19 Del. Admin. Code § 1201-4.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1201-4.0 - Hearings

4.1 Purpose. The purpose of a hearing before the Board is to examine the factual and legal bases for the decision rendered by the Hearing Officer. The parties shall not re-litigate the case presented to the Hearing Officer, but may present additional evidence and legal arguments. Both the Hearing Officer's record and any new evidence presented to the Board shall be considered by the Board in making its decision.

4.2 Presence of parties required. All parties to the appeal and any witnesses shall be present in-person at the Board's hearing. Failure to appear within 10 minutes of the time indicated on the Notice may result in the Board hearing the appeal in absence of the delinquent party or, if the delinquent party is the appellant, dismissal of the appeal.

4.2.1 Parties and witnesses are not permitted to use any cell phones, smart watches, recording devices, or other electronics in the hearing room. This prohibition does not apply to State employees who appear on official business and attorneys.

4.2.2 Parties and witnesses are not permitted to have large bags or backpacks in the hearing room.

4.3 Representation.

4.3.1 At any hearing, a party may represent themselves (appear pro se) or may be represented by an attorney-at-law duly admitted to practice law in the State of Delaware. A corporation or other artificial entity must be represented by an owner, officer, or employee of the entity or by an attorney-at-law duly admitted to practice law in the State of Delaware.

4.3.1.1 Attorneys-at-law should enter their appearance with the Board's secretary prior to the hearing.

4.3.1.2 Only an attorney-at-law may directly question a witness on behalf of a party.

4.3.2 The Board or its attorney may examine any witnesses and move the admissions of documents and things into evidence.

4.4 Continuances, Postponements, and Withdrawals.

4.4.1 Request for continuances or postponements. All request for continuances or postponements are within the discretion of the Chair of the Board.

4.4.1.1 Timing of requests. Applications for a continuance or postponement of any hearing shall be made in writing to the Board's secretary no later than 12:00 p.m. the day prior to the hearing. The request shall state the reasons for which the continuance or postponement is requested.

4.4.1.2 Multiple requests. In the case of multiple requests for continuances or postponements, it is generally the Board's practice to allow each party to make a first request for continuance or postponement based on need so long as the request is made before 12:00 p.m. the day prior to the hearing. Any subsequence requests must include a showing of unanticipated emergency circumstances, e.g., death in the family or severe illness, which must be supported by documentation, and are very rarely granted.

4.4.1.3 Requests not granted. Any requests for continuances or postponements that are not granted may be renewed in person at the Board hearing by a party or its representative. The grant or denial of any requests for continuances or postponements made in person at the Board hearing is within the discretion of the Board.

4.4.1.4 Rescheduling of cases. All cases that are continued or postponed at a party's request will be rescheduled for the next available Board hearing date. Cases will not be rescheduled around a party's availability.

4.4.2 Untimely request for continuances or postponements. The Board does not accept any requests for continuances or postponements received after 12:00 p.m. the day before the hearing date.

4.4.3 Withdrawal of appeals. An appealing party may request to withdraw its appeal at any time prior to hearing. All requests for withdrawal must be made in writing.

4.5 Length of hearing. Hearings are scheduled to last 20 minutes from the time the presiding member calls the case, except that the Board may extend the length of the hearing at its discretion. Hearings where one or both parties are represented by an attorney are scheduled for 40 minutes. Extensions of time are rarely granted.

4.6 Record. A record shall be made of all hearings before the Board. The record may be made either by a stenographic record or by audio recording. The record does not need to be transcribed unless and until an appeal is taken to Superior Court of the State of Delaware from the Board's decision.

4.7 Evidence.

4.7.1 The Board follows the Delaware Rules of Evidence. The Board may admit and consider hearsay evidence, however, the Board shall not base its decision solely on hearsay or other evidence not admissible under the Rules of Evidence.

4.7.2 The Board may consider any relevant evidence relating to any issue raised below, whether or not that issue was decided by the Hearing Officer.

4.7.3 The admissibility of evidence and determinations of the weight to be given evidence and the credibility of witnesses shall be within the sound discretion of the Board.

4.7.4 Prior to the hearing, the Board may receive evidence by mail, email, or other electronic means. Evidence must be submitted to the Board and any other parties to the hearing at least 7 days prior to the scheduled hearing.

4.7.5 The Board does not permit electronic evidence, such as video or audio, to be submitted or entered into evidence at a hearing.

4.7.6 The Board cannot review evidence submitted by USB drive, CD, or other external electronic devices.

4.7.7 The Board or its attorney may review testimony contained within the record of the proceedings below that was offered by telephone or other electronic means.

4.8 Subpoenas.

4.8.1 A party may request subpoenas to compel a witness or witnesses to appear at a hearing or to compel the production of documents at or prior to a hearing. Such a request shall be in writing, be received by the Board at least 7 days prior to the hearing, and state the full name and address of the person or persons to be subpoenaed or a detailed description of the documents to be produced and the custodian of the documents and the address where the documents are located. The issuance of any subpoenas shall be at the sole discretion of the Board and its attorney. The Board limits witness subpoena requests to two witnesses per party.

4.8.2 The Board sua sponte may issue subpoenas to compel witnesses to appear at a hearing or documents to be produced at or prior to a hearing.

4.9 Written Submissions. The Board or its attorney may at their discretion request written submissions from the parties prior to or following the hearing.

19 Del. Admin. Code § 1201-4.0

6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/1/2017)
24 DE Reg. 286 (9/1/2020)
24 DE Reg. 517 (12/1/2020) (Emer.)
24 DE Reg. 800 (2/1/2021)
26 DE Reg. 487 (12/1/2022) (final)