(a) Time and place. The hearing for the purpose of the taking of evidence upon a contested matter shall be held at such time and place as designated in the notices therefor, except for continued hearings. All such hearings shall be public except where otherwise ordered by the hearing authority or provided by law.
(1) The hearing authority must prepare, maintain and supervise the custody of an official record in each case. The record must include testimony, exhibits and verbatim transcript, if any, submitted during the hearing and at other times the record is open to receive evidence. Documentary evidence may be received in the form of copies, excerpts, photographic reproductions or by incorporation by reference. The hearing authority must make the official record available for inspection to all affected persons before any hearing.
(2) Section
19A-15(b) applies to any ex parte or private communications received by a member of a hearing authority. The hearing authority must include the ex parte or private communication in the record and may:
(i) consider the communication as a basis for its decision after giving all parties an opportunity to respond to the communication; or
(ii) decide the matter if the hearing authority expressly finds that it has not considered the communication as a basis for its decision.
The substance of an ex parte or private communication received after a final administrative decision and before appellate rights have been exhausted must be maintained in the case file and, in any remand, treated as required by this paragraph.
(3) The hearing authority may seek additional evidence if the evidence is included as part of the record and the parties are given due notice and opportunity to respond.
(c) Subpoena power. The hearing authority shall have the power to issue subpoenas enforceable by injunction by the party requesting same or by the County itself, in a court of competent jurisdiction, to compel the attendance of witnesses and require the production by them of books, papers, documents and other materials relevant to any case under consideration. Subpoenas may be served by certified mail, by private process server designated by the hearing authority or by anyone who could lawfully serve said subpoena in a judicial proceeding of a civil nature.
(d) Burden of going forward with the evidence. The charging party shall have the burden of going forward with the production of evidence at the hearing before the hearing authority; provided, however, where a governmental agency or an administrative authority is a party, such agency or administrative authority shall have the burden of going forward with the production of evidence at the hearing before the hearing authority. Such evidence shall be competent, material and relevant to all matters at issue and relief requested.
(e) Evidence. The hearing authority may admit and give appropriate weight to evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs, including hearsay evidence which appears to be reliable in nature. It shall give effect to the rules of privilege recognized by law. It may exclude incompetent, unreliable, irrelevant or unduly repetitious evidence, or produce evidence at its own request.
The hearing authority may take official notice of commonly cognizable facts, facts within its particular realm of administrative expertise and documents or matters of public record. Parties shall be notified of matter and material so noticed while the record in the case is open and shall be afforded an opportunity to contest the facts so noticed.
(f) Cross-examination. Every party shall have the right of reasonable cross-examination of witnesses who testify, and shall have the right, upon request, to submit rebuttal evidence. Repetitious questions and examination on irrelevant matters shall not be permitted. Cross-examination shall be subject to reasonable regulation by the hearing authority who is authorized to require the designation of specific persons to conduct cross-examination on behalf of other individuals.
(g) Right to counsel. In any case governed by the procedures established in this chapter, the parties have the right to be represented by themselves or by legal counsel of their choice.
The appearance of counsel shall be entered and the hearing authority shall be notified in writing expeditiously following counsel's retention. All parties of record shall be notified simultaneously with the hearing authority.
(h) Powers of the hearing authority. In addition to any other power granted by this article, a hearing authority is empowered:
(1) To administer oaths and affirmations.
(2) To grant or deny requests for subpoenas or issue subpoenas on its own initiative and to call independent witnesses or seek additional evidence to be made part of the record as justice may require.
(3) To rule on petitions to quash subpoenas.
(4) To rule upon motions, offers of proof and receive relevant and probative evidence, to exclude incompetent, irrelevant, immaterial or unduly repetitious evidence and to give effect to the rules of privilege recognized by law.
(5) To regulate the course of the hearing and to allow the record in hearings to remain open.
(6) To hold conferences for simplification of the issues.
(7) To dispose of procedural requests or similar matters including motions for continuance, to amend a pre-hearing statement and to order hearings reopened, consolidated or grant rehearings.
(8) To call, examine and cross-examine witnesses and to obtain and introduce into the record documentary or other evidence.
(9) To request the parties at any time during the hearing to state their respective positions concerning any issue in the case or theory in support thereof.
(10) To take any other action authorized by this article or necessary to a fair disposition of the case.
(11) To accept evidence by stipulation of facts which may be introduced at any time.
(12) To schedule, suspend or continue hearings to a time and date certain with notification to all parties.
(13) Upon its own motion and at the request of an affected party to order that witnesses other than a party be excluded from the hearing room until called to testify.
(14) To order that statements of witnesses who are beyond the jurisdiction of the hearing authority or who for sufficient reason are unavailable to testify be taken by written interrogatories or deposition made under oath. The original of any interrogatories, answers thereto or depositions must be filed in the case file of the proceedings.
(15) To promulgate rules for witness reimbursement of expenses actually incurred by reason of such witness's required presence at a hearing or if such witness is a County employee promulgate rules for the extension of appropriate leave to said witnesses.
(16) To permit additional parties to participate in the proceedings as justice may require.
(i) Hearing conduct and procedure.
(1) Unless otherwise provided by law:
a. A quorum of the hearing authority must be present to conduct a hearing. A majority of the persons appointed to any hearing authority shall constitute a quorum. The quorum requirements shall not apply to hearings conducted by a hearing examiner or hearing officer. A ruling of the presiding officer shall stand unless overruled by a majority vote of the members of the hearing authority present and participating.
b. All hearings shall be de novo before the hearing authority.
c. The members of any hearing authority shall be subject to disqualification for conflict of interest, and suggestions for disqualification of any member may be made on petition of any party.
(2) The presiding officer of the hearing authority shall preside at hearings and have full authority at all times to maintain orderly procedure and restrict the hearing to relevant and material facts. A ruling of the presiding officer shall stand unless overruled by a majority vote of the members of the hearing authority, present and participating.
(3) All exhibits accepted shall be marked and held in the hearing file. Those exhibits whose admission is rejected shall either be returned to the offering party or retained in the file with appropriate notations reflecting that the material was rejected as an exhibit.
(4) Rulings on motions, petitions and objections made during the course of a hearing shall be ruled on as received or as soon thereafter as practicable.
(5) The ordinary, but not mandatory, order or procedure for the conduct of the hearing and the presentation of evidence is as follows, subject to subsection (d) of section 2A-6 or waiver or such reasonable changes as may be ordered by the hearing authority or by law:
a. Disposition of all outstanding preliminary motions and preliminary matters.
b. Opening statement of parties.
c. Presentation of factual case of appellant: cross-examination of all witnesses thereof.
d. Presentation of factual case of responding party: cross-examination of witnesses thereof.
e. Presentation of factual case of other interested persons: cross- examination of witnesses thereof.
f. Rebuttal evidence of appellant: cross-examination of witnesses thereof.
g. Surrebuttal evidence of responding party: cross-examination of witnesses thereof.
(j) Sanctions. The hearing authority may impose sanctions against parties and witnesses for failure to abide by the provisions of this article, or for unexcused delays or obstructions to the pre-hearing and hearing process. Such sanctions may include suspension or continuance of scheduled hearings, dismissals of actions, denial of admission of documents and exhibits and admission of matters as adverse to a defaulting party.
In addition to any other sanction, the hearing authority is authorized to assess any offending party the full cost of verbatim recording and transcription of any hearing delayed or obstructed by such party; and further to assess such party the cost of re-advertisement, if such notification is either required by law or necessary in the discretion of the hearing authority, to give adequate notice to interested or affected parties. (1978 L.M.C., ch. 30, § 1; 1984 L.M.C., ch. 24, § 1; 1990 L.M.C., ch. 25, § 1; , § 2.)
Editor’s note-The above section is cited in Sweeney v. Montgomery County, 107 Md.App. 187, 667 A.2d 922 (1995).
