Section 1.01 - Formal Rules(1)Preamble. 801 CMR 1.01 of the Standard Rules of Adjudicatory Practice and Procedure is a self-contained segregable body of regulations of general applicability for proceedings in which formal rules are desired. An Agency must determine for any class of hearing whether to hold hearings under 801 CMR 1.01 or 801 CMR 1.02 Informal/ Fair Hearing Rules. Agencies shall determine based on such factors as: the volume of cases held; whether claimants are represented by counsel; the complexity of the issues; or the applicability of Federal fair hearings procedures. All notices from which an Adjudicatory Proceeding can be claimed shall state which rules apply, whether formal under 801 CMR 1.01, or informal under 801 CMR 1.02. In addition, all notices shall contain a notice printed in English, Spanish, Portuguese, Italian, Greek, French and Chinese that informs the reader that the document is important and should be translated immediately.(2)Scope, Construction and Definitions. (a)Scope801 CMR 1.00 governs the conduct of formal Adjudicatory Proceedings of all Commonwealth agencies governed by M.G.L. c. 30A.(b) Construction. 801 CMR 1.00 shall be construed to secure a just and speedy determination of every proceeding.(c)Definitions. Refer to all definitions included in M.G.L. c 30A. In addition, the following words when used in 801 CMR 1.01 shall have the following meanings: Authorized Representative. An attorney, legal guardian or other person authorized by a Party to represent him in an Adjudicatory Proceeding.
Electronic Medium. Any device used to transmit information electronically, including but not limited to facsimile and e-mail.
Hand Delivery. Delivery by any method other than pre-paid U.S. mail, including but not limited to private mail services.
Petitioner The Party or Agency who initiates an Adjudicatory Proceeding.
Presiding Officer The individual(s) authorized by law or designated by the Agency to conduct an Adjudicatory Proceeding.
Respondent. The Party or Agency who must answer in an Adjudicatory Proceeding.
(3)Representation(a)Appearance. An individual may appear in his or her own behalf, or may be accompanied, represented and advised by an Authorized Representative. An authorized officer or employee may represent a corporation, an authorized member may represent a partnership or joint venture, and an authorized trustee may represent a trust.(b)Notice of Appearance. An Authorized Representative shall appear by filing a written notice with the Agency or Presiding Officer. Notice shall contain the name, address and telephone number, as well as facsimile number and email address of the Authorized Representative and of the Party represented, and may limit the purpose of the appearance. The filing by an attorney of any pleading, motion or other paper shall constitute an appearance by the attorney who sent it, unless otherwise stated.(4)Timely Filing. Parties must file papers required or permitted to be filed with the Agency under 801 CMR 1.00, or any provision of applicable law, within the time provided by statute or Agency rule. Unless otherwise provided by applicable statute or regulation, Parties must file papers at an office of the Agency or with the Presiding Officer. (a)Manner of Filing. All documents must be filed by email, unless otherwise ordered by the Presiding Officer for good cause or the Respondent or Petitioner lacks access to sufficient Electronic Medium. Agencies must use all reasonable efforts to inform the general public of the appropriate email address where documents will be accepted, such as posting the email address on the Agency website or by other means. Papers filed by Electronic Medium shall be deemed filed at the office of the Agency or with the Presiding Officer on the date received by the Agency or Officer during usual business hours, but not later than 5:00 P.M. Parties are reminded of the prohibition concerning ex parte communications contained in 801 CMR 1.03(6). Parties must refrain from contacting the Presiding Officer about a matter, unless permission is granted by the Presiding Officer and a copy of the communication is sent to all other parties. If a party lacks access to sufficient Electronic Medium, Papers filed by U.S. mail shall be deemed filed on the date contained in the U.S. postal cancellation stamp or U.S. postmark, and not the date contained on a postal meter stamp. Papers filed by all other means shall be considered hand-delivered, and shall be deemed filed on the date received by the Agency during usual business hours. Any recipient of papers filed as provided in 801 CMR 1.01(4)(a) shall stamp papers with the date received. The recipient shall provide on request date receipts to Persons filing papers by hand-delivery during business hours. The Presiding Officer shall make his or her best efforts to process filings delivered by mail and conduct hearings in a reasonable and timely manner.(b) Papers received after usual business hours shall be deemed filed on the following business day.(c)Notice of Agency Actions. Notice of actions and other communications from the Presiding Officer or adjudicating Agency, or its designee, shall be delivered by email, unless otherwise agreed upon by the parties, or directed by the Presiding Officer for good cause, or the Respondent or Petitioner lacks access to sufficient Electronic Medium. Notice of actions and other communications by mail shall be presumed to be received upon the day of hand-delivery or, if mailed, three days after deposit in the U.S. mail. The postmark shall be evidence of the date of mailing.(d)Computation of Time. Unless otherwise specifically provided by 801 CMR 1.00 or by other applicable law, computation of any time period referred to in 801 CMR 1.00 shall begin with the first day following the act which initiates the running of the time period. The last day of the time period is included, unless it is a Saturday, Sunday, or legal holiday or any other day on which the office of the Agency is closed, when the period shall run until the end of the next following business day. When the time period is less than seven days, intervening days when the Agency is closed shall be excluded.(e)Extension of Time. The Agency or Presiding Officer may, for good cause shown, extend any time limit contained in 801 CMR 1.00, unless otherwise restricted by law. All requests for extensions of time shall be made by motion before the expiration of the original or next previous extended time period. The filing of such motion shall toll the time period sought to be extended until the Presiding Officer acts on the motion. 801 CMR 1.01(4)(e) shall not apply to any limitation of time prescribed by statute, unless extensions are permitted by the applicable statute(5)Filing Format. (a)Title. Papers filed with an Agency shall be titled with the name of the Agency, the docket number of the case if known, the names of the Parties and the nature of the filing.(b)Signatures. Documents filed by email will be deemed to be signed by the sender, and must include the sender's email address, street address, and telephone number. Papers filed with an Agency shall be signed and dated by an unrepresented Party, or by a Party's Authorized Representative, and shall state the address and telephone number of the Person signing the document. Such signature constitutes the signer's certification that he has read the document and knows the content thereof, that statements contained therein are believed to be true, that it is not interposed for delay and that if the document has been signed by an Authorized Representative that he has full power and authority to do so.(c)Designation of Agency. An Agency designated as a Party to Adjudicatory Proceedings shall be designated by its name and not by the individual names of those constituting the Agency. If while the Adjudicatory Proceeding is pending, a change of employees occurs within the Agency, the Adjudicatory Proceeding shall not abate, and no substitution of Parties shall be necessary.(d)Form. 1.Size and Printing Requirements. All papers filed for possible inclusion in the record shall be clear and legible and shall be presented in accordance with the standards of the Presiding Officer, if any, or on Agency forms whenever available. 2.Agency Format. An Agency may provide forms to be used for specific purposes by any Person or Party and use of forms provided shall be mandatory.(e)Maintenance of Files. The papers filed in a given case shall be consolidated and maintained in an individual folder under a unique case or docket number with additional copies as the Agency or applicable statute may require.(f)Service of Copies. In addition to the filing of any papers with the Agency, the Party filing papers shall serve a copy on all other Parties to the proceedings by email, unless a party lacks access to sufficient Electronic Medium or the Presiding Officer has ordered that papers may be filed by a method other than email, such as either delivery in hand or prepaid U.S. Mail. All papers filed with the Agency shall be accompanied by a statement certifying the date copies have been served, specifying the mode of service, the name of the Party served and the address of service. Papers served by Electronic Medium shall indicate the date transmitted and the telephone number or electronic address used for transmittal. Failure to comply with this rule shall be grounds for the Agency to refuse to accept papers for filing. The means of service of copies should take no longer than the means of filing.(6)Initiation of Formal Adjudicatory Proceedings. (a)Agency Notice of Action. When an Agency initiates a proceeding against a Person regarding an Agency action or intended action, the Agency shall provide the Person with notice of the action or an order to show cause why the action should not be taken. The notice or order shall state the reason for the action. It shall specify in numbered paragraphs the specific facts relied upon as the basis for the action, the statute(s) or regulations authorizing the Agency to take action, and, in the case of a notice, any right to request an Adjudicatory Proceeding.(b)Claim for Adjudicatory Proceeding. Any Person with the right to initiate an Adjudicatory Proceeding may file a notice of claim for an Adjudicatory Proceeding with the Agency within the time prescribed by statute or Agency rule. In the absence of a prescribed time, the notice of claim must be filed within 30 days from the date that the Agency notice of action is sent to a Party.(c)Form and Content of Claims. The notice of claim for an Adjudicatory Proceeding shall identify the basis for the claim. The notice shall state clearly and concisely the facts upon which the Party is relying as grounds, the relief sought and any additional information required by statute or Agency rule.(d)Answer.1.Answer to Claim. Except as statute or Agency rule may otherwise prescribe, within 21 days of receipt of a notice of claim for an Adjudicatory Proceeding, a Respondent shall file an answer to the initiating pleading. The answer shall contain full, direct and specific answers. The answer shall admit, deny, further explain, or state that the Respondent has insufficient knowledge to answer with specificity the initiating Party's allegations or claims. An allegation of inability to admit or deny for lack of information shall be treated as a denial. The answer shall also contain all affirmative defenses which the Respondent claims and may cite any supporting statute or regulation. All allegations contained in an initiating pleading which are neither admitted nor denied in the answer shall be deemed denied.2.Answer to Order to Show Cause. Except as statute or Agency rule may otherwise prescribe, within 21 days of receipt of an order to show cause, a Respondent shall file an answer thereto. The answer shall contain full, direct and specific answers. The answer shall admit, deny, further explain, or state that the Respondent has insufficient knowledge to answer with specificity the initiating Party's allegations or claims. An allegation of inability to admit or deny for lack of information shall be treated as a denial. The answer shall also contain all affirmative defenses which the Respondent claims and may cite any supporting statute or regulation. All allegations contained in an initiating pleading which are neither admitted nor denied in the answer shall be deemed denied.(e)Agency Answer. An Agency shall not be required to file an answer if, at the time the Agency took the action being appealed, the Agency disclosed to the Petitioner the material facts on which the Agency relied in taking such action and the statutes and/or regulations which authorized or required the Agency to take such action.(f)Joinder of Additional Parties and Amendments of Pleadings. If a Person is later joined or allowed to intervene, or allowed as a substitute Party, the Presiding Officer, upon his or her own initiative or upon the motion of any Party, may establish reasonable times for the filing of pleadings or other documents by any additional Party. The Presiding Officer may allow the amendment of any pleading previously filed by a Party upon conditions just to all Parties, and may order any Party to file an Answer or other pleading, or to reply to any pleading.(g)Withdrawal. Any Party may, by motion, apply to withdraw a claim, a defense, or a request for action or for review, upon terms established by Agency rule, or which the Presiding Officer may allow in fairness to all Parties.(7)Motions. (a)General Requirements.1.Presentations and Responses. An Agency or Party may by motion request the Presiding Officer to issue any order or take any action not inconsistent with law or 801 CMR 1.00. Motions may be made in writing at any time after the commencement of an Adjudicatory Proceeding or orally during a hearing. Each motion shall set forth the grounds for the desired order or action and state whether a hearing is desired. Within seven days after a written motion is filed with the Presiding Officer, any other Agency or Party may file written responses to the motion and may request a hearing. Responses to oral motions may be made orally at the hearing or in writing filed within seven days according to the discretion of the Presiding Officer.2.Action on Motions. The Agency or Presiding Officer shall, unless the Parties otherwise agree, give at least three days' notice of the time and place for the hearing when the Agency or Presiding Officer determines that a hearing on the motion is warranted. The Agency or Presiding Officer may grant requests for continuances for good cause shown or may, in the event of unexcused absence of a Party who received notice, permit the hearing to proceed. The unexcused Party's written motion or objections, if any, are to be regarded as submitted on the written papers. The Agency or Presiding Officer may rule on a motion without holding a hearing if delay would seriously injure a Party, or if presentation of testimony or oral argument would not advance the Agency or Presiding Officer's understanding of the issues involved, or if disposition without a hearing would best serve the public interest. The Agency or Presiding Officer may otherwise act on a motion when all Parties have responded or the deadline for response has expired, whichever occurs first. If the Agency or Presiding Officer acts on the motion before all Parties have responded and the time has not expired, the ruling may be subject to modification or rescission upon the filing of one or more subsequent but timely responses.3.Scope of Factual Basis for Hearing on Motions. The Parties may offer at a hearing on a motion evidence relevant to the particular motion. This evidence may consist of statements which are presented orally by sworn testimony, by affidavit, or which appear in admissible records, files, depositions or answers to interrogatories.(b)Motion for More Definite Statement. If a pleading to which a responsive pleading is required is so vague or ambiguous that a Party cannot reasonably frame a response, the Party may, within the time permitted for such response, move for a more definite statement before filing its answer. The motion shall set forth the defects complained of and the details desired. If the motion is granted, the more definite statement shall be filed within ten days of the order allowing the motion or within the deadline determined by the Agency or Presiding Officer. (c)Motion to Strike. A Party may move to strike from any pleading, or the Agency or Presiding Officer may on its own motion strike, any insufficient allegation or defense, or any redundant, immaterial, impertinent or scandalous matter.(d)Motion to Continue. For good cause shown a scheduled hearing may be continued to another date:1. by agreement of all Parties with the permission of the Presiding Officer, provided the Presiding Officer receives a letter confirming the request and agreement before the hearing date; or2. by written motion to continue made by a Party at least three days prior to the hearing date; or3. by the Presiding Officer on his or her own motion or upon a motion to continue made at the scheduled hearing.(e)Motion to Change Venue. Any Party may move to have a hearing held in a place other than the scheduled location. In deciding such motions the Presiding Officer shall consider the objections of Parties, the transportation expenses of the Presiding Officer, the possibility of conducting the hearing by means of telecommunication facilities, the availability of either stenographic services or a suitable recording system, the availability of a neutral and appropriate hearing site, the availability of witnesses because of their place of residence or state of health, and other appropriate matters.(f)Motion for Speedy Hearing. Upon motion of any Party and upon good cause shown, the Presiding Officer may advance a case for hearing.(g)Motion to Dismiss. 1.Grounds. Upon completion by the Petitioner of the presentation of his or her evidence, the Respondent may move to dismiss on the ground that upon the evidence, or the law, or both, the Petitioner has not established his or her case. The Presiding Officer may act upon the dismissal motion when presented, or during a stay or continuance of proceedings, or may wait until the close of all the evidence.2.Failure to Prosecute or Defend. When the record discloses the failure of a Party to file documents required by statute or by 801 CMR 1.00, to respond to notices or correspondence, to comply with orders of the Presiding Officer, or otherwise indicates an intention not to continue with the prosecution of a claim, the Presiding Officer may initiate or a Party may move for an order requiring the Party to show cause why the claim shall not be dismissed for lack of prosecution. If a Party fails to respond to such order within ten days, or a Party's response fails to establish such cause, the Presiding Officer may dismiss the claim with or without prejudice.3.Dismissal for Other Good Cause. The Presiding Officer may at any time, on his or her own motion or that of a Party, dismiss a case for lack of jurisdiction to decide the matter, for failure of the Petitioner to state a claim upon which relief can be granted or because of the pendency of a prior, related action in any tribunal that should first be decided.(h)Motion for Summary Decision. When a Party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he or she is entitled to prevail as a matter of law, the Party may move, with or without supporting affidavits, for summary decision on the claim or defense. If the motion is granted as to part of a claim or defense that is not dispositive of the case, further proceedings shall be held on the remaining issues. (i)Substitution of Parties. The Agency or Presiding Officer may, on motion, at any time in the course of a proceeding, permit substitution of Parties as justice or convenience may require.(j)Consolidation of Proceedings. If there are multiple proceedings which involve common issues, a Party shall notify the Agency or Presiding Officer of this fact, stating with particularity the common issues. The Agency or Presiding Officer may with the concurrence of all parties and any other tribunal that may be involved, consolidate the proceedings. (k)Motion to Reopen. At any time after the close of a hearing and prior to a decision being rendered, a Party may move to reopen the record if there is new evidence to be introduced. New evidence consists of newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it. A motion to reopen shall describe the new evidence which the Party wishes to introduce.(l)Motion for Reconsideration. After a decision has been rendered and before the expiration of the time for filing a request for review or appeal, a Party may move for reconsideration. The motion must identify a clerical or mechanical error in the decision or a significant factor the Agency or the Presiding Officer may have overlooked in deciding the case. A motion for reconsideration shall be deemed a motion for rehearing in accordance with M.G.L. c. 30A, § 14(1) for the purposes of tolling the time for appeal.(8)Discovery. (a)General Policy and Protective Orders. The Parties are encouraged to engage in voluntary discovery procedures. In connection with document requests, interrogatories, depositions or other means of discovery, the Presiding Officer may make any order which justice requires to protect a Party or Person from annoyance, embarrassment, oppression, or undue burden or expense. Orders may include limitations on the method, time, place and scope of discovery and provisions for protecting the secrecy of confidential information or documents.(b)Document Request Procedure and Costs. After a request for an Adjudicatory Proceeding has been filed or an order to show cause issued, a Party may serve another Party or Agency with a document request which lists with reasonable specificity items requested for inspection which are in the possession, custody or control of the Party or Agency requested to provide them. A Party or Agency served with a document request shall respond within 30 days or as otherwise determined by the Presiding Officer. The Presiding Officer may require a Party requesting documents to pay the Party or Agency responding to a document request the fee per page determined by the Executive Office for Administration and Finance.(c)Depositions: When Permitted. After a request for an Adjudicatory Proceeding has been filed or an order to show cause issued, the Presiding Officer may, upon motion by a Party, order the taking of the testimony of any Person by deposition before any officer authorized to administer oaths. The motion shall specify the name and address of each deponent and the reasons for the deposition. The Presiding Officer shall allow the motion only upon showing that the parties have agreed to submit the deposition in lieu of testimony by the witness, or the witness cannot appear before the Presiding Officer without substantial hardship. The motion shall only be allowed upon a showing by the moving Party that the testimony sought is significant, relevant, and not discoverable by alternative means. Motions for depositions shall be considered and acted upon in accordance with 801 CMR 1.01(7)(a).(d)Depositions: How Taken, Signing. Depositions shall be taken orally before an officer having power to administer oaths. Each deponent shall be duly sworn. In instances where sincere scruple forbids the taking of an oath, a person may affirm with the same legal effect as having been sworn. Any Party shall have the right to cross-examine. The questions asked, the answers given, and any objections shall be recorded. The Presiding Officer shall rule only on objections accompanied by a reason and only in regard to the stated reason. Each deponent shall have the option of reviewing and affirming the deposition transcript and of indicating an affirmance in whole or in part by signing a statement to that effect on the title page of the transcript. The deponent may waive the reviewing and signing, in which case the officer shall state the fact of the waiver in the officer's certification, and the transcript shall then have the same status as if signed by the deponent. Subject to appropriate rulings on objections, the Presiding Officer may receive the deposition in evidence, as if the testimony contained therein had been given by a witness in the proceeding.(e)Recording by Other than Stenographic Means. The Presiding Officer may on motion permit the testimony at a deposition to be recorded by other than stenographic means, in which event the Presiding Officer's authorization shall designate the manner of recording, preserving, and filing of the record of the deposition and may include other provisions to assure that the recorded testimony will be accurately preserved.(f)Certification of Transcript. A duplicate transcript of the deposition shall be certified by the officer before whom the deposition was taken. When the deposition is introduced into evidence, the Party requesting the deposition shall order a duplicate copy of the transcript and forward a copy to the Presiding Officer.(g)Interrogatories. With the approval of the Agency or Presiding Officer, after a requestfor an Adjudicatory Proceeding has been filed or an order to show cause issued, a Party may serve written interrogatories upon any other Party for the purpose of discovering relevant information not privileged and not previously supplied through voluntary discovery. Interrogatories may be served by Hand-delivery, pre-paid U.S. mail or Electronic Medium. A duplicate of all interrogatories shall be simultaneously filed with the Presiding Officer. No Party, without the approval of the Presiding Officer, shall serve more than a total of 30 interrogatories either concurrently or serially including subsidiary or incidental questions. A Party may not serve any interrogatories less than 45 days before the scheduled hearing, without the approval of the Agency or Presiding Officer.(h)Answers to Interrogatories. Each interrogatory shall be separately and fully answered under the penalties of perjury, unless an objection to the interrogatory with supporting reasons are stated in lieu of an answer. An answer shall be served within 30 days of receipt of an interrogatory, or within such other time as the Presiding Officer may specify. A duplicate of all answers to interrogatories shall be simultaneously filed with the Presiding Officer.(i)Motion for Order Compelling Discovery. A Party may file with the Presiding Officer, subject to 801 CMR 1.01(7)(a), a motion to compel discovery if a discovery request is not honored, or only partially honored, or interrogatories or questions at deposition are not fully answered. If the motion is granted and the other Party fails without good cause to obey an order to provide or permit discovery, the Presiding Officer, before whom the action is pending, may make orders in regard to the failure as are just, including one or more of the following:1. An order that designated facts shall be established adversely to the Party failing to comply with the order; or2. An order refusing to allow the disobedient Party to support or oppose designated claims or defenses, or prohibiting him or her from introducing evidence on designated matters.(9)Intervention and Participation.(a)Intervention. Any Person not initially a Party, who may be substantially and specifically affected thereby and wishes to intervene or participate in an Adjudicatory Proceeding shall file a written petition for leave to be allowed to do so. Except as otherwise provided in 801 CMR 1.01(9), the petition shall be subject to 801CMR 1.01(7)(a).(b)Form and Content. The petition shall state the name and address of the Person filing the petition. It shall describe the manner in which the Person making the petition may be affected by the proceeding. It shall state why the Agency or Presiding Officer should allow intervention or participation, any relief sought, and any supporting law.(c)Filing the Petition. The petition may be filed at any time following a request for an Adjudicatory Proceeding or an order to show cause, but in no event later than the date of hearing. Petitions may be allowed at the discretion of the Presiding Officer, for any Person who is likely to be substantially and specifically affected by the proceeding, provided all existing Parties are given notice and an opportunity to respond pursuant to 801 CMR 1.01(7)(a).(d)Rights of Intervenors. The Presiding Officer may permit any Person who is likely to be substantially and specifically affected by the proceeding. Any Person permitted to intervene shall have all the rights of a Party, subject to the discretion of the Presiding Officer to avoid undue delay or unnecessary duplication of evidence, and shall be subject to all limitations imposed upon a Party.(e)Rights of Participants. The Presiding Officer may permit any Person who may be affected by a proceeding may be permitted to participate. Permission to participate shall be limited to the right to argue orally at the close of a hearing and to file an amicus brief, but shall not necessarily make the Person allowed to participate a Party in interest who may be aggrieved by any result of the proceeding. A Person who petitioned to intervene and who was allowed only to participate may participate without waiving his or her rights to administrative or judicial review of the denial of his or her motion to intervene.(f)Intervention to Protect the Environment. Any group of ten or more Persons may intervene collectively as a Party in any Adjudicatory Proceeding according to M.G.L. c. 30A, § 10A, provided that intervention is limited to the issue of actual or probable damage to the environment as defined in M.G.L. c. 214 § 7A, and the elimination or reduction thereof. The petition to intervene pursuant to M.G.L. c. 30A, § 10A shall also state the names and addresses of the members of the group and identify the member of the group, or the group's attorney, or the group's agent, who will be the group's representative before the Presiding Officer. The representative shall have the sole authority to sign papers for the group and to accept service for the group. Any Paper served on the representative of the group shall be deemed served on the entire group. If no representative is specifically stated in the petition, the first Person mentioned in the motion to intervene as a member of the group shall be deemed the representative of the group. A group that is permitted to intervene as a Party shall be collectively deemed a single Party as defined in 801 CMR 1.00.(g)Permissive Reference. When a Party to an action relies upon any rule or regulation issued by an Agency, other than the one conducting the proceeding as grounds for a claim or defense, the Agency having promulgated the rule or regulation on timely application by a Party and in the discretion of the Presiding Officer, or at the initiative of the Presiding Officer, may offer a relevant construction, interpretation or application of the rule or regulation in aid of the resolution of one or more of the issues involved in the Adjudicatory Proceeding. Any request to the promulgating Agency shall be in writing and present a neutral statement of the issue or issues possibly affected by the rule or regulation. The promulgating Agency may respond in writing as promptly as its resources allow, but in no event later than 30 days from its receipt of the request. The promulgating Agency may expressly decline to respond and need not justify its position, and its failure to respond within the time limited shall be deemed a declination to do so.(10)Hearings and Conferences.(a)Pre-hearing Conference. The Presiding Officer may initiate or upon the application of any Party, may call upon the Parties to appear for a conference to consider; 1. the simplification or clarification of the issues;2. the possibility of obtaining stipulations, admissions, agreements on matters already of record, or similar agreements which will reduce or eliminate the need of proof;3. the limitation of the number of expert witnesses, or avoidance of cumulative evidence, if the case is to be heard;4. the possibility of an agreement disposing of any or all issues in dispute; and5. such other matters as may aid in the disposition of the Adjudicatory Proceeding. Those matters agreed upon by the Parties shall be reduced to writing and signed by them, and the signed writing shall constitute a part of the record. The scheduling of a pre-hearing conference shall be according to Agency rule or, in the absence of rules, solely within the discretion of the Presiding Officer.
(b)Stipulations. In the discretion of the Presiding Officer, the Parties may, by written stipulation filed with the Presiding Officer at any stage of the proceeding, or by oral stipulation made at a hearing, agree as to the truth of any fact pertinent to the proceeding. The Presiding Officer may require parties to propose stipulations. In making findings, the Presiding Officer need not be bound by a stipulation which is in contravention of law or erroneous on its face.(c)Submission without a Hearing. Any Party may elect to waive a hearing and submit his or her case upon written submissions. Submission of a case without a hearing does not relieve the Parties from the necessity of proving the facts supporting their allegations or defenses on which a Party has the burden of proof.(d)Conduct of Hearing.1.Decorum. All Parties, their Authorized Representatives, witnesses and other Persons present at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in any court. Where such decorum is not observed, the Presiding Officer may take appropriate action. Appropriate action may include refusal to allow a disruptive Person to remain in the hearing room and, if such Person is a Party, to allow participation by representative only.2.Duties of Presiding Officer. The Presiding Officer shall conduct the hearing, administering an oath or affirmation to all witnesses, making all decisions on the admission or exclusion of evidence and resolving questions of procedure. The Presiding Officer shall file a decision or recommended decision with the Agency within a reasonable time after the close of the hearing.(e)Order of Proceedings.1.Opening. In the usual case, except as otherwise required by law, in hearings resulting from a notice of claim of an adjudicatory proceeding, the Party filing the claim shall open and first present evidence; in hearings resulting from orders to show cause, the Agency issuing the order shall open and first present evidence.2.Order of Presentation. The Party taking the position contrary to that of the Party opening shall have the right to present his or her position upon completion of the opening Party's case.3.Closing. The Party opening shall argue last in summation.4.Discretion of the Presiding Officer. The Presiding Officer may, when the evidence is peculiarly within the knowledge of one Party, or when there are multiple Petitioners, or when he or she otherwise determines appropriate, direct who shall open and may otherwise determine the order of presentation.(f)Presentation of Evidence. All Parties shall have the right to present documentary and oral evidence, to cross-examine adverse or hostile witnesses, to interpose objections, to make motions and oral arguments. Cross-examination is to follow the direct testimony of a witness. Whenever appropriate, the Presiding Officer shall permit reasonable redirect and recross-examination and allow a Party an adequate opportunity to submit rebuttal evidence. Except as otherwise provided, evidence of the Respondent shall be presented after the presentation of the Petitioner's case in chief. The Respondent shall first argue in summation. 1.Oath. A witness's testimony shall be under oath or affirmation.2.Offer of Proof. An offer of proof made in connection with a ruling of the Presiding Officer rejecting or excluding proffered testimony shall consist of a statement of the substance of the evidence which the Party contends would be adduced by the testimony. If the excluded evidence consists of evidence in documentary or written form, it shall be filed and marked for identification and shall constitute the offer of proof.(g)Subpoenas. The Agency or Presiding Officer may issue, vacate or modify subpoenas, in accordance with the provisions of M.G.L. c. 30A, § 12.(h)Administrative Notice. The Presiding Officer may take notice of fact(s), pursuant to the requirements of M.G.L. c. 30A, § 11(5). (i)Transcript of Proceedings. 1.Stenographic or Recorded Records and Transcripts. Except where a Party elects to provide a public stenographer as provided herein, the testimony and argument at the hearing shall be recorded either stenographically or by Electronic Medium. The Presiding Officer shall arrange for verbatim transcripts of the proceedings to be supplied at cost to any Party upon request, at the Party's own expense. The Agency may elect to supply a copy of the tape, disc or other audio-visual preserving medium employed at the proceeding to record its events in lieu of a verbatim transcript. Any Party, upon motion, may be allowed to provide a public stenographer to transcribe the proceedings at the Party's own expense upon terms ordered by the Presiding Officer. In this event, a verbatim transcript shall be supplied to the Presiding Officer at no expense to the Agency.2.Correction of Transcript. Corrections of the official hearing transcript may be made only to make it conform to the evidence presented at the hearing. Transcript corrections, agreed to by opposing Parties, may be incorporated into the record, if and when approved by the Presiding Officer. If opposing Parties cannot agree on transcript corrections, any Party may report the fact to the Presiding Officer, who may call for the submission of proposed corrections and shall determine what corrections, if any, are to be made with reliance on his or her own notes.(j)Hearing Briefs. At the close of the taking of testimony and prior to his or her rendering a decision, the Presiding Officer may in his or her discretion call for and fix the terms of the filing of written summaries and arguments on the evidence and/or proposed findings of fact and conclusions of law.(k)Settling the Record. 1.Contents of Record. The record of the proceeding shall consist of the following items: notices of all proceedings; all motions, pleadings, briefs, memoranda, petitions, objections, requests and rulings; evidence received, including deposition transcripts, and offers of proof with the arguments; statements of matters officially noticed if not otherwise documented; interrogatories and the answers; all findings, decisions and orders presented whether recommended or final; transcripts of the hearing testimony, argument, comments or discussions of record or the tape, disc or preserving medium; and any other item the Presiding Officer has specifically designated be made a part of the record. The record shall at all reasonable times be available at the offices of the Agency or other designated location for inspection by the Parties.2.Evidence after Record Closed. No evidence shall be admitted after the close of the record, unless the Presiding Officer reopens the record.3.Exceptions. Formal exceptions to rulings on evidence and procedure are unnecessary. It is sufficient that a Party, at the time that a ruling is made or sought, makes known his or her objection to and grounds for any action taken. If a Party does not have an opportunity to object to a ruling at the time it is made, or to request a particular ruling at an appropriate time, the Party may submit a written statement of his or her specific objections and grounds within three days of notification of action taken or refused. Oral or written objections to evidentiary rulings shall be part of the record.(11)Decisions. Unless otherwise provided by statute, decisions shall be made as follows: (a)Direct Agency Decisions. The Agency may by regulation elect to preside at the reception of evidence in all cases. In the absence of such regulation, the Agency may elect to preside at the reception of evidence in particular cases and shall exercise this election by so stating in the notice scheduling the time and place for the Adjudicatory Proceeding in the particular case. The decision of the Agency as Presiding Officer shall be the final Agency decision.(b)Initial Decisions. A Presiding Officer other than the Agency who presided at the reception of evidence shall render a decision as provided in M.G.L. c. 30A § 11(8). The decision of the Presiding Officer shall be called an initial decision. The Presiding Officer shall promptly provide the parties with a copy of his or her decision when filed with the Agency.(c)Tentative Decisions. If the Agency elects to render a decision on the record without having presided at the reception of evidence, either by regulation or by statement in the notice scheduling the hearing, the initial decision shall also become a tentative decision.1.Objections and Response. The Parties shall have the opportunity to file written objections to the tentative decision with the Agency, which may be accompanied by supporting briefs. The Parties shall have 30 days from the filing of the tentative decision or the transcript corrections under 801 CMR 1.01(10)(i)2., whichever occurs last, to file written objections. Parties may file responses to objections within 20 days of receipt of a copy of the objections. The Agency may order or allow the Parties to argue orally. A Party requesting oral argument shall file the request with the Party's written objections or response.2.Agency Action on the Tentative Decision. The Agency may affirm and adopt the tentative decision in whole or in part, and it may recommit the tentative decision to the Presiding Officer for further findings as it may direct. The same procedural provisions applicable to the initial filing of the tentative decision shall apply to any refiled tentative decision after recommittal. If the Agency does not accept the whole of the tentative decision, it shall provide an adequate reason for rejecting those portions of the tentative decision it does not affirm and adopt. However, the Agency may not reject a Presiding Officer's tentative determinations of credibility of witnesses personally appearing. The Agency's decision shall be on the record, including the Presiding Officer's tentative decision, and shall be the final decision of the Agency not subject to further Agency review.3.Failure to Issue Final Decision. If the Agency fails to issue a final decision within 180 days of the filing or refiling of the tentative decision, the initial decision shall become the final decision of the Agency, not subject to further Agency review.(d)Final Decisions. Every decision shall be made as required in M.G.L. c. 30A § 11(8), and shall be mechanically or electronically printed, and signed by the Presiding Officer or by those members of the Agency making the decision. A majority of the members constituting the Agency or the Agency panel authorized by the Agency to decide the case shall make direct Agency decisions. A final decision shall incorporate by reference those portions of an initial or tentative decision that are affirmed and adopted, and may expressly incorporate other portions it modifies or rejects with its reasons therefor. A final decision by an Agency under 801 CMR 1.01(11)(c) shall make appropriate response to any objections filed in regard to an initial or tentative decision.(e)Decision Maker Unavailable. When a Presiding Officer becomes unavailable before completing the preparation of the initial decision, the Agency shall appoint a successor to assume the case and render the initial decision. If the presentation of evidence has been completed and the record is closed, the successor shall decide the case on the basis of the record. Otherwise, the successor may either proceed with evidence or require presentation of evidence again from the beginning. The Agency shall provide without cost to all Parties and the successor a copy of the official verbatim transcript, or completed portions thereof, if not previously provided.(f)Notice of Decision. The Agency or Presiding Officer shall promptly provide all Parties with a copy of every Agency decision or order when filed and otherwise give prompt notice of all Agency actions from which any time limitation commences.(12)Telecommunications. The Presiding Officer may designate that all or a portion of a hearing be conducted with one or more participants situated in different locations and communicating through the medium of one or more telecommunication devices, including telephone and video conferencing, unless the Respondent or Petitioner lacks access to sufficient Electronic Medium.(13)Further Appeal. After the issuance of a final decision, except so far as any provision of law expressly precludes judicial review, any person or appointing authority aggrieved by a final decision of any Agency in an Adjudicatory Proceeding shall be entitled to a judicial review thereof in accordance with M.G.L. c. 30A, § 14.(14)Withdrawal of Exhibits and Recording Media. Three years after a decision in a given case has become final and all periods for requesting further review, whether administrative or judicial, which may require reference to original exhibits or the reproduction or transcription of events recorded stenographically or by Electronic Medium, have lapsed, an Agency or Presiding Officer may in its discretion:(a) permit the withdrawal of original exhibits or any part thereof by the Party or Person entitled thereto; and(b) withdraw from its file stenographic or electronic media employed to record the events of the Adjudicatory Proceedings before it and dispose of them as it sees fit.Amended by Mass Register Issue 1429, eff. 8/6/2020.