Summonses

(1) Summonses for Records and Documents. (a) The Veteran Advocate may issue summonses requiring the production of any records, reports, audits, reviews, papers, books, documents, recommendations, correspondence or other material relevant to any matter under investigation, audit or review by OVA; excepting records subject to the provisions of M.G.L. c. 66, § 18 as defined in M.G.L. c. 66, § 3. (b) A summons issued pursuant to 123 CMR 2.06(1)(a) may be issued to any person, private organization or public body, including, without limitation, any officer, partner, proprietor, employee, or custodian of records of any private organization or public body. (c) A summons issued pursuant to 123 CMR 2.06(1)(a) shall be served in the same manner as summonses for the production of documents in civil cases issued on behalf of the Commonwealth. (d) Books and papers produced pursuant to a summons issued under 123 CMR 2.06(1)(a) shall be retained by the Office of the Veteran Advocate for so long as needed for completion of the investigation, audit or review being conducted. A person who has produced records pursuant to such a summons issued under 123 CMR 2.06(1)(a) may request the Veteran Advocate to provide access to the records for inspection or copying at the party's expense. Such access shall be permitted at any reasonable time except only when it unduly interferes with OVA or its staff. (e) A summons issued pursuant to 123 CMR 2.06(1)(a) shall be approved and issued by the Veteran Advocate or their designee. For purposes of 123 CMR 2.06(1)(e), the designees of the Veteran Advocate shall be restricted to the General Counsel or Veteran Safety Advisor. (f) The person to whom a summons is issued pursuant to 123 CMR 2.06(1)(a) may seek modification of the scope or conditions for compliance with the summons by applying in writing within five calendar days to the Veteran Advocate or their designee identified on the summons. Such application shall state with particularity the extent of the requested modification and the reasons thereof. The scope or conditions for compliance with a summons may be modified only by the Veteran Advocate or their designee. (g) In the case of public bodies or officials, records, documents or other material shall ordinarily be sought first by request for voluntary production rather than by issuance of a summons under 123 CMR 2.06(1)(a), unless doing so would, in the judgment of the Veteran Advocate, unduly interfere with the investigation, inspection, audit, or review being conducted. (h) Neither the issuance of a summons nor any record or document produced under 123 CMR 2.06(1) shall be made public by the Veteran Advocate or any officer, employee or agent of OVA. (2) Summonses for Attendance, Testimony and Production of Books and Records. (a) The Veteran Advocate may issue summonses requiring any person to attend and testify under oath or affirmation at a private session or to attend and testify under oath at a private session and to produce books and records, if the Veteran Advocate has reason to believe that such person has information relevant to any matter under investigation, inspection, audit, or review by OVA. (b) If the Veteran Advocate has determined that it is necessary to the conduct of the investigation, inspection, audit or review to provide the prospective witness with less than 48 hours notice of the requirement to attend and testify at a private session or to attend and testify and produce books and records, they shall include a statement of reasons for the necessity of a shortened notice period and a recommended date and time for the convening of the private session. (c) Upon issuance of a summons under 123 CMR 2.06(2)(a) by the Veteran Advocate, the Advocate shall determine those persons before whom the prospective witness shall attend and testify under oath or affirmation at a private session. The Veteran Advocate shall select at least one person to participate in the taking of such testimony. It may, in its discretion, select more than one person. The person or persons selected by the Veteran Advocate shall be the Office of the Veteran Advocate General Counsel or their designee; or the Office of the Veteran Advocate Veteran Safety Advisor or their designee; or another member or members of the staff of the Office of the Veteran Advocate. The Veteran Advocate shall designate at least one employee of OVA, who is an attorney admitted to practice in the Commonwealth, to participate in the taking of testimony at such private session. The designee of the Veteran Advocate shall be approved by the Veteran Advocate. (d) Summonses issued pursuant to 123 CMR 2.06(2)(a) shall be served in the same manner as are summonses for witnesses issued on behalf of the Commonwealth in a civil case. (e) A person summonsed under 123 CMR 2.06(2)(a) to attend and testify and produce books and records shall produce such books and records at the private session if directed to do so, or at any other time and place required or agreed upon by the Veteran Advocate or other employee of OVA selected to participate in the taking of testimony at the private session and the prospective witness or their attorney. (f) A witness required by summons to attend and testify, or attend and testify and produce books and records, shall be provided with the following: 1. No less than 48 hours notice of the time and place of the private session, except as provided in 123 CMR 2.06(2)(b); 2. Notification of the matter under investigation concerning which the witness will be asked to testify; 3. A copy of 123 CMR 2.00; 4. Notification that his or her testimony will be taken at a private session; 5. Notification that the issuance of the summons was approved by the Veteran Advocate; 6. Notification as to whether the witness is the subject of an investigation; 7. Notification that the witness has a right to consult with and have an attorney present at the time such testimony is taken, and that they have a constitutional right not to furnish or produce evidence which may tend to incriminate him. (g) Failure to provide any notice or information required by 123 CMR 2.06(2)(f) shall render the summons invalid. (h) Any request by a prospective witness for a change of the date or time of their appearance to attend and testify or to attend and testify and produce books and records at a private session must be received by the Office of the Veteran Advocate no later than 24 hours before the witness is scheduled to testify. The request must be in writing and must state the reasons for the requested change. The request must be addressed to the attention of the Veteran Advocate, who shall refer it to the persons selected or approved by the Veteran Advocate to participate in the taking of testimony at the private session. Such persons shall have discretionary authority to grant such a request. A request will ordinarily be allowed if it is not made for purposes of delay and if allowing the request will not unduly interfere with the conduct of the investigation or audit. (i) Any objections of a witness to a summons issued pursuant to 123 CMR 2.06(2)(a) must be made in writing, must state the reasons for the objection, must be addressed to the attention of the Veteran Advocate, and must be received by the Office of the Veteran Advocate no later than 24 hours before the witness is scheduled to attend and testify, or to attend and testify and produce books and records. (j) A witness who is required by summons issued pursuant to 123 CMR 2.06(2)(a) to attend and testify, or to attend and testify and produce books and records at a private session, may file a sworn written statement with respect to any facts which the witness wishes to bring to the attention of the Office of the Veteran Advocate. Such statement shall be made part of the record of the private session. Such statement may be filed in advance of the private session, at the time of the taking of testimony, or within five days after the private session has been concluded or adjourned. (k) The issuance of a summons under 123 CMR 2.06(2)(a) shall not be made public by the Veteran Advocate, any officer or employee of OVA, any member of the Veteran Advocate Council, or any person designated to hear testimony under 123 CMR 2.06(2)(c). Unauthorized disclosure of the issuance of a summons shall be subject to criminal penalties pursuant to St. 1980, c. 388, § 2.