SUBPART A
GENERAL PROVISIONS
AUTHORITY: The provisions of this part are issued under 21
VSA Section 230.
2200.1 Definitions.
(a) Act means the Occupational Safety and
Health Act of 1970, 29 U. S. C.
651-
678.
(b) Affected Employee means an employee of a
cited employer who is exposed to or has access to the hazard arising out of the
allegedly violative circumstances, conditions, practices, or
operations.
(c) Authorized Employee
Representative means a labor organization that has a collective bargaining
relationship with the cited employer and that represents affected employees who
are members of the collective bargaining unit.
(d) Citation means a written communication
issued by the Commissioner of Labor to an employer pursuant to 21 VSA Section
225 describing the nature of the alleged violation of the VOSHA Code together
with the date by which the alleged violation is to be abated.
(e) Clerk means the Clerk of the Review
Board.
(f) Commissioner means the
Commissioner of Labor or designee.
(g) Day means a calendar day.
(h) "Electronic transmission" or
"electronically transmitted" means a process of communication not directly
involving the physical transfer of paper that is suitable for the retention,
retrieval, and reproduction of information by the recipients. Facsimile
transmission is not considered an electronic transmission.
(i) Employee, Employer, and Person have
meanings set forth in 21 VSA § 203.
(j) Hearing Officer means a Hearing Officer
appointed by the Review Board set forth in 21 VSA § 230.
(k) Intervenor means anyone with an interest
in a given Review Board proceeding who is not a party and has been granted
intervenor status.
(l) Notification
of proposed penalty and Notification of failure to correct a violation mean
written communications from the Commissioner issued pursuant to 21 VSA Section
225 and 226.
(m) Party means any
department, employer and employee affected by a citation(s) issued by the
Commissioner of Labor and any authorized representative who has entered an
appearance in the matter.
(n)
Pleadings are complaints and answers filed under § 2200.34, statements of
reasons and employers' responses filed under § 2200.38, and petitions for
modification of abatement and objecting parties' responses filed under §
2200.37. A motion is not a pleading within the meaning of these
rules.
(o) Proceeding means any
proceeding before the Review Board or its Hearing Officer initiated under 21
VSA Section 226.
(p) Pro Se means
any party representing themselves.
(q) Representative means any person,
including an authorized employee representative, authorized by a party or
intervenor to represent it in a proceeding.
(r) Review Board means the Occupational
Safety and Health Review Board as created under 21 VSA 230.
(s) Rule means a rule or
regulation.
(t) VOSHA Code means
the Vermont Occupational Safety and Health Act, 21 VSA, Chapter 3, Subchapters
4 and 5, and 18 V.S.A. chapter 28, and the rules adopted thereunder.
2200.2 Scope of Rules;
Applicability of Vermont Rules of Civil Procedure and Vermont Administrative
Procedures Act; and Construction.
(a) Scope.
These rules shall govern all proceedings before the Review Board and its
Hearing Officers.
(b) Applicability
of Vermont Rules of Civil Procedure and Vermont Administrative Procedures Act.
In the absence of a specific provision, procedure shall be in accordance with
the Vermont Rules of Civil Procedure and Vermont Administrative Procedures
Act.
(c) Construction. These rules
shall be construed to secure an expeditious, just, and inexpensive
determination of every case.
2200.3 Use of Gender and Number.
(a) Number. Words importing the singular
number may extend and be applied to the plural and vice versa.
(b) Gender. Words importing the masculine,
feminine or neutral gender may be applied equally to all genders.
2200.4 Computing Time.
(a) Computation. The following rules apply in
computing any time period specified in these rules or by any order that does
not specify a method of computing time.
(1)
Period
stated in days or longer unit. When the period is
stated in days or a longer unit of time.
(i) Exclude the day of the event that
triggers the period;
(ii) Count
every day, including intermediate Saturdays, Sundays, and legal holidays;
and
(iii) Include the last day of
the period, but if the last day is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday.
(2) Inaccessibility of the Review Board
Office. Unless ordered otherwise if the Review Board office is closed, or
otherwise inaccessible on the last day for filing due to inclement weather or
other circumstance, then the time for filing is extended to the first day the
office is open that is not a Saturday, Sunday, or legal holiday.
(3) "Last day" defined. Unless a different
time is set by a rule or order, the last day ends:
(i) Filings through electronic transmission:
11:59 p.m. Eastern Standard Time; and
(ii) Filing by other means when the Review
Board office is scheduled to close.
(4) "Next day" defined. The "next day" is
determined by continuing to count forward when the period is measured after an
event and backward when measured before an event.
(5) "Legal holiday" defined. "Legal holiday"
means:
(i) Any day declared a holiday by the
President or Congress of the United States; and
(ii) Any day declared a holiday by the
State of Vermont.
(b) Additional time after service by U.S.
Mail. When a party may or must act within a specified time after service and
service is made by U.S. Mail under § 2200.7, three (3) days are added
after the period would otherwise expire under § 2200.4. Provided, however,
that this provision does not apply to computing the time for filing a petition
for discretionary review under § 2200.91.
2200.5 Extension of Time.
The Review Board or the Hearing Officer, after being assigned
to a case, on their own initiative or, upon motion of a party, for good cause
shown, may enlarge or shorten any time prescribed by these rules or prescribed
by an order. All such motions shall be in writing and shall conform with §
2200.40, but, in exigent circumstances in a case pending before a Hearing
Officer, an oral request may be made and shall be followed by a written motion
filed with the Hearing Officer within such time as the Hearing Officer
prescribes. A request for an extension of time should be received in advance of
the date on which the pleading or document is due to be filed. However, in
exigent circumstances, an extension of time may be granted even though the
request was filed after the designated time for filing has expired. In such
circumstances, the party requesting the extension must show, in writing, the
reasons for the party's failure to make the request before the time prescribed
for the filing had expired. The motion may be acted upon before the time for
response has expired.
2200.6
Record Address.
(a) Every pleading or document
filed by any party or intervenor shall contain the name, current address,
telephone number, and email address of the party or intervenor's representative
or, if there is no representative, the party or intervenor's own name, current
address, telephone number, and e-mail address. Any change in such information
must be communicated promptly in writing to the Clerk and to all other parties
and intervenors. A party or intervenor who fails to furnish such information
shall be deemed to have waived their right to notice and service under these
rules until such time as the required information is provided to the
Clerk.
(b) Representatives,
Parties, and Intervenors who file case documents electronically pursuant to
§ 2200.8 are responsible for both maintaining a valid email address and
regularly monitoring that email address.
2200.7 Service, Notice, and Posting.
(a) When service is required. At the time of
filing pleadings or other documents, the filer shall serve a copy on every
other party or intervenor. Every order required by its terms to be served shall
be served on all parties and intervenors.
(b) Service on represented parties or
intervenors. Service upon either a party or intervenor, who has appeared
through a representative, shall be made upon such representative unless the
Review Board or the Hearing Officer, after being assigned to a case, orders
service on the party or intervenor.
(c) How accomplished. Unless otherwise
ordered, service may be accomplished by the following methods:
(1) U.S. Mail. Service shall be deemed
accomplished upon depositing the item in the U.S. Mail with first-class or
higher class (such as priority mail) postage pre-paid addressed to the
recipient's record address provided pursuant to § 2200.6.
(2) Commercial or other personal delivery.
Service shall be deemed accomplished upon delivery to the recipient's record
address provided pursuant to § 2200.6.
(3) Facsimile transmission. Service by
facsimile transmission shall be deemed accomplished upon delivery to the
receiving facsimile machine. The party serving a document by facsimile is
responsible for the successful transmission and legibility of documents
intended to be served.
(4)
State of Vermont Interoffice Mail. Service by any interoffice mail
system used by the State of Vermont shall be deemed accomplished
by receipt by the Review Board Office.
(5) Electronic Transmission. Documents may be
served by electronic transmission (Examples include but are not limited to
e-mail) if the sending and receiving parties agree to it in a writing, filed
with the Review Board and specifies the type of electronic transmission to be
used. For documents filed by electronic transmission, service shall be deemed
accomplished by the simultaneous service of the document through electronic
transmission on all other parties and intervenors in the case, together with
proof of service pursuant to paragraph (d) of this section.
(d) Proof of service. Service
shall be documented by a written certificate of service setting forth the date
and manner of service. The certificate of service shall be filed with the
pleading or document.
(e) Proof of
posting. Where service is accomplished by posting set forth in paragraph (g)
and (i) of this section, proof of such posting shall be filed with the Review
Board Clerk not later than the first working day following the
posting.
(f) Service on represented
employees. Service and notice to employees represented by an authorized
employee representative shall be deemed accomplished by serving the
representative in a manner prescribed in paragraph (c) of this
section.
(g) Service on
unrepresented employees. In the event there are affected employees who are not
represented by an authorized employee representative, the employer shall post,
immediately upon receipt, the docketing notice for the notice of contest or
petition for modification of the abatement period. The posting shall be at or
near where the citation is required to be posted pursuant to 21 VSA 225(b) and
29 CFR §
1903.16. The employer shall post:
(1) A copy of the notice of contest or
petition for modification of the abatement period;
(2) A notice informing the affected employees
of their right to party status; and
(3) A notice informing the affected employees
of the availability of all pleadings for inspection and copying at reasonable
times.
(4) A notice in the
following form shall be deemed to comply with this paragraph:
(i) (Name of Employer)
Your employer has been cited by the Vermont Commissioner of
Labor for violation of the Vermont Occupational Safety and Health Act. The
citation has been contested and will be the subject of a hearing before the
VOSHA Review Board (Review Board). Affected employees are entitled to
participate in this hearing as parties under terms and conditions established
by the Review Board in its Rules of Procedure. Notice of intent to participate
must be filed no later than 14 days before the hearing. Any notice of intent to
participate should be sent to the current VOSHA Review Board mailing address or
delivery to the current VOSHA Review Board physical address. All pleadings
relevant to this matter may be inspected at: (Place reasonably convenient to
employees, preferably at or near workplace.)
(ii) Where appropriate, the second sentence
of the above notice will be deleted, and the following sentence will be
substituted:
The reasonableness of the period prescribed by the
Commissioner for abatement of the violation has been contested and will be the
subject of a hearing before the Review Board.
(h) Special service requirements;
Authorized employee representatives. The authorized employee representative, if
any, shall be served with the notice set forth in paragraph (f) of this section
and with a copy of the notice of contest or petition for modification of the
abatement period.
(i) Notice of
hearing to unrepresented employees. Immediately upon receipt, a copy of the
notice of the hearing to be held before the Hearing Officer shall be served by
the employer on affected employees who are not represented by an authorized
employee representative by posting a copy of the notice of such hearing at or
near the place where the citation is required to be posted pursuant to 21 VSA
225(b) and 29 CFR §
1903.16.
(j) Notice of hearing to represented
employees. Immediately upon receipt of the notice of the hearing to be held
before the Hearing Officer, the employer shall serve a copy of the notice on
the authorized employee representative of affected employees in the manner
prescribed in paragraph (c) of this section. The employer need not serve the
notice of hearing, as stated above, if on or before the date the
hearing notice is received, the authorized employee representative has entered
an appearance in conformance with § 2200.22 and § 2200.23.
(k) Employee contest; Service on other
employees.
(1) Where a notice of contest with
respect to the reasonableness of the abatement period is filed under §
2200.38 by an affected employee who is not represented by an authorized
employee representative and there are other affected employees who are
represented by an authorized employee representative, the unrepresented
affected employee shall serve the following documents on the authorized
employee representative:
(i) The notice of
contest with respect to the reasonableness of the abatement period;
and
(ii) A copy of the
Commissioner's statement of reasons, filed in conformance with §
2200.38.
(2) Service on
the authorized employee representative shall be in the manner prescribed in
paragraph (c) of this section. The unrepresented affected employee shall file
proof of such service.
(l) Employee contest; Service on employer.
Where a notice of contest with respect to the reasonableness of the abatement
period is filed by an affected employee or an authorized employee
representative, a copy of the notice of contest and response filed in support
of the notice of contest shall be provided to the employer for posting in the
manner prescribed in paragraph (g) and (i) of this section.
(m) Employee contest ; Service on other
authorized employee representatives. An authorized employee representative who
files a notice of contest with respect to the reasonableness of the abatement
period shall be responsible for serving any other authorized employee
representative whose members are affected employees in the manner prescribed in
paragraph (c) of this section.
(n)
Duration of posting. Where posting is required by this section, such posting
shall be maintained until the commencement of the hearing or until earlier
disposition.
(o) Service of show
cause orders.
(1) Service on parties and
intervenors through electronic transmission (if elected). Service of show cause
orders shall be deemed completed by service through electronic transmission on
a representative who has entered an appearance for a party or intervenor under
§ 2200.23 or on a self-represented party or intervenor who has elected
service through electronic transmission. See also § 2200.101.
(2) Service on self-represented parties or
intervenors not using electronic transmission. In addition to the service
methods permitted by § 2200.7, the Review Board or the Hearing Officer
shall serve a show cause order on a party or intervenor who is self-represented
and is not using electronic transmission by certified mail or by any other
method (including commercial delivery service) that provides confirmation of
delivery to the addressee's record address provided under §
2200.6.
2200.8
Filing.
(a) What to file:
(1) General. All documents required to be
served on a party or intervenor shall be filed either before service or within
a reasonable time after service.
(2) Discovery documents. Discovery documents
generated pursuant to § 2200.52 through 2200.54 shall not be filed with
the Review Board. Filing and retention of such discovery documents shall comply
with § 2200.52.
(b)
Where to file. Unless provided otherwise, all documents shall be filed with the
Review Board Clerk either by First Class Mail to the current Review Board's
mailing address, by delivery to the current Review Board's physical address,
through electronic transmission to the current Review Board Clerk's email
address, or by facsimile transmission to the current Review Board's facsimile
number. After the assignment of a Hearing Officer, all documents and pleadings
will be forwarded immediately to the Hearing Officer by the Clerk.
(c) Filing Methods:
(1) How to file. Documents may be filed by
postage-prepaid first class or higher class U.S. Mail, commercial delivery
service, personal delivery, electronic transmission as set forth in (d) of this
section, State of Vermont Interoffice Mail, or facsimile
transmission.
(2) Number of copies.
Unless otherwise ordered or stated in this part, only the original
of a document shall be filed.
(3)
Filing date.
(i) Except for the documents
listed in paragraph (c)(3)(ii) of this section, if filing is by U.S. first
class mail or higher class mail, then filing is deemed completed upon
depositing the material in the U.S. Mail. If filing is by any other means
(e.g., personal delivery, commercial delivery service, electronic or facsimile
transmission or State of Vermont interoffice mail) then filing is
deemed completed upon receipt by the Review Board.
(ii) Filing is completed upon receipt by the
Review Board for petitions for interlocutory review ( § 2200.73), and
petitions for discretionary review § 2200.91.
(iii) Representatives and self-represented
parties and intervenors bear the sole responsibility for ensuring that a filing
is timely made.
(4)
Certificate of service. A certificate of service shall accompany each document
filed. The certificate shall set forth the dates and manner of filing and
service.
(5) Sensitive information.
Unless the Review Board or the Hearing Officer orders otherwise, in any filing
with the Review Board, information that is sensitive (e.g., Social Security
numbers, driver's license numbers, passport numbers, taxpayer- identification
numbers, birthdates, mother's maiden names, names of minors, an individual's
physical personal address, financial account numbers) but not privileged shall
be redacted. Parties shall exercise caution when filing medical records,
medical treatment records, medical diagnosis records, employment history, and
individual financial information, and shall redact or exclude materials
unnecessary to the case.
(6)
Privileged information. Claims regarding privileged information shall comply
with § 2200.52.
(d)
Electronic Filing With the Review Board.
(1)
Documents may be filed with the Review Board by electronic transmission,
including but are not limited to e-mail.
(2) If technical difficulties prevent the
successful submission of electronically transmitted documents, the filer should
contact the Review Board Clerk.
(3)
Documents filed through electronic transmission may contain an electronic
signature of the filer which will have the same legal effect, validity, and
enforceability as if signed manually. The term "electronic signature" means an
electronic symbol or process attached to or logically associated with a contact
or other record and executed or adopted by a person with the intent to sign the
document.
(4) Confidential and
privileged documents. The following documents must not be filed through
electronic transmission:
(i) Documents that
may not be released to the public because the information is covered by a
protective order or has been placed "under seal" pursuant to §
2200.52.
(ii) Documents submitted
for in camera inspection by the Review Board or the Hearing Officer, including
material for which a privilege is claimed. Claims regarding privileged
information must comply with § 2200.52.
(iii) Confidential settlement documents filed
with the Hearing Officer pursuant to settlement procedures pursuant to §
2200.120.
(iv) Applications for
subpoenas made ex parte pursuant to § 2200.65.
(5) Sensitive information. Unless the Review
Board or the Hearing Officer orders otherwise, all sensitive information in
documents filed through electronic transmission must be redacted pursuant to
paragraph (c)(5) of this section.
(6) Date of filing. The date of filing for
documents filed through electronic transmission is the day that the complete
document is successfully received by the Review Board.
(7) Timeliness. Representatives and
self-represented parties and intervenors bear the sole responsibility for
ensuring that a filing is timely made.
(8) Certificate of service. Proof of service
shall accompany each document filed through electronic transmission. The
certificate of service shall certify simultaneous service of the document by
email on all other parties and intervenors in the case. It is the
responsibility of the filing party to retain records showing the date of
transmission, including receipts.
2200.9 Consolidation.
Cases may be consolidated on the motion of any party
conforming to § 2200.40, on the Hearing Officer's own motion after being
assigned the case, or on the Review Board's own motion, where there exist
common parties, common questions of law or facts or in such other circumstances
as justice or the administration of the VOSHA Code require.
2200.10 Severance.
Upon its own motion, or upon motion of any party or
intervenor conforming to § 2200.40, where a showing of good cause has been
made by the party or intervenor, the Review Board or the Hearing Officer, after
being assigned the case, may order any proceeding severed with respect to some
or all claims or parties.
2200.11 [Reserved].
2200.12 References to Cases.
(a) Citing decisions by the Review Board and
Hearing Officers, Administrative Law Judges and Occupational Safety and Health
Review Commission (OSHRC):
(1) Generally.
Parties citing decisions by the Review Board and OSHRC cases should include in
the citation the name of the employer, the docket number, the year of the
decision.
(i) ABC Roofing, Co., Inc., VOSHA
Review Board, Docket number VRB1067, finding 27(if applicable), page 5 (Hearing
Officer Landerson, December 4, 2018).
(ii) ABC Roofing, Co., Inc., VOSHA Review
Board, Docket numberVRB1067, p. #7 (Board Review, September 20,
2019).
(iii) Hackensack Steel
Corp., 20 BNA OSHC 1387, 1388 (No. 97-0755, 2003).
(b) References to court decisions.
(1) Citation to court decisions should be to
the official reporter whenever possible. For example,
(i) Commissioner of Labor v. Lotus Films,
LTD, 206 A.3d 1260, 1262, 2019 VT 2, ? 4 (Vt., 2019).
(ii) W.G. Yates & Sons Constr. Co. v.
OSHRC, 459 F.3d
604, 608-09 (5th Cir. 2006).
(iii) Martin v. OSHRC (CF & I Steel
Corp.), 499 U.S.
144, 150-51 (1991).
(2) Name of employer to be indicated. When a
court decision is cited in which the first- listed party on each side is either
the
Secretary of Labor (or the name of a particular
Secretary of Labor), the Commission, or a labor union, the
citation should include in parenthesis the name of the employer in the Review
Board proceeding. For example, Donovan v. Allied Industrial Workers (Archer
Daniels Midland Co.), 760 F.2d
783 (7th Cir. 1985); Donovan v. OSHRC (Mobil Oil
Corp.), 713 F. 2d
918 (2d Cir. 1983).
SUBPART B PARTIES AND
REPRESENTATIVES
2200.20 Party Status
(a) Affected employees.
(1) Affected employees and authorized
employee representatives may elect party status concerning any matter in which
the Act confers a right to participate. The election shall be accomplished by
filing a written notice of election at least 30 days before the hearing. A
notice of election filed less than 30 days prior to the hearing is ineffective
unless good cause is shown for not timely filing the notice.
(2) A notice of election shall be served on
all other parties in accordance with § 2200.7.
(b) Employees no longer employed by cited
employer. An employee of a cited employer who was exposed to or had access to
the hazard arising out of the allegedly violative circumstances, conditions,
practices, or operations and who is no longer employed by the cited employer is
permitted to participate as a party.
(c) Employee contest.
(1) Where a notice of contest is filed by an
employee or by an authorized employee representative with respect to the
reasonableness of the period for abatement of a violation, the employer charged
with the responsibility of abating the violation may elect party status by a
notice filed at least 14 days before the hearing.
(2) A notice of election shall be served on
all other parties in accordance with § 2200.7.
2200.21 Intervention; Appearance
by Non-parties.
(a) When Allowed. A petition
for leave to intervene may be filed at any time prior to 30 days before
commencement of the hearing, unless good cause is shown for not timely filing
the notice. A petition filed less than 30 days prior to the commencement of the
hearing will be denied unless good cause is shown for not timely filing the
petition. A petition shall be served on all parties in accordance with §
2200.7.
(b) Requirements of
petition.
(1) The petition shall set forth the
interest of the petitioner in the proceeding and show that the participation of
the petitioner will assist in the determination of the issues in question and
that the intervention will not unduly delay the proceeding.
(2) If the petitioner is an employee who is
not employed by the cited employer but who performed work at the cited
worksite, the petition, in addition to the requirements of paragraph (b)(1) of
this section, shall set forth material facts sufficient to demonstrate that the
petitioner was exposed to or has access to the hazard arising out of the
allegedly violative circumstances, conditions, practices, or
operations.
(c) Ruling
on petition.
(1) For petitions filed by an
employee, as defined in paragraph (b)(2) of this section, the Review Board or
the Hearing Officer, after being assigned a case, shall grant the petition for
intervention.
(2) For all other
petitions, the Review Board or the Hearing Officer, after being assigned a
case, may grant a petition for intervention that meets the requirements of
paragraph (b)(1) of this section.
(3) An order granting a petition shall
specify the extent and terms of an intervenor's participation in the
proceedings.
2200.22 Representation of Parties and
Intervenors.
(a) Representation. Any party or
intervenor may appear in person, through an attorney, or through any
non-attorney representative. A representative must file an appearance in
accordance with § 2200.23. In the absence of an appearance by a
representative, a party or intervenor will be deemed to appear for itself. A
corporation, limited liability company, any partnership, unincorporated
association or any other business entity may be represented by an authorized
officer or agent.
(b) Affected
employees in collective bargaining unit. Where an authorized employee
representative (see § 2200.1) elects to participate as a party, affected
employees who are members of the collective bargaining unit may not separately
elect party status. If the authorized employee representative does not elect
party status, affected employees who are members of the collective bargaining
unit may elect party status in the same manner as affected employees who are
not members of the collective bargaining unit. See paragraph (c) of this
section.
(c) Affected employees not
in collective bargaining unit. Affected employees who are not members of a
collective bargaining unit may elect party status under § 2200.20. If more
than one employee so elects, the Hearing Officer, in the Hearing Officer's sole
discretion, may provide for them to be treated as one party.
(d) Control of proceeding. A representative
of a party or intervenor shall be deemed to control all matters respecting the
interest of such party or intervenor in the proceeding.
2200.23 Appearances and Withdrawals.
(a) Entry of appearance:
(1) General. A representative of a party or
intervenor shall enter an appearance by signing the first document filed on
behalf of the party or intervenor in accordance with paragraph (a)(2) of this
section or subsequently by filing an entry of appearance in accordance with
paragraph (a)(3) of this section.
(2) Appearance in first document or pleading.
If the first document filed on behalf of a party or intervenor is signed by a
representative, the representative shall be recognized as representing that
party. No separate entry of appearance by the representative is necessary,
provided the document contains the information required by §
2200.6.
(3) Subsequent appearance.
Where a representative has not previously appeared on behalf of a party or
intervenor, the representative shall file an entry of appearance with the
Clerk. The entry of appearance shall be signed by the representative and
contain the information required by § 2200.6.
(b) Withdrawal of Counsel. Any counsel or
representatives of record desiring to withdraw their appearance, or any parties
desiring to withdraw the appearance of their counsel or representatives of
record, must file a motion conforming with § 2200.40 with the Review Board
or the Hearing Officer requesting leave to withdraw, showing that prior notice
of the motion has been given by the counsel or representative or party to the
client or counsel or representative, as the case may be, and providing current
contact information for the client, including street address, email address,
and phone number. The motion of counsel to withdraw may, in the discretion of
the Review Board or the Hearing Officer, after being assigned to the case, be
denied where it is necessary to avoid undue delay or prejudice to the rights of
a party or intervenor.
SUBPART C PLEADINGS AND MOTIONS
2200.30 General Rules
(a) Format. Pleadings and other documents
(other than exhibits) shall be typewritten, double spaced, with typeface of
text being no smaller than 11-point and typeface of footnotes being no smaller
than 11-point, on letter size paper (8 1/2 inches by 11 inches). Pleadings and
other documents shall be fastened without the use of staples.
(b) Clarity. Each allegation or response of a
pleading or motion shall be simple, concise, and direct.
(c) Separation claims. Each allegation or
response shall be made in separate numbered paragraphs. Each paragraph shall be
limited as far as practicable to a statement of a single set of
circumstances.
(d) Adoption by
reference. Statements in a pleading may be adopted by reference in a different
part of the same pleading or in another pleading or in any motion. A copy of
any written instrument which is an exhibit to a pleading is a part of the
pleading for all purposes.
(e)
Alternative pleading. A party may set forth two or more statements of a claim
or defense alternatively or hypothetically. When two or more statements are
made in the alternative and one of them would be sufficient if made
independently, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements. A party may state as
many separate claims or defenses as it has regardless of consistency. All
statements shall be made subject to the signature requirements of §
2200.32.
(f) Form of pleadings,
motions, and other documents. Any pleading, motion, or other document shall
contain a caption complying with § 2200.31 and a signature complying with
§ 2200.32. The form and content of motions shall conform with §
2200.40.
(g) Enforcement of
pleading rules. The Review Board or the Hearing Officer may refuse for filing
any pleading or motion that does not comply with the requirements of this
subpart.
2200.31
Caption; Titles of Cases.
(a) Notice of
contest cases. Cases initiated by a notice of contest shall be titled:
Commissioner of Labor,
Complainant
v.
(Name of Employer),
Respondent.
(b) Petitions for modification of abatement
period. Cases initiated by a petition for modification of the abatement period
shall be titled:
(Name of Employer),
Petitioner v.
Commissioner of Labor, Respondent.
(c) Location of title. The titles listed in
paragraphs (a) and (b) of this section shall appear at the left upper portion
of the initial page of any pleading or document (other than exhibits)
filed.
(d) Docket number. The
initial page of any pleading or document (other than exhibits) shall show, at
the upper right of the page, opposite the title, the docket number, if known,
assigned by the Review Board.
2200.32 Signing of Pleadings and Motions.
Pleadings and motions shall be signed by the filing party or
by the party's representative. The signature of a representative constitutes a
representation by the representative that the representative is authorized to
represent the party or parties on whose behalf the pleading is filed. The
signature of a representative or party also constitutes a certificate by the
representative that the representative has read the pleading, motion, or other
document, that to the best of the representative's knowledge, information, and
belief, formed after reasonable inquiry, it is well grounded in fact and is
warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not included for any
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation. If a pleading, motion, or other document is
signed in violation of this rule, such signing party or its representative
shall be subject to the sanctions set forth in § 2200.101 or §
2200.104. A signature by a party representative constitutes a representation by
the representative that the representative understands that the rules and
orders of the Review Board and its Hearing Officers apply equally to attorney
and non-attorney representatives.
2200.33 Notices of Contest.
Within 14 days after receipt of any of the following notices,
the Commissioner shall notify the Review Board of the receipt in writing and
shall promptly furnish to the Clerk of the Review Board any documents or
records filed by the contesting party and all other documents or records
relevant to the contest:
(a)
Notification that the employer intends to contest a citation or proposed
penalty under 21 VSA § 226; or
(b) Notification that the employer wishes to
contest a notice of a failure to abate or a proposed penalty under 21 VSA
§ 226; or
(c) A notice of
contest filed by an employee or representative of employees with respect to the
reasonableness of the abatement period under 21 VSA § 226;
(d) Failure to meet the 20 day deadline to
file a notice of contest results in the citation or notification of failure to
abate becoming a final order of the Review Board. Under extraordinary
circumstances, the cited employer, an affected employee, or an authorized
employee representative may seek relief from the said final order pursuant to
Vermont Rule of Civil Procedure 60, by promptly filing a request for such
relief with the Review Board's Clerk, at the VOSHA Review Board's current
mailing address, or delivery to the VOSHA Review Board's current physical
address. See Brancifort Builders, Inc., 9 BNA OSHC 2113, 2116-17 (1981).
2200.34 Employer
Contests.
(a) Complaint.
(1) The Commissioner shall file a complaint
with the Review Board no later than 21 days after receipt of the notice of
contest.
(2) The complaint shall
set forth all alleged violations and proposed penalties which are contested,
stating with particularity:
(i)
The basis for jurisdiction;
(ii)
The time, location, place, and circumstances of each such alleged violation;
and
(iii) The considerations upon
which the period for abatement and the proposed penalty of each such alleged
violation are based.
(3)
Where the Commissioner seeks in the complaint to amend the citation or proposed
penalty, the Commissioner shall set forth the reasons for amendment and shall
state with particularity the change sought.
(b) Answer.
(1) Within 21 days after service of the
complaint, the party against whom the complaint was issued shall file an answer
with the Review Board.
(2) The
answer shall contain a short and plain statement denying those allegations in
the complaint which the party intends to contest. Any allegation not denied
shall be deemed admitted.
(3) The
answer shall include all affirmative defenses being asserted. Such affirmative
defenses include, but are not limited to, "infeasibility," "unpreventable
employee misconduct," and "greater hazard."
(4) The failure to raise an affirmative
defense in the answer may result in the party being prohibited from raising the
defense at a later stage in the proceeding, unless the Hearing Officer finds
that the party has asserted the defense as soon as practicable.
(c) Motions filed in lieu of an
answer. A motion filed in lieu of an answer pursuant to this subpart shall be
filed no later than 21 days after service of the complaint. The form and
content of the motion shall comply with § 2200.40. Upon denial of a
parties motion, the party will have 14 days to file an answer.
2200.35 [Reserved].
2200.36 [Reserved].
2200.37 Petitions for Modification of the
Abatement Period.
(a) An employer may file a
petition for modification of abatement date when such employer has made a good
faith effort to comply with the abatement requirements of a citation, but such
abatement has not been completed because of factors beyond the employer's
reasonable control.
(b) Contents of
Petition. A petition for modification of abatement date shall be in writing and
shall include the following information:
(1)
All steps taken by the employer, and the dates of such action, in an effort to
achieve compliance during the prescribed abatement period.
(2) The specific additional abatement time
necessary in order to achieve compliance.
(3) The reasons such additional time is
necessary, including the unavailability of professional or technical personnel
or of materials and equipment, or because necessary construction or alteration
of facilities cannot be completed by the original abatement date.
(4) All available interim steps being taken
to safeguard the employees against the cited hazard during the abatement
period.
(c) When and
where filed; Posting requirement; Responses to petition. A petition for
modification of abatement date shall be filed with the Commissioner who issued
the citation no later than the close of the next working day following the date
on which abatement was originally required. A later-filed petition shall be
accompanied by the employer's statement of exceptional circumstances explaining
the delay.
(1) A copy of such petition shall
be posted in a conspicuous place where all affected employees will have notice
of the petition or near each location where the violation occurred. The
petition shall remain posted for a period of 14 days.
(2) Affected employees or the representatives
may file an objection in writing to such petition with the Commissioner.
Failure to file such objection within 14 days of the date of posting of such
petition shall constitute a waiver of any further right to object to said
petition.
(3) The Commissioner
shall have the authority to approve any uncontested petition for modification
of abatement date filed pursuant to paragraphs (b) and(c)of this section. Such
uncontested petitions shall become final orders pursuant to 21 VSA §§
226.
(4) The Commissioner shall not
exercise approval power until the expiration of 21 days from the date the
petition was posted pursuant to paragraphs (c)(1) and (2) of this section by
the employer.
(d)
Contested petitions. Where any petition is objected to by the Commissioner or
affected employees, such petition shall be processed as follows:
(1) The Commissioner shall forward the
petition, citation, and any objections to the Review Board within 14 days after
the expiration of the 21 day period set out in paragraph (c)(4) of this
section.
(2) The Review Board shall
docket and process such petitions as expedited proceedings as provided for in
§ 2200.103 of this Part.
(3)
An employer petitioning for a modification of the abatement period shall have
the burden of proving in accordance with the requirements of 21 VSA 226(b) that
such employer has made a good faith effort to comply with the abatement
requirements of the citation and that abatement has not been completed because
of factors beyond the employer's control.
(4) Each objecting party shall file a
response setting forth the reasons for opposing the abatement date requested in
the petition, within 14 working days after service of the Review Board
docketing notice of the petition for modification of the abatement date.
Service of the response on the other parties and intervenors shall be
accomplished in a manner prescribed in § 2200.7.
2200.38 Employee Contests.
(a) Commissioner's statement of reasons.
Where an affected employee or authorized employee representative files a notice
of contest with respect to the abatement period, the Commissioner shall, within
14 days from receipt of the notice of contest, file a clear and concise
statement of the reasons the abatement period prescribed by the Commissioner is
not unreasonable.
(b) Response to
Commissioner's statement. Not later than 14 days after service of the
Commissioner's statement, referred to in paragraph (a) of this section, the
contesting affected employee or authorized employee representative shall file a
response. Service of the filed statement on the other parties and intervenors
shall be accomplished in a manner prescribed in § 2200.7.
(c) Expedited proceedings. All contests under
this section shall be handled as expedited proceedings as provided for in
§ 2200.103.
2200.39 Statement of Position.
At any time prior to the commencement of the hearing before
the Hearing Officer, any person entitled to appear as a party, or any person
who has been granted leave to intervene, may file a statement of position with
respect to any or all issues to be heard. The Hearing Officer may order the
filing of a statement of position.
2200.40 Motions and Requests.
(a) How to make. An application or request
for an order must be made by written motion. A motion shall not be included in
another pleading or document, such as a brief or petition for discretionary
review, but shall be made in a separate document. In exigent circumstances in
cases pending before a Hearing Officer, an oral motion may be made during an
off-the-record telephone conference if the motion is subsequently reduced to
writing and filed within such time as the Hearing Officer prescribes.
(b) Form of motions. All motions shall
contain a caption complying with § 2200.31 and a signature complying with
§ 2200.32. Requests for orders that are presented in any other form, such
as by a business letter or by electronic transmission, shall not be considered
or granted.
(c) Content of motions.
A motion shall contain a clear and plain statement of the relief sought and
state with particularity the grounds for seeking the order.
Written memoranda, briefs, affidavits, or other relevant material or documents
may be filed in support of the motion or a response.
(d) Duty to confer. Prior to filing a motion,
the moving party shall confer or make reasonable efforts to confer with all
other parties and shall state in the motion the efforts undertaken
to confer. The motion shall also state if any other party opposes
or does not oppose the motion.
(e)
Proposed order for procedural motions. All procedural motions shall be
accompanied by a proposed order that would grant the relief requested in the
motion. A procedural motion may be ruled upon prior to the expiration of the
time for response.
(f) Oral
motions. Oral motions may be made during a hearing and shall be included in the
transcript, if a transcript is being made.
(g) When to make.
(1) A motion filed in lieu of an answer
pursuant to § 2200.34 shall be filed no later than 21 days after service
of the complaint.
(2) Motions shall
be made as soon as the grounds for the motion are known. A party is not
required to raise by motion any matter that the party has previously included
in any pleading as defined in § 2200.1, unless the party seeks a ruling on
the previously pleaded matter prior to the hearing on the merits.
(3) A motion to postpone a hearing shall
comply with § 2200.62.
(h) Responses. Any party or intervenor upon
whom a motion has been served shall file a response within 14 days from service
of the motion.
(i) Reconsideration.
A party adversely affected by a ruling on any motion may file a motion for
reconsideration within 7 days of service of the ruling.
(j) Summary judgment motions. The provisions
of Vermont Rule of Civil Procedure 56 apply to motions for summary
judgment.
2200.41
[Reserved].
SUBPART D
PREHEARING PROCEDURES AND DISCOVERY
2200.50
[Reserved].
2200.51 Prehearing
Conferences and Orders.
(a) Scheduling
Conference.
(1) The Hearing Officer may, upon
the Hearing Officer's discretion, consult with the attorneys, non-attorney
party representatives, and any self-represented parties, by a scheduling
conference, telephone, mail, or other suitable means, and within 30 days after
the filing of the answer, enter a scheduling order that limits the time:
(i) To join other parties and to amend the
pleadings;
(ii) To file and hear
motions; and
(iii) To complete
discovery.
(2) The
scheduling order also may include:
(i) The
date or dates for conferences before hearing, a final prehearing conference and
hearing; and
(ii) Any other matters
appropriate to the circumstances of the case.
(b) Prehearing conference. In addition to the
prehearing procedures set forth in Vermont Rules of Civil Procedure 16, the
Hearing Officer may, upon the Hearing Officer's own initiative or on the motion
of a party, direct the parties to confer among themselves to consider
settlement, stipulation of facts, or any other matter that may expedite the
hearing.
(c) Compliance. Parties
must fully prepare for a useful discussion of all procedural and substantive
issues involved in prehearing conferences and shall participate in such
conferences in good faith. Parties failing to do so may be subject to sanctions
under § 2200.101 and § 2200.104.
2200.52 General Provisions Governing
Discovery.
(a) General. Discovery will be
permitted subject to the methods and limitations set forth in these rules.
(1) Methods and limitations. In conformity
with these rules, any party may, without leave of the Review Board or Hearing
Officer, obtain discovery through the following methods:
(i) Production of documents and things or
permission to enter upon land or other property for inspection and other
purposes to the extent provided in § 2200.53;
(ii) Requests for admission to the extent
provided in § 2200.54;
(iii)
Interrogatories to the extent provided in § 2200.55.
(iv) Discovery is not available under these
rules through Depositions except to the extent provided in §
2200.56.
(v) In the absence of a
specific provision, Hearing Officer may allow discovery procedures as set forth
in the Vermont Rules of Civil Procedure, except that the provisions of Vermont
Rule of Civil Procedure 26(a) do not apply to Review Board proceedings. This
exception does not preclude any prehearing disclosures (including disclosure of
expert testimony and written reports) directed in a scheduling order entered
under § 2200.51.
(2) Time for discovery. A party may initiate
all forms of discovery in conformity with these Rules at any time after the
filing of the first responsive pleading or motion that delays the filing of an
answer, such as a motion to dismiss. Discovery shall be initiated early enough
to permit completion of discovery no later than 14 days prior to the date set
for hearing, unless the Hearing Officer orders otherwise.
(3) Service of discovery documents. Every
document relating to discovery required to be served on a party shall be served
on all parties
(4) Stipulations
about discovery procedures. Unless the Review Board or Hearing Officer orders
otherwise, the parties my stipulate that:
(i)
A deposition may be taken before any person, at any time or place, on any
notice, and in the manner specified--in which event it may be used in the same
way as any other deposition; and
(ii) Other procedures governing or limiting
discovery may be modified--but a stipulation extending the time for any form of
discovery must be approved by the Review Board or the Hearing Officer if it
would interfere with the time set forth for completing discovery, for hearing a
motion, or for hearing.
(b) Scope of discovery. The information or
response sought through discovery may concern any matter that is not privileged
and that is relevant to the subject matter involved in the pending case and
proportional to the needs of the case, considering the importance of the issues
at stake, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence
to be discoverable.
(c)
Limitations. The frequency or extent of the discovery methods provided by these
rules may be limited by the Review Board or the Hearing Officer if it is
determined that:
(1) The discovery sought is
unreasonably cumulative or duplicative, or it is obtainable from some other
source that is more convenient, less burdensome, or less expensive.
(2) The party seeking discovery has had ample
opportunity to obtain the information sought by discovery in the action;
or
(3) The proposed discovery is
outside the scope permitted by paragraph (b) of this section.
(d) Privilege:
(1) Claims of privilege. The initial claim of
privilege shall specify the privilege claimed and the general nature of the
material for which the privilege is claimed. In response to an order from the
Review Board or the Hearing Officer, or in response to a motion to compel, the
claim shall: identify the information that would be disclosed; set forth the
privilege that is claimed; and allege the facts showing that the information is
privileged. The claim shall be supported by affidavits, depositions, or
testimony and shall specify the relief sought. The claim may be accompanied by
a motion for a protective order or by a motion that the allegedly privileged
information be received, and the claim ruled upon in camera, that is, with the
record and hearing room closed to the public, or ex parte, that is, without the
participation of parties and their representatives. The Hearing Officer may
enter an order and impose terms and conditions on the Hearing Officer's
examination of the claim as justice may require, including an order designed to
ensure that the allegedly privileged information not be disclosed until after
the examination is completed.
(2)
Upholding or rejecting claims of privilege. If the Hearing Officer upholds the
claim of privilege, the Hearing Officer may order and impose terms and
conditions as justice may require, including a protective order. If the Hearing
Officer overrules the claim, the person claiming the privilege may obtain as of
right an order sealing from the public those portions of the record containing
the allegedly privileged information pending interlocutory or final review of
the ruling, or final disposition of the case, by the Review Board.
Interlocutory review of such an order shall be given priority consideration by
the Review Board.
(3) Resolving
claims of privilege outside of discovery proceedings. A Hearing Officer may
utilize the procedures set forth in paragraphs (d) and (e) of this section
outside of discovery proceedings, including during the hearing.
(e) Protective orders. In
connection with any discovery procedures and where a showing of good cause has
been made, the Review Board or the Hearing Officer may make any order
including, but not limited to, one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on
specified terms and conditions, including a designation of the time or
place;
(3) That the discovery may
be had only by a method of discovery other than that selected by the party
seeking discovery;
(4) That certain
matters not be inquired into, or that the scope of the discovery be limited to
certain matters;
(5) That discovery
be conducted with no one present except persons designated by the Review Board
or the Hearing Officer;
(6) That a
deposition after being sealed be opened only by order of the Review Board or
the Hearing Officer;
(7) That a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated
way;
(8) That the parties
simultaneously file specified documents or information enclosed in sealed
envelopes to be opened as directed by the Review Board or the Hearing
Officer.
(f) Failure to
cooperate; Motions to compel; Sanctions:
(1)
Motions to compel discovery. A party may file a motion conforming to §
2200.40 for an order compelling discovery when another party refuses or
obstructs discovery. In considering a motion to compel, the Hearing Officer
shall treat an evasive or incomplete answer as a failure to answer.
(2) Sanctions. If a party fails to comply
with an order compelling discovery, the Hearing Officer may enter an order to
redress the failure. Such order may issue upon the initiative of a Hearing
Officer, after affording an opportunity to show cause why the order should not
be entered, or upon the motion of a party conforming to § 2200.40. The
order may include any sanction
stated in Vermont Rule of Civil
Procedure 37, including the following:
(i) An
order that the matters regarding which the order was made or any other
designated facts shall be taken to be established for purposes of the action in
accordance with the claim of the party obtaining that order;
(ii) An order refusing to allow the
disobedient party to support or to oppose designated claims or defenses or
prohibiting that party from introducing designated matters in
evidence;
(iii) An order striking
out pleadings or parts thereof of pleadings or parts thereof, or staying
further proceedings until the order is obeyed; or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default against the
disobedient party.
(g) Unreasonable delays. None of the
discovery procedures set forth in these rules shall be used in a manner or at a
time which shall delay or impede the progress of the case toward hearing status
or the hearing of the case on the date for which it is scheduled, unless, in
the interests of justice, the Hearing Officer shall order otherwise.
Unreasonable delays in utilizing discovery procedures may result in termination
of the party's right to conduct discovery.
(h) Show cause orders. All show cause orders
issued by the Review Board or the Hearing Officer under paragraph (f) of this
section shall be served in a manner prescribed in § 2200.7.
(i) Supplementation of responses. A party
that has responded to a request for discovery with a response that was complete
when made is under no duty to supplement the response to include information
subsequently acquired, except as follows:
(1)
A party is under a duty to promptly supplement the response with respect to any
question directly addressed to:
(i) The
identity and location of persons having knowledge of discoverable matters;
and
(ii) The identity of each
person expected to be called as an expert witness at the hearing, the subject
matter on which the person is expected to testify, and the substance of the
person's testimony.
(2)
A party is under a duty to promptly amend a prior response if the party obtains
information upon the basis of which:
(i) The
party knows that the response was incorrect when made; or
(ii) The party knows that the response though
correct when made is no longer true and the circumstances are such that a
failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses
may be imposed by order of the court, agreement of the parties, or at any time
prior to the hearing through new requests for supplementation of prior
responses.
(j) Filing of
discovery. Requests for production or inspection under § 2200.53 requests
for admission under § 2200.54 and responses to requests for admissions,
interrogatories under § 2200.55 and the answers to interrogatories, and
depositions under § 2200.56 shall be served upon other counsel or parties
but shall not be filed with the Review Board or the Hearing Officer. The party
responsible for service of the discovery material shall retain the original and
become the custodian.
(k) Relief
from discovery requests. If relief is sought under § 2200.101 or §
2200.52, or (g) concerning any requests for admissions, depositions, production
of documents and things, interrogatories, answers to interrogatories, or
responses to requests for admissions and production of documents and things,
copies of the portions of the interrogatories, requests, answers, or responses
in dispute shall be filed with the Review Board or the Hearing Officer
contemporaneously with any motion filed under § 2200.101 or §
2200.52, or (g).
(l) Use at
hearing. If interrogatories, requests, answers, responses, or depositions are
to be used at the hearing or are necessary to a prehearing motion which might
result in a final order on any claim, the portions to be used shall be filed
with the Review Board or the Hearing Officer at the outset of the hearing or at
the filing of the motion insofar as their use can be reasonably anticipated.
Section § 2200.56 prescribes additional procedures pertaining to the use
of depositions at a hearing.
(m)
Use on review or appeal. When documentation of discovery not previously in the
record is needed for review or appeal purposes, upon an application and order
of the Review Board or the Hearing Officer, the necessary discovery documents
shall be filed with the Clerk of the Review Board.
2200.53 Production of Documents and Things
(a) Scope. At any time after the filing of
the first responsive pleading or motion that delays the filing of an answer,
such as a motion to dismiss, any party may serve on any other party a request
to:
(1) Produce and permit the party making
the request, or a person acting on the party's behalf, to inspect and copy any
designated documents, or to inspect and copy, test, or sample any tangible
things which are in the possession, custody, or control of the party upon whom
the request is served;
(2) Permit
entry upon designated land or other property in the possession or control of
the party upon whom the request is served for the purpose of inspection and
measuring, surveying, photographing, testing, or sampling the property or any
designated object or operation on the property.
(b) Procedure. The request shall set forth
the items to be inspected, either by individual item or by category, and
describe each item and category with reasonable particularity. It shall specify
a reasonable time, place, and manner of making the inspection and performing
related acts. The party upon whom the request is served shall serve a written
response within 30 days after service of the request, unless the requesting
party allows a longer time. The Review Board or the Hearing Officer may allow a
shorter time or a longer time, should the requesting party deny an extension.
The response shall state, with respect to each item or category,
that inspection and related activities will be permitted as requested, unless
the request is objected to in whole or in part, in which event the reasons for
objection shall be stated. If objection is made to part of an item
or category, that part shall be specified. To obtain a ruling on an objection
by the responding party, the requesting party shall file a motion conforming to
§ 2200.40 with the Clerk and shall annex its request to the motion,
together with the response and objections, if any.
2200.54 Request for Admissions.
(a) Scope and procedure:
(1) Scope. Any time after the filing of the
first responsive pleading or motion that delays the filing of an answer, such
as a motion to dismiss, a party may serve on any other party a written request
to admit, for purposes of the pending action only, the truth of any matters
within the scope of § 2200.52 relating to:
(i) Facts, the application of law to fact, or
opinions about either; and
(ii) The
genuineness of any described documents.
(2) Form; Copy of a document. Each matter
must be separately stated. The number of requested admissions
shall not exceed 25, including subparts, except upon the agreement of the
parties or by order of the Review Board or the Hearing Officer. A request to
admit the genuineness of a document must be accompanied by a copy of the
document unless it is, or has been, otherwise furnished or made available for
inspection and copying.
(3) Time to
respond; Effect of not responding. A matter is admitted unless, within 30 days
after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter and
signed by the party or its representative. A shorter or longer time for
responding may be provided by written stipulation of the parties or by order of
the Review Board or the Hearing Officer.
(4) Answer. If a matter is not admitted, the
answer must specifically deny it or state in detail why the
answering party cannot truthfully admit or deny it. A denial must fairly
respond to the substance of the matter; and when good faith requires that a
party qualify an answer or deny only a part of a matter, the answer must
specify the part admitted and qualify or deny the rest. The answering party may
assert lack of knowledge or information as a reason for failing to admit or
deny only if the party states that it has made reasonable inquiry
and that the information it knows or can readily obtain is insufficient to
enable it to admit or deny.
(5)
Objections. The grounds for objecting to a request must be stated.
A party must not object solely on the ground that the request presents a
genuine issue for hearing.
(6)
Motion regarding the sufficiency of an answer or objection. The requesting
party may move to determine the sufficiency of an answer or objection. Unless
an objection is sustained, the Review Board or the Hearing Officer must order
that an answer be served. On finding that an answer does not comply with this
rule, the Review Board or the Hearing Officer may order either that the matter
is admitted or that an amended answer be served. The Review Board or the
Hearing Officer may defer the final decision until a prehearing conference or a
specified time before hearing.
(b) Effect of admission; withdrawal or
modification. A matter admitted under paragraph (a) of this section is
conclusively established unless the Review Board or the Hearing Officer on
motion permits the admission to be withdrawn or amended. The Review Board or
the Hearing Officer may permit withdrawal or modification if it would promote
the presentation of the merits of the case and if the Review Board or the
Hearing Officer is not persuaded that it would prejudice the requesting party
in maintaining or defending the case on the merits. An admission, which is made
under paragraph (a) of this section is not an admission for any other purpose
and cannot be used against the party in any other proceeding.
2200.55 Interrogatories.
(a) General. At any time after the filing of
the first responsive pleading or motion that delays the filing of an answer,
such as a motion to dismiss, any party may serve interrogatories upon any other
party. The number of interrogatories shall not exceed 25 questions, including
subparts, except upon the agreement of the parties or by order of the Review
Board or the Hearing Officer. The party seeking to serve more than 25
questions, including subparts, shall have the burden of persuasion to establish
that the complexity of the case or the number of citation items necessitates a
greater number of interrogatories.
(b) Answers. All answers shall be made in
good faith and as completely as the answering party's information will permit.
The answering party is required to make reasonable inquiry and ascertain
readily obtainable information. An answering party may not give lack of
information or knowledge as an answer or as a reason for failure to answer,
unless the answering party states that it has made reasonable
inquiry and that information known or readily obtainable by it is insufficient
to enable it to answer the substance of the interrogatory.
(c) Procedure. Each interrogatory shall be
answered separately and fully under oath or affirmation. If the interrogatory
is objected to, the objection shall be stated in lieu of the
answer. The answers are to be signed by the person making them and the
objections shall be signed by the party or its counsel. The party on whom the
interrogatories have been served shall serve a copy of its answers or
objections upon the propounding party within 30 days after the service of the
interrogatories. The Hearing Officer may allow a shorter or longer time. The
burden shall be on the party submitting the interrogatories to file a motion
conforming to § 2200.40 for an order with respect to any objection or
other failure to answer an interrogatory.
2200.56 Depositions.
(a) General. Depositions of parties,
intervenors, or witnesses shall be allowed only by agreement of all the parties
or on order of the Review Board or the Hearing Officer following the filing of
a motion of a party stating good and just reasons. All depositions
shall be before an officer authorized to administer oaths and affirmations at
the place of examination. The deposition shall be taken in accordance with the
Vermont Rules of Civil Procedure, particularly Vermont Rule of Civil Procedure
30.
(b) When to file. A motion to
take depositions may be filed after the filing of the first responsive pleading
or motion that delays the filing of an answer, such as a motion to
dismiss.
(c) Notice of taking. Any
depositions allowed by the Review Board or the Hearing Officer may be taken
after 14 days' written notice to the other party or parties. The 14-day notice
requirement may be waived by the parties pursuant to § 2200.52.
(d) Method of recording and expenses. The
party that notices the deposition must state in the notice the
method for recording the testimony. Unless the Review Board or the Hearing
Officer orders otherwise, testimony may be recorded by audio, audiovisual, or
stenographic means. Witnesses whose depositions are taken and the person
recording the deposition shall each be paid the same fees that are paid for
like services in the Vermont courts. Any party may arrange to transcribe a
deposition. The party noticing the deposition shall pay the recording costs,
any witness fees, and mileage expense. Deposition subpoenas shall comply with
§ 2200.65.
(e) Use of
depositions. Depositions taken under this rule may be used for discovery, to
contradict or impeach the testimony of a deponent as a witness, or for any
other purpose permitted by the Vermont Rules of Evidence and the Vermont Rules
of Civil Procedure, particularly Vermont Rule of Civil Procedure 32. An audio
or audiovisual deposition offered into evidence in whole or in part must be
accompanied by a transcription of the deposition. All transcription costs must
be borne by the party offering the deposition into evidence.
(f) Excerpts from depositions to be offered
at hearing. Except when used for purposes of impeachment, at least 7 days prior
to the hearing, the parties or counsel shall furnish to the Clerk and all
opposing parties or counsel the transcribed excerpts from depositions (by page
and line number) which they expect to introduce at the hearing. Four working
days later, the adverse party or counsel for the adverse party shall furnish to
the Clerk and all opposing parties or counsel additional transcribed excerpts
from the depositions (by page and line number) which they expect to be read
pursuant to Vermont Rules of Civil Procedure 32(a)(4), as well as any
objections (by page and line number) to opposing party's or counsel's
depositions. With reasonable notice to the Clerk and all parties or counsel,
other excerpts may be read.
SUBPART E HEARINGS
2200.60 Notice of Hearing; Location.
Except by agreement of the parties, or in an expedited
proceeding under § 2200.103, when a hearing is first set, the Clerk shall
give the parties and intervenors notice of the time, place, and nature of the
hearing at least 30 days in advance of the hearing. If a hearing is being
rescheduled, or if exigent circumstances are present, at least 14 days' notice
shall be given. The Clerk will designate a place and time of hearing that
involves as little inconvenience and expense to the parties as is
practicable.
2200.61
Submission Without Hearing.
(a) A case may be
fully stipulated by the parties and submitted to the Review Board or the
Hearing Officer for a decision at any time. The stipulation of facts shall be
in writing and signed by the parties or their representatives. The submission
of a case under this rule does not alter the burden of proof, the requirements
otherwise applicable with respect to adducing proof, or the effect of failure
of proof.
(b) Motions for summary
judgment are governed by § 2200.40.
2200.62 Postponement of Hearing.
(a) Motion to postpone. A hearing may be
postponed by the Hearing Officer on the Hearing Officer's own initiative or for
good cause shown upon the motion of a party. A motion for postponement shall
state the position of the other parties, either by a joint motion
or by a representation of the moving party. The filing of a motion for
postponement does not automatically postpone a hearing. The form and content of
such motions shall comply with § 2200.40.
(b) Grounds for postponement. A motion for
postponement grounded on conflicting engagements of counsel or employment of
new counsel shall be promptly filed.
(c) When motion must be received. A motion to
postpone a hearing must be received at least 14 days prior to the hearing. A
motion for postponement received less than 14 days prior to the hearing will
generally be denied unless good cause is shown for late filing.
(d) Postponement in excess of 60 days. No
postponement in excess of 60 days shall be granted without the concurrence of
the Review Board. The original of any motion seeking a postponement in excess
of 60 days shall be filed with the Clerk.
2200.63 Stay of Proceedings.
(a) Motion for stay. Stays are not favored. A
party seeking a stay of a case assigned to a Hearing Officer shall file a
motion for stay conforming to § 2200.40 with the Clerk. A motion for a
stay shall state the position of the other parties, either by a
joint motion or by the representation of the moving party. The motion shall set
forth the reasons a stay is sought and the length of the stay
requested.
(b) Ruling on motion to
stay. The Hearing Officer, with the concurrence of the Review Board
Chairperson, may grant any motion for stay for the period requested or for such
period as is deemed appropriate.
(c) Periodic reports required. The parties in
a stayed proceeding shall be required to submit periodic reports on such terms
and conditions as the Hearing Officer may direct. The length of time between
the reports shall be no longer than 90 days unless the Hearing Officer
otherwise orders.
2200.64 Failure to Appear.
(a) Attendance at hearing. The failure of a
party to appear in person or by a duly authorized representative at the hearing
constitutes a waiver of the right to a hearing. A failure of the Respondent to
appear is deemed an admission of the facts alleged and consent to the relief
sought in the Complaint (or, in Simplified Proceedings, the citation and
notification of proposed penalty). The Hearing Officer may default the
non-appearing party without further proceeding or notice.
(b) Requests for reinstatement. Requests for
reinstatement must be made, in the absence of extraordinary circumstances,
within 7 days after the scheduled hearing date. See § 2200.90.
(c) Rescheduling hearing. The Review Board or
its Hearing Officer, upon showing of good cause, may excuse such failure to
appear. In such event, the hearing will be rescheduled as expeditiously as
possible from the issuance of the Hearing Officer's order.
2200.65 Issuance of Subpoenas; Petitions to
Revoke or Modify Subpoenas; Payment of Witness Fees and Mileage; Right to
Inspect or Copy Data.
(a) Issuance of
subpoenas upon application of pro se party or party representative. On behalf
of the Review Board or any Review Board member, the Hearing Officer shall, on
the application of any party, issue to the applying party subpoenas requiring
the attendance and testimony of witnesses and/or the production of any
evidence, including, but not limited to, relevant books, records,
correspondence, or documents, in the witness' possession or under the witness'
control, at a deposition or at a hearing before the Review Board or the Hearing
Officer. The party to whom the subpoena is issued shall be responsible for its
service. Applications for subpoenas shall be filed with the Review Board Clerk
either by First Class Mail to the current Review Board mailing address, or
delivery to the Review Board current physical address. Applications for
subpoena(s) may be made ex parte. The subpoena shall show on its face the name
and address of the party at whose request the subpoena was issued.
(b) Service of subpoenas. A subpoena may be
served by any person who is not a party and is not less than 18 years of age.
Service of a subpoena upon the person named may be made by delivering a copy
thereof to such person and, if the person's attendance is commanded, by
tendering to that person with the subpoena the fees for one day's attendance
and the mileage allowed by law. A subpoena may be served at any place within
the state. Proof of service when necessary, shall be made by
filing with the Clerk a statement for which the subpoena is issued a statement
of the date and manner of service and of the names of the persons served,
certified by the person who made the service.
(c) Revocation or modification of subpoenas.
Any person served with a subpoena, whether requiring attendance and testimony
(ad testificandum) or for the production of evidence (duces tecum), shall,
within 5 days after the date of service of the subpoena, move in writing to
revoke or modify the subpoena if the person does not intend to comply. All
motions to revoke or modify shall be served on the party at whose request the
subpoena was issued. The Review Board or the Hearing Officer shall revoke or
modify the subpoena if in its opinion the evidence whose production is required
does not relate to any matter under investigation or in question in the
proceedings or the subpoena does not describe with sufficient particularity the
evidence to be produced, or if for any other reason sufficient in law the
subpoena is otherwise invalid. The Review Board or the Hearing Officer shall
make a simple statement of procedural or other grounds for the ruling on the
motion to revoke, modify, or affirm. The motion to revoke or modify, any answer
filed, and any ruling on the motion shall become part of the record.
(d) Rights of persons compelled to submit
data or other information in documents. Persons compelled to submit data or
other information at a public proceeding are entitled to retain documents they
submitted that contain the data or information, or to procure a copy of such
documents upon their payment of lawfully prescribed costs. If such persons
submit the data or other information by testimony, they are entitled to a copy
of the transcript of their testimony upon their payment of the lawfully
prescribed costs.
(e) Witness fees
and mileage. Witnesses summoned to appear for a deposition before the Review
Board or the Hearing Officer shall be paid the same fees and mileage that are
paid witnesses in the courts of the State of Vermont. Witness fees
and mileage shall be paid by the party or intervenor at whose instance the
witness appears.
(f) Failure to
comply with subpoena. Upon the failure of any person to comply with the
subpoena issued upon the request of a party, the Review Board may recommend to
the Attorney General that proceedings be initiated in the appropriate court for
the enforcement of the subpoena, if in the Review Board's judgment, the
enforcement of the subpoena would be consistent with law and with policies of
the VOSHA Code.
2200.66
Transcript of Testimony.
(a) Hearings. A
recording shall be made of the proceedings at the hearing by the Review Board.
Persons desiring to listen to the recordings shall make appropriate
arrangements with the Clerk. At the request of any party or intervenor, Review
Board or its Hearing Officer's, an official verbatim transcript of the hearing
shall be prepared. Any requested transcript shall be filed with the Review
Board.
(b) Payment for transcript.
Parties or intervenors may request the preparation of a transcript from the
Clerk at their own expense. In the absence of a party or intervenor request for
a transcript and should a Hearing Officer or a member of the Review Board
request a copy, the Review Board shall bear all expenses for the court
reporters' fees, and for any copy of the hearing transcript filed with
it.
(c) Correction of errors. Error
in the transcript of the hearing may be corrected by the Hearing Officer on the
Hearing Officer's own motion, on joint motion by the parties, or on motion by
any party, or the Review Board. The motion shall conform to § 2200.40 and
shall state the error in the transcript and the correction to be
made. The official transcript shall reflect the corrections.
2200.67 Duties and Powers of the
Hearing Officers.
It shall be the duty of the Review Board or its Hearing
Officer to conduct a fair and impartial hearing, to assure that the facts are
fully elicited, to adjudicate all issues and avoid delay. The Hearing Officer
shall have authority with respect to cases assigned to a Hearing Officer,
between the time the Hearing Officer is designated and the time a Hearing
Officer issues a decision, subject to the rules and regulations of the Review
Board, to:
(a) Administer oaths and
affirmations;
(b) Issue authorized
subpoenas and rule upon petitions to revoke modify, remove, or affirm, in
accordance with § 2200.65;
(c)
Rule on claims of privilege and claims that information is protected and issue
protective orders, in accordance with § 2200.52;
(d) Rule upon offers of proof and receive
relevant evidence;
(e) Take or
cause depositions to be taken whenever the needs of justice would be
served;
(f) Regulate the course of
the hearing and, if appropriate or necessary, exclude persons or counsel from
the hearing for contemptuous conduct and strike all related testimony of
witnesses refusing to answer any proper questions;
(g) Hold conferences for the settlement or
simplification of the issues;
(h)
Dispose of procedural requests or similar matters, including motions referred
to the Hearing Officer by the Review Board and motions to amend pleadings; also
to dismiss complaints or portions thereof, and to order hearings reopened, or
upon motion, consolidated prior to issuance of a decision;
(i) Make decisions in accordance with 3 VSA
§ 812 of the Vermont Administrative Procedure Act;
(j) Call and examine witnesses to introduce
into the record documentary or other evidence;
(k) Approve or appoint an
interpreter;
(l) Request the
parties to state their respective positions concerning any issue
in the case or theory in support of their position;
(m) Adjourn the hearing as the needs of
justice and good administration require;
(n) Take any other action necessary under the
foregoing and authorized by the published rules and regulations of the Review
Board.
2200.68 Recusal of
the Hearing Officer.
(a) Discretionary
recusal. A Hearing Officer may recuse himself or herself from a proceeding
whenever the Hearing Officer deems it appropriate.
(b) Mandatory recusal. A Hearing Officer
shall recuse himself or herself under circumstances that would require
disqualification of a Review Board Hearing Officer under Vermont Code of
Judicial Conduct Canon 2.11, except that the required recusal may be set aside
under the conditions specified by Canon 2.11(C).
(c) Request for recusal. Any party may
request that the Hearing Officer, at any time following the Hearing Officer's
designation and before the filing of the decision, be recused under paragraph
(a) or (b) of this section or both by filing with the Review Board, promptly
upon the discovery of the alleged facts, an affidavit setting forth in detail
the matters alleged to constitute grounds for recusal.
(d) Ruling on request. If the Hearing
Officer, finds that a request for recusal has been filed with due diligence and
that the material filed in support of the request establishes that recusal
either is appropriate under paragraph (a) of this section or is required under
paragraph (b) of this section, the Hearing Officer shall recuse himself or
herself from the proceeding. If the Hearing Officer denies a request for
recusal, the Hearing Officer shall issue a ruling on the record,
stating the grounds for denying the request and shall proceed with
the hearing, or if the hearing has closed, shall proceed in the issuance of a
decision, and the provisions of § 2200.90.
2200.69 Examination of Witnesses.
Witnesses shall be examined orally under oath or affirmation.
Opposing parties or intervenors shall have the right to cross-examine any
witness whose testimony is introduced by an adverse party. All parties shall
have the right to cross-examine any witness called by the Hearing Officer
pursuant to § 2200.67.
2200.70 Exhibits.
(a) Marking exhibits. All exhibits offered in
evidence by a party shall be marked for identification before or during the
hearing. Exhibits shall be marked with a designation identifying the party or
intervenor offering the exhibit.
(b) Removal or substitution of exhibits in
evidence. Unless the Hearing Officer finds it impractical, a copy of each such
exhibit shall be given to the other parties or intervenors. A party may remove
an a d mitt e d exhibit from the official record during the hearing or at the
conclusion of the hearing only upon permission of the Hearing Officer. The
Hearing Officer, in the Hearing Officer's discretion, may permit the
substitution of a duplicate for any original document offered into
evidence.
(c) Reasons for denial of
admitting exhibit. A Hearing Officer may, in the Hearing Officer's discretion,
deny the admission of any exhibit because of its excessive size, weight, or
other characteristic that prohibits its convenient transportation and storage.
A party may offer into evidence photographs, models, or other representations
of any such exhibit.
(d) Rejected
exhibits. All exhibits offered but denied admission into evidence, except
exhibits referred to in paragraph (c) of this section, shall be disposed of as
required in the Review Board Record Retention Policy.
(e) Return of physical exhibits. A party may
on motion request the return of a physical exhibit within 30 days after
expiration of the time for filing a petition for review of a Review Board final
order in the Vermont Superior Court under 21 VSA § 227, or within 30 days
after completion of any proceedings initiated in Vermont Superior Court. The
motion shall be addressed to the Clerk and provide supporting reasons. The
exhibit shall be returned if the Clerk determines that it is no longer
necessary for use in any Review Board proceeding.
(f) Request for custody of physical exhibit.
Any person may on motion to the Clerk request custody of a physical exhibit for
use in any court or tribunal. The motion shall state the reasons
for the request and the duration of custody requested. If the exhibit has been
admitted in a pending Review Board case, the motion shall be served on all
parties to the proceeding. Any person granted custody of an exhibit shall
inform the Clerk of the status every 6 months of the person's continuing need
for the exhibit and return the exhibit after completion of the
proceeding.
(g) Disposal of
physical exhibit. Any physical exhibit may be disposed of by the Review Board's
Clerk subject to the requirements of the Review Board Records Retention
Policy.
2200.71 Rules of
Evidence.
Hearings before the Hearing Officer shall be in accordance
with 3 VSA 810 and the Vermont Rules of Evidence as
applicable.
2200.72
Objections.
(a) Statement of objection. Any
objection with respect to the conduct of the hearing, including any objection
to the introduction of evidence or a ruling by the Hearing Officer, may be
stated orally or in writing, accompanied by a short statement of
the grounds for the objection, and shall be included in the record. No such
objection shall be deemed waived by further participation in the
hearing.
(b) Offer of proof.
Whenever evidence is excluded from the record, the party offering such evidence
may make an offer of proof which shall be included in the record of the
proceeding.
(c) Once the Hearing
Officer rules definitively on the record --either before or at the hearing-- a
party need not renew an objection or offer of proof to preserve a claim of
error for appeal.
2200.73 Interlocutory Review.
(a) General. Interlocutory review of a
Hearing Officer's ruling is discretionary with the Review Board. A petition for
interlocutory review may be granted only where the petition asserts, and the
Review Board finds:
(1) That the review
involves an important question of law or policy that controls the outcome of
the case, and that immediate review of the ruling may materially expedite the
final disposition of the proceedings or subsequent review by the Review Board
may provide an inadequate remedy; or
(2) That the ruling will result in a
disclosure, before the Review Board may review the Hearing Officer's report of
information that is alleged to be privileged.
(b) Petition for interlocutory appeal. Within
7 days following the service of a Hearing Officer's ruling from which review is
sought, a party may file a petition for interlocutory appeal with the Review
Board. Responses to the petition, if any, shall be filed within 7 days
following service of the petition. Service of the filed petition on the other
parties and intervenors shall be accomplished in a manner prescribed in §
2200.7. A copy of the petition and responses shall be filed with the Review
Board Clerk. The petition is denied unless granted within 30 days of the date
of receipt by the Review Board's Clerk.
(c) Denial without prejudice. The Review
Board's decision not to grant a petition for interlocutory appeal shall not
preclude a party or intervenor from raising an objection to the Hearing
Officer's interlocutory ruling in a petition for discretionary
review.
(d) Stay.
(1) Trade secret matters. The filing of a
petition for interlocutory review of a Hearing Officer's ruling concerning an
alleged trade secret shall stay the effect of the ruling until the petition is
deemed denied or ruled upon.
(2)
Other cases. In all other cases, the filing or granting of a petition for
interlocutory review shall not stay a proceeding or the effect of a ruling
unless otherwise ordered.
(e) Hearing Officer's comments. The Hearing
Officer may be requested to provide the Review Board with an explanation for
the Hearing Officer's decision. When the written comments are filed with the
Review Board, the Hearing Officer shall serve the comments on all parties in a
manner prescribed in § 2200.7.
(f) Briefs. Notice shall be given to the
parties if the Review Board decides to request briefs on the issues raised by
an interlocutory review. See § 2200.93 -Briefs before the Review
Board.
(g) When filing effective. A
petition for interlocutory review is deemed to be filed only when received by
the Review Board, as specified in § 2200.8.
2200.74 Filing of Briefs and Proposed
Findings with the Hearing Officer; Oral Argument at the Hearing.
(a) General. A party is entitled, to a
reasonable period at the close of the hearing for oral argument, which shall be
included in the transcript of the hearing. Any party shall be entitled, upon
request made before the close of the hearing, to file a brief, proposed
findings of fact and conclusions of law, or both with the Hearing Officer. In
lieu of briefs, the Hearing Officer may permit or direct the parties to file
memoranda or statements of authority.
(b) Time. Briefs shall be filed
simultaneously on a date established by the Hearing Officer. A motion for
extension of time for filing any brief shall be made at least 3 working days
prior to the due date and shall recite that the moving party has conferred with
the other parties on the motion. Reply briefs shall not be allowed except by
order of the Hearing Officer.
(c)
Untimely briefs. Untimely briefs will not be accepted unless accompanied by a
motion setting forth good cause for the delay. The form and content of motions
shall comply with § 2200.40.
SUBPART F POSTHEARING PROCEDURES
2200.90 Decisions and Reports of Hearing
Officers.
(a) Hearing Officer's decision:
(1) Contents of Hearing Officer's decision.
The hearing officer shall prepare a decision that conforms to 3 VSA § 812
and constitutes the final disposition of the proceedings. The decision shall be
in writing and shall include findings of fact, conclusions of law, and the
reasons or bases for them, on all the material issues of fact, law, or
discretion presented on the record. The decision shall include an order
affirming, modifying, or vacating each contested citation item and each
proposed penalty or directing other appropriate relief. A decision finally
disposing of a petition for modification of the abatement period shall contain
an order affirming or modifying the abatement period.
(2) Service of the Hearing Officer's
decision. The Hearing Officer shall serve a copy of the decision on each party
in a manner prescribed in § 2200.7.
(b) Hearing Officer's report:
(1) Contents of Hearing Officer's report. The
Hearing Officer's report shall consist of the entire record, including the
Hearing Officer's decision.
(2)
Filing of Hearing Officer's report. On the eleventh day after service of the
decision on the parties, the Hearing Officer shall file the report with the
Clerk for docketing.
(3) Docketing
of Hearing Officer's report by Clerk. Promptly upon filing of the Hearing
Officer's report, the Clerk shall docket the report and notify all parties of
the docketing date. The date of docketing is the date the Hearing Officer's
report is made for purposes of 21 VSA § 230.
(4) Correction of errors in Hearing Officer's
report.
(i) Until the Hearing Officer's report
has been directed for review or, in the absence of a direction for review,
until the decision has become a final order as described in paragraph (f) of
this section, the Hearing Officer may correct clerical errors arising through
oversight or inadvertence in decisions, orders, or other parts of the record
under Vermont Rule of Civil Procedure 60(a). If a Hearing Officer's report has
been directed for review, the decision may be corrected during the pendency of
review with leave of the Review Board.
(ii) After a Hearing Officer's decision has
become a final order as described in paragraph (f) of this section, the Review
Board or the Hearing Officer may correct a clerical mistake or a mistake
arising from oversight or omission under Vermont Rule of Civil Procedure
60(a).
(c)
Relief from default. Until the Hearing Officer's report has been docketed by
the Clerk, the Hearing Officer may relieve a party of default or grant
reinstatement under § 2200.101, or § 2200.64.
(d) Filing documents after the docketing
date. Except for documents filed under paragraph (b)(4)(i) of this section
documents filed with the Clerk after the docketing date will no longer be
forwarded to the Hearing Officer.
(e) Settlement. Settlement documents shall be
filed in the manner prescribed in § 2200.100.
(f) Hearing Officer's decision final unless
review directed. If no Review Board member directs review of a decision on or
before the 30th day following the date of docketing of the hearing officer's
report, the decision of the Hearing Officer shall become a final order of the
Review Board per 21 VSA § 230.
2200.91 Discretionary Review; Petitions for
Discretionary Review; Statements in Opposition to Petitions.
(a) Review discretionary. Review by the
Review Board is not a right. A Review Board Member may, as a matter of
discretion, direct review on the Review Board's own motion or on the petition
of a party.
(b) Petitions for
discretionary review. A party adversely affected or aggrieved by the decision
of a hearing officer may seek review by the Review Board by filing a Petition
for Discretionary Review with the Clerk at any time following the service of
the Hearing Officer's decision on the parties but no later than 20 days after
the date of docketing of the Hearing Officer's report. Service of the filed
petition on the other parties and intervenors shall be accomplished in a manner
prescribed in § 2200.7. The earlier a petition is filed, the more
consideration it can be given. A petition for discretionary review may be
conditional, and it may state that review is sought only if a
Review Board Member were to direct review on the petition of an opposing
party.
(c) Cross-petitions for
discretionary review. Where a petition for discretionary review has been filed
by one party, any other party adversely affected or aggrieved by the decision
of the Hearing Officer may seek review by the Review Board by filing a
crosspetition for discretionary review. The cross-petition may be conditional.
See paragraph (b) of this section. A cross-petition shall be filed directly
with the Clerk within 27 days after the date of docketing of the Hearing
Officer's report. The earlier a cross-petition is filed, the more consideration
it can be given.
(d) Contents of
the petition. No particular form is required for a petition for discretionary
review. A petition should state why review should be directed,
including: whether the Hearing Officer's decision raises an important question
of law, policy, or discretion; whether review by the Review Board will resolve
a question about which the Review Board's Hearing Officers have rendered
differing opinions; whether the Hearing Officer's decision is contrary to law
or Review Board precedent; whether a finding of material fact is not supported
by a preponderance of the evidence; whether a prejudicial error of procedure or
an abuse of discretion was committed. A petition should concisely
state the portions of the decision for which review is sought and
should refer to the citations and citation items (for example, citation 3, item
4a) for which review is sought. A petition shall not incorporate by reference a
brief or legal memorandum. Brevity and the inclusion of precise references to
the record and legal authorities will facilitate prompt review of the
petition.
(e) When filing
effective. A petition for discretionary review is filed when received by the
Review Board, as specified in § 2200.8.
(f) Prerequisite to judicial review; effect
of filing. A petition for review under this section is a prerequisite to the
seeking of judicial review of the Review Board action by the Vermont Superior
Court. A petition for review under this section per 21 VSA § 227 does not
stay the final order of the Review Board unless ordered by the court.
(g) Statements in opposition to petition.
Statements in opposition to petitions for discretionary review may be filed in
the manner specified in this section for the filing of petitions for
discretionary review. Statements in opposition shall concisely
state why the Hearing Officer's decision should not be reviewed
with respect to each portion of the petition to which it is
addressed.
2200.92
Review by the Review Board.
(a) Jurisdiction
of the Review Board; Issues on review. Unless the Review Board orders
otherwise, a direction for review establishes jurisdiction in the Review Board
to review the entire case. The issues to be decided on review are within the
discretion of the Review Board.
(b)
Review on a Review Board Member's motion; Issues on review. At any time within
30 days after the docketing date of the Hearing Officer's report, a Review
Board Member may, on the Review Board Member's own motion, direct that a
Hearing Officer's decision be reviewed. Factors that may be considered in
deciding whether to direct review absent a petition include, but are not
limited to, whether the case raises novel questions of law or policy or
involves a conflict between Hearing Officers' decisions. When a Review Board
Member directs review on the Review Board Member's own motion, the issues
ordinarily will be those specified in the direction for review or any later
order.
(c) Issues not raised before
the Hearing Officer. The Review Board will ordinarily not review issues that
the Hearing Officer did not have the opportunity to pass upon. In exercising
discretion to review issues that the Hearing Officer did not have the
opportunity to pass upon, the Review Board may consider such factors as whether
there was good cause for not raising the issue before the Hearing Officer, the
degree to which the issue is factual, the degree to which proceedings will be
disrupted or delayed by raising the issue on review, whether the ability of an
adverse party to press a claim or defense would be impaired, and whether
considering the new issue would avoid injustice or ensure that judgment will be
rendered in accordance with the law and facts.
2200.93 Briefs Before the Review Board.
(a) Requests for briefs: The Review Board
ordinarily will request the parties to file briefs on issues before the Review
Board. After briefs are requested, a party, instead of filing a brief, may file
a letter setting forth its arguments, or a letter stating that it
will rely on its petition for discretionary review or previous brief. A party
not intending to file a brief shall notify the Review Board in writing within
the applicable time for filing briefs and shall serve a copy on all other
parties. The provisions of this section apply to the filing of briefs and
letters filed in lieu of briefs.
(b) Filing briefs. Unless the briefing notice
states otherwise:
(1) Time for
filing briefs. The party required to file the first brief shall do so within 40
days after the date of the briefing notice. All other parties shall file their
briefs within 30 days after the first brief is served. Any reply brief
permitted by these rules or by order shall be filed within 15 days after the
second brief is served.
(2)
Sequence of filing.
(i) If one petition for
discretionary or interlocutory review has been filed, the petitioning party
shall file the first brief.
(ii) If
more than one petition has been filed, the party whose petition was filed first
shall file the first brief.
(iii)
If no petition has been filed, the parties shall file simultaneous
briefs.
(3) Reply
briefs. The party that filed the first brief may file a reply brief, or, if
briefs are to be filed simultaneously, both parties may file a reply brief.
Additional briefs are otherwise not allowed except by leave of the Review
Board.
(c) Motion for
extension of time for filing briefs. An extension of time to file a brief will
not ordinarily be granted except for good cause shown. A motion for extension
of time to file a brief shall be filed at the Review Board no later than 5 days
prior to the expiration of the time limit prescribed in paragraph (b) of this
section, shall comply with § 2200.40, and shall include the following
information: When the brief is due; the number and duration of extensions of
time that have been granted to each party or intervenor; the length of
extension being requested; the specific reasons for the extension being
requested; and an assurance that the brief will be filed within the time
extension requested.
(d)
Consequences of late filing of briefs: The Review Board may decline to accept a
brief that is not timely filed.
(e)
Length of briefs: Except by permission of the Review Board, a main brief,
including briefs and legal memoranda it incorporates by reference, shall
contain no more than 35 pages of text. A reply brief, including briefs and
legal memoranda it incorporates by reference, shall contain no more than 20
pages of text.
(f) Format. Briefs
shall be typewritten, and double spaced.
(g) Table of contents: A brief in excess of
15 pages shall include a table of contents.
(h) Failure to meet requirements: The Review
Board may return briefs that do not meet the requirements of paragraphs (e-g)
of this section.
2200.94
[Reserved].
2200.95 Oral Argument
Before the Review Board.
(a) When ordered.
Upon motion of any party or upon its own motion, the Review Board may order
oral argument in any matter directed for review before it. Parties requesting
oral argument must demonstrate why oral argument would facilitate resolution of
the issues before the Review Board. Normally, motions for oral argument shall
not be considered until after all briefs have been filed.
(b) Notice of argument. The Clerk shall
advise all parties whether oral argument is to be heard. Within a reasonable
time before the oral argument is scheduled, the Clerk shall inform the parties
of the time and place therefor, the issues to be heard, and the time allotted
to the parties.
(c) Postponement.
(1) Except under extraordinary circumstances,
a request for postponement must be filed at least 10 days before oral argument
is scheduled.
(2) The Clerk shall
notify the parties of a postponement in a manner best calculated to avoid
unnecessary travel or inconvenience to the parties. The Clerk shall inform all
parties of the new time and place for the oral argument.
(d) Order and content of argument.
(1) Counsel shall be afforded such time for
oral argument as the Review Board may provide by order. Requests for
enlargement of time may be made by motion filed reasonably in advance of the
date fixed for the argument.
(2)
The petitioning party shall argue first. If the case is before the Review Board
on cross- petitions, the Review Board will inform the parties in advance of the
order of appearance.
(3) Counsel
may reserve a portion of the time allowed for rebuttal but in opening argument
shall present the case fairly and completely and shall not reserve points of
substance for presentation during rebuttal.
(4) Oral argument should undertake to
emphasize and clarify the written arguments appearing in the briefs. The Review
Board will look with disfavor on any oral argument that is read from a
previously filed document.
(5) At
any time, the Review Board may terminate a party's argument or interrupt the
party's presentation for questioning by the Review Board Members.
(e) Failure to appear. Should
either party fail to appear for oral argument, the party present may be allowed
to proceed with its argument.
(f)
Consolidated cases. Where two or more consolidated cases are scheduled for oral
argument, the consolidated cases shall be considered as one case for the
purpose of allotting time to the parties unless the Review Board otherwise
directs.
(g) Multiple counsel.
Where more than one counsel argues for a party to the case or for multiple
parties on the same side in the case, it is counsels' responsibility to agree
upon a fair division of the total time allotted. In the event of a failure to
agree, the Review Board will allocate the time. The Review Board may, in its
discretion, limit the number of counsel heard for each party or side in the
argument. No later than 5 days prior to the date of scheduled argument, the
Review Board must be notified of the names of the counsel who will
argue.
(h) Exhibits/visual aids.
(1) The parties may use exhibits introduced
into evidence at the hearing. If a party wishes to use a visual aid not part of
the record, written notice of the proposed use shall be given to opposing
counsel 15 days prior to the argument. Objections, if any, shall be in writing,
served on all adverse parties, and filed not fewer than 7 days before the
argument.
(2) No visual aid shall
introduce or rely upon facts or evidence not already part of the
record.
(3) If visual aids or
exhibits other than documents are to be used at the argument, counsel shall
arrange with the Clerk to have them placed in the hearing room on the date of
the argument before the Review Board convenes.
(4) Parties using visual aids not introduced
into evidence shall have them removed from the hearing room unless the Review
Board directs otherwise. If such visual aids are not reclaimed by the party
within a reasonable time after notice is given by the Clerk, such visual aids
shall be disposed of at the discretion of the Clerk.
(i) Recording oral argument.
(1) Unless the Review Board directs
otherwise, oral arguments in a directed review shall be electronically recorded
by the Review Board and made part of the record. Persons desiring to listen to
the recordings shall make appropriate arrangements with the Clerk. At the
request of any party or intervenor, the Review Board or its Hearing Officer's,
an official verbatim transcript of the hearing shall be prepared. Any requested
transcript shall be filed with the Review Board.
(2) Parties or intervenors who request the
preparation of a transcript from the Clerk shall do so at their own expense. In
the absence of a party or intervenor request for a transcript and should a
Hearing Officer or a member of the Review Board request a transcript, the
Review Board shall be responsible for the expense of the transcript
preparation.
(3) Error in the
transcript of the oral argument may be corrected by the Review Board on its own
motion, on joint motion by the parties, or on motion by any party. The motion
shall state the error in the transcript and the correction to be
made. The official transcript shall reflect the corrections.
(j) Failure to file brief. A party
that fails to file a brief shall not be heard at the time of oral argument
except by permission of the Review Board.
SUBPART G MISCELLANEOUS PROVISIONS
2200.100 Settlement.
(a) Policy: Settlement is permitted and
encouraged by the Review Board at any stage of the proceedings.
(b) Requirements:
(1) Notification of Settlement. If the
parties have agreed to a partial or full settlement, they shall so notify the
Review Board in a written joint submission (titled "Notification of Settlement"
or "Notification of Partial Settlement," as appropriate), in which the parties
shall:
(i) List the contested items that have
been settled and, if only a partial settlement agreement has been reached, also
list the contested items that remain to be decided;
(ii) If posting of the settlement agreement
is required by § 2200.7, certify that the parties' settlement agreement
has been posted in the manner for posting notices prescribed by that rule and
certify the date of posting;
(iii)
If party status has been elected under § 2200.20, certify that the party
has been afforded an opportunity to provide input on all matters pertaining to
the settlement before the agreement is finalized; and
(iv) If the settlement agreement includes the
withdrawal of a notice of contest, citation, notification of proposed penalty,
or petition for modification of abatement period, state whether
such withdrawal is with prejudice;
(2) The parties shall not incorporate the
settlement agreement in, or append it to, the joint submission required in
paragraph (b) (1) of this section or substitute the settlement agreement for
the required joint submission.
(3)
Issuance of order terminating proceeding. If the requirements of paragraphs
(b)(1) and (2) of this section have been met with respect to all contested
citation items and no affected employees who have elected party status have
raised an objection to the reasonableness of any abatement period, the Review
Board shall issue an Order acknowledging that the parties have resolved all
contested citation items and agreed to terminate the proceeding before the
Review Board.
(c)
Filing; Service; Notice and Objection. A Notification of Settlement submitted
shall be filed with the Clerk. Proof of service shall be filed with the
Notification of Settlement, showing service upon all parties and authorized
employee representatives in the manner prescribed by § 2200.7 and the
posting of notice to non-party affected employees in the manner prescribed by
§ 2200.7. If the time has not expired under these rules for electing party
status, an order acknowledging the termination of the proceedings before the
Review Board because of the settlement shall not be issued until at least 14
days after service or posting to consider any affected employee's or authorized
employee representative's objection to the reasonableness of any abatement
time. The affected employee or authorized employee representative shall file
any such objection within this time. If such objection is filed, the Review
Board shall provide an opportunity for the affected employees or authorized
employee representative to be heard and present evidence on the objection,
which shall be limited to the reasonableness of the abatement period.
2200.101 Failure to Obey Rules.
(a) Sanctions. When any party has failed to
plead or otherwise proceed as provided by these rules or as required by the
Review Board or the Hearing Officer, the party may be declared to be in default
either on the initiative of the Review Board or the Hearing Officer, after
having been afforded an opportunity to show cause why the party should not be
declared to be in default, or on the motion of a party. Subsequently, the
Review Board or the Hearing Officer, in their discretion, may enter a decision
against the defaulting party or strike any pleading or document not filed in
accordance with these rules.
(b)
Motion to set aside sanctions. For reasons deemed sufficient by the Review
Board or the Hearing Officer and upon motion conforming to § 2200.40
expeditiously made, the Review Board or the Hearing Officer may set aside a
sanction imposed under paragraph (a) of this section. See §
2200.90.
(c) Discovery sanctions
and failure to appear. This section does not apply to sanctions for failure to
comply with orders compelling discovery, which are governed by § 2200.52,
or to a default for failure to appear, which is governed by §
2200.64.
(d) Show cause orders. All
show cause orders issued by the Review Board or the Hearing Officer under
paragraph (a) of this section shall be served in a manner prescribed in §
2200.7.
2200.102
Withdrawal.
A party may withdraw its notice of contest, citation,
notification of proposed penalty, or petition for modification of abatement
period at any stage of the proceeding. The notice of withdrawal shall be served
in accordance with § 2200.7 upon all parties and authorized employee
representatives that are eligible to elect, but have not elected, party status.
It shall also be posted in the manner prescribed in § 2200.7 for the
benefit of any affected employees not represented by an authorized employee
representative who are eligible to elect, but have not elected, party status.
Proof of service shall accompany the notice of withdrawal in accordance with
§ 2200.7.
2200.103
Expedited Proceeding.
(a) When ordered. Upon
application of any party or intervenor, or upon its own motion, the Review
Board may order an expedited proceeding. When an expedited proceeding is
ordered by the Review Board, the Clerk shall notify all parties or
intervenors.
(b) Automatic
expedition. Cases initiated by employee contests and petitions for modification
of abatement period shall be expedited. See § 2200.37 and §
2200.38.
(c) Effect of ordering
expedited proceeding. When an expedited proceeding is required by these rules
or ordered by the Review Board, it shall take precedence on the docket of the
Hearing Officer to whom it is assigned, or on the Review Board's review docket,
as applicable, over all other classes of cases, and shall be set for hearing or
for the submission of briefs at the earliest practicable date.
(d) Time sequence set by Hearing Officer. The
assigned Hearing Officer or Review Board shall make rulings with respect to
time for filing of pleadings and all other matters, without reference to times
set forth in these rules, and shall do all other things necessary to complete
the proceeding in the minimum time consistent with fairness.
2200.104 Standards of Conduct.
(a) General. All representatives appearing
before the Review Board or its Hearing Officers shall comply with the letter
and spirit of the ethical conduct required in the courts Vermont Rules of
Professional Conduct.
(b)
Misbehavior before a Hearing Officer:
(1)
Exclusion from a proceeding. A Hearing Officer may exclude from participation
in a proceeding any person, including a party or its representative, who
engages in disruptive behavior, refuses to comply with orders or rules of
procedure, continuously uses dilatory tactics, refuses to adhere to standards
of orderly or ethical conduct, or fails to act in good in good faith. The cause
for the exclusion shall be stated in writing or may be
stated in the record if the exclusion occurs during the course of
the hearing. Where the person removed is a party's attorney or other
representative, the Hearing Officer shall suspend the proceeding for a
reasonable time for the purpose of enabling the party to obtain another
attorney or other representative.
(2) Appeal rights if excluded. Any attorney
or other representative excluded from a proceeding by a Hearing Officer may,
within 7 days of the exclusion, appeal to the Review Board for reinstatement.
No proceeding shall be delayed or suspended pending disposition of the
appeal.
(c) Disciplinary
action by the Review Board. If an attorney or other representative practicing
before the Review Board engages in unethical or unprofessional conduct or fails
to comply with any rule or order of the Review Board or its Hearing Officers,
the Review Board may, after reasonable notice and an opportunity to show cause
to the contrary, and after hearing, if requested, take any appropriate
disciplinary action, including suspension or disbarment from practice before
the Review Board.
(d) Show cause
orders. All show cause orders issued by the Review Board under paragraph (c) of
this section shall be served in a manner prescribed in § 2200.7.
2200.105 Ex Parte Communication.
(a) General. Except as permitted by §
2200.120 or as otherwise authorized by law, there shall be no ex parte
communication with respect to the merits of any case not concluded, between any
Board Member, Hearing Officer, employee or agent of the Review Board who is
employed in the decisional process, and any of the parties or intervenors,
representatives, or other interested persons.
(b) Disciplinary action. In the event an ex
parte communication occurs, the Review Board or its Hearing Officer may make
such orders or take such action as fairness requires. The exclusion of a person
by a Hearing Officer from a proceeding shall be governed by Standards of
Conduct. § 2200.104. Any disciplinary action by the Review Board,
including suspension or disbarment, shall be governed by §
2200.104.
(c) Placement on public
record. All ex parte communications in violation of this section shall be
placed on the public record of the proceeding.
2200.106 Amendments to Rules.
The Review Board may at any time upon its own motion or
initiative, or upon written suggestion of any interested person setting forth
reasonable grounds therefore, amend or revoke any of the rules contained in
this Part. Such suggestions should be addressed to the Review Board at its
mailing address or e-mailed to the clerk
2200.107 Special Circumstances; Waiver of
Rules.
In special circumstances not contemplated by the provisions
of these rules, or for good cause shown, the Review Board or the Hearing
Officer may, upon application by any party or intervenor, or on its own motion,
after 3 days notice to all parties or intervenors, waive any rule or make such
orders as justice or the administration of the VOSHA Code
requires.
SUBPART
M SIMPLIFIED PROCEEDINGS
2200.200
Purpose.
(a) The purpose of the Simplified
Proceedings subpart is to provide simplified procedures for resolving contests
under the Vermont Occupational Safety and Health Act so that parties before the
Review Board or its Hearing Officer may reduce time and expense of litigation
while being assured due process and a hearing that meets the requirements of
the Vermont Administrative Procedure Act 3 VSA § 809. These procedural
rules will be applied to accomplish this purpose.
(b) Procedures under this subpart are
simplified in a number of ways. The major differences between these procedures
and those provided in Subparts A through G of the Review Board's Rules of
Procedure are as follows:
(1) Complaints and
answers are not required.
(2)
Pleadings generally are not required. Early discussions among the parties and
the Hearing Officer are required to narrow and define the disputes between the
parties.
(3) The Commissioner is
required to provide the employer with certain informational documents early in
the proceeding.
(4) Discovery is
not permitted except as ordered by the Hearing Officer.
(5) Interlocutory appeals are not
permitted.
(6) Hearings are less
formal. The admission of evidence is not controlled by the Vermont Rules of
Evidence except as provided for in § 2200.209. The Hearing Officer may
allow the parties to argue their case orally at the conclusion of the hearing
and may allow or require post-hearing briefs or statements of position. The
Hearing Officer may render a decision from the bench.
2200.201 Application.
The rules in this subpart will govern proceedings before a
Hearing Officer if a case is chosen for Simplified Proceedings under §
2200.203.
2200.202
Eligibility for Simplified Proceedings.
(a)
Those cases selected for simplified proceedings will be those that do not
involve complex issues of law or fact. Cases appropriate for Simplified
Proceedings will generally include those with one or more of the following
characteristics:
(1) Relatively few citation
items,
(2) An aggregate proposed
penalty of not more than $ 20,000,
(3) No allegation of willfulness or a repeat
violation,
(4) Not involving a
fatality,
(5) A hearing that is
expected to take less than 2 days, or
(6) A small employer whether appearing pro se
or represented by counsel.
(b) Those cases with an aggregate proposed
penalty of more than $ 20,000, but not more than $ 30,000, if otherwise
appropriate, may be selected for Simplified Proceedings at the discretion of
the Review Board Chairperson.
2200.203 Commencing Simplified Proceedings.
(a) Selection. Upon receipt of a Notice of
Contest, the Review Board Chairperson at his/her discretion may assign an
appropriate case for Simplified Proceedings.
(b) Party request. Within 21 days of the
notice of docketing, any party or intervenor may request that the case be
assigned for Simplified Proceedings. The request must be in writing. For
example, "I request Simplified Proceedings" will suffice. The request must be
sent to the Clerk. Copies must be sent to each of the other parties.
(c) Review Board Chairperson or Hearing
Officer's ruling on request. The Review Board Chairperson or the Hearing
Officer assigned to the case may grant a party's request and assign a case for
Simplified Proceedings at the Review Board Chair's or Hearing Officer's
discretion. Such request shall be acted upon within 14 days.
(d) Time for filing complaint or answer under
§ 2200.34. If a party has requested Simplified Proceedings or the Hearing
Officer has assigned the case for Simplified Proceedings, the times for filing
a complaint or answer will not run. If a request for Simplified Proceedings is
denied, the period for filing a complaint or answer will begin to run upon
issuance of the notice denying Simplified Proceedings.
2200.204 Discontinuance of Simplified
Proceedings.
(a) Procedure. If it becomes
apparent at any time that a case is not appropriate for Simplified Proceedings,
the Review Board Chairperson, or Hearing Officer assigned to the case may, upon
motion by any party or upon the Review Board Chairperson or Hearing Officer's
own motion, discontinue Simplified Proceedings and order the case to continue
under conventional rules. Before discontinuing Simplified Proceedings, the
Hearing Officer will consult with the Review Board Chairperson.
(b) Party motion. At any time during the
proceedings any party may request that Simplified Proceedings be discontinued
and that the matter continue under conventional procedures. A motion to
discontinue must conform to § 2200.40 and explain why the case is
inappropriate for Simplified Proceedings. Responses to such motions shall be
filed within the time specified by § 2200.40. Joint motions to return a
case to conventional proceedings shall be granted by the Hearing Officer and do
not require a showing of good cause, except that the Hearing Officer may deny
such a motion that is filed less than 30 days before a scheduled hearing
date.
(c) Ruling. If Simplified
Proceedings are discontinued, the Hearing Officer or Review Board Chairperson
may issue such orders as are necessary for an orderly continuation under
conventional rules.
2200.205 Filing of Pleadings.
(a) Complaint and Answer: Once a case is
designated for Simplified Proceedings, the complaint and answer requirements
are suspended. If the Commissioner has filed a complaint under § 2200.34,
a response to a petition under § 2200.37, or a response to an employee
contest under § 2200.38, and if Simplified Proceedings has been ordered,
no response to these documents will be required.
(b) Motions: Limited, if any, motion practice
is contemplated in Simplified Proceedings, but all motion practice shall
conform with § 2200.40. A motion will not be viewed favorably if the
subject of the motion has not been first discussed among the parties or
intervenors prior to any prehearing conference or hearing.
2200.206 Disclosure of Information.
(a) Disclosure to Employer.
(1) Within 21 days after a case is designated
for Simplified Proceedings, the Commissioner shall provide the employer, free
of charge, copies of the Inspection Report, Safety Narrative and the Violation
Worksheet or their equivalents.
(2)
Within 30 days after a case is designated for Simplified Proceedings, the
Commissioner shall provide the employer with reproductions of any photographs
or videotapes that the Commissioner anticipates using at the hearing.
(3) Within 30 days after a case is designated
for Simplified Proceedings, the Commissioner shall provide to the employer any
exculpatory evidence in the Commissioner's possession.
(4) The Hearing Officer shall act
expeditiously on any claim by the employer that the Commissioner improperly
withheld or redacted any portion of the documents, photographs, or videotapes
on the grounds of confidentiality or privilege.
(b) Disclosure to the Commissioner. When the
employer raises an affirmative defense pursuant to § 2200.207, the Hearing
Officer shall order the employer to disclose to the Commissioner such documents
relevant to the affirmative defense as the Hearing Officer deems
appropriate.
2200.207
Pre-Hearing Conference.
(a) When held. As
early as practicable after the employer has received the documents set forth in
§ 2200.206, the Hearing Officer may conduct a pre-hearing conference,
which the Hearing Officer may hold in person, or by telephone or electronic
means.
(b) Content. At the
pre-hearing conference, the parties may discuss the following: settlement of
the case; the narrowing of issues; an agreed statement of issues and facts; all
defenses; witnesses and exhibits; motions; and any other pertinent matter.
Except under extraordinary circumstances, any affirmative defenses not raised
at the pre-hearing conference may not be raised later. At the conclusion of the
conference, the Hearing Officer will issue an order that may set forth any
further agreements reached by the parties and that may specify the issues to be
addressed by the parties at the hearing.
2200.208 Discovery.
Discovery conditions and time limits, including requests for
admissions, shall not be allowed except at the discretion of the Hearing
Officer.
2200.209 Hearing.
(a) Procedures. As soon as practicable after
the conclusion of the pre-hearing conference, the Hearing Officer will hold a
hearing on any issue that remains in dispute. The hearing will be in accordance
with subpart E of these rules, except for § 2200.73 which will not
apply.
(b) Agreements. At the
beginning of the hearing, the Hearing Officer will enter into the record all
agreements reached by the parties as well as defenses raised during the
pre-hearing conference. The parties and the Hearing Officer then will attempt
to resolve or narrow the remaining issues. The Hearing Officer will enter into
the record any further agreements reached by the parties.
(c) Except as to matters that are protected
by evidentiary privilege, the admission of evidence is not controlled by 3 VSA
810 and the Vermont Rules of Evidence except as determined by the Hearing
Officer at the Hearing Officer's discretion. The Hearing Officer will receive
oral, physical or documentary evidence that is not irrelevant, unduly
repetitious, or unreliable. Testimony shall be given under oath or
affirmation.
(d) Transcripts shall
be governed by § 2200.66.
(e)
Oral and Written Argument. Each party may present an oral argument at the close
of the hearing. The Hearing Officer may allow or require post-hearing briefs or
statements of position and statement of facts upon the request of either party
or on the Hearing Officer's own motion. The form of any post-hearing briefs
shall conform to § 2200.74 unless the Hearing Officer specifies
otherwise.
(f) Hearing Officer
Decision.
(1) Bench decision. The Hearing
Officer may render a decision from the bench. In rendering a decision from the
bench, the Hearing Officer shall state the issues in the case and
make clear both the Hearing Officer's findings of fact and conclusions of law
on the record. The Judge shall reduce the bench decision in the matter to
writing and serve it on the parties as soon as practicable, but no later than
45 days after the hearing. If additional time is needed, approval of the Review
Board Chair permission is required. The decision shall be prepared in
accordance with § 2200.90. The written decision shall include, as an
appendix, the bench decision as set forth in the transcript.
(2) Written decision. If the Hearing Officer
does not render a decision from the bench, the Hearing Officer will issue a
written decision within 60 days of the close of the record. The record will
ordinarily be deemed closed upon the completion of any permitted post-hearing
briefing, provided however if a request for a transcript of the recording of
the hearing is made, the record will be deemed closed upon the later of the
filing of said transcript and the completion of any post hearing briefing. The
decision will be in accordance with § 2200.90. If additional time is
needed, approval of the Review Board Chairperson is required.
(g) Filing of Hearing Officer's
Decision With the Clerk. When the Hearing Officer issues a written decision,
service, filing, and docketing of the Hearing Officer's written decision shall
be in accordance with § 2200.90.
2200.210 Review of Hearing Officer's
decision.
Any party may petition for Review Board review of the Hearing
Officer's decision as provided in § 2200.91. After the issuance of the
Hearing Officer's written decision, the parties may pursue the case following
the rules in Subpart F of this part.
2200.211 Applicability of Subparts A through
G.
The provisions of subpart D (§§ 2200.51 -2200.56)
and § 2200.34, § 2200.37, § 2200.38, § 2200.71, and §
2200.73 will not apply to Simplified Proceedings. All other rules contained in
subparts A through G of the Review Board's rules of procedure will apply when
consistent with the rules in this subpart governing Simplified
Proceedings.