09.32.11.02

.02 Hearings Before the Hearing Examiner.

A. Scheduling Authority. The scheduling authority in the case of an appeal pending before a Hearing Examiner is the Chief Hearing Examiner or the Chief Hearing Examiner’s designee.

B. Notice of Hearing.

(1) The interested parties shall be given at least 7 business days notice in writing of the time and place of any hearing before the Hearing Examiner.

(2) Notice is sufficient when mailed to the party, postage prepaid, at the last known post office address of the party or by electronic means in a format approved by the Chief Hearing Examiner, if the party has opted to receive notice by electronic means.

(3) In the case of appeals filed under Regulation .01A(2) of this chapter, notice sent in accordance with §B(2) of this regulation to the attorney or authorized representative, and to each individual appellant who filed an individual appeal or who requested individual notice, shall be sufficient notice to all parties represented by the attorney or authorized representative.

(4) For notice purposes, the representation of parties by attorneys or authorized representatives is effective on the date an appearance is entered in the case, or the date the appearance is noted in the appeal file, whichever is earlier.

C. Pretrial Conference. In appeals of review determinations resolving issues arising under Labor and Employment Article, §8-602(a)(2) and (5), Annotated Code of Maryland, the Chief Hearing Examiner may consider a motion of a party requesting a scheduling conference to resolve preliminary issues including, but not limited to, the exchange of documentation, the exchange of lists of potential witnesses, and proposed stipulations.

D. Public Hearing. Hearings before the Hearing Examiner shall be public. The record made in any appeal hearing is a public record. Media coverage of any hearing is permissible unless the Hearing Examiner determines that it interferes with the hearing process.

E. Record. The recording made by or at the direction of the Hearing Examiner is the only official record of the oral hearing. Additional recordings or transcriptions may be made by the parties at the hearing, or by third parties, only at the discretion of the Hearing Examiner hearing the case.

F. Issues. The Hearing Examiner shall inquire fully into the facts of the particular case. A Hearing Examiner shall consider the issue expressly ruled upon in the determination of the claims examiner or the review determination from which the appeal was filed.

G. Representation.

(1) An interested party may appear without representation in any proceeding before a Hearing Examiner.

(2) A party may be represented by an attorney admitted to practice by the Maryland Court of Appeals or by an authorized representative. Attorneys admitted to practice before the courts of any other state or territory of the United States may represent a party subject to the rules of the Maryland Court of Appeals.

(3) A claimant may also be represented by an authorized representative other than an attorney, but the representative may not charge or accept payment for the representation.

(4) An employer may appear for itself, or be represented by any other authorized representative.

(5) The Chief Hearing Examiner may prohibit an individual from representing others in a hearing if the Chief Hearing Examiner finds, after a special hearing convened for that purpose, that the individual has committed unethical conduct in relation to unemployment insurance claims or appeals.

H. Attorney’s Fees.

(1) An attorney representing a claimant in any proceeding before a Hearing Examiner may not charge a fee in excess of 200 percent of the claimant’s weekly benefit amount per case without the approval of the Chief Hearing Examiner.

(2) Requests for approval of fees greater than 200 percent of the claimant’s weekly benefit amount shall be accompanied by an itemized account of services rendered in the case. A request for the excess fee shall be submitted within 30 calendar days of the date of the issuance of the decision. The Chief Hearing Examiner shall have authority to approve a fee higher than the maximum allowed under §H(1) of this regulation based upon the complexity of the case and the reasonableness of the fee. The fee shall be reviewable by the Board of Appeals upon written protest of either the claimant or the attorney.

(3) The fee amounts set out in §H(1) and (2) of this regulation may be awarded for each level of appeal.

(4) Although the maximum fee allowed is governed by these regulations, payment of the fee allowed is a private matter left solely to the claimant and the claimant’s attorney.

I. Appointment of Interpreter.

(1) If a party or witness is hearing-impaired or mute, and because of this impediment cannot readily understand or communicate the spoken language, or if the party or witness is unable to communicate in the English language, the party or witness may apply to the Chief Hearing Examiner for the appointment of a qualified interpreter to assist that person.

(2) Upon application of the party or witness, the Chief Hearing Examiner shall appoint a qualified interpreter to assist that person. The Chief Hearing Examiner may also appoint an interpreter on his or her own motion.

(3) In selecting a qualified interpreter for appointment, the Chief Hearing Examiner may consult any directory of interpreters maintained by any court in this State.

(4) An interpreter, appointed pursuant to this section, shall be allowed reasonable compensation subject to approval of the Chief Hearing Examiner.

J. Evidence.

(1) Rules of Evidence. The hearings shall be conducted informally in a manner to ascertain the substantial rights of the parties.The Hearing Examiner is not bound by common law or statutory rules as to the admissibility of evidence or by technical rules of procedures. Witnesses shall testify under oath or affirmation.

(2) Electronically Stored Records. A party who seeks to enter into evidence videotapes, audiotapes, or other electronically stored records shall produce at the hearing the equipment necessary to allow review of the contents of the records. The party offering the records shall have the continuing obligation to produce the equipment necessary to review the records if further administrative proceedings occur. If the party offering the records fails to produce the equipment necessary to review the records, the Hearing Examiner may exclude the records from consideration.

(3) Agency Record. For purposes of an appeal from a claims examiner's determination, the official Agency record shall consist of the appeal letter and envelope or other evidence showing its manner of submission, and the Agency Fact Finding Report. For purposes of an appeal from a review determination, the official Agency record shall consist of the appeal letter and envelope or other evidence showing its manner of submission, and the review determination under review. Upon request of a party to an appeal for information from other records of the Department, the Hearing Examiner shall forward the request to the Secretary so that information that may be relevant and pertinent and that is not by definition a part of the Agency record, may be furnished by the Secretary. Upon request, any party shall be furnished with any information contained in the official Agency record, or other Agency documents in the custody of the Secretary that may be pertinent or material to the case. Requests for this information shall be made at least 3 business days before the hearing and shall state, as nearly as possible, the nature of the information desired. Requests made after this time will be granted only at the discretion of the scheduling authority. The records of the Maryland Department of Labor shall be deemed self-authenticating for purposes of admission under the Rules of Evidence. The Hearing Examiner shall admit the Agency record, including the Agency Fact-Finding Report, into evidence at the hearing, without the need for an Agency representative to appear at the hearing to authenticate or introduce it. The Hearing Examiner shall consider the Agency record when making a final decision, giving weight to the Agency Fact-Finding Report that the Hearing Examiner deems appropriate.

(4) Evidence of Medical Condition. In any case where the medical condition of a party is at issue, the Hearing Examiner, for good cause shown, may grant a party up to 10 calendar days after the hearing to submit written medical documentation.

K. Subpoenas.

(1) The Hearing Examiner may issue subpoenas, to be served by first-class mail, or by any individual who is not a party and who is at least 18 years of age, to compel the attendance of witnesses and the production of books, papers, correspondence, and other records deemed necessary as evidence in writing.

(2) The scheduling authority may deny requests for subpoenas that request irrelevant information, or are frivolous or unreasonably burdensome to the other party.A request for a subpoena may not be denied without substantial cause.

(3) Requests for subpoenas shall:

(a) Be in writing;

(b) State the name and address of the person to be subpoenaed;

(c) State with specificity the documents to be produced;

(d) State the reason for the request; and

(e) Be delivered to the scheduling authority at least 5 business days before the date of the hearing.

L. Procedure at Hearing. The Hearing Examiner may call, examine, and cross-examine witnesses and may introduce into the record documentary or other evidence. The parties to the hearing shall be given an opportunity to call witnesses on their own behalf, cross-examine witnesses, inspect documents, and offer evidence in explanation or rebuttal. The Hearing Examiner may order the taking of additional testimony as the Hearing Examiner considers necessary. Upon the request of any party at the hearing, the Hearing Examiner shall grant a reasonable time for oral argument by the interested parties.

M. Continuance of Hearing. The Hearing Examiner may continue any hearing and make any direction or instruction necessary for the efficient disposition of the matter at the Hearing Examiner’s discretion.

N. Withdrawal of Appeals. At any time before the hearing, a party appealing from a determination of a claims examiner or appealing a review determination may request that the appeal be withdrawn, and the Hearing Examiner shall permit the withdrawal. After the hearing has commenced or concluded, a withdrawal may be permitted for good cause shown. A request for withdrawal shall be submitted in writing or placed on the record during a hearing. An approved withdrawal is a final decision and is not subject to a request to reopen.

O. Dismissal of Appeal When Appealing Party Fails to Appear. If a party appealing the determination of a claims examiner or appealing a review determination fails to appear at a hearing after having been given the required notice, the Hearing Examiner may issue a decision on the facts available or may dismiss the appeal. Failure to be present at the location designated for the hearing within 10 minutes of the time scheduled shall be considered a failure to appear within the meaning of this section.

P. Request by Appealing Party to Reopen Dismissed Case.

(1) A request to reopen a dismissed case shall be in writing and a copy shall be sent to the opposing party.Failure to notify the opposing party does not affect the timeliness of the request.

(2) A request to reopen a case may be granted for the following reasons:

(a) The party received the hearing notice on or after the date of the hearing as a result of:

(i) An untimely or incorrect mailing or electronic transmission of a hearing notice; or

(ii) A delay in the delivery of a hearing notice by the United States Postal Service;

(b) An emergency or other unforeseen and unavoidable circumstance that prevented a party from both attending the hearing and requesting a postponement of the hearing; or

(c) A party requested a postponement for the reasons listed in §P(2)(a) or (b) of this regulation, but it was improperly denied.

(3) Misreading of a properly prepared hearing notice as to the date, time, and place of the hearing is not good cause for reopening a dismissed case.

(4) A request to reopen a case dismissed by a Hearing Examiner shall be delivered or postmarked within 7 business days after the date the dismissal was mailed to the last known address of the requesting party. The Chief Hearing Examiner may:

(a) Grant the requesting party up to 10 calendar days to provide documentary evidence of the reason for the requested reopening; or

(b) Deny a request to reopen in writing or grant a further hearing to determine if good cause exists.

(5) Documentation submitted in support of a request to reopen a case shall become part of the record of that case.

(6) A further hearing granted to determine if there is good cause for reopening a case may be consolidated with a further hearing on the merits unless, in the judgment of the Chief Hearing Examiner, this consolidation would result in substantial inconvenience for either party.

(7) A decision by the Chief Hearing Examiner that there is not good cause to reopen a dismissed appeal is appealable to the Board of Appeals.

(8) A decision by the Chief Hearing Examiner that there is good cause to reopen a dismissed case is appealable to the Board of Appeals only at the time that a decision on the merits is also reached.

Q. Conflicts of Interest.

(1) A Hearing Examiner may not participate in a hearing in which the Hearing Examiner or a family member has a personal financial interest.The challenge to the interest of a Hearing Examiner shall be decided by the Chief Hearing Examiner.The challenge to the interest of the Chief Hearing Examiner, when the Chief Hearing Examiner is hearing a case, shall be decided by the Board of Appeals.

(2) A decisions by the Chief Hearing Examiner as to a conflict of interest of a Hearing Examiner, and a challenge to the interest of the Chief Hearing Examiner may be appealed to the Board of Appeals but only at the time that a decision on the merits is also reached.

R. Postponement of Hearings.

(1) A request for the postponement of a case shall be in writing, addressed to the Chief Hearing Examiner, and submitted to the Lower Appeals Division by mail, fax, or hand delivery.A copy of the request shall be simultaneously mailed to the opposing party in the case.

(2) Subject to the requirements of §R(5) of this regulation, a request for postponement shall be considered only if the request is received by the Chief Hearing Examiner at least 3 business days before the hearing.

(3) The Chief Hearing Examiner may postpone a hearing for good cause shown. The repeated inability of a party's attorney or authorized representative to appear on account of a conflicting court date shall not constitute good cause.

(4) The Chief Hearing Examiner may require documentary proof of the reason for the postponement. This documentation must be received by the Chief Hearing Examiner at least 3 business days before the date of the originally scheduled hearing.

(5) A request for a postponement that is not received by the Chief Hearing Examiner at least 3 business days before the hearing may be granted for good cause if:

(a) The request for postponement was postmarked at least 5 calendar days before the hearing date but was not received by the Lower Appeals Division until after the time set in §R(2) of this regulation;

(b) An error on the part of the Lower Appeals Division has caused such a delay in the requesting party's receipt of the hearing notice that the requirement of §R(2) of this regulation could not reasonably be met, and the requesting party has taken timely and reasonable steps to request a postponement as soon as possible after receipt of the hearing notice; or

(c) The postponement request is based on sudden and unforeseeable health problems, hazardous weather conditions, or the like, the emergency nature of which would cause a substantial hardship or injustice on a party if the case were not postponed.

S. Witness Fees.

(1) Upon written request, a witness not employed by the Maryland Department of Labor, who is subpoenaed for a hearing before a Hearing Examiner, shall be entitled to receive an attendance fee in the amount of $25 in a case when the witness is summoned to appear in the county where the witness lives or does business, or $50 in other cases.

(2) Fees allowed in accordance with §S(1) of this regulation for witnesses subpoenaed shall be paid by the Lower Appeals Division.

T. Telephone Conference Hearings.

(1) Testimony before a Hearing Examiner may be taken by telephone.

(2) A party not wishing to present testimony and evidence by telephone has a right to appear at the hearing and present evidence in person at the location from which the telephone hearing is being generated.

(3) In all telephone hearings, documentary evidence which a party intends to offer shall be mailed, or sent via electronic means in a format approved by the Chief Hearing Examiner if the parties have opted to receive notice by electronic means, to the Hearing Examiner and all other parties before the hearing. The Hearing Examiner may refuse to consider evidence that is not timely sent to or received by the Hearing Examiner and all parties before the hearing. Before the acceptance of any evidence, the Hearing Examiner shall allow the opposing party to cross-examine the submitting party or witness concerning the nature and authenticity of the proffered evidence. A party shall be afforded all rights at a telephone hearing to which the party would be entitled at a regular hearing, subject only to the limitations of the physical arrangement.

(4) In the case of a telephone hearing, the failure to answer the telephone, the failure to have a telephone available for the hearing, or the failure to be ready to proceed with the hearing shall be considered as a failure to appear at the hearing if these conditions exist for more than 10 minutes after the scheduled time for the hearing.