Section 001-8-5 - APPEAL HEARINGS1. HEARING OFFICER: The Hearing Officer shall preside over the appeal hearing and shall control all aspects of the hearing, rule on points of order, rule on all objections, and may question witnesses.2. APPEAL CRITERIA: The burden of proof within the hearing of appeal lies with the petitioner. The evidence presented must specifically address and be limited to one or more of the following:B. Irregularities creating fundamental unfairness; orC. Arbitrary or capricious award. Evidence of any type that cannot be related to this criteria may be ruled inadmissible by the Hearing Officer.
In the event multiple appeal hearing requests are granted on a single grant award, the Commissioner may assign the Hearing Officer to hear all petitioners within the same hearing as a combined appeal. Notwithstanding a combined appeal hearing process, the Hearing Officer may still decide each petitioner's appeal separately based solely on the evidence presented by each respective petitioner.
3. PARTICIPANTS: The petitioner may participate alone or be represented by an attorney. The Department may be represented by staff and/or its attorney. Other parties of interest may petition to intervene. Such petition shall be presented in writing to the Hearing Officer, who shall determine and allow or disallow participation in writing within seven (7) calendar days of receipt of the request to intervene. Copies of this notification shall be sent to the petitioner and the Department.4. PRESENTATION OF EVIDENCE: The petitioner must present evidence to substantiate the specific grievances stated in the appeal. The evidence shall be confined to the record upon which the Commissioner's decision was based. The burden is on the petitioner to prove one or more of the appeal criteria under Section 5, Subsection 2 by clear and convincing evidence. Brief opening statements may be made by the petitioner, the Department, and any intervenors, in that order. All testimony shall be under oath.A. The petitioner shall present evidence first, using exhibits and witnesses who may be cross-examined by the Department and the intervenors. Re-direct questioning related to issues raised during cross-examination only may be done by the petitioner, followed by re-cross-examination by the Department and intervenors.B. Witnesses may be called who can present factual information related directly to the appeal. All witnesses shall be sworn. Testimony of any witness may be pre-filed in written form. If used, pre-filed testimony must be made available to the Department, the Hearing Officer, and all intervenors a minimum of two (2) business days prior to the hearing. Every such witness must be present at the hearing and shall be subject to cross- examination.C. EXHIBITS: Exhibits relating to any issue of fact in the proceeding may be presented. Documentary evidence may be incorporated into the record by reference when the materials so incorporated are made available for examination by the parties before being received in evidence.(1) COPIES: A petitioner must furnish copies of all documentary evidence to the Hearing Officer, Department, and all intervenors, in all cases, no less than two (2) business days prior to the hearing. Any costs associated with this subparagraph are the responsibility of the petitioner and shall not be recovered by any judgment of the Commissioner.5. DEPARTMENT/INTERVENOR EVIDENCE: The Department and all intervenors shall have the opportunity to submit evidence relevant to the appeal through witnesses and exhibits. The procedures for presenting this evidence are the same as those for the petitioner. A. The order of examination and cross-examination when the Department presents evidence is as follows: Department, all intervenors, and the petitioner.B. The order of the examination and cross-examination when an intervenor presents evidence shall be as follows: remaining intervenors (if any), the Department, and the petitioner.6. RECORD: A recording of the appeal hearing shall be made by audio tape or other media. All evidence received or considered shall be part of the record. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The Hearing Officer may exclude irrelevant or unduly repetitious evidence. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.