PURPOSE: This rule establishes procedures for the disposition of preliminary matters and for the conduct of hearings before an appeals tribunal.

1. (1) Copy of Appeal.

   1. (A) Upon the division’s receipt of an appeal, the appeal shall be acknowledged and the appellant shall be provided with a copy of the division’s informational pamphlet concerning hearings.
   2. (B) The respondent, if any, shall be provided with a copy of the notice of appeal and the division’s informational pamphlet concerning hearings.

2. (2) An appeals tribunal upon its own motion, or upon the request of any interested party, in its discretion may direct the parties to appear at a specified time and place for a conference to consider—

   1. (A) The simplification of the issues;
   2. (B) The possibility of obtaining stipulations, admission of facts or of documents;
   3. (C) The limitation of witnesses; and
   4. (D) Other matters as may aid the disposition of the proceedings.
3. (3) In any proceeding pending before an appeals tribunal, claimants or employing units, or their attorneys, upon request in writing to the appeals tribunal, shall be supplied with information from the division’s records to the extent necessary for the proper preparation and presentation of any claim for unemployment or appeal of employer liability.
4. (4) Unless an appeals tribunal determines otherwise, hearings to which a claimant is an interested party shall be held at or near the office of the division most conveniently located for the claimant. All other hearings, unless the appeals tribunal determines otherwise, shall be held at one (1) of the division’s regularly established hearing locations.

5. (5) Notices of Hearing.

   1. (A) Notice of Hearing shall be mailed, by regular United States mail, to the last known address of each interested party or material witness at least seven (7) days prior to the date of the hearing. Notices also shall be mailed to attorneys who have entered an appearance as set out in these rules. These notices shall specify the date, time and place of the hearing and the address of the office to which all requests or other correspondence concerning the hearing should be directed.
   2. (B) The appeals tribunal or its designated clerk shall complete a certification that the Notice of Hearing was mailed to each of the parties and attorneys of record at the addresses listed in the official file.

6. (6) Postponements.

   1. (A) The appeals tribunal, upon request of a party or upon its own motion, may postpone a hearing. Postponements may be granted if—

      1. 1. The request is promptly made after

the party receives the Notice of Hearing or after the circumstance requiring postponement arises; and

1. 2. The party has good cause for not

attending the hearing at the time and date set. Good cause exists when the circumstances causing the request are beyond the reasonable control of the requesting party and failure to grant the postponement would result in undue hardship for the requesting party.

1. (B) A postponement shall not be granted an attorney if the attorney accepts a case which has already been set for hearing knowing that the setting conflicts with a prior obligation of that attorney.
2. (C) No party may presume that a postponement is granted unless duly notified of the granting by the appeals tribunal.
3. (D) Any further requests for a postponement by a party will be denied except in extraordinary circumstances.

1. (7) Continuances and Additional Evidence.

   1. (A) Any hearing may be continued from time-to-time or place-to-place at the discretion of the appeals tribunal.
   2. (B) All parties shall be prepared to introduce all of their evidence when the case is set for hearing as continuances for additional evidence will be granted only when the appeals tribunal before whom the case is set is satisfied that the additional evidence is necessary to a full and complete hearing. If subsequent to hearing, but prior to mailing of the decision, the appeals tribunal decides that an additional hearing is necessary, the parties shall be advised in writing.

2. (8) Subpoenas to compel the attendance of witnesses or the production of books, papers, correspondence, memoranda and other records may be issued by an appeals tribunal—

   1. (A) Upon its own motion; or

   2. (B) At its discretion, upon the request of an interested party who has—

      1. 1. Demonstrated that the evidence

sought to be procured is relevant and necessary; and

1. 2. Made a good faith effort to obtain the

attendance of the witness or the production of the documents but has been unable to do so.

1. (9) Witnesses subpoenaed for any hearing before an appeals tribunal shall be paid witness and mileage fees in the same amounts as paid in civil actions before the circuit courts of this state, provided the witness and mileage fees are claimed at the time of hearing and certified to by the witness and approved by an appeals tribunal. Approved payment shall be made out of the Unemployment Compensation Administration Fund. Under no circumstances shall parties to the case be granted witness or mileage fees.

2. (10) Participation and Representation at Hearings.

   1. (A) A claimant may represent him/herself or be represented by a duly authorized agent, who may not charge a fee for his/her representation.
   2. (B) Any interested party which is a corporation, partnership or other business entity authorized by law may be represented by an officer or a person employed full-time in a managerial capacity. For purposes of this rule, managerial capacity includes any person who has managerial or supervisory duties.
   3. (C) An employee of a corporation, partnership, or other business entity authorized by law who is not an officer or full-time managerial employee may attend a hearing to which the business entity is an interested party. The employee’s participation at the hearing is limited to testifying and offering exhibits.
   4. (D) Any interested party may be represented by a licensed Missouri attorney, a nonresident attorney appearing in personam and complying with Supreme Court Rule 9, or an eligible law student complying with Supreme Court Rule 13. A licensed attorney may charge a fee for representation.
   5. (E) Any attorney retained to represent an interested party before the appeals tribunal shall file an entry of appearance as soon as practicable after being retained.

   6. (F) In order to protect the integrity and fairness of the appeals process, the appeals tribunal requires agents to comply with the following rules of conduct:

      1. 1. An agent shall appear at the hearing

location no later than the starting time listed on the notice of hearing;

1. 2. An agent shall comply with all direc-

tions given by an appeals tribunal during a hearing;

1. 3. An agent may not use dilatory tactics

during a hearing;

1. 4. An agent may not engage in abusive

conduct, harass, intimidate, threaten or cause physical harm to any referee, other employee of the division, or any other party, witness or member of the public in attendance;

1. 5. An agent may not act in a manner dis-

ruptive to the operations of the appeals tribunal;

1. 6. An agent shall act in good faith and

with integrity during the representation of a party and shall adhere to reasonable standards of orderly and ethical conduct;

1. 7. An agent shall, to the extent reason-

ably possible, restrain the party represented by that agent from improprieties in connection with the hearing; and

1. 8. An agent who fails to follow these

rules will be excluded from the hearing room. (11) Conduct of Hearings.

1. (A) All hearings shall be open public hearings and shall be conducted in an orderly manner. The appeals tribunal shall review the issues presented and set forth the procedures to be followed during the hearing. Persons whose presence would be detrimental to the proper conduct of the hearing may be excluded from the hearing room by an appeals tribunal. Unless an appeals tribunal determines otherwise, the appellant shall first present evidence to show that the determination appealed from is in error. An appeals tribunal may examine all parties and witnesses and shall determine the order of testimony and procedure for each hearing. Upon the motion of any party or an appeals tribunal, witnesses may be sequestered.

2. (B) In any hearing before an appeals tribunal, the following shall be the applicable rules of evidence and procedure:

   1. 1. Oral evidence shall only be taken by

oath or affirmation;

1. 2. Subject to this chapter’s restrictions

regarding representation, each party has the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not a subject of the direct examination, to impeach any witness, regardless of which party first called the witness to testify, and to rebut the evidence against him/her;

1. 3. A party who does not testify in

his/her own behalf may be called and examined as if under cross-examination;

1. 4. The hearing need not be conducted

according to the common law or statutory rules of evidence or the technical rules of procedure. Irrelevant, immaterial, privileged or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonable persons in the conduct of their affairs shall be admissible, whether or not that evidence would be admissible in a trial in the courts of Missouri. A party or his/her attorney may advise the appeals tribunal of a defect in the character of any evidence introduced by voicing an objection. The appeals tribunal shall rule on the admissibility of all evidence to which an objection is made. Any evidence received without objection which has probative value shall be considered by the appeals tribunal along with other evidence in the case;

1. 5. Any writing or record, whether in the

form of an entry in a book or otherwise, made as a memorandum or record of an act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if it shall appear that it was made in the regular course of any business and that it was the regular course of the business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time after that. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but the showing shall not affect its admissibility. The term business shall include business, profession, occupation and calling of every kind; and

1. 6. All documents introduced as evidence

shall be marked as exhibits. A photocopy may be substituted for an original document. Whenever practicable, demonstrative and physical evidence also shall be marked and placed in the record; otherwise, it shall be described in detail on the record.

1. (C) If the appeals tribunal believes that the deputy’s determination did not apply the correct provision(s) of law to the factual situation presented, the appeals tribunal, after informing the parties, may expand or otherwise alter the hearing to include the correct issues involved. If one (1) or more parties object to the change in the hearing, the appeals tribunal shall continue the hearing to allow the parties time to prepare for the proper issues.

1. (12) Reassignment of Referee. A referee may be reassigned under the following conditions:

   1. (A) If for any reason, a referee cannot complete disposition of an appeal, the case shall be assigned to another referee;
   2. (B) A referee shall not conduct a hearing in which s/he may have a personal interest or conflict of interest or in which s/he would have a personal bias towards or against any of the parties;
   3. (C) Any party to a proceeding before the appeals tribunal may request the disqualification of the referee assigned to the proceeding by filing with the chief referee a signed, writ- 8 CSR 10-5

ten statement detailing the reasons why the disqualification is necessary. This request must be filed no later than five (5) days prior to the scheduled hearing date. The chief referee, or designee, shall issue a written ruling on the request. The written ruling shall be interlocutory but may be specified as a grounds for appeal following the issuance of the decision of the appeals tribunal; and

1. (D) If the chief referee, or designee, rules that a referee shall not conduct a scheduled hearing, another referee shall be assigned to hear the case.

AUTHORITY: sections 288.190 and 288.220.5, RSMo Supp. 1997.* Original rule filed Dec. 14, 1982, effective March 13, 1983. Amended: Filed July 17, 1985, effective Nov. 11, 1985. Amended: Filed Oct. 17, 1988, effective March 26, 1989. Emergency amendment filed July 31, 1990, effective Aug. 10, 1990, expired Dec. 8, 1990. Emergency amendment filed Nov. 13, 1990, effective Dec. 6, 1990, expired April 4, 1991. Amended: Filed Aug. 31, 1990, effective Dec. 31, 1990. Amended: Filed Nov. 1, 1995, effective April 30, 1996. Emergency amendment filed Dec. 11, 1996, effective Jan. 2, 1997, expired June 30, 1997. Amended: Filed Dec. 11, 1996, effective July 30, 1997. Emergency amendment filed Jan. 22, 1997, effective Feb. 1, 1997, expired July 30, 1997. Amended: Filed Jan. 22, 1997, effective July 30, 1997. Amended: Filed Sept. 9, 1998, effective March 30, 1999.

*Original authority: 288.190, RSMo 1951, amended 1972, 1979, 1984, 1996 and 288.220.5, RSMo 1951, amended 1955, 1961, 1963, 1967, 1971, 1995.