Ala. Admin. Code r. 820-2-5-.06

Current through Register Vol. 43, No. 1, October 31, 2024

Section 820-2-5-.06 - Procedures if Complainant Requests Hearing

(1) Hearing Officer The Secretary of State may elect to serve as the Hearing Officer or appoint a Hearing Officer to conduct the hearing. The Hearing Officer shall be fair and impartial. A Hearing Officer may be appointed from within the Office of the Secretary of State, another state or local government agency, a list of eligibles maintained on a register by the State Personnel Department, or otherwise in accordance with applicable Alabama law and subject to requisite approval(s).

(2) Audio or Visual Recording Hearings held pursuant to this Chapter shall either be video or audio recorded at the option of the Hearing Officer. No transcription shall be made as a matter of course. Any party or interested person may obtain a copy of the audio or video recording at his/her own expense. If a transcript is produced at the expense of a party, a copy of the same shall be filed with the Secretary of State and be included in the official record of the proceedings.

(3) Scheduling

A hearing shall be scheduled by the Hearing Officer as soon as practicable but no later than 45 days from the filing of the complaint.

(4) Notice At least 5 days' advance notice of the date, time, and place of the hearing shall be provided by U.S. mail or electronic means to the Complainant(s) and the Respondent(s). Notice of the hearing will also be made online through the Open Meetings Act webpage (www.openmeetings.alabama.gov).

(5) Virtual Hearing At the discretion of the Hearing Officer, the hearing may be held via telephone or video conference and, in such case, the notice shall so state and provide technical details for participating.

(6) Powers of the Hearing Officer The Hearing Officer will preside over the hearing for the purpose of making factual determinations and recommendations. Generally, the Hearing Officer shall hold broad discretion. The following is a non-exhaustive list of the Hearing Officer's powers:

(a) Conduct a prehearing conference, if deemed appropriate;

(b) Permit or deny the parties' requested witness(es) to testify;

(c) Call a witness or witnesses to testify if deemed appropriate, even if said witness(es) were not requested by either party;

(d) Exclude a potential witness or potential witnesses, unless a party to the proceedings, from being physically present at the hearing or accessing a virtual hearing prior to testifying;

(e) Allow the parties the equal opportunity to present witness testimony, question, and/or cross examine (a) witness(es);

(f) Limit questioning and/or cross examination of (a) witness(es);

(g) Question and/or cross examine (a) witness(es) directly;

(h) Allow parties to introduce documentary or other evidence through (a) witness(es);

(i) Accept and exclude evidence;

(j) In the case of consolidated complaints, require parties on either or both sides of the dispute to designate a single party to advocate for their side at the hearing; and

(k) Exercise other such powers as necessary to conduct an efficient hearing.

(7) Conducting the Hearing Fact finding hearings held pursuant to this Chapter are intended solely for the purpose of receiving evidence to refute or substantiate an alleged violation of the Title and shall proceed as follows:

(a) Reading of all allegations contained in the complaint;

(b) Presentation of evidence that substantiates the allegations, including witness testimony and other evidence by the Complainant(s);

(c) Presentation of evidence that refutes the allegations, including witness testimony and other evidence by the Respondent(s);

(d) If desired by the Complainant(s), presentation of any rebuttal evidence, limited to witness testimony not yet presented or evidence, data, or other records not yet introduced; and

(e) Summation by the parties, if desired by them.

(8) Witnesses The parties may submit to the Secretary of State a list of proposed witnesses along with their complaint. The list shall contain the first and last name and contact information of each witness, including a current mailing address, telephone number, and email address. The list shall also provide a brief description of each witness's relation to the allegations and their anticipated testimony. Parties are entitled to testify as witnesses and should indicate whether they intend to be included on the witness list in the complaint. The Hearing Officer may indicate which witnesses the parties will be allowed to call in advance of the hearing or the Hearing Officer may reserve the decision for the hearing. Regardless, the parties shall be responsible for notifying their respective proposed witnesses, if any, and coordinating their hearing attendance.

(9) Testimony and Evidence In taking testimony and in considering the evidence, the Hearing Officer shall follow accepted legal procedure insofar as is practicable but shall not be bound by technical Rules of Evidence or Rules of Procedure observed in courts of law. The Hearing Officer may listen to hearsay testimony and may accept affidavits if such testimony is material and relevant to the issues.

(10) Legal Counsel The parties may retain legal counsel at their own expense to represent them at the hearing; however, the parties shall be present at the hearing and may be required to provide testimony directly at the discretion of the Hearing Officer.

(11) Failure to Appear If a Complainant fails to appear at the hearing, the right to a hearing is waived. In such event, the Secretary of State shall dismiss the complaint with prejudice pursuant to 820-2-5-.09.

(12) Post-hearing Briefs At the discretion and only upon the request of the Hearing Officer, the parties may file written briefs after the conclusion of the hearing by a deadline established by the Hearing Officer. The Hearing Officer shall accept only one post-hearing brief from each side of the dispute. The filing of briefs shall not be the opportunity for the parties to present or otherwise address evidence that was not introduced at the hearing.

(13) Written Report and Recommendation The Hearing Officer shall provide a written report summarizing the evidence received at the hearing to the Secretary of State no later than 15 days following the conclusion of the hearing. Evidence introduced at the hearing as exhibits shall be incorporated into the report, as appropriate. The report shall determine whether the allegation(s) was/were supported by sufficient evidence and, if so, recommend an appropriate resolution or appropriate resolutions. The Hearing Officer's report will be the official record of the fact-finding process conducted in the event of a hearing.

Ala. Admin. Code r. 820-2-5-.06

Adopted by Alabama Administrative Monthly Volume XLII, Issue No. 10, July 31, 2024, eff. 9/14/2024.

Author: Michael L. Jones, Jr., Meridith H. Blackburn, Andrew Mount

Statutory Authority: Alabama Code Section 17-2-3.