220-RICR-50-10-2. Rules of Procedure for Administrative Hearings (version Amendment, 06/18/2008 to 06/18/2008)

State of Rhode Island and Providence Plantations DEPARTMENT OF ADMINISTRATION One Capitol Hill Providence, RI 02908 DIVISION OF LEGAL SERVICES REGULATION 1 RULES OF PROCEDURE FOR ADMINISTRATIVE HEARINGS Table of Contents Section 1 Authority Section 2 Purpose and Scope Section 3 Definitions Section 4 Department Investigation and Action Section 5 Notice of Contested Case Section 6 Prehearing Conferences Section 7 Representation Section 8 Filing of Pleadings and Other Documents Section 9 Service Section 10 Time Section 11 Motions Section 12 Discovery Section 13 Subpoenas Section 14 Evidence Section 15 Conduct of Hearings Section 16 Penalties Section 17 Decisions Section 18 Publication of License Suspensions and Revocations Section 19 Reconsideration Section 20 Judicial Review Section 21 Default Section 22 Disqualification, Incapacity of Hearing Officer Section 23 Miscellaneous Section 24 Consent Orders Section 25 Public Information Section 26 Hearings within the Department Section 27 Administrative Appellate Review Section 28 Hearings for Other State Agencies, Commissions, and/or Boards Section 29 Mediation Section 30 Equal Access to Justice for Small Business Section 31 Severability Section 32 Effective Date Section 1 Authority This Regulation is promulgated pursuant to R.I. Gen. Laws § 42-11-1 et seq., R.I. Gen. Laws § 42-35-1 et seq., R.I. Gen. Laws § 36-4-1 et seq., and R.I. Gen. Laws § 42-92-1 et seq. Section 2 Purpose and Scope These rules (“Rules” or “Regulation”) are adopted for the purpose of assisting in carrying out the functions, powers, and duties assigned to the Department of Administration (“Department”), whether in effect prior to or subsequent to the adoption of these Rules. These Rules shall govern the conduct of adjudicatory proceedings commenced before the Department after their effective date. These Rules shall be liberally construed to further the fair, prompt, orderly administration, and determination of adjudicatory proceedings in conformity with R.I. Gen. Laws § 43-35-1 et seq., the Rhode Island Administrative Procedures Act. To the extent that any part of these Rules are (or become) inconsistent with applicable law or the terms of any other rule or regulation promulgated by the Department, the applicable law and/or the terms of such other rule or regulation shall apply. A Hearing Officer (as defined below) for the Department may also handle administrative hearings by request or by delegation on behalf of other state agencies, boards, and/or commissions either upon request or as appointed by the Director of the Department. Any such hearings held by said Hearing Officer for the Department on behalf of another agency, board, and/or commission will utilize the duly promulgated rules and regulations of those agencies, boards, and/or commissions concerning administrative hearings when conducting such hearings. In the absence of any such regulations promulgated by said agency, board, and/or commission or in the absence of a regulation applicable to a specific issue raised in such a hearing, the appropriate section(s) of these Rules shall apply. These Rules shall also govern administrative appellate reviews handled by a Hearing Officer (as defined below) for the Department. Said administrative appellate review of final decisions or final orders of the Department shall be held either pursuant to statutory authority and/or a delegation of authority by the Director and/or delegation of authority by another state agency, board, and/or commission, as applicable. Section 3 Definitions When used in these Rules, the following words, except as otherwise required by the context, shall have the following meaning: (A) “Contested Case” means an adjudicatory proceeding before a Hearing Officer of the Department in which the legal rights, duties or privileges of a Party are determined. 5 (B) “Department” means the Department of Administration. (C) “Department Counsel” means the legal representative of the Department. (D) “Director” means the Director of the Department. (E) “Division” means a Division of the Department with the authority to perform the functions of the Department as designated by statute. (F) “Hearing Officer” means the individual(s) including an Administrator of Adjudication authorized by law or duly designated by the Director to conduct hearings, write decisions and, when required to make recommendations to the Director in Contested Cases. It also refers to individual(s) including an Administrator of Adjudication authorized by law or duly designated by another state agency, board, and/or commission to conduct hearings, write decisions, and when, required make recommendations to the agency, board, or commission. (G) “License” means a document issued by the Department (sometimes referred to as a license, permit, certificate, approval, registration, charter) granting permission required by law to engage in certain activities. (H) “Licensee” means any holder of a License. (I) “Party” or “Parties” means each Person named or admitted as a Party in a Contested Case. (J) “Person” means an individual, partnership, corporation, limited liability company, association, governmental subdivision, public or private organization or any other entity however formed. (K) “Reasonable Cause” means the existence of a set of facts of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs which would induce a reasonably intelligent and prudent person to conclude that a violation(s) of law, rule, or regulation has occurred. (L) “Respondent” means a Party who is the subject of a Department administrative action pursuant to Section 4 of this Regulation. (M) “Regular Business Hours” means the regular business hours of the Department of 8:30 a.m. to 4:00 p.m. Monday through Friday except for holidays observed by the State of Rhode Island. 6 Section 4 Department Investigation and Action (A) Department Investigation and Action. The Department, pursuant to its own authority, may initiate an investigation and take regulatory action (i) against a Licensee, (ii) against an applicant for a License or applicant for renewal of a License, (iii) against any Person who is required to be licensed but is not licensed, and (iv) against any Person who is otherwise subject to the regulatory or statutory authority of the Department. All such regulatory actions shall be pursuant to applicable law and the rules and regulations adopted pursuant thereto. Section 5 Notice of Contested Case (A) Notice Required. The Department shall give written notice (“Notice") to all Parties of the initiation of a Contested Case. The Notice shall be designed to afford an opportunity for hearing to all Parties pursuant to R.I. Gen. Laws § 42-35-9 or as otherwise provided by law. (B) Notices. All Persons upon whom a Section 5(A) Notice is served, if required to do so in the Notice, shall file a written answer ("Answer") within twenty (20) days of the service of the Section 5(A) Notice. The Answer shall be in the form of a specific admission, denial, and/or assertion that the Respondent is without sufficient knowledge or information to form a belief with respect to each of the allegations in the Section 5(A) Notice, along with the assertion of any defense to any allegation(s). Any Party having a right to request a hearing shall request such hearing in accordance with the terms and conditions contained in the Section 5(A) Notice. If Respondent/Party requests a hearing in response to a Notice, the Department shall provide a Notice of Hearing to the Respondent in the form of an order appointing a Hearing Officer which order shall specify the type of hearing and the date for a prehearing conference. The Notice of Hearing shall also inform the Respondent that: (i) it shall be his/her or its sole responsibility (or his/her or its representative) to present a defense at hearing; and (ii) specify the statutory cause of action under which the hearing is convened and potential penalty or penalties resulting therefrom. (C) Contents of Notice. The Notice of Hearing shall comply with R.I. Gen. Laws § 42-35-9(b) and/or any other statutory requirements. (D) Order Regarding Hearing. For those proceedings where a Party has requested a hearing (such as an appeal pursuant to R.I. Gen. Laws § 36-4-40), where there is no need for the Notice as delineated in Section 4(A), an order shall be issued specifying the time, date, location of the hearing. 7 (E) Request for Hearing. A request for a hearing filed by a Party/Respondent/Person (or attorney acting on his/her behalf) must be signed by said Party/Respondent/Person. Section 6 Prehearing Conferences (A) The Department encourages the use of prehearing conferences as a means of making more effective use of hearing time and to otherwise aid in the disposition of the proceeding or the settlement thereof, where appropriate. (B) The Hearing Officer may, with reasonable written notice, require that all Parties attend a prehearing conference to consider the following: (1) the simplification, narrowing, and clarification of the issues; (2) the possibility of obtaining written stipulations, admissions, and/or agreements with respect to the introduction of documents or similar agreements to avoid unnecessary issues of proof, at hearing; (3) the identification of witnesses and any limitation of the number of witnesses; (4) the possibility of agreement disposing of all or any of the issues in dispute; (5) the consideration of outstanding motions; (6) the status of settlement negotiations, if any; (7) the possibility of use of pre-filed testimony, where appropriate; (8) issues related to discovery, including possible resolution of disputes related to the scope of the discovery and any limitation(s) of data and/or document requests; (9) scheduling of hearings; and (10) such other matters as may aid in the efficient conduct of the regulatory proceeding. (C) All Parties shall attend the prehearing conference fully prepared to discuss all matters related to the proceedings. Failure of any Party to attend the prehearing conference may constitute a waiver of all objections to any order or ruling issued by the Hearing Officer as a result of the prehearing conference unless good cause is shown for failure to appear. 8 (D) At the sole discretion of the Hearing Officer, the Parties may be permitted to waive the prehearing conference by filing with the Hearing Officer a stipulation prior to the prehearing conference that contains the following: (1) Any agreement with respect to the issues in the matter; (2) an agreed upon discovery schedule; (3) three (3) agreed upon possible dates for a hearing; and (4) any other agreements as to matters contained in Section 6(B). (E) In the discretion of the Hearing Officer, with agreement of the parties, prehearing conferences, conference hearings, or status hearings may be held by telephone, electronically, or by any other means. Section 7 Representation (A) Appearances. (1) The Department shall notify each Party that each Party may retain legal counsel admitted to practice in the State of Rhode Island. Said notification shall be set forth in the Department’s order appointing a Hearing Officer or Notice of Hearing. (2) Individuals, and partners of partnerships, may appear pro se if they choose. An officer of a corporation may represent a corporation as long as duly authorized by corporation to act on its behalf in the matter. (3) If a Party is not appearing pro se he, she, or it must be represented by a member in good standing of the Bar of the State of Rhode Island or by an out of state attorney admitted pro hac vice by the Superior Court or by the appropriate court unless exempted pursuant to R.I. Gen. Laws § 11-27-11. (4) All attorneys must conform to the standards of ethical conduct required of practitioners before the courts of the State of Rhode Island. (B) Appearances of Present and Former Employees of the Department. (1) Except as provided in Section B(2) below, no person who is currently an employee of the Department (or another agency, if applicable) may appear before the Department on behalf of any Person or represent any other Person or act as an expert witness before the Department except in the performance of his/her official duties as an employee of the Department (or another agency, if applicable). 9 (2) In appeals filed pursuant to R.I. Gen. Laws § 36-4-40, the Department’s or other agencies’ employees in the Hearing Officer’s discretion may testify on behalf of a Person filing such an appeal when they have personal knowledge of the Person’s job duties. (3) No person having been so employed by the Department (or another agency, if applicable) may, within one (1) year after said employment has ceased, appear before the Department (or another agency, if applicable) on behalf of any other Person, or represent any Person or act as an expert witness before the Department (or another agency, if applicable). Section 8 Filing of Pleadings and Other Documents (A) Title. All pleadings and other documents filed with the Department in any Contested Case, whenever possible, shall state the file number, if any, the title of the proceeding and the name of the Person on whose behalf the filing is made. (B) Form and Size. All pleadings and other documents filed with the Department, except those documents which are kept in a smaller or larger format during the ordinary course of business, are to be submitted on 8½ by 11 inch paper. At the discretion of the Hearing Officer, filings may be made by telecopier, facsimile, or by electronic mail or any other manner or means approved by the Hearing Officer. If filings are made electronically, the Party shall also file a hard copy of any such electronic filing. All documents must include, if applicable, the Rhode Island Bar number, address, telephone number, facsimile number and e-mail address of each attorney and pro se Party. All papers shall be filed during Regular Business Hours. The Department's date stamp shall be presumptive of the actual date of filing. (C) Signature. The original copy of each pleading shall be signed and dated by the Party on whose behalf the pleading is made or by the Party's authorized representative. This signature shall constitute a certification that the Party has read the document, understands the contents thereof and, to the best of his/her knowledge, believes that such statements are true, that the document is not interposed for delay and that if the pleading has been signed by his/her authorized representative, he/she has full power and authority to do so. (D) Construction. All pleadings shall be liberally construed and errors or defects therein which do not mislead or affect the substantive rights of the Parties involved may be disregarded. Section 9 Service (A) Service Upon Parties and Others. A copy of all pleadings and other documents filed in any proceeding governed by these Rules shall be served upon all other Parties. 10 (B) Manner of Service. Unless otherwise ordered or authorized by the Hearing Officer, service under these Rules shall be made upon a Party or upon the Party's attorney, if he/she has entered an appearance, by first class mail postage prepaid, certified mail or hand delivery to his or her place of business, home address or other address indicated by the Party in the pleadings. For a Licensee, service of any Person who has not yet entered an appearance shall be at the last address on file with the Department. For any Person not licensed by the Department, service shall be at the last known address which the Department reasonably believes will result in actual delivery. Service by mail is complete upon mailing. (C) Certificate of Service. There shall accompany and be included in the original of each pleading filed with the Department a certificate of service showing service on all Parties. (D) Date of Certificate to Govern. In addition to the provisions of Section 10(A) of this Regulation, the calculation of the time for response to all pleadings shall commence as of the date of the certificate of service. However, if service is made by mail, then one (1) day shall be added to the prescribed period. Section 10 Time (A) Computation. Unless otherwise specifically provided by law, computation of any time period referred to in these Rules shall begin with the first day following the act which initiates the running of the time period (including Saturday, Sunday and legal holidays). The last day of the time period so computed is to be included unless it is a Saturday, Sunday or legal holiday or any other day the Department is closed, in which case the period shall run until the end of Regular Business Hours of the next following business day. (B) Extensions of Time. It shall be within the sole discretion of the Hearing Officer, for good cause shown, to extend any time limit. All requests for extensions of time shall be made by written motion filed with the Hearing Officer. (C) Continuances. Except as otherwise provided by law, the Hearing Officer may, at any time, with or without request, continue or adjourn a prehearing conference or a hearing. If a Party requests a continuance, the Hearing Officer may direct the Party to seek the assent of the other Party(ies) prior to deciding whether to grant such request. If the Hearing Officer grants a continuance at the request of a Party(ies), the Hearing Officer may direct the Party(ies) requesting the continuance to immediately notify all other Parties of record and if deemed appropriate to prepare an order memorializing the continuance and the date to which the matter has been continued. If such an order is prepared, the continuance will only be effective when the notification to all other parties of record has been made. 11 Section 11 Motions (A) General. Any Party may request that the Hearing Officer enter any order or action not inconsistent with law, regulation, or these Rules. The types of motions made shall be those which are permissible under these Rules and the Rhode Island Superior Court Rules of Civil Procedure (“Super. R. Civ. P.”). (B) Presentation/Objections to Motions. Motions may be made in writing at any time before or after the commencement of a prehearing conference or hearing, and/or orally during a prehearing conference or hearing. Each motion shall set forth and/or state the grounds for the desired order or action and state whether oral argument on the motion is requested. Within ten (10) days after a written motion is filed with the Hearing Officer and served on the opposing Party(ies), a Party opposing said motion must file a written objection to the granting of the motion, and shall, if desired, request oral argument. All written motions and objections shall be accompanied by a written memorandum specifying the legal and factual basis for the Party's position. The Hearing Officer may request such written memorandum on oral motions and objections thereto. (C) Action on Motion. The Hearing Officer shall, if he/she determines oral argument on the motion is warranted, give notice of the time and place for such argument. The Hearing Officer may rule on a motion without argument if the motion involves a matter as to which the presentation of testimony or oral argument would not advance the Hearing Officer's understanding of the issues involved or if disposition without argument would best serve the public interest. The Hearing Officer may act on a motion when all Parties have responded thereto, or the deadline for response has passed, whichever comes first. Section 12 Discovery (A) General. The Department favors prompt and complete disclosure and exchange of information and encourages informal arrangements and cooperation among Parties in this regard. It is the Department's policy to encourage the timely use of discovery as a means toward effective presentations at hearing and avoidance of the use of cross- examination at hearing for discovery purposes. (B) Procedure. Any Party, by written request served upon all other Parties, may request the other Party to produce for inspection, copying or photocopying documents, objects or tangible things which are relevant to the subject matter of the hearing. (C) Hearing Delay. No hearing shall be continued to permit the completion of discovery unless the Party seeking discovery has exercised due diligence in attempting to complete discovery. (D) Discovery Schedule. At the discretion of the Hearing Officer, the discovery schedule shall be set at the prehearing conference. The Hearing Officer may amend such discovery schedule at the request of a Party or on his or her volition. 12 (E) Written Discovery. Written discovery as set forth in Super. R. Civ. P. is allowed but may be limited by the Hearing Officer as he/she deems appropriate. (F) Types of Discovery. Any other types of discovery as set forth in Super. R. Civ. P. may be allowed in the discretion of the Hearing Officer. (G) Discovery Disputes. Objections to discovery requests shall be made pursuant to Super. R. Civ. P. If there is a dispute between the Parties with respect to whether a Party has failed to completely respond to a discovery request, the Party requesting the discovery shall comply with Super. R. Civ. P. 37(a)(2) prior to filing a Motion to Compel Discovery. (H) A Party is not required to file discovery responses with the Hearing Officer unless otherwise ordered by the Hearing Officer. Section 13 Subpoenas Upon application of any Party, as authorized by law, subpoenas requiring attendance and testimony of witnesses and to compel the production and examination of papers, books, accounts, documents, records, certificates and other evidence that may be necessary or proper for the determination and decision of any question before the Hearing Officer may be issued by the Director or his/her designee upon submission to the Hearing Officer. Except as may be otherwise provided by law, where a subpoena is not honored, the Director or his/her designee may make application to the State of Rhode Island Superior Court seeking an order to show cause why the Person who failed to honor the subpoena should not be held in contempt and for such further relief as may be appropriate. The Hearing Officer may, sua sponte, or on motion of any Party or witness, issue such protective orders, grant such motions to quash and/or grant other motions as justice or fairness may require. Section 14 Evidence (A) Rules of Evidence. Irrelevant, immaterial or unduly repetitious evidence shall be excluded in all proceedings wherein evidence is taken. While the rules of evidence as applied in civil cases in the Superior Courts of this state shall be followed to the extent practicable, the Hearing Officer shall not be bound by the technical evidentiary rules. Evidence not otherwise admissible may be admitted, unless precluded by statute, when necessary to ascertain facts not reasonably susceptible of proof under the rules, if the evidence is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. The rules of privilege recognized by law shall apply. Objections to evidentiary offers may be made and shall be noted in the record. (B) Exhibits, Copies. In all cases wherein evidence is taken, exhibits may be introduced in the form of copies or excerpts, if the original is not readily available. Upon request, a Party shall be given an opportunity to compare the copy with the original. 13 (C) Administrative Notice. In all proceedings wherein evidence is taken, notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the Department's specialized knowledge. Parties shall be notified by the Hearing Officer either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any report or data required by law or regulation to be filed with the Department. Parties shall be afforded an opportunity to contest the material so noticed. The Hearing Officer's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence. The burden is on the Party requesting the Hearing Officer's notice to produce the documents or other matter for the Hearing Officer's review. (D) Department Employees, Agents and Consultants. At the hearing, the Hearing Officer may employ the use of Department employees, agents and consultants to assist him/her in the evaluation of any evidence introduced at the hearing. (E) Oath. All testimony shall be under oath or by affirmation. (F) Testimony. At the discretion of the Hearing Officer, an adverse inference may be drawn by an assertion by a witness or a Party of his/her Fifth Amendment rights under the U.S. Constitution. (G) Under Seal. Where it is determined necessary by the Hearing Officer either sua sponte or at the request of a Party, documentary evidence may be sealed to protect confidential agency documents. Such documents include but are not limited to agency work product entered into evidence pursuant to R.I. Gen. Laws § 36-4-40 appeal, civil service examination questions, and tax matters pursuant to R.I. Gen. Laws § 44-19-30. In the event of an appeal of a decision rendered in a matter where part of the record is under seal, the sealed portion shall be considered part of the record on appeal. (H) Objections. Objections to evidentiary evidence may be made and shall be noted on the record. Parties objecting to the introduction of evidence shall state the precise grounds for such objection at the time such evidence is offered. When objection is made to the admissibility of evidence, such evidence may be received subject to later ruling. The Hearing Officer may, in his/her discretion, either with or without objection, exclude inadmissible or cumulative evidence. (I) Documentary Evidence in Advance: Where practicable the Hearing Officer may require: (1) That all documentary evidence which is to be offered during hearing be submitted to the other Party and/or the Hearing Officer sufficiently in advance of offering such evidence to permit study and preparation of cross-examination and rebuttal evidence; 14 (2) That documentary evidence not submitted in advance, as otherwise required under Section I(1), not be received in evidence in the absence of a clear showing that the offering Party had good cause for failing to produce the evidence sooner; and (3) That the authenticity of all documents submitted in advance in a proceeding in which such submission is required, be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failing to have filed such written objection. Section 15 Conduct of Hearings (A) General. Hearings shall be as informal as may be reasonable and appropriate under the circumstances. All Parties, witnesses and other Persons at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in any courtroom. Where such decorum is not observed, the Hearing Officer may take appropriate action including ejectment or adjournment, if necessary. (B) Duties of Hearing Officer. The Hearing Officer shall conduct the hearing, make all decisions regarding admission or exclusion of evidence or any other procedural matters and either administer oaths to witnesses or instruct the stenographer to do so. (C) Order of Proceedings. Except as otherwise required by law, it shall be the usual practice that hearings of the Department shall be open. Where evidence is peculiarly within the knowledge of one Party, or where Contested Cases have been consolidated or where there are multiple Parties, the Hearing Officer may, in his/her discretion, direct who shall open and shall further designate the order of presentation of evidence. (D) Rights of Parties. Parties shall have the right to present evidence, cross-examine witnesses, object, make motions, and present arguments. The Hearing Officer may question any Party or any witness for the purpose of clarifying his or her understanding or to clarify the record of the proceedings. (E) Record of Proceedings. (1) A complete record of the proceedings shall be recorded on audiotape, digital recorder or similar electronic device or, at the discretion of the Hearing Officer, by stenographic record. In the event the Hearing Officer orders a stenographic record, the Hearing Officer shall order which Party or Parties shall bear the cost thereof. Any Party may on his, her or its own initiative order a stenographic record made of the proceedings. The requesting Party shall incur all costs associated therewith. The Hearing Officer shall be provided an original of the stenographic record at not cost and the Department Counsel shall be provided with a copy at no cost. Any Party may request a copy of the audiotape record of 15 the proceedings. The requesting Party shall bear the cost of reproducing said audiotapes thereof. (2) If a Party chooses to appeal a final Departmental decision to Superior Court pursuant to R.I. Gen. Laws § 42-35-1 et seq. or to appeal a decision as otherwise provided by law and the Superior Court (or another Court) requires a transcript of the hearing and there is only an electronic recording of the hearing, said Party shall be responsible for having the transcript prepared by an independent person or company at his, her or its expense within twenty (20) days of filing the appeal. (3) For appeals to the Personnel Appeal Board of decisions rendered pursuant to R.I. Gen. Laws § 36-4-41, the Appellant shall bear the cost of the transcription as provided by law. (F) Public Hearings. Except as provided by law, all hearings are to be open to the public. In general, any Person who is not a Party to a proceeding may on a showing of a relevant interest in the proceeding and in the discretion of the Hearing Officer, be permitted to make oral or submit written statements on any issues relevant to the proceeding. A relevant interest may include such factors as whether the outcome of the hearing may affect a Person or is somehow relevant to the Person. (G) Close of Proceedings. At the conclusion of the evidence, the Hearing Officer may, in his/her discretion, permit the Parties to argue orally and/or to submit written briefs. The Hearing Officer may, within his/her discretion, direct that proposed findings of fact and conclusions of law be submitted by the Parties. The record in the proceeding shall close after oral argument, the deadline for the filing of the briefs or upon such date as may be set by the Hearing Officer. No evidence shall be admitted thereafter, unless otherwise ordered by the Hearing Officer. The Hearing Officer may in any case require either Party, with appropriate notice to the other Party, to submit additional evidence in any matter relevant to the hearing. (H) Waiver of Hearing. In any proceeding, if the Parties agree to waive the hearing, the Hearing Officer may dispose of the matter upon the pleadings and other submittals of the Parties. (I) Dispositions. Unless otherwise precluded by law, disposition may be made of any Contested Case at any time by stipulation, consent agreement, consent settlement, consent order, default or dismissal by the Hearing Officer. A joint request for a stay of the hearing for the purpose of preparing documents relevant to the above shall be forwarded to the Hearing Officer and may be granted within the sound discretion of the Hearing Officer. (J) Consent Agreements and Consent Orders. The Department may enter into a consent agreement with a Party(ies) prior to a prehearing conference being held in an administrative proceeding. A consent agreement is valid if signed by a Department 16 representative; it does not have to be approved by the Hearing Officer and/or Director. Subsequent to a prehearing conference being held in an administrative proceeding, the Parties may agree to the terms of a consent order; provided however, such a consent order must be approved by the Hearing Officer and, if necessary the Director to be valid. Both consent agreements and consent orders are considered public records pursuant to the Access to Public Records Act, R.I. Gen. Laws § 38-2-1 et seq. (K) Appeals of either a Rejection to Take a State Civil Service Examination or Examination Results. For appeals filed pursuant to R.I. Gen. Laws § 36-4-40, R.I. Gen. Laws § 36-4-40.1, and R.I. Gen. Laws § 36-4-18 as set forth pursuant to Section 3.035 (Disqualification of Applicants) and to Section 3.06 (Results of Examination) of the Personnel Rules & Regulations, the Appellant or his or her representative, a representative of the Office of Personnel Administration (“OPA”), and a duly designated Hearing Officer may meet informally to resolve the issues and may agree to resolve the issue. If the issues cannot be resolved than the issue may proceed to a hearing. (1) Examination Results: If the Appellant appealing the results of his/her civil service examination results wishes to pursue an appeal after an informal review with OPA and a Hearing Officer, the Hearing Officer will set a briefing schedule allowing the Appellant to present written documentary evidence and arguments why s/he believes that the s/he chose the correct answer(s) on the examination and/or believes the education/experience scoring was incorrect. If possible, Appellant should rely on recognized texts and/or research, training manuals, and/or rules or regulations of the appropriate agency, if applicable, and any other relevant arguments in his or her submission. OPA will be allowed to provide a written response to Appellant’s brief. OPA should rely on the appropriate agency’s expert and any other relevant arguments. However, in the Hearing Officer’s discretion, s/he may set hearing on the issues. Unless the Parties agree the examination was incorrectly scored, upon receipt of the written briefs and after hearing, if one is scheduled, the Hearing Officer shall render a decision. OPA shall take the appropriate steps if it is found by the Hearing Officer that the examination was incorrectly scored. (2) Rejection to take a State Civil Service Examination: If Appellant pursues his or her appeal after the informal meeting detailed in Section 15(K), the Hearing Officer shall allow the hearing to proceed either on written submissions or by hearing. Section 16 Penalties (A) In determining the appropriate penalty to impose on a Party found to be in violation of a statute(s) or regulation(s), the Hearing Officer shall look to past precedence of the Department for guidance and may consider any mitigating or aggravating circumstances. 17 (1) Mitigating circumstances may include, but shall not be limited to, the following: the Party’s licensing history, i.e. the absence of prior disciplinary actions against the Party; the Party’s acceptance of responsibility for any violations; the Party’s cooperation with the Department; and the Party’s willingness to give a full, trustworthy, honest explanation of the matter at issue. (2) Aggravating circumstances may include, but shall not be limited to, the following: the Party’s prior disciplinary history; the Party’s lack of cooperation and/or candor with the Department; the seriousness of the violation; whether the Party’s act undermines the regulatory scheme at issue; whether there has been harm to the public as a result of the violation; and whether the Party’s act demonstrates dishonesty, untrustworthiness, or incompetence. (B) The finding of mitigating circumstances will not necessarily lead to a reduction in the penalty imposed if the circumstances of the violations found by the Hearing Officer are such that they do not warrant a reduction in penalty. Section 17 Decisions (A) All decisions rendered by the Hearing Officer at the conclusion of a hearing shall be in writing and shall comply with the requirements of R.I. Gen. Laws § 42-35-12. If required by law or by the delegation of authority, the decision of the Hearing Officer shall be reviewed by the Director of the Department who shall enter an order adopting, modifying or rejecting the decision of the Hearing Officer. The decision and order shall be delivered to all Parties with a notice indicating the right to take an appeal of the decision and order to the Superior Court pursuant to R.I. Gen. Laws § 42-35-15 or as otherwise provided by law. (B) Unless otherwise required by law or regulation, all decisions shall be issued within sixty (60) days of the close of the hearing. However, if the Hearing Officer cannot complete a decision within sixty (60) days, the Hearing Officer shall issue a statement to the Parties stating the reasons for delay and giving the anticipated date of issuance. Section 18 Publication of License Suspensions and Revocations Any final decision and order of the Director of the Department which results in the imposition of a sanction of suspension or revocation of a License, a bar from practice in a particular field or type of business or other similar sanction may be published as many times and in whatever manner as the Director, in his/her sole discretion, deems necessary to adequately inform the public of the action taken. The intent to publish a sanction shall be contained in the final decision, final order, consent agreement, or consent order. The Director or Hearing Officer may require the Licensee to bear the cost of the publication. 18 Section 19 Reconsideration At any time after the issuance of a final decision or order, any Party may, for good cause shown, by motion petition the Director or Hearing Officer to reconsider the final order or decision. The petitioner shall file his/her motion within twenty (20) days of the issuance of a decision or final order and shall set forth the grounds upon which he/she relies. The Director or Hearing Officer may grant the motion for reconsideration within his/her discretion and shall order such relief as he/she deems appropriate under the circumstances. The Department shall not entertain a motion for reconsideration filed more than twenty (20) days after entry of the final decision or order, unless the Hearing Officer finds good cause to entertain said motion Section 20 Judicial Review Any Party aggrieved by a final written order or decision of a Hearing Officer or Director may file a complaint with the Superior Court pursuant to R.I. Gen. Laws § 42-35-15 unless said appeal is provided for otherwise by law. In the absence of a timely appeal, the order or decision of the Director or Hearing Officer shall become final and no further administrative appeal may be taken. Section 21 Default If any Party to a proceeding fails to answer a complaint, plead, appear at a prehearing conference or hearing or otherwise fails to prosecute or defend an action as provided by these Rules, the Hearing Officer may enter a default judgment against the defaulting Party, take such action based on the pleadings and/or other evidence submitted by the nondefaulting Party as the Hearing Officer deems appropriate in his/her sole discretion or take such other action as the Hearing Officer deems appropriate in his/her sole discretion. Challenge to such an order shall be made as a motion for reconsideration pursuant to Section 19, above. Section 22 Disqualification; Incapacity of Hearing Officer (A) Disqualification. Any Party may make a motion to the Director or Hearing Officer requesting that the Hearing Officer be disqualified or removed from the proceeding. The motion shall be accompanied by an affidavit setting forth the reasons for the request to disqualify. In the event that the motion to disqualify is granted, another Hearing Officer shall be assigned to the matter. If the Hearing Officer denies a motion to disqualify, the moving Party may appeal to the Director. (B) Incapacity. When the Hearing Officer becomes incapacitated or unavailable to complete a hearing and/or render a decision, the hearing shall continue and be conducted by and/or the decision rendered by a substitute Hearing Officer appointed by the Director. If any Party objects to the substitution of the Hearing Officer for the purpose of 19 continuing a hearing or rendering a decision, that Party must prove prejudice by presentation of argument and evidence to the substitute Hearing Officer. If the substitute Hearing Officer finds that the objecting Party will be prejudiced, the substitute Hearing Officer will issue an order making such findings and will hear the matter de novo. Section 23 Miscellaneous (A) Intervention. Any Person claiming a right to intervene or an interest of such a nature that intervention is necessary or appropriate to the administration of the statute under which the proceeding is brought may seek to intervene in any proceeding. Intervention may be initiated by filing a motion to intervene with the Hearing Officer. The motion shall set out clearly and concisely the facts from which the nature of the movant's alleged right of interest can be determined, the grounds for the proposed intervention and the position of the movant in the proceeding. (B) Ex Parte Consultations. No Person who is a Party to or a participant in any proceeding before the Department or the Party's counsel, employee, agent or any other individual acting on the Party's behalf, shall communicate ex parte with the Hearing Officer or the Director about any matter related to the proceeding, and the Hearing Officer and/or the Director shall not request or entertain any such ex parte communications. The prohibitions contained above do not apply to those communications which relate solely to general matters of procedure and scheduling of the hearing. (C) Consolidation. The Hearing Officer may, in his/her discretion, consolidate or combine several matters for purposes of hearing or other proceedings, when he/she finds that sufficient common issues of fact or law or both are involved. (D) Plural. Words in the singular number include the plural, and vice-versa, except where the context otherwise requires or where a contrary result appears by necessary implication. (E) Statutes. If any statute has different requirements than those contained within this Regulation, the statute shall be controlling. (F) Public Documents. The Department reserves the right to publish in any form any public document. Section 24 Consent Orders (A) Consent Orders. At any time after the opening of the prehearing conference and prior to the close of the record of a Departmental hearing, the Parties may attempt to dispose of the matter by entering into a consent order as provided in Section 15(J) of this Regulation. Every consent order shall contain, at a minimum, an admission of all jurisdictional facts and express waivers of further procedural steps before the Hearing 20 Officer, including the right to appeal. Upon receiving a consent order, the Hearing Officer may: (1) accept the consent order and if required by law recommend its approval to the Director; or (2) reject the consent order and state the reasons therefore in writing and take such other appropriate administrative action. In the event that the Hearing Officer rejects the consent order, either Party may appeal the rejection directly to the Director. Such appeal shall be in writing and shall be filed with the Director no later than seven (7) days after the date the Hearing Officer notifies the Parties, in writing, of the rejection of the consent order. Upon receipt of an appeal, the Director shall take whatever action he/she deems appropriate. Should the Director confirm the Hearing Officer's decision to reject the consent order, such rejection shall be deemed an interim order of the Director and not a final order and the matter shall continue through the administrative hearing process. Nothing herein shall prevent the Parties from subsequently entering into and presenting to the Hearing Officer for consideration a new consent order. Section 25 Public Information (A) Access to public records shall be governed in accordance with R.I. Gen. Laws § 38-2-1 et seq. All hearings shall be conducted pursuant to the Administrative Procedures Act, R.I. Gen. Laws § 42-35-1 et seq. unless otherwise specified by law. Except where the Director, his or her designee or the Hearing Officer directs otherwise, or when required by law, upon the opening of the prehearing conference all pleadings, orders, communications, exhibits and other documents filed with the Hearing Officer shall become public records. Any claim of privilege that a document is not public shall be governed by the policy underlying the Access to Public Records Act, with the burden of proof resting on the party claiming the privilege. (B) Any Party may request a preliminary finding that some or all of the information is not a public document under the Access to Public Records Act. A preliminary finding that some documents are not public shall not preclude the Department from later determining that those documents are public in accordance with R.I. Gen. Laws § 38-2-1 et seq. (C) Claims of privilege shall be made by filing a written request with the Department. One copy of the original documents, boldly indicating on the front page, “Contains Privileged Information – Do Not Release,” shall be filed specifically identifying the information for which the privilege is sought, along with a description of the grounds upon which the Party is claiming a privilege. If a document is filed electronically, it shall contain a statement that the information has been redacted; however, the original document must be filed as delineated above. 21 (D) The Department shall retain the documents for which privilege is asserted to exist in a secure, non-public file until a determination is made as to whether to grant the request for privileged treatment. (E) Any person, whether or not a Party, may apply to the Department for release of the information pursuant to R.I. Gen. Laws § 38-2-1 et seq., the Access to Public Records Act. Such requests shall be governed by R.I. Gen. Laws § 38-2-1 et seq. and any regulations thereunder. Section 26 Hearings within the Department These Regulations relate to all hearings held before a Hearing Officer under the auspices of the Department’s jurisdiction. If a division of the Department has also promulgated administrative hearing regulations said division’s regulations and these Regulations shall apply. If there is a conflict between said division’s regulations and these Regulations, the division’s regulation shall apply. Section 27 Administrative Appellate Review When a Hearing Officer is handling an administrative appellate review either pursuant to statutory authority and/or a delegation of authority by the Director and/or delegation of authority by another state agency of final decisions or final orders, said review shall be performed pursuant to R.I. Gen. Laws § 42-35-1 et seq. unless otherwise provided by law. Section 28 Hearings for Other State Agencies, Commissions, and/or Boards When a Hearing Officer handles an administrative hearing on behalf of another agency, board, and/or commission, the Hearing Officer will utilize those agencies’, board’s, and/or commission’s duly promulgated rules and regulations concerning administrative hearings. In the absence of any such applicable regulation(s) promulgated by said agency, board, and/or commission or in the absence of a regulation applicable to an issue raised during the administrative hearing then these Rules shall apply. Section 29 Mediation A Hearing Officer may offer to provide mediation to the Parties. In the alternative, the Hearing Officer may appoint another Hearing Officer to act as a mediator. In the discretion of the Hearing Officer and by agreement of the Parties, the Hearing Officer may informally meet with the parties together and/or separately in order to ascertain whether the Parties may reach a settlement of the matter. The Parties and the Hearing Officer may agree to the type of mediation services offered by the Hearing Officer. The Parties may agree in advance that if a settlement is not reached, the Hearing Officer will hear the matter. If the Parties agree in advance that if a settlement is not reached and the Hearing Officer can still hear the matter, a Party may not then argue that the Hearing Officer cannot hear the matter after a settlement has not been reached. The parties may 22 agree in advance that a substitute Hearing Officer may be provided if after mediation, a resolution is not reached. Section 30 Equal Access to Justice for Small Businesses (A) Pursuant to R.I. Gen. Laws § 42-92-1 et seq., the Hearing Officer shall award reasonable litigation expenses incurred by the prevailing party in connection with Departmental hearings, if the Hearing Officer finds that all of the following conditions are met: (1) there was no reasonable basis in fact or law for the Department’s position; and (2) the adjudicatory proceedings involved loss of benefits, the imposition of a fine, the suspension or revocation of a license or permit, or which may result in the compulsion or restriction of activities; and (3) the prevailing party is either: (i) an individual whose net worth is less than five hundred thousand dollars ($500,000) at the time the adjudication is initiated; or (ii) an individual, partnership, corporation, association. or private organization doing business and located in the state which is independently owned and operated, not dominant in its field, and which employs no more than one hundred (100) persons at the time the adjudication is initiated; and (4) the prevailing party requested reimbursement not later than thirty (30) days following the issuance of the written order, detailing: (i) compliance with Section 30(1), (2), (3), and (4) of this Regulation; and (ii) the costs incurred in defending against the unreasonable adjudicatory proceedings, including, but not limited to, attorney’s fees and witness fees. (B) If found to be applicable, the Hearing Officer shall issue a supplementary order directing the Department to pay reasonable litigation expenses, as limited by R.I. Gen. Laws § 42-92-2(6). 23 Section 31 Severability If any section, term, or provision of this Regulation should be adjudged invalid for any reason, that judgment should not effect, impair, or invalidate any remaining section, term, or provision, which shall remain in full force and effect. Section 32 Effective Date This Regulation shall be effective twenty (20) days from the date of filing with the Secretary of State. EFFECTIVE DATE: 24