§ 15-03 — Pre-Hearing Proceeding

§ 15-03 Pre-Hearing Proceeding.

(a) Charges and Specifications. Charges and specifications shall be served upon the respondent and shall include a brief statement of the disciplinary matters to be adjudicated, including the activity, behavior or incident which is the subject of the disciplinary action and, where appropriate, the date, time and place of occurrence. Additionally, the Charges and Specifications shall identify the contract provision, law, policy, regulation or rule that was allegedly violated. Charges and Specifications may be amended upon notice to all parties. (b) Service of Charges and Specifications. (1) The Department shall be responsible for serving the respondent with Charges and Specifications. The Charges and Specifications shall be accompanied by notice of the respondent's right to reply and the time limits within which to do so pursuant to subdivision (c) of this section, and the requirement that the individual representing the respondent shall file a Notice of Appearance with the Deputy Commissioner of Trials, prior to engaging in any act of representation. (2) Service of the Charges and Specifications shall be made pursuant to statute, rule, contract, or other provision of law applicable to the proceeding being initiated. Absent any such applicable law, service of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent. Service by certified mail, return receipt requested, contemporaneously with service by regular first-class mail, to the respondent's last address known to the Department, shall be presumed to be reasonably calculated to achieve actual notice. Appropriate proof of service shall be required. (c) Response to Charges and Specifications. If Charges and Specifications are served personally, the respondent shall have the opportunity to reply to them within eight days of service. If Charges and Specifications are served by mail, the respondent shall have the opportunity to reply to them within thirteen days of their mailing date. Upon good cause shown, the Deputy Commissioner of Trials may fix different time periods within which to reply. (d) Notice of Scheduling Conference or Hearing. (1) The Department shall serve the respondent with notice of the date, time and place of the Scheduling Conference or Hearing. The Scheduling Conference shall be conducted for purposes of setting a timetable within which to proceed with the Hearing. A Hearing shall be afforded to the respondent within a reasonable time. A Notice of Hearing shall contain a statement of the authority and jurisdiction under which the Hearing is being conducted, notice of the respondent's right to be represented by an attorney or other representative, the requirement that the respondent's representative file a Notice of Appearance with the Deputy Commissioner of Trials prior to engaging in any act of representation and notice that failure of the respondent or the respondent's representative to appear may result in an adverse decision and waiver of the right to a Hearing or other disposition as against the respondent. (2) The Notice of Hearing or Scheduling Conference shall be served personally or by mail. Appropriate proof of service shall be required. If the respondent is served personally, there shall be at least eight days notice provided. If respondent is served by mail at least thirteen days notice shall be provided, from the time of mailing. The Deputy Commissioner of Trials may modify these time periods. (e) Adjournments. (1) Hearing dates are firm commitments and will not be adjourned absent extraordinary circumstances. Scheduling Conferences and Hearings will begin promptly at 10 a.m. and continue until 5 p.m., if necessary. All Hearings shall be continued on consecutive days until concluded absent special circumstances. Where appropriate, Hearings may be conducted on weekends and holidays. (2) Applications for adjournments shall be made to the Deputy Commissioner of Trials upon sufficient notice to other parties. Adjournments will be granted or denied by the Deputy Commissioner of Trials upon good cause shown. The Deputy Commissioner of Trials shall have authority to set an adjourned date. If an adjournment is granted, and it is not noted on the record, the requesting party shall confirm the adjournment, in writing, with other interested parties. (3) A party requesting an adjournment because of a conflicting engagement shall file an Affirmation of Actual Engagement with the Deputy Commissioner of Trials, prior to a ruling sought on that basis. A copy of such Affirmation shall be served on the adverse party. The Affirmation shall state the name and nature of the conflicting matter, the court or tribunal hearing the matter, the judge before whom it is scheduled, the date when the conflicting engagement became known to counsel, and the date, time, place and approximate duration of the other engagement. (4) The Deputy Commissioner of Trials may determine that a case will proceed on an expedited basis and direct shortened pre-trial and post-trial proceedings including expedited notice periods and calendaring. (f) Discovery. (1) Informal discovery and the exchange of information is encouraged. Department disciplinary proceedings are not bound by formal discovery techniques or rules of civil procedure. Requests for production of relevant documents, identification of trial witnesses and inspection of real evidence to be introduced at the Hearing may be directed between the parties without leave of the Deputy Commissioner of Trials. Privileged and confidential matters shall not be subject to disclosure. (2) Any discovery dispute shall be presented to the Deputy Commissioner of Trials sufficiently in advance of the Hearing to allow for a timely determination. Discovery motions are subject to the discretion of the Deputy Commissioner of Trials. The timeliness of discovery requests and responses, and of discovery related motions, the complexity of the case, the need for the requested discovery, and the relative resources of the parties will be among the factors within the Deputy Commissioner of Trial's exercise of discretion. (g) Pre-Hearing motions. Pre-Hearing motions and other preliminary matters shall be consolidated and addressed to the Deputy Commissioner of Trials as promptly as possible and sufficiently in advance of the Hearing to permit the rendering of a timely decision.