Section 170-9-III - AppealsThis section applies to appeals of assessments of administrative civil money penalties against employers determined to have violated Title 26, Chapter 7.
A.Notice of Penalty Assessment and Right to AppealThe Director shall issue a Notice of Penalty Assessment in writing. Such notice must be sent by at least one of the following methods:
3. By email if the Bureau previously communicated with the employer by email. The Notice of Penalty Assessment must state that the penalty may be appealed by making a written request for an appeal to the Commissioner. The employer may request the appeal by U.S mail, hand delivery or email. The request for an appeal must be received by the Commissioner within fifteen (15) business days from the date the Notice of Penalty Assessment was mailed or otherwise delivered.
B.Conduct of Hearing on Appeal to the Commissioner1. The Commissioner may serve as the hearing officer or may assign the appeal to a qualified Hearing Officer.2. The Hearing Officer may call upon the parties to appear telephonically or by remote video for a pre-hearing conference to identify issues, witnesses, exhibits and such other matters that may aid in the conduct of the hearing.3. The Hearing Officer shall establish a hearing date and provide notice to the parties at least 10 days in advance of the hearing.4. A party's failure to participate in a pre-hearing conference and/or to comply with requirements of a pre-hearing order, such as providing witness and exhibit lists, may result in a default in accordance with 5 M.R.S. §9053(3).5. The hearing will be conducted pursuant to the provisions of the Administrative Procedure Act governing adjudicatory proceedings, 5 M.R.S. §§ 9051-9064.6. The hearing will be at the headquarters of the Bureau or at a place mutually agreeable to the parties. The hearing may be held telephonically or by remote video, at the discretion of the Commissioner.7. The Hearing Officer may sequester witnesses, except a representative of the employer, the Director of the Bureau, and the Director of the Division of Wage and Hour. A party who is represented by counsel may have a representative in addition to counsel present throughout the hearing. The parties may agree not to sequester witnesses.8. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious business.9. All witnesses shall be sworn by the Hearing Officer.10. The parties will have an opportunity to present evidence. Cross- examination of all witnesses shall be allowed.11. The Hearing Officer decides the Order of Proceedings. The Director has the burden of production. The appellant has the burden of proof.12. Within 30 days of the close of evidence, including any written closing statements or legal briefs, if allowed, the Hearing Officer shall issue a written Recommended Decision to the parties. The Recommended Decision may be issued by U.S. mail, hand delivery or by email. The Recommended Decision shall include findings of fact sufficient to apprise the parties of the basis for the recommendation.13. The parties may submit written objections or other comments on the Recommended Decision to the Hearing Officer by U.S. mail, hand delivery or email within ten (10) business days after the Recommended Decision was issued.C.Final DecisionThe Hearing Officer shall issue a Final Decision, setting out the reasoning for the decision. The Final Decision is final agency action within the meaning of 5 M.R.S. §11001. The Final Decision will be sent by U.S. mail, hand delivery or by email to all parties. The Final Decision of the Hearing Officer shall be subject to review by the Superior Court, pursuant to 5 M.R.S. §11001.
12-170 C.M.R. ch. 9, § III