555 C.M.R. 1.09 – Single Commissioner Review of Suspensions

(1) An officer whose certification is suspended by the commission pursuant to 555 CMR 1.06 or 1.08 may request a hearing before a single commissioner pursuant to M.G.L. c. 6E, § 9(d) in accordance with 555 CMR 1.09.
(2) All requests for a hearing pursuant to 555 CMR 1.09 must be filed by the officer or their counsel or other representative with the executive director no later than five days from the date of the officer’s notice of the commission’s suspension, unless the officer is granted an extension of the time to request a hearing. Such a request for an extension of time shall be made in writing to the commission within the same period of five days, and shall include the bases for the request. A request for an extension of time shall be determined by a single commissioner upon review of the request, and shall be granted only upon a demonstration of good cause. The failure to timely request a hearing or an extension of time to request a hearing may result in a waiver of the right to a hearing.
(3) The request for a hearing shall include:
1. (a) The name and contact information of the officer and the commission certification identification number of the officer;
2. (b) the name and contact information of counsel or other individual representing the officer, if any;
3. (c) the agency at which the officer was employed when the complaint was filed and the head of that agency;
4. (d) a brief description of the basis for the request for the hearing; and
5. (e) a statement regarding whether the officer seeks to invoke or waive the officer’s right under M.G.L. c. 6E, § 9(d) to a hearing within 15 days of the effective date of the suspension.
(4) The executive director shall, immediately upon a receipt of a request for a hearing under 555 CMR 1.09: notify the chair of that request; schedule a hearing not less than five days and not more than 15 days after the effective date of the suspension if the officer has not waived the right to a hearing in the time frame set forth in M.G.L. c. 6E, § 9(d); and notify the requesting party and the chair of the date thereof. The chair shall, within two days after receiving the request for a hearing and the scheduled hearing date from the executive director, assign any single commissioner to conduct the requested hearing.
(5) The single commissioner assigned to conduct a hearing under 555 CMR 1.09 shall be selected pursuant to a policy to be established by the commission.
(6) Hearings held before a single commissioner pursuant to 555 CMR 1.09 shall be adjudicatory proceedings conducted in accordance with M.G.L. c. 30A, §§ 1, 8 and 10 through 14. All hearings shall comply with 555 CMR 1.05, as applicable, and 801 CMR 1.01: Formal Rules, except that the provisions of 801 CMR 1.01(1), (2), (6), (11) and (14) shall not apply, and that the following additional rules shall supersede any inconsistent rules provided in 801 CMR 1.01:
1. (a) Standard of Proof. The single commissioner shall affirm the suspension of the certification of an officer unless the single commissioner determines by a preponderance of the evidence presented to the commission and additional evidence provided by the officer, the suspension is not warranted. If the single commissioner so determines, the single commissioner shall stay the commission's suspension of the officer's certification.
  1. 1. The rules of evidence observed by courts shall not apply to hearings held by the single commissioner, but the rules of privilege recognized by law shall be observed.
  2. 2. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely on in the conduct of serious affairs. The single commissioner may exclude irrelevant, unreliable, and repetitive evidence.
2. (b) Discovery. No discovery shall be permitted in connection with a hearing held pursuant to 555 CMR 1.09 except upon a motion made to the single commissioner at least seven days before such hearing, which motion shall be granted for good cause shown.
3. (c) Public Access.
  1. 1. Records. The single commissioner shall treat all documents submitted to or created by them as confidential to the extent permitted by law, including by, but not limited to, withholding or redacting such records pursuant to M.G.L. c. 4, § 7, twenty-sixth, the exemptions to the definition of public records.
  2. 2. Hearings. During the course of an adjudicatory hearing conducted under 555 CMR 1.10, the single commissioner shall make all reasonable efforts to protect the confidentiality of any documents submitted or considered during the course of a hearing, to the extent permitted by law and as described in 555 CMR 1.09(6)(c)1. A hearing conducted under 555 CMR 1.09 shall be open to the public unless the single commissioner determines that closure is necessary to protect privacy interests and will not be contrary to the public interest.
4. (d) Decisions. Upon completion of the hearing, the single commissioner shall render a written decision as promptly as administratively feasible, in accordance with M.G.L. c. 30A, § 11(8). The written decision of the single commissioner shall be the final decision of that single commissioner. The filing of any appeal of a final decision of the single commissioner shall be to the Superior Court in accordance with M.G.L. c. 30A, § 14.
5. (e) Judicial Review. Appeals to the Superior Court shall not stay enforcement of the single commissioner's decision, but by motion to the commission within ten days of the single commissioner's decision, the commission may for good cause lift the stay of the single commissioner pending appeal to the Superior Court, or pending the final decision of the commission pursuant to 555 CMR 1.10.
6. (f) Administrative Record for Judicial Review. Pursuant to M.G.L. c. 30A, § 11(4), all documents, testimony and other evidence offered and accepted into evidence by the single commissioner shall become part of the administrative record. For purposes of judicial review, the record shall include the final decision issued pursuant to 555 CMR 1.09(6)(d). Any evidence offered at the hearing, but not accepted by the single commissioner, will be marked for identification purposes only and be included in the record.