804 C.M.R. 1.12 – Public Hearings

(1) In General. The public hearing shall be governed by M.G.L. c. 151B, § 5, M.G.L. c. 30A, § 11, and 804 CMR 1.12, and shall be conducted by an adjudicator appointed by the Commission.
(2) Substitution of Adjudicator. In the event of the unavailability of the original adjudicator to issue a written decision pursuant to 804 CMR 1.12(18), the Commission shall assign another adjudicator to hear any remaining evidence and to review the record, including the hearing transcript, resulting in one of the following outcomes:
1. (a) In the event the resolution of disputed issues of material fact rests on findings of witness credibility, and a decision cannot be rendered without such findings, the case shall be reassigned for a new hearing. Prior to scheduling a new hearing, the Commission shall hold a status conference with the parties and make good faith efforts at resolving the matter.
2. (b) In cases where the decision does not rest on credibility findings, a substitute adjudicator may render the decision. Prior to the issuance of a final decision, the parties may make written requests for proposed findings of fact and conclusions of law and an order and shall be afforded a reasonable opportunity to file objections thereto. Any proposed findings of fact and conclusions of law or proposed orders shall be filed as ordered by the Commission.
(3) Waiver Required. M.G.L. c. 151B, § 9 makes available to the complainant a trial in court as an alternative to public hearing before the Commission. Accordingly, the complainant shall waive the right to remove all claims certified to public hearing prior to the commencement of the public hearing.
(4) Conduct. All parties, witnesses, counsel, and others present at a public hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the courts of the Commonwealth. Where such standards are not observed, the Commission may take such action as it deems appropriate, including assessing sanctions against a non- complying person pursuant to 804 CMR 1.22, and adjourning the proceedings.
(5) Request for Clarification. Upon written request of a party or by the Commission sua sponte, the complaint and certification order may be clarified. In the event there remains a dispute about which claims are certified to public hearing, the Commission may proceed to hear evidence on any and all claims presented and may amend the certification order to conform to the evidence established at the hearing.
(6) Continuance. Any party requesting a continuance shall make such request in writing by motion pursuant to 804 CMR 1.13. Continuances shall be granted only upon a showing of good cause. In any instance in which a continuance results in fees or costs to the Commission or another party, the party requesting the continuance may be required to incur such costs.
(7) Settlement after Commencement of Public Hearing. If after the commencement of a public hearing the matter in dispute before the Commission is settled between the parties and the settlement is acceptable to the Commission, it shall dismiss the matter.
(8) Ex Parte Communications. In any proceeding held pursuant to 804 CMR 1.12 or in any appeal therefrom, no party or counsel shall communicate ex parte with the adjudicator for any reason on any matter related to the proceeding prior to the issuance of a final decision of the Commission pursuant to 804 CMR 1.24 or 1.25.
(9) Protective Orders. Upon motion or sua sponte, the Commission may issue a protective order to prevent the public disclosure of information at public hearing or within the record of public hearing for good cause shown and may allow such motion if it is in the public interest. A protective order may provide for the exclusion, limitation, redaction, or impoundment of documentary or testimonial evidence at public hearing or within the public hearing record.
(10) Failure to Appear at Public Hearing. Whenever a party duly notified of the time and place of a public hearing fails to appear at the hearing either in person or by counsel, the party's default shall be entered on the record and notice of the default shall be served within ten days of the entry of default. If the defaulting party is the complainant, the complaint may be dismissed. If the defaulting party is the respondent, the hearing shall be conducted on its scheduled date, and the complainant shall continue to have the burden of establishing liability and remedy notwithstanding the entry of default. Within ten days of receipt of notice of entry of default, the defaulting party may petition the Commission to vacate the default and reopen the case upon a showing of good cause established through affidavit signed under the pains and penalties of perjury. The other parties may file a response to the request for removal of default within ten days of receiving a copy of it. If the case is reopened, the party in default may be ordered to bear the reasonable costs incurred as a result of the default.
(11) Transcript and Record of Public Hearing.
1. (a) The record of the public hearing shall consist of the exhibits and either an electronic recording or a transcript of the hearing. If a party arranges to have a stenographer at the public hearing, the stenographic record shall be the official record of the public hearing, the Commission shall not create an electronic recording, and the party arranging for the stenographer shall furnish the Commission at no charge with a certified copy of the transcript within ten days of receipt of the transcript from the stenographer. If there is no stenographer at the public hearing, the Commission shall make an audio recording of the public hearing. A party desiring a copy of the recording shall make a request in writing to the Commission and may be required to pay the cost thereof. A transcription of the electronic record made by a party may be cited if the Commission and all parties agree to accept the transcription as the official record of the public hearing, with a party waiving any objection to the accuracy of such transcript if not made within 20 days of its filing.
2. (b) The administrative record for the purpose of judicial review under M.G.L. c. 30A, § 14 shall be the record of public hearing in accordance with 804 CMR 1.12(11)(a), together with the certification to public hearing, the complaint as amended, and any post-probable cause motions and orders disposing of such motions at issue in the complaint for judicial review.
(12) Stipulations. Written stipulations of facts may be introduced in evidence, if signed by the persons sought to be bound thereby, or by their authorized representatives. Oral stipulations may be made on the record during the course of a public hearing.
(13) Evidence. The Commission shall not be bound by the rules of evidence observed by courts except for the rules of privilege. The Commission may permit the admission of records, reports, statements or data compilations of public agencies setting forth factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information indicate lack of trustworthiness. Evidence unrelated to the claims certified to public hearing may be deemed irrelevant or not probative of the claims to be decided and, therefore, inadmissible.
(14) Administrative Notice. The Commission may take administrative notice of matters as might be judicially noticed by the courts of the United States or of the Commonwealth, and of technical or general facts within its specialized areas of knowledge.
(15) Oral Argument. The Commission may allow a reasonable time to the parties for oral argument.
(16) Post-hearing Briefs. The parties and any interested person recognized by the Commission shall file a post hearing brief containing proposed findings of fact and conclusions of law and other information as required by the Commission. The brief shall be filed on 8 ½" by 11" paper, when not filed electronically, be typed in no less than 12-point type, and be double spaced, provided that the case caption, footnotes, and quotations may be single spaced. The margins shall be at least one inch. The timing of the filing of the brief and its page limit shall be determined by the Commission.
(17) Other Post-hearing Submissions. The Commission may allow the parties, after a showing of good cause, to file additional evidentiary documents or exhibits within a reasonable time after the completion of the hearing. The Commission may allow reasonable inspection of original documents or tangible things by all parties. The Commission may also require that the parties file additional evidentiary documents or exhibits, including stipulations concerning damages, subsequent to the completion of the hearing.
(18) Public Hearing Decision. The Commission shall issue a decision in writing either dismissing the complaint or granting relief to the aggrieved party for the purposes of effectuating the laws under its jurisdiction, pursuant to M.G.L. c. 151B, § 5. The decision shall contain all findings of fact and conclusions of law necessary to address every claim certified to public hearing. The parties shall be notified in writing of their rights to appeal such decision to the Full Commission. A copy of the decision shall be served upon each party and counsel.
(19) Request for Award of Attorney's Fees and Costs. Where the complainant prevails at public hearing, the complainant may, within 15 days of receipt of the public hearing decision, petition the Commission for an award of reasonable attorney's fees and costs. Such petition shall include detailed, contemporaneous time records, a breakdown of costs and a supporting affidavit from every attorney for whom fees are sought. The petition shall also include information about fair market hourly rates of attorneys with similar skill and experience performing similar work, which may be in the form of affidavits from attorneys with knowledge of such hourly rates or model fee charts, or other documentation. A respondent may file a written opposition within 15 days of receipt of said petition. To the extent that the respondent appeals an order on a petition for attorney's fees and costs pursuant to 804 CMR 1.23(1)(a), such appeal shall be consolidated with any pending appeal to the Full Commission of the underlying public hearing decision issued pursuant to 804 CMR 1.12(18). A decision on a request for award of attorney's fees and costs incurred at public hearing is a final decision appealable to the Full Commission pursuant to 804 CMR 1.23(1)(a), regardless of whether a party has appealed the underlying public hearing decision to the Full Commission.