Final Disciplinary Hearings and Appeals of Certification Decisions

(1) Applicability. The following types of adjudicatory hearings shall be held by the full commission, but may, in the chair's discretion, be heard in the first instance by a presiding officer selected pursuant to a policy established by the commission: (a) M.G.L. c. 6E, § 10(a) hearings regarding mandatory revocation of an officer's certification; (b) M.G.L. c. 6E, § 10(b) hearings regarding discretionary revocation or suspension of an officer's certification; (c) M.G.L. c. 6E, § 10(d) hearings regarding officer retraining; and (d) Appeals of a decision by the commission declining to certify or recertify a law enforcement officer pursuant to M.G.L. c. 6E, § 4. (2) Timing of Revocation or Suspension Hearings. (a) The commission shall not institute a revocation or suspension hearing regarding a complaint against an officer until an officer’s appointing agencyhas issued a final disposition regarding a complaint or one year has elapsed since the incident was reported to the commission, whichever is sooner. (b) If the officer notifies the commission that the officer wishes to suspend such hearing pending an appeal or arbitration of the appointing agency’s final disposition, the commission shall suspend the hearing. Any such suspension of the hearing shall not exceed one year from the officer’s notice to the commission; provided, however, that at any time during which the hearing is so suspended and upon a showing of good cause by the officer, the commission shall further suspend the hearing for a period of not less than six months and not more than the commission determines is reasonable; provided, however, that any delay in instituting a revocation or suspension hearing shall not exceed one year from the officer’s request for further suspension. (c) If the officer notifies the commission that the officer wishes to suspend such hearing pending the resolution of criminal charges, including any conviction, the commission shall suspend the hearing; provided, however, that the officer’s certification shall be suspended during the pendency of any suspension in the hearing. (3) Timing of Appeals from a Decision Declining to Certify or Recertify. (a) An officer whose certification has not been granted or renewed by the commission pursuant to M.G.L. c. 6E, § 4 may request a hearing, which shall be conducted in accordance with 555 CMR 1.10(4). (b) All requests for a hearing pursuant to this section 555 CMR 1.10(3) must be filed by the officer or their counsel or other representative with the executive director no later than 30 days from the date of the commission's decision. (c) The request for a hearing shall include: 1. The name and contact information of the officer and the commission certification identification number of the officer, 2. the name and contact information of the officer's counsel or other representative, if any; and 3. a brief description of the basis for the request for the hearing. (4) Conduct of Hearings. Hearings held pursuant to 555 CMR 1.10 shall be adjudicatory proceedings conducted in accordance with M.G.L. c. 30A, §§ 1, 8 and 10 to 14, inclusive. All hearings shall further comply with 801 CMR 1.01: Formal Rules, except that the provisions of 801 CMR 1.01(1), (2), (6), (11) and (14) shall not apply and that the following additional rules shall supersede those provided in 801 CMR 1.01: (prescribed by M.G.L. c. 6E, §10(f)). (a) Public Access. 1. Records. The commission shall treat all documents submitted to or created by the presiding officer or commission as confidential to the extent permitted by law, including by, but not limited to, withholding or redacting such records pursuant to M.G.L. c. 4, § 7, twenty-sixth, the exemptions to the definition of public records. 2. Hearings. During the course of an adjudicatory hearing conducted under 555 CMR 1.10, the presiding officer and commission shall make all reasonable efforts to protect the confidentiality of any documents submitted or considered during the course of an adjudicatory hearing, to the extent permitted by law and as described in 555 CMR 1.10(4)(a)1. An adjudicatory hearing conducted under 555 CMR 1.10, except deliberations by a panel of presiding officers or the commission regarding a decision, shall be public except where the presiding officer or presiding officers determine that closure is necessary to protect privacy interests and will not be contrary to the public interest. All deliberations by a panel of presiding officers or the commission regarding a decision following an adjudicatory hearing conducted under 555 CMR 1.10 shall be closed to the public. (b) Evidence. 1. The rules of evidence observed by courts shall not apply to hearings held under 555 CMR 1.10, but the rules of privilege recognized by law shall be observed. 2. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely on in the conduct of serious affairs. The presiding officer may exclude irrelevant, unreliable, and repetitive evidence. (c) Standard of Proof. 1. The commission may not order the revocation or suspension of an officer's certification unless the commission finds by clear and convincing evidence that such revocation or suspension is warranted pursuant to M.G.L. c. 6E, § 10(a) or § 10(b). 2. The commission may not order the retraining of an officer unless the commission determines, based on substantial evidence, that retraining is warranted pursuant to M.G.L. c. 6E, § 10(d). 3. The commission may not reverse a prior decision to deny the certification or recertification of an officer unless the commission determines, based on substantial evidence, that certification is warranted pursuant to M.G.L. c. 6E, § 4. (d) Collection of Information, Subpoenas and Testimony for Use in Hearings. The commission is authorized to use the same investigatory tools, including the collection of documents, issuance of subpoenas, and requirement for testimony under oath in connection with hearings under 555 CMR 1.10 as it is permitted to use with respect to preliminary inquiries pursuant to 555 CMR 1.05. (e) Decisions. 1. Upon completion of a hearing held before the full commission, the commission shall render a written decision as promptly as administratively feasible, in accordance with M.G.L. c. 30A, § 11(8). The written decision of the full commission shall be the final decision of the commission. The filing of any appeal of a final decision of the full commission shall be to the Superior Court in accordance with M.G.L. c. 30A, § 14. Appeals to the Superior Court shall not stay enforcement of the commission's decision, but by motion to the commission within ten days of the commission's decision, the commission may for good cause shown stay enforcement pending appeal to the Superior Court. A motion for reconsideration before the full commission shall not toll the 30-day requirement for the filing of any appeal of a final decision of the full commission to the Superior Court in accordance with M.G.L. c. 30A, § 14. 2. Upon completion of a hearing held before a presiding officer other than the full commission, the presiding officer shall render a decision as provided in M.G.L. c. 30A § 11(8). The decision of the presiding officer shall be called an "initial decision". a. The presiding officer shall promptly provide the officer, the officer's counsel or other authorized representative, the head of the officer's agency, the head of the officer's collective bargaining unit, and a district attorney of competent jurisdiction with a copy of the presiding officer's initial decision and file a copy of the same with the commission. b. Upon receipt of the presiding officer's initial decision, if there is objection by the officer in writing to the executive director regarding the presiding officer's findings and recommendations, the commission shall set dates for submission of briefs and for any further hearing which the commission in its discretion deems necessary. The commission shall review, and may revise, the findings of fact, conclusions of law and recommendation of the presiding officer, giving deference to the presiding officer's evaluation of the credibility of the testimony and other evidence presented at the hearing. Failure by the officer to object to the presiding officer's initial decision within 30 days shall constitute a waiver of the officer's right to appeal under M.G.L. c. 30A, § 14. c. The commission may affirm and adopt the initial decision in whole or in part, and it may recommit the matter to the presiding officer for further findings or a revised initial decision as it may direct. The same procedural provisions applicable to the initial filing of the initial decision shall apply to any refiled or revised initial decision after recommittal. If the commission does not affirm and adopt the whole of the initial decision, as originally submitted or as revised, it shall provide an adequate reason for rejecting those portions of the initial decision it does not affirm and adopt. d. The final written decision of the commission upon review of the initial decision shall be the final decision of the commission. The filing of any appeal of a final decision of the commission shall not stay enforcement of the commission's decision, but by motion to the commission within ten days of the commission's decision, the commission may for good cause shown stay enforcement pending appeal to the Superior Court. e. The commission shall issue a final decision within 180 days or (30 days in the case of the denial of certification or recertification) of the presiding officer's filing or refiling of the initial decision. In the event that the commission is unable to issue a final decision within the 180 or 30 day period, the executive director shall notify all parties. (5) Administrative Record for Judicial Review. Pursuant to M.G.L. c. 30A, § 11(4), all documents, testimony, and other evidence offered and accepted into evidence by the presiding officer shall become part of the administrative record. For purposes of judicial review, the record shall include the final decision issued pursuant to 555 CMR 1.10(4)(e). Any evidence offered at the hearing, but not accepted by the presiding officer, will be marked for identification purposes only and be included in the record.