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Administrative Law

Model rules of practices for hearing officers conducting formal hearings pursuant to the Virginia Administrative Process Act

 

Adopted by the Association of Virginia Hearing Officers at its annual meeting in Richmond, Virginia, on November 13, 1996.

 

Contents

Rule 1. Informal Fact Finding

Rule 2. Litigated Issues

Rule 3. Applicability

Rule 4. Documents

Rule 5. Continuances

Rule 6. Preliminary Matters

Rule 7. Subpoenas

Rule 8. Depositions

Rule 9. Rights Of Parties

Rule 10. Open And Closed Meetings -- Media Access

Rule 11. Hearing Agenda

Rule 12. Burden Of Proof

Rule 13. Conduct Of Counsel

Rule 14. Ex Parte Communications

Rule 15. Failure To Appear

Rule 16. Decisions

Rule 17. Reconsideration

Rule 18. Saving Clauses

Rule 19. Disclaimer

1. Informal Fact Finding

a. Where the named party and the agency consent to waive the opportunity to proceed to a case decision through informal conference or consultation proceedings, a duly appointed hearing officer may be empowered to recommend a finding. Such recommendation is subject to review and decision by the agency or board within thirty (30) days from the date that the agency receives the hearing officer's recommendation. Sec. 9-6.14:11 A-E of the Code of Virginia (The Administrative Process Act).

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2. Litigated Issues

a. Sec. 9-6.14:12 of the Code empowers hearing officers presiding over formal proceedings to: (1) administer oaths and affirmations; (2) receive probative evidence; exclude irrelevant, immaterial, insubstantial, privileged, or repetitive proofs, rebuttal, or cross-examination; rule upon offers of proof, and oversee an accurate verbatim recording of the evidence; (3) hold conferences for the settlement or simplification of issues by consent; (4) dispose of procedural requests; and (5) regulate and expedite the course of the hearing.

b. Hearing officers are authorized by Sec. 9-6.14:12 to recommend findings and submit a decision to the agency concerned unless the agency by its regulations provides for the rendering of findings and an initial decision by the hearing officer subject to review and reconsideration by the agency on appeal to it as a right or on its own motion. The agency shall give deference to findings by the presiding officer explicitly based on the demeanor of witnesses.

c. Certain Virginia administrative boards and agencies have issued rules of procedure governing hearings coming under their jurisdiction. The Department of Commerce, whose Rules of Practice, as amended, were issued effective August 15, 1984,2 revoked these rules effective July 1, 1993. The Department of Social Services issued procedures for hearings related to child welfare agencies, homes for adults, and day care centers for adults in July 1976. The Department of Education issued "Regulations Governing Special Education Programs for Children with Disabilities in Virginia," effective January 1, 1994. The Department of Health Professions issued a Hearing Officer's Handbook on October 15, 1993. The Department of Employee Relations Counselors issued its Employee Grievance Procedure effective July 1, 1995 and a Handbook for Hearing Officers.

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3. Applicability

These rules are offered as a public service for elective use by hearing officers under their authority pursuant to applicable law in those situations where the board or agency concerned has placed no procedural rules into effect or has suspended or revoked its rules or its rules do not govern the situation faced by the hearing officer.

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4. Documents

a. Documents shall conform generally to standard practice in administrative proceedings in Virginia. Duplicated copies shall be clear and legible. At least one copy of all documents shall be filed with the hearing officer and with the opposing party or parties.

b. Upon initiating the proceeding, the moving party shall serve a pleading in the form of a complaint, petition, application, motion for suspension, revocation or other appropriate sanction or demand for relief on each other known party stating the issues involved and the relief requested, with appropriate references to applicable laws, rules and regulations, and any prior agency actions.

c. Answers shall be filed within 10 days of receipt by the responding party unless the time is extended by the hearing officer. No reply is necessary. All matters alleged shall be regarded as controverted unless expressly stipulated.

d. Documents shall identify the name of the person filing, with full address, telephone number, and FAX address, if any.

e. Service shall be by U.S. mail or personal delivery directed to the party's address as given on any document filed by the party, or at such other place as the party may request, or at the office of the party's attorney; or, if no document has been filed, at the most recent address of agency record. The date of service shall be two days after the date of mailing. If service occurs by registered mail, return receipt requested, the date of service shall be the date appearing on the return receipt.

f. Time for filing documents other than pleadings shall be as directed by the hearing officer. When time specified runs seven or less days, any intermediate Saturdays, Sundays and holidays shall be excluded from the computation.

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5. Continuances

Requests for continuances may be made to the hearing officer with notice to the other party not later than five days before the date set for the hearing, except in cases of undue hardship. Continuances shall be granted only upon a showing of good cause.

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6. Preliminary Matters

a. Any party may file relevant preliminary motions, including a motion for summary judgment, with notice to the other party. Respondents shall answer within 10 days of receipt of such motions.

b. The hearing officer, with or without a motion, may schedule and hold pre-hearing conferences prior to the commencement of the hearing to consider: (1) simplifying the issues; (2) amending the pleadings; (3) obtaining stipulations of facts; (4) disclosure of the number and identities of witnesses; (5) providing for exchange of documents prior to hearing; 6) scheduling the time and place of the hearing; and 7) such other items as may aid in the prompt and just disposition of the hearing. Where feasible, preheating conferences may be held by conference telephone call. Following the conference, the hearing officer shall issue an order reciting the actions taken to be included in the hearing record: or, if the conference is held just prior to the hearing itself, the report of the conference shall be included in the hearing transcript.

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7. Subpoenas

a. Under provisions of Sec. 9-6.14:13 of the Code of Virginia, the hearing officer, upon designation by the agency, has the power to, and on request of any party to a hearing, shall issue subpoenas requiring testimony or the production of books, papers, and physical or other evidence. Any person who is subpoenaed and who objects may petition the hearing officer to quash the subpoena or to modify it as illegally or improvidently granted. If the hearing officer does not quash the subpoena, the objecting person may petition an appropriate Circuit Court to render a decision on the validity thereof. In any case of refusal or neglect to comply with a valid subpoena, unless otherwise provided by law, the party seeking the subpoena may procure an order of enforcement from a Circuit Court.

b. The party requesting the subpoenas may be directed by the hearing officer to obtain service thereof under procedures applicable in the local jurisdiction, with the return of service to be provided for inclusion in the hearing record.

c. A subpoena may be served orally by the hearing officer if the person to be subpoenaed is present in the hearing room.

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8. Depositions

Under provisions of Sec. 9-6.14:13 of the Code of Virginia, depositions de bene esse and requests for admissions may be directed, issued, and taken on order of the hearing officer for good cause shown; and orders or authorizations therefore may be challenged or enforced in the same manner as subpoenas. Discovery proceedings are not authorized.

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9. Rights Of Parties

The parties to the hearing shall be entitled to be accompanied by and represented by counsel, to submit oral and documentary evidence and to conduct such cross-examination as may elicit a full and fair disclosure of the facts. The moving party shall have the right to present rebuttal evidence.

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10. Open And Closed Hearings -- Media Access

a. Although administrative hearings are not technically "meetings of a public body," hearing officers should be guided by the policy of the Virginia General Assembly as stated in Sec. 2.1-344 of the Code to the effect that preference should be given to open hearings. to promote increased awareness by all persons of governmental operations.

b. However, in employee grievance, special education, and suspension or revocation of professional license proceedings, requests for a closed hearing should be honored where a meritorious showing is made of the need to protect privacy.

c. Where classified materials are sought to be introduced, the hearing officer may close the hearing for their consideration and receipt in evidence. Appropriate steps should be taken to preserve confidentiality of such materials.

d. Access to open hearing by the media should be controlled so as not to interfere with the dignity and smooth conduct of the administrative hearing process. Recording and video equipment should be restricted to locations which do not impact upon the performance of witnesses, counsel, and the hearing officer.

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11. Hearing Agenda

a. Unless otherwise provided, the order of proceedings shall be: (1) introductory remarks by the hearing officer; (2) disposition of preliminary motions; (3) opening statements on behalf of the parties; (4) the proponent or applicant's case-in-chief; (5) the respondent's case; (6) the proponent or applicant's rebuttal case; (7) closing oral arguments; (8) receipt of requests to submit written proposed findings of fact and conclusions of law; and (9) adjournment.

b. Rules of evidence: The hearing officer shall follow the guidelines of the Virginia Administrative Process Act set forth in section 2 above. Where evidence is excluded, counsel may submit oral or written offers of proof consisting of the substance of evidence which counsel contends should have been received. The documents offered shall be marked for identification for inclusion in the record. In his discretion and in order to obtain a complete record, the hearing officer may examine any witness with due regard to the necessity for impartiality. The hearing officer may take official notice of indisputable material facts, setting forth in the decision the particular items upon which weight was given in arriving at findings of fact. Any objecting party may be given an opportunity to present evidence in rebuttal to the matters officially noticed, if the objection is found to have substance.

c. A document may be received in evidence if offered in a timely manner after the close of the hearing and if the hearing officer determines that the document will contribute substantially to the hearing record. An opportunity for rebuttal may be granted by the hearing officer. A document referring to events that have occurred after the hearing is closed will ordinarily not be received in evidence, unless the document is found to materially affect the decision to be rendered in the proceeding.

d. Upon request of a party or at the. instance of the hearing officer, correction of the transcript of the hearing, if appropriate, may be ordered by the hearing officer after considering objections, if any, filed by the opposing party.

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12. Burden Of Proof

The burden of going forward with the evidence shall be borne by the proponent of an order to be issued at the conclusion of the proceeding. In proceedings involving an application for a license, the standard of proof shall be by the preponderance of the credible evidence. In proceedings involving the suspension or revocation of licenses or the imposition of any sanction such as termination, suspension or civil penalty, the standard of proof shall be by clear and convincing evidence.

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13. Conduct Of Counsel.

Counsel and parties appearing pro se shall at all times conduct themselves with dignity and respect for witnesses, opposing counsel and the hearing officer. In the event such persons become unruly or offensive, the hearing officer should express disapproval of the opprobrious conduct and warn against its repetition. Highly objectionable remarks may be physically stricken from the record. In extreme cases the hearing officer may direct a party to find substitute counsel.

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14. Ex Parte Communications.

It is improper for any counsel or party to engage in an off the record ex parte communication orally or in writing with a hearing officer with regard to any substantive aspect of a pending case. In the event that such a communication occurs, the hearing officer shall prepare a written memorandum of the conversation and the surrounding circumstances for inclusion in the hearing record, with copies to all parties. If the communication appears to have been a deliberate effort to influence the decisional process, the matter shall be referred to the Ethics Committee of the Virginia Bar Association or, in the case of non-lawyers, to the agency for appropriate action. Ex parte communications in written form shall be filed with the official docket open to inspection by all parties.

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15. Failure To Appear

Failure of a party to appear at the hearing shall be deemed to be a waiver of all rights in the proceeding except the right to receive a copy of the hearing officer's decision.

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16. Decisions

After reviewing the hearing record and considering any oral or written closing presentations by the parties, the hearing officer shall issue a decision without undue delay containing a brief analysis of the evidence and the arguments as submitted, including findings of fact and conclusions of law. Unless prohibited under applicable law and/or regulations, the hearing officer shall include recommendations to the board or agency as to actions that should be taken on the decision.

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17. Reconsideration

Parties may file a petition for reconsideration with the hearing officer within 10 working days after receipt of the decision. If a party seeks reconsideration on the basis of evidence not submitted during the hearing, such party will be expected to show why the evidence could not have been procured with reasonable diligence in time for the hearing. If found appropriate, the hearing officer may reconvene the hearing to dispose of matters arising from a valid petition for reconsideration.

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18. Savings Clauses

a. Repeal or revision of these rules shall not effect any proceeding arising at a time before such repeal or revision was placed into effect.

b. If any provision of these rules of practice shall be held by any duly constituted authority to be invalid, the remainder of these rules shall stand in effect.

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19. Disclaimer

These rules of practice are for the discretionary use by hearing officers whose names appear on a list maintained in the Office of the Executive Secretary of the Virginia Supreme Court, pursuant to provisions of section 9-6.14:14.1 of the Code of Virginia. None of these rules has been approved or authenticated by any agency or officer of the Virginia government. None of these rules shall be deemed to supercede or amend any outstanding law, regulation, or procedural rule of the government of Virginia with which it may be in conflict. These rules are intended for the elective use by hearing officers in those instances in which rules of practice for administrative hearings have not been issued by the board or agency concerned or in which such agency rules have been suspended or revoked or in those instances where the rules issued do not apply to the matter before the hearing officer.

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PAUL N. PFEIFFER
Federal Administrative Law Judge (Ret.)
President, Association of Virginia Hearing Officers
2107 Basset Street
Alexandria, Virginia 22308
Tel. No. 703-780-4950