28.02.01.20

.20 Conduct of Hearings; Remote Proceedings, Waivers.

A. In General.

(1) On a genuine issue in a contested case, each party is entitled to call witnesses, offer evidence, cross-examine any witness who testifies, and make opening and closing statements.

(2) A hearing shall be called to order by the ALJ. The ALJ shall explain briefly the purpose of the hearing and state the order of presentation of the evidence. The ALJ may allow the parties to present preliminary matters.

(3) Witnesses shall be sworn or put under affirmation to tell the truth.

B. Remote Proceedings.

(1) Subject to §B(2) of this regulation, and at the request of a party or on the ALJ’s initiative, all or part of a proceeding may be conducted by:

(a) Telephone or other audio means, if all parties have an opportunity to participate in the entire proceeding;

(b) Video or other audio-visual means, if all parties have an opportunity to participate in the entire proceeding; or

(c) A combination of in-person, telephone or other audio means, and video or other audio-visual means, if all parties have an opportunity to fully participate in the entire proceeding.

(2) Exceptions.

(a) If a party establishes good cause not to conduct an audio proceeding, the proceeding shall be held by audio-visual means or in person.

(b) Except for proceedings involving the Inmate Grievance Office, if a party establishes good cause not to conduct an audio-visual proceeding, the proceeding shall be held in person.

(c) Good cause for an in-person proceeding may include, but is not limited to, a party needing an interpreter or other accommodation that cannot be provided remotely, or a party being unable to access the internet or a device suitable for remote conferencing.

(3) Rights. All substantive and procedural rights apply to remote proceedings, subject only to the limitations of the physical and technological arrangements.

(4) Evidence. Except for proceedings involving the Inmate Grievance Office, if the Office grants a request or issues a notice for a remote proceeding, at least 10 days before the proceeding, or as ordered by the ALJ, a party shall disclose all documentary, photographic, and other evidence the party plans to offer at the proceeding by:

(a) Delivering one set of copies to the Office;

(b) Serving one set of copies on the other party or parties; and

(c) Complying with an ALJ’s order requiring documentary evidence to be filed electronically.

(5) When a party electronically files a video or audio file, the party shall also submit the file to the Office on electronic storage media.

C. Waivers.

(1) Waiver of Right to Appear.

(a) Unless otherwise precluded by law, a party or a party’s representative may waive the party’s right to appear at an Office proceeding by:

(i) Entering an oral waiver into the record; or

(ii) Filing a written waiver with the Office and serving a copy on all other parties.

(b) When a party has properly waived the right to appear, the failure of a party to appear personally or by representative shall not result in a finding of default. The proceeding shall be held and the matter decided in the party’s absence.

(c) A waiver of the right to appear may be withdrawn by filing a withdrawal with the Office and serving a copy on all other parties not later than 5 days before the scheduled proceeding.

(2) Waiver of Right to a Hearing.

(a) Unless otherwise precluded by law, a hearing before an ALJ is not necessary if all parties:

(i) Agree to the admission of the evidence; and

(ii) Waive their rights to a hearing.

(b) A waiver of the right to a hearing shall be in writing and filed with the Office.

(c) When a hearing is properly waived, the ALJ shall decide the matter based on the pleadings and evidence in the file.