Hearings Process.
3-101.
ADJUDICATIVE RESPONSIBILITIES
A. A hearing
officer shall accord to all persons who are legally interested in a proceeding,
and/ or their representatives, the right to be heard according to law. A
hearing officer shall not initiate, permit or consider ex parte communications
or consider other communications made to the hearing officer outside the
presence of the parties concerning a pending or impending proceeding except
that:
1. Where circumstances require, ex
parte communications for scheduling, administrative purposes or emergencies
that do not involve substantive matters or issues on the merits are authorized,
provided:
i. the hearing officer reasonably
believes that no party will gain a procedural or tactical advantage as a result
of the ex parte communication, and
ii. the hearing officer makes provisions
promptly to notify all other parties of the substance of the ex parte
communication and allows an opportunity to respond.
2. A hearing officer may obtain the advice of
a disinterested expert on the law applicable to the proceeding before the
hearing officer if the hearing officer gives notice to the parties of the
person consulted and the substance of the advice, and affords the parties
reasonable opportunity to respond.
3. A hearing officer may consult other
hearing officers and support personnel whose function is to aid the hearing
officer in carrying out adjudicative responsibilities.
4. A hearing officer may, with the consent of
the parties, confer separately with the parties and their lawyers in an effort
to mediate or settle matters pending before the hearing officer.
5. A hearing officer may initiate or consider
any ex parte communications when expressly authorized by law to do
so.
B. A hearing officer
shall perform official administrative duties without bias or prejudice. A
hearing officer shall not, in the performance of administrative duties, by
words or conduct, manifest bias or prejudice, including but not limited to bias
or prejudice based upon race, sex, religion, national origin, disability, age,
gender, gender identity, sexual orientation or socioeconomic status.
C. A hearing officer shall not be swayed by
partisan interests, public clamor or fear of criticism.
D. A hearing officer shall not disclose or
use, for any purpose unrelated to administrative duties, nonpublic information
acquired in an official capacity.
3-102. DISQUALIFICATION
A. A hearing officer shall disqualify himself
or herself in any proceeding in which the hearing officer's impartiality might
reasonably be questioned, including but not limited to instances where:
1. the hearing officer may have a personal
bias or prejudice concerning a party or a party's lawyer or other
representative involved in the proceeding.
2. the hearing officer served as a
representative in the matter in controversy; or has been a material witness
concerning the matter; or has participated as counsel, adviser or material
witness concerning the proceeding, or expressed an opinion concerning the
merits of the particular case in controversy.
3. the hearing officer, individually or as a
fiduciary, or the hearing officer's spouse, domestic or civil union partner,
minor child, or other member of a hearing officer's household has a more than
de minimis financial interest in the subject matter in controversy or in a
party to the proceeding, or any other interest that could be significantly
affected by the outcome of the proceeding.
4. the hearing officer or the hearing
officer's spouse, domestic or civil union partner, minor child, or other member
of a hearing officer's household is a party to the proceeding or acting as a
representative in the proceeding, or is known by the hearing officer to have an
interest that could be substantially affected by the outcome of the
proceeding.
B. Hearing
officers should be aware of their personal and fiduciary financial interests,
and make a reasonable effort to keep informed about the personal financial
interests of their spouse and minor children residing in the hearing officers'
households. The burden is on the hearing officer to be aware of actual,
potential or the appearance situations that could compromise their
impartiality.
C. A hearing officer
is not required to withdraw from a proceeding if the hearing officer's
impartiality is challenged solely on the basis that the hearing officer is
employed by an agency or department that is appearing in the
proceeding.
3-103.
DISCLOSURE AND REMITTAL OF DISQUALIFICATION
A hearing officer has an obligation to recuse himself or
herself from a proceeding if a conflict as described in 3-102 exists.
Alternatively, instead of withdrawing from the proceeding, a hearing officer
may disclose to the parties on the record the basis of the conflict. If,
following disclosure of any basis for disqualification, the parties and
representatives, independently of the hearing officer's participation, all
agree that the hearing officer should not be disqualified, and the hearing
officer is willing, the hearing officer may participate in the proceeding. The
agreement shall be incorporated in the record of the proceeding.
Canon 4 A Hearing Officer
Shall Regulate the Officer's Extra-Administrative Activities to Minimize the
Risk of Conflict with Administrative Duties
4-101. EXTRA-ADMINISTRATIVE ACTIVITIES IN
GENERAL
A. A hearing officer is prohibited
from engaging in outside employment or activities which cause a conflict of
interest, a lack of impartiality, or the perception thereof.
B. A hearing officer may participate in civic
and charitable activities that do not reflect -adversely upon impartiality or
interfere with the performance of administrative duties. A hearing officer may
serve as an officer, director, trustee or advisor of an educational, religious,
charitable, fraternal or civic organization not conducted for the economic or
political advantage of its members, subject to the following limitations:
1. A hearing officer should not serve if it
is likely that the organization will be engaged in proceedings that would
ordinarily come before the hearing officer or will be regularly engaged in
adversary proceedings before any agency in which the hearing officer
serves.
2. A hearing officer should
not use or permit the use of the prestige of the hearing officer's office for
the purpose of soliciting funds for any educational, religious, charitable,
fraternal or civic organization, but the hearing officer may be listed as an
officer, director or trustee of such an organization.
4-102. FINANCIAL ACTIVITIES
A. A hearing officer shall refrain from
financial and business dealings that tend to reflect adversely on impartiality,
interfere with the proper performance of administrative duties, or may
reasonably be perceived to exploit the hearing officer's official
position.
B. A hearing officer
shall not accept, and shall urge members of the hearing officer's family
residing in the hearing officer's household not to accept, a gift, bequest,
favor, or loan from any person or entity that has interests that may be
substantially affected by the performance of the hearing officer's official
duties. This prohibition does not include:
1.
ordinary social hospitality;
2. a
gift, bequest, favor, or loan from a relative or close personal friend, if the
gift, bequest, favor, or loan is fairly commensurate with the occasion and the
relationship;
3. a loan from a
lending institution in its regular course of business on the same terms
generally available to persons who are not hearing officers, or a scholarship
or fellowship awarded on the same terms applied to other applicants;
or
4. any other gift, bequest,
favor or loan only if the donor is not a party or other person whose interests
have come or are likely to come before the hearing officer, or the gift is
otherwise consistent with relevant agency rules and is reported to the extent
required by such rules and other applicable laws.
4-103. FIDUCIARY ACTIVITIES.
A hearing officer shall not serve as an executor,
administrator, trustee, guardian or other fiduciary if such service will
interfere with the proper performance of administrative duties, or if it is
likely that as a fiduciary the hearing officer will be engaged in proceedings
that would ordinarily come before the hearing officer, or if the estate, trust,
or ward becomes involved in adversary proceedings in an agency in which the
hearing officer serves or one under its appellate jurisdiction. While acting as
a fiduciary, a hearing officer is subject to the same restrictions on financial
activities that apply to the hearing officer in the hearing officer's personal
capacity.
Agency Procedure Guidelines.
5-101. All State departments/agencies that
employ a hearing officer to whom the above Code of Conduct applies shall make
this Code readily accessible to the public and to parties in proceedings
presided over by a hearing officer.
5-102. All State departments/agencies that
employ a hearing officer to whom the above Code of Conduct applies shall
designate procedures for the receipt, consideration, and determination of
complaints about the conduct of hearing officers, and these procedures shall be
provided to all parties in a proceeding presided over by a hearing officer.
Such procedures shall allow for the filing of hearing officer conduct
complaints with the head of the relevant agency, board, or tribunal, and shall
provide a review process with agency counsel not appearing before the hearing
officer in question.
5-103. All
State departments/agencies that employ a hearing officer to whom the above Code
of Conduct applies shall ensure that all parties in a proceeding presided over
by a hearing officer are provided with a copy of the rules of procedure that
apply to the proceedings. The rules of procedure shall prominently and
specifically describe any appeal rights a party has and the procedure for
filing an appeal.
Application.
6-101. Any full-time employee of the
Executive Branch of the State of Vermont whose exclusive job duty is to resolve
contested cases when a decision of an Executive Branch agency is challenged
shall abide by this Rule.
6-102.
This Rule shall take effect July 1, 2017. All persons to whom this Rule becomes
applicable should arrange his or her affairs as soon as reasonably possible to
comply with it.
Terminology.
7-101. For the purposes of this Code, the
following words or phrases shall have the following meanings:
A. "De minimis" denotes an insignificant
interest that could not raise reasonable question as to a hearing officer's
impartiality.
C. "Fiduciary"
includes such relationships as executor, administrator, trustee and
guardian.
D. "Financial interest"
means ownership of more than a de minimis legal or equitable interest, however
small, or a relationship as director, advisor or other active participant in
the affairs of a party, except that:
1.
ownership of government securities or in a mutual or common investment fund
that holds securities is not a "financial interest" in such securities unless
the hearing officer participates in the management of the fund, or a proceeding
pending or impending before the hearing officer could substantially affect the
value of the interest; and
2. a
deposit in a financial institution, the proprietary interest of a policy holder
in a mutual insurance company, or a similar proprietary interest, is not a
financial interest in the organization unless a proceeding pending or impending
before the hearing officer could substantially affect the value of the
interest.
E. "Hearing
officer" refers to a person with the authority to make a ruling when the final
decision of an Executive Branch agency is challenged. A hearing officer is
charged with articulating agency policy and determining whether it was followed
when the agency made the decision being challenged. Similar to a judge, a
hearing officer listens to testimony, evaluates evidence, and makes a decision
in the matter. A hearing officer is also sometimes referred to as a referee,
presiding officer, or administrative law judge.
F. "Law" denotes statutes, administrative
rules and regulations, constitutional provisions, and decisional law.
G. "Nonpublic information" denotes
information that, by law, is not available to the public. Nonpublic information
may include but is not limited to: information that is sealed by statute or
court order, impounded or communicated in camera; and information offered in
grand jury proceedings, presentencing reports, juvenile cases or psychiatric
reports.
H. "Proceeding" includes
pre-hearing or other stages of the administrative hearing process.
