Sec. 19a.01.03.10. Conduct of Hearing

A. Failure to Attend Hearing, and Default.

(1) If after receiving proper notice a party fails to attend or participate in the hearing, the party shall be considered in default and the hearing may be conducted and the issues finally determined in the party's absence.

(2) Within 10 days after mailing of a final decision following a default, the party may file a written request that the decision be vacated, stating the reasons relied upon.

(3) The final decision may be vacated by the Commission if it is found that there is an:

(a) Actual controversy in the matter; and

(b) Equitable excuse for the default.

B. Conduct of the Hearing by the Chairman or Designee.

(1) A Commission hearing conducted pursuant to this chapter shall be conducted by the Chairman or another member designated by the Commission. The member so designated may exercise all powers assigned to the Chairman by this section.

(2) The Chairman shall convene the hearing and shall place the complaint, hearing notices, and other appropriate documents in the record.

(3) The Chairman has the power to:

(a) Conduct a fair and impartial hearing, take action to avoid unnecessary delay in the disposition of proceedings, and maintain order;

(b) Rule on offers of proof and receipt of evidence in accordance with the general principles set forth in §E of this regulation;

(c) Consider and rule upon all motions appropriate to the proceedings; and

(d) Recess the hearing for any reasonable purpose, for example:

(i) In response to requests of the parties,

(ii) To allow the parties to prepare final argument, or

(iii) To enable the Commission to consider action on motions or undertake preliminary consideration of the case.

C. Rights of Parties. Each party to the hearing has the right to:

(1) Present opening and closing statements;

(2) Call witnesses and present evidence;

(3) Cross-examine every witness called by the Commission or any other party;

(4) Impeach any witness regardless of which party first called the witness to testify; and

(5) Rebut all evidence presented.

D. Ex Parte Communications.

(1) The Commission staff counsel shall be responsible for presenting evidence to the Commission in connection with a complaint proceeding subject to a hearing under this regulation, and may not be part of the decisional process in connection with a complaint. The general counsel of the Commission, or other individual designated by the Commission, shall be the legal advisor to the Commission regarding complaint proceedings and in that capacity is considered to be part of the decisional process.

(2) The staff counsel, the Executive Director, respondent, respondent's counsel, and any other individual not involved in the decisional process may not communicate ex parte with any member of the Commission or with the general counsel regarding any issue of fact or law in connection with a complaint being heard pursuant to this regulation. The Commission may communicate with members of an advisory staff, including the general counsel, who participate as part of the decisional process.

(3) Ex parte communications received in violation of §D(2) of this regulation shall be placed in the record and disclosed to all parties, who shall then have 10 days within which to rebut them.

(4) The general counsel or any member of the Commission may, if he or she considers it necessary to eliminate the effect of a prohibited ex parte communication, disqualify himself or herself from further participation in the hearing.

E. Presentation of Evidence.

(1) Evidence shall be presented by the parties at the hearing consistent with terms agreed to in a prehearing conference or as set forth in any schedules previously exchanged by the parties in anticipation of the hearing, unless a deviation from the agreed upon process is expressly allowed by the Chairman.

(2) The staff counsel shall present to the Commission evidence collected in the investigation relating to the complaint that is:

(a) Relevant to the matters at issue as set forth in the hearing notice;

(b) Set forth in any preliminary agreement by the parties;

(c) Consistent with a prehearing order issued by the Chairman or the Chairman's designee; or

(d) Otherwise allowed by the Chairman.

(3) The respondent may present evidence either through counsel or on the respondent's own behalf that is:

(a) Relevant to the matters at issue as set forth in the hearing notice;

(b) Set forth in any preliminary agreement by the parties;

(c) Consistent with a prehearing order issued by the Chairman or the Chairman's designee; or

(d) Otherwise allowed by the Chairman.

(4) Evidence shall be received by the Commission in accordance with the following principles:

(a) The hearing need not be conducted according to the technical rules of evidence, and any relevant evidence, including hearsay of probative value, is admissible.

(b) Oral evidence shall be taken only on oath or affirmation.

(c) Evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs may be admitted and given probative value. The rules of privilege shall be given effect, and incompetent, immaterial, and unduly repetitious evidence may be excluded.

(d) Except as set forth in §E(4)(e) and (f) of this regulation, all evidence, including records and documents in the possession of the Commission, of which the Commission desires to avail itself, shall be offered and made a part of the record in the case. Other factual information or evidence may not be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.

(e) The Commission may take notice of judicially cognizable facts or general, technical, or scientific facts within their specialized knowledge, as set forth in State Government Article, §10-213, Annotated Code of Maryland. Commission members may use their experience, technical competence, and specialized knowledge in the evaluation of evidence presented to them. The parties shall be advised of any fact officially noticed pursuant to this paragraph and be given an opportunity to contest the fact.

(f) The existence of offers of settlement or compromise considered in the preliminary enforcement process are considered privileged communications and may not be admitted into evidence at the hearing.

F. At the completion of the hearing the Chairman may, in the Chairman's own discretion or at the request of the parties, declare the record to be open for a specified period to enable the parties to submit written arguments or other documents that are relevant to the issues presented in the hearing.

G. Hearing Record.

(1) Verbatim Record.

(a) Except as set forth in §G(1)(b) of this regulation, a verbatim record shall be taken of the entire hearing. In addition to the stenographic or recorded record of testimony in the case, a verbatim record shall include motions by the parties and rulings by the Chairman, the opening and closing arguments of the parties, and any oral decisions of the Commission that are made in the context of the hearing.

(b) Unless requested by the respondent in writing, or otherwise at the discretion of the Commission, hearings on financial disclosure complaints under General Provisions Article, Title 5, Subtitle 6, Annotated Code of Maryland, may be conducted without a verbatim record.

(c) When a verbatim record is not kept, minutes of the proceedings shall be kept which shall, at a minimum, identify the witnesses, list all exhibits, and record all rulings by the Chairman, as well as any preliminary or final Commission determination.

(d) A stenographic or recorded verbatim record, or the minutes of a hearing, need not be transcribed unless requested by a party or the Commission. The party requesting the transcript shall pay for the cost of transcription.

(2) An official record of the hearing shall be developed, including the following:

(a) All pleadings, motions, and intermediate and final rulings;

(b) Documentary evidence received or considered;

(c) Any statement of matters officially noticed;

(d) Any questions and offers of proof, objections, and rulings on them;

(e) Any proposed findings and exceptions;

(f) Any written arguments or documents submitted by a party after the hearing;

(g) Copies of testimony or minutes transcribed pursuant to §G(1)(c) of this regulation;

(h) The decision of the Commission issued pursuant to Regulation .11 of this chapter; and

(i) Any memoranda of ex parte communications submitted pursuant to §D of this regulation.