17-229 C.M.R. ch. 100
SUMMARY: These rules govern the procedures used by the Department of Transportation for its adjudicatory hearings.
These rules shall govern at all adjudicatory hearings before the Maine Department of Transportation. These rules shall be liberally construed to secure a just, speedy and inexpensive determination of the issues presented.;
Whenever an opportunity for a hearing is required, notice shall be given as follows:.
1. To the person or persons whose legal rights, duties or privileges are at issue by regular mail within 14 days of the anticipated time of the decision; and
2. In any proceeding deemed by the department to involve the determination of issues of substantial public interest, within 14 days of the anticipated date of the decision.
Notice of a hearing shall be given as follows:
1. To the person or persons whose legal rights, duties or privileges are at issue by regular mail fourteen days in advance of the hearing date; and
2. To the public by publishing two notices, one at least 14 days prior to the hearing, the second at least 7 days prior to the hearing in newspapers of general circulation in the area affected; and by publication in any other trade, industry, professional or interest group publication which the department deems effective in reaching interested persons if issues of substantial public interest are involved.
Notice shall consist of the following:
1. A statement of the legal authority under which the proceeding is being conducted;
2. A reference to the particular substantive statutory and rule provisions involved;
3. A short and plain statement of the nature and purpose of the proceeding and of the matters asserted;
4. A statement of the time and place of the hearing, or the time within which a hearing may be requested;
5. A statement of the manner and time within which evidence and argument may be submitted to the agency for consideration, whether or not a hearing has been set; and
6. When a hearing has been set, a statement of the time and manner within which applications for intervention must be filed.
100.03 LOCATION
Hearings shall be held at a place and time designated by the Department in the notice of hearing.
100.04 HEARING PROCEDURES
A. Presiding Officer
The presiding officer at the hearing shall be the Commissioner or a person whom he designates.
B. Authority of Presiding Officer
The presiding officer shall have the authority to (1) rule on issues of evidence; (2) limit the issues being considered; (3) where good cause is shown, limit, alter or amend the rules of procedure; (4) administer oaths and (5) take other action when needed to have an efficient and orderly hearing.
C. General Conduct
1. The presiding officer shall open the hearing by describing in general terms its purpose and the procedures to be used. Appearances will then be entered on the record. Any party to the proceeding may make opening statements or motions.
2. The department shall record all hearings in a form susceptible to transcription. A copy of the transcript shall be available to interested parties or the public at cost.
3. The record of the hearing shall consist of the formal notice, the application or complaint, the transcription of the hearing, all exhibits and the findings of fact and conclusions of the presiding officer.
4. Witnesses shall be sworn in before testifying. Witnesses shall state their names, residences and who they represent, if anyone, before testifying.
5. The parties to any hearing or investigation may, by stipulation in writing, agree upon the facts or any portion thereof, involved in the controversy. Such stipulations shall become part of the record and may be used by the presiding officer as evidence.
At any time prior to or during the course of the hearing, the presiding officer may require that all or part of any testimony to be offered at the hearing, be submitted in written form. All persons offering testimony in written form shall be subject to questioning.
6. Any party may by written application request a pre-hearing conference to be held to consider the issues or to make an informal disposition of the proceeding by stipulation, agreed settlement or consent order. At any time prior to the hearing date, the presiding officer may call a pre-hearing conference. Written notice of the conference shall be mailed to all parties of record.
7. The presiding officer shall designate the order of appearance of the parties to the proceeding.
For good cause shown, the presiding officer may grant a request for a continuance. All requests for a continuance should be in writing reasonably in advance of the hearing so that all interested parties may be notified.
A. Relevancy
The presiding officer may require that all evidence be material and relevant to the subject matter of the hearing. Evidence which is irrelevant may be excluded. The rules of privilege shall be observed.
B. Official Notice
The presiding officer may take official notice of all State Laws, official rules and regulations, generally recognized facts and those special facts, which because of the expertise of the departmental officer are known to him. Facts so noted shall be indicated as such on the record.
All documents, materials and objects offered into evidence as exhibits, if accepted shall be numbered. Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. Parties introducing documentary evidence should be prepared to furnish copies to adverse parties.
All documentary and real evidence admitted as part of the record shall be available for the public inspection.
All objections to rulings of the presiding officer regarding evidence or procedure and the grounds for the objection shall be timely stated during the course of the hearing.
An offer of proof may be made in connection with an objection to a ruling of the presiding officer excluding or rejecting any testimony or question on cross-examination.
Any party to a hearing may request the Commissioner to issue subpoenas in the name of the department to compel the attendance and testimony of witnesses and the production of evidence relating to any issue of fact in the hearing. The form of the subpoenas shall conform, insofar as practicable, to the form used in civil cases before the courts. Witnesses subpoenaed shall be paid the same fees for attendance and travel as in civil cases before the courts. Such fees shall be paid in advance by the party requesting the subpoena.
Any subpoena issued shall show on its face the name and address of the party at whose request it was issued.
Any witness subpoenaed may petition the department to vacate or modify a subpoena issued in its name. The department, after appropriate investigation, may grant the petition in whole or part, if it finds that the testimony or the evidence whose production is required does not relate with reasonable directness to any matter in question, or that a subpoena for the attendance of a witness or the production of evidence is unreasonable, oppressive or has not been issued within a reasonable period prior to the time when the evidence is requested.
Failure to comply with a properly issued subpoena which has not been revoked or modified by the department shall be punishable by contempt of court.
All parties to the hearing shall be identified at the beginning of the hearing. Every party shall have the right to present evidence and arguments on the issues, to call witnesses and to participate in cross-examination.
If the presiding officer permits, any person may participate in a hearing by making oral or written statements of such person's position on the issues which may be presented during the hearing.
A member of the public, by written application may petition the presiding officer prior to the hearing and request to intervene in the proceedings. The presiding officer shall allow any person, department or corporation, showing that he is or may be, or is a member of a class which is or may be, substantially and directly affected by the proceeding to intervene as a party to the proceeding. Whenever intervenor status is denied, the department shall include an entry to that effect and the reasons therefor.
Staff of the department may appear and participate in any adjudicatory proceeding.
The department will make its final decision in writing and include it as part of the record. The decision will include findings of fact sufficient to apprise the parties and the public of the basis for the decision. A copy of the decision and a description of how the party may request a review of the decision by the courts shall be mailed to all parties of record.
BASIS STATEMENT: The Maine Transportation Act, 23 M.R.S.A. 4206 provides that the Commissioner or his authorized representative 'may conduct investigations, inquiries and hearings concerning all matters with the jurisdiction of the department.' These regulations govern the conduct and procedures to be followed in all adjudicatory proceedings before the Department.
AUTHORITY: Maine Transportation Act, 23 M.R.S.A. 4201 et. seq.; Maine Administrative Procedure Act, 5 M.R.S.A. 8001 et. seq.
EFFECTIVE DATE: Adopted as an emergency rule on April 3, 1979 and filed on April 5 1979
Adopted as a regular rule on May 15, 1979 and filed on MAY 16, 1979.
EFFECTIVE DATE (ELECTRONIC CONVERSION): April 24, 1996