Md. Code Regs. 36.01.02.06

Current through Register Vol. 51, No. 22, November 1, 2024

Section 36.01.02.06 - Commission Hearings

A. Scope.

(1) These regulations apply only to contested case hearings before the Commission.

(2) These regulations do not apply to conferences, meetings, or other informal proceedings where no formal ruling or decision is made.

B. Definitions.

(1) In this regulation, the following terms have the meanings indicated.

(2) Terms Defined.

(a) "Act" means the Administrative Procedure Act, State Government Article, §§ 10-201 -10-226, Annotated Code of Maryland.

(b) "Administrative law judge" has the meaning stated in COMAR 28.02.01.

(c) "Contested case" has the meaning stated in State Government Article, § 10-202, Annotated Code of Maryland.

(d) "Party" means a person, including the Agency, named or admitted to participate in a hearing.

(e) Presiding Officer means:

(i) The Chairman of the Commission or a member designated by the Chairman; or

(ii) In the absence of the Chairman or the member designated by the Chairman, any other Commission member in attendance.

(f) Quorum means a majority of the full authorized membership of the Commission.

C. Conduct of Hearing.

(1) Commission Action.

(a) A hearing conducted by the Commission shall be held before not less than a quorum of the Commission.

(b) Commission action shall be by the concurrence of at least four members.

(2) Duties of Presiding Officer.

(a) The Presiding Officer shall have complete charge of the hearing.

(b) In addition to other powers and authority granted by law, the presiding officer may:

(i) Administer oaths and affirmations;

(ii) Rule upon offers of proof by the parties;

(iii) Rule upon the admission and inadmissibility of evidence;

(iv) Consider and rule upon all procedural and other motions appropriate to the procedures;

(v) Examine witnesses;

(vi) Maintain order; and

(vii) Limit unnecessarily repetitious or irrelevant evidence or argument.

D. Legal Advisor.

(1) The presiding officer may ask the Office of the Attorney General to act as legal advisor to the Commission.

(2) The legal advisor may assist the Commission with:

(a) Questions of evidence and law;

(b) Preparation of the Commission's written decision; and

(c) Any other appropriate advice function.

E. Presenter of Evidence.

(1) The presiding officer may ask the Office of the Attorney General to act as the presenter of evidence before the Commission.

(2) An Agency staff member may act as the presenter of evidence before the Commission.

(3) The presenter of evidence shall have all the rights as a representative for any other party with regard to:

(a) Submission of evidence;

(b) Examination and cross-examination of witnesses;

(c) Preparation of summation and argument; and

(d) Filing of objections, exceptions, and motions.

F. Evidence.

(1) Only evidence that possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs shall be admitted into the record and considered by the Commission in reaching its decision.

(2) The presiding officer may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.

(3) The presiding officer shall give effect to the rules of privilege recognized by law.

(4) In making its determination, the Commission may consider only evidence which has been:

(a) Introduced in the course of the hearing; and

(b) Made part of the record in the case.

(5) Documentary evidence may be received in the form of copies or excerpts, or incorporated by reference.

(6) The Commission may use its experience, technical competence, and specialized knowledge in its evaluation of the evidence.

(7) The Commission may take notice of:

(a) Judicially cognizable facts; and

(b) General, technical, or scientific facts within its specialized knowledge.

(8) The presiding officer shall inform the parties of notices taken by the Commission.

(9) A Party may contest facts so noticed.

G. Rights of Parties.

(1) At a hearing, the parties may:

(a) Be represented by counsel;

(b) Present witnesses;

(c) Cross-examine witnesses presented by the other party or presiding officer;

(d) Present documentary and other evidence which is relevant;

(e) Submit rebuttal evidence; and

(f) Present argument.

(2) If a party is represented by counsel, submissions of evidence, examination and cross-examination of witnesses, and argument shall be performed solely by counsel.

(3) The presiding officer, on the presiding officer's own motion or upon request by a member of the Commission, may call additional witnesses.

(4) A member of the Commission may examine a witness.

H. Record and Transcript of Hearing.

(1) Record.

(a) The Commission shall prepare an official record of the hearing, which shall include all pleadings, testimony, exhibits, and other memoranda or other documents submitted in the proceedings.

(b) A record of the hearing shall be made at the expense of the Commission.

(c) This record need not be transcribed unless requested by a party or the Commission.

(2) Transcript Expense.

(a) The cost to obtain a written transcript of any part of a proceeding shall be paid by the party requesting the transcript.

(b) The party requesting the transcript is responsible for all costs of transcription.

(c) If a party is excepting to, appealing from, or seeking judicial review of the Commission's proposed or final decision, that party shall request a transcript of the recording, unless a transcript already has been prepared

I. Decision and Order.

(1) Each decision and order rendered by the Commission shall be in writing and accompanied by findings of fact and conclusions of law.

(2) Transcript Expense.

(a) The cost to obtain a written transcript of any part of a proceeding shall be paid by the party requesting the transcript.

(b) The party requesting the transcript is responsible for all costs of transcription.

J. Consolidation.

(1) When proceedings involving a common question of law or fact are pending before the Commission, the Commission may consolidate the proceedings pursuant to a motion or on the Commission's own initiative.

(2) If the consolidated proceedings involve different parties or burdens of going forward or persuasion, the Commission may specify special procedures to assure an expeditious and just proceeding.

K. Default.

(1) If, after receiving notice, a party fails to attend or participate in a prehearing conference, hearing, or any other stage of a proceeding, the Commission may:

(a) Proceed in that party's absence;

(b) Continue the matter to a later time; or

(c) Issue a default order against that party.

(2) Within 30 days after issuance of a default order, the party in default may submit a written motion requesting that the order be vacated or modified.

(3) The Commission may vacate or modify a default order if the Commission finds that:

(a) There is a substantial and sufficient basis for an actual controversy on the merits; and

(b) It is equitable to excuse the default.

(4) If a motion to vacate or modify the default order is not timely submitted, or if a motion is submitted and denied, the default order shall be final and effective when the Chairman signs the order.

L. Dismissal for Lack of Prosecution.

(1) If six months pass since a party that initiated an action before the Commission has made a submission or otherwise contacted the Commission to pursue the party's action, the Commission may dismiss the action.

(2) The Commission shall:

(a) Document its dismissal of the action in writing; and

(b) Transmit the written dismissal to all parties by electronic or regular mail.

(3) If a party disagrees with the dismissal, within 30 days of the date of the dismissal notice, the party shall submit, in writing, its factual and legal basis for disagreement.

(4) The Commission may reopen the matter if good cause exists to do so.

(5) The Commission's dismissal of an action is final if:

(a) No party timely submits written disagreement with the dismissal; or

(b) The Commission declines to reopen the matter.

M. Time Modifications and Waivers.

(1) The Presiding Officer may modify or waive a time limit established by this title.

(2) An administrative law judge may not modify or waive a time limit established by this title, except with the consent of all parties or the consent of the Commission.

N. Service.

(1) A party shall promptly serve a copy of any notice, order, pleading, motion, response, correspondence, decision, paper, or other document submitted in a proceeding on all other parties to the proceeding or their authorized representatives.

(2) Unless otherwise required by law, a party shall make service by personal delivery or by regular mail.

(3) A party may make service on a party to whom a license, registration, or certification has been issued by the Agency or the Commission by delivering a copy to the last address provided the Agency by that party.

(4) Every paper or document submitted in a proceeding, other than one submitted by or on behalf of the Commission, shall contain or be accompanied by a certificate of service that:

(a) Is signed by or on behalf of the party submitting the paper or document; and

(b) Specifies the:

(i) Date of service;

(ii) Manner of service;

(iii) Name of each person served; and

(iv) Address at which each person was served.

O. Delegation of Hearing Authority.

(1) The Commission may, on a case-by-case basis, delegate to the Office of Administrative Hearings the authority to:

(a) Conduct a contested case hearing; and

(b) Issue:

(i) Proposed or final findings of fact;

(ii) Proposed or final conclusions of law;

(iii) Proposed or final findings of fact and conclusions of law; or

(iv) A proposed or final order.

(2) Hearings delegated to the Office of Administrative Hearings.

(a) This section applies to a contested case where the Commission has delegated authority to the Office of Administrative Hearings to conduct a contested case hearing under §O(1) of this regulation.

(b) The administrative law judge who hears a case shall submit to the Commission a decision that contains one of the following, as delegated by the Commission to the Office of Administrative Hearings:

(i) Proposed or final findings of fact;

(ii) Proposed or final conclusions of law;

(iii) Proposed or final findings of fact and conclusions of law; or

(iv) A proposed or final order.

(c) When making a decision, the administrative law judge is bound by any regulation, bulletin, final order, or settled and preexisting policy of the Commission to the same extent that the Commission is or would have been bound if the Commission were hearing the case.

(d) The Office of Administrative Hearings shall send the administrative law judge's decision directly to the parties and the Commission.

(3) Unless the Commission expressly delegates hearing authority to the Office of Administrative Hearings, the Commission shall hear all contested case matters that come before the Commission.

(4) In a hearing delegated to be conducted by an administrative law judge of the Office of Administrative Hearings, these regulations shall be construed, whenever possible, in harmony with COMAR 28.02.01.

(5) In the event of conflict between these regulations and COMAR 28.02.01, these regulations control.

(6) The Commission may revoke all or part of a delegation previously made to the Office of Administrative Hearings if the Commission believes that the case might:

(a) Involve novel or unanticipated factual or legal issues;

(b) Have significant social or fiscal consequences;

(c) Involve policy issues of general applicability; or

(d) Be likely to have precedential value.

(7) The Commission may revoke a delegation to the Office of Administrative Hearings at any time before the earlier of:

(a) The issuance of a ruling on a substantive issue; or

(b) The taking of oral testimony from the first witness.

(8) The Commission shall provide written notice of a revocation to all parties and the Office of Administrative Hearings by sending to the parties a notice that:

(a) Contains a brief statement of the reason for the revocation;

(b) Specifies whether all or part of the delegation to hear the case is revoked; and

(c) If less than all of the delegation is revoked, specifies the parts of the contested case for which the delegation has been revoked.

(9) The Commission's decision in the case shall reflect the fact that delegation to the Office of Administrative Hearings was revoked.

(10) The Commission's revocation notice shall be included in the record.

Md. Code Regs. 36.01.02.06

Regulation .06 amended effective 42:6 Md. R. 515, eff.3/30/2015; amended effective 46:1 Md. R. 13, eff. 1/14/2019; amended effective 48:18 Md. R. 690, eff. 8/5/2021; amended effective 49:1 Md. R.16, eff. 1/13/2022