815-RICR-00-00-1
815-RICR-00-00-1. Rules of Practice and Procedure (version Technical Revision, 12/19/2001 to 12/19/2001)
1.1 Purpose
It is the purpose of these
rules to aid anyone who wishes to appear before the Rhode Island
Division of Public Utilities and Carriers. It is the Division’s
intention to be accessible and to make these Rules of Practice and
Procedure clear and understandable for counsel and the general
public. These rules and all issues not addressed in these rules are
to be considered in light of R.I. Gen. Laws §§ 42-35-1 et seq .
These rules govern only adjudicatory and rulemaking proceedings
commenced after their effective date.
1.2 Definitions
A. As used in these rules,
except as otherwise required by the context:
1. “Administrator” means
the Administrator of the Division of Public Utilities and Carriers.
2. “Applicant” means, in
proceedings involving filings for permission or authorization which
the Division may give under statutory or other authority delegated to
it, the party on whose behalf the filings are made.
3. “Associate
Administrator(s)” means the Associate Administrator for Motor
Carriers for matters involving carriers, and the Associate
Administrator for Cable Television for cable television matters.
4. “Administration and
Operations Officer” means the Administration and Operations Officer
of the Division.
5. “Clerk” means the
Commission clerk, appointed by the Public Utilities Commission
pursuant to R.I. Gen Laws § 39-1-9, who also serves as clerk to the
Division. For cases involving cable television or carriers, the
appropriate Associate Administrator may serve as Clerk.
6. “Commission” means the
Public Utilities Commission.
7. “Contested Case” means
a proceeding in which the legal rights, duties, or privileges of a
specific party are required by law to be determined by the Division
after an opportunity for hearing.
8. “Division” means the
Division of Public Utilities and Carriers described in RI Gen. Laws
§§ 39-1-2(4) and 39-1-3.
9. “Division Counsel”
means the representative of the Division, including but not limited
to its legal counsel, participating in a proceeding before the
Division.
10. “Ex parte” means
communication outside of a hearing, in a pending proceeding, directly
or indirectly, in connection with any issue of law or fact, between
any person or party and the Administrator, Administration and
Operations Officer, Associate Administrator(s) or Hearing Officer.
11. “Hearing Officer”
means an individual designated by the Administrator or Administration
and Operations Officer to conduct hearings, pursuant to R.I. Gen.
Laws § 39-1-15, whose recommended findings and decision, when
approved by the Administrator or Administration and Operations
Officer, have the same force and effect as findings and decision by
the Administrator.
12. “Informal Inquiry” or
“Complaint” means an individual contact by a customer of a
utility, applicant for service, or other person having business with
a utility, asking for information, advice, or assistance from the
Division concerning the individual’s rights, responsibilities or
options as regard the utility.
13. “Interest” means,
with respect to an issue or matter, persons or entities which have a
similar point of view or who are likely to be affected by the
proceeding.
14. “Intervenor” means a
party who intervenes in a pending matter or proceeding by statutory
right or by order of the Division on petition to intervene granted
pursuant to the requirements of § 1.17 of this Part.
15. “Matter” or
“proceeding” means the docket initiated by a filing or submittal
or a Division notice or order.
16. “Participant” means
any party or any person or entity admitted by the Division to limited
participation in a proceeding.
17. “Party” means each
person named or admitted or entitled as of right to be admitted as a
party to a proceeding before the Division.
18. “Petitioners” means
persons seeking relief, not otherwise designated in this section.
19. “Respondents” means
persons subject to any statute or other delegated authority
administered by the Division to whom an order or notice is issued by
the Division instituting a proceeding or investigation on its own
initiative.
20. “Rulemaking” means a
proceeding for the purpose of promulgating rules and regulations.
1.3 The Division
A. Description and
Organization
1. The Division of Public
Utilities and Carries is a governmental body charged with the
supervision and execution of all laws relating to public utilities
and carriers and all regulations and orders of the Commission
governing the conduct and charges of public utilities. These
responsibilities include evaluating fitness and public convenience
and necessity for motor, air, railway and water carrier services and
competing providers of gas and electric service, fixing standards for
utility service, witnessing the testing of measuring devices,
ordering refunds to provide remedial relief, authorizing the issuance
of securities, approving certain transactions between utilities,
conducting investigations and holding hearings.
2. The Division is headed by
an Administrator, appointed by the Governor to a six year term with
the advise and consent of the Senate. It is staffed by accountants,
engineers, engineering technicians, legal counsel, investigators,
consumer specialists and clerical personnel.
B. Offices
1. The principal office of the
Division is at Warwick, Rhode Island. All communications to the
Division shall be addressed to the Division of Public Utilities and
Carriers, 89 Jefferson Boulevard, Warwick, Rhode Island 02888, unless
otherwise specifically directed.
C. Hours
1. The offices of the Division
will be open Monday through Friday from 8:30 a.m. to 4:00 p.m. unless
otherwise provided.
D. Public Information.
1. Access to public records
shall be granted in accordance with the Access to Public Records Act,
R.I. Gen. Laws § 38-2-1 et seq . Except where the
Administrator, Administration and Operations Officer, Associate
Administrator(s) or Hearing Officer directs otherwise, all pleadings,
orders, communications, exhibits and other documents shall become
matters of public record as of the day and time of their filing. Any
claim of privilege 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.
2. Any party submitting
documents to the Division may request a preliminary finding that some
or all of the information is exempt form the mandatory public
disclosure requirements of the Access to Public Records Act. A
preliminary finding that some documents are privileged shall not
preclude the Division from releasing those documents pursuant to
public request in accordance with R.I. Gen. Laws § 32-2-1 et seq .
3. Claims of privilege are
made by filing a written request with the Division. One copy of the
original document, boldly indicating on the front page, “Contains
Privileged Information - Do Not Release”, shall be filed with a
specific indication of the information for which the privilege is
sought, as well as a description of the grounds upon which the party
claims privilege. Nine additional copies in which the privileged
information is redacted shall be filed with the Clerk. If a document
is filed electronically, it shall contain a statement that
information has been redacted; however, the original document must be
filed as delineated above.
4. The Clerk shall place
documents for which privilege is sought in a secure, nonpublic file
until the Administrator, Administration and Operations Officer,
Associate Administrator(s) or Hearing Officer determines whether to
grant the request for privileged treatment.
5. Any person, whether or not
a party, may apply to the Division for release of the information,
pursuant to the Access to Public Records Act.
6. Public records may be
examined and/or copied at the offices of the Division from8:30 a.m.
to 4:00 p.m. on regular business days. No officially filed document
shall be taken out of the offices except by the direction of the
Division Clerk. Requests for information may be addressed to the
Division of Public Utilities and Carriers, 89 Jefferson Boulevard,
Warwick, Rhode Island 02888. A charge of $0.15 per page for copies
and $15.00 per hour after the first half-hour (or whatever rate
currently prevails pursuant to R.I. Gen. Laws § 38-2-4), for
research and retrieval of documents, shall be assessed.
E. Ex Parte Communications
1. Except as permitted below,
no person who is a party to or a participant in any proceeding
pending before the Division, or the person’s counsel, employee,
agent, or any other individual action on the person’s behalf, shall
communicate ex parte with the Administrator, Administration and
Operations Officer, Associate Administrator(s) or Hearing Officer
about or in any way related to the proceeding, and the Administrator,
Administration and Operations Officer, Associate Administrator(s) and
Hearing Officer shall not request or entertain any such ex parte
communications.
2. The prohibitions contained
above do not apply to a communication from a party or participant or
counsel, agent or other individual acting on the person’s behalf,
if the communication relates solely to general matters of procedure
or scheduling and is directed to the Clerk, the Division Counsel,
representative or Hearing Officer.
1.4 The Clerk
A. Powers and Duties
1. The Clerk shall have the
powers and duties granted pursuant to R.I. Gen. Laws § 39-1-10.
B. Authentication of Division
Action
1. All orders of the Division
shall be signed by the Administrator or the Administration and
Operations Officer and may be authenticated either by the Clerk or by
such other person as may be authorized by the Administrator, the
Administration and Operations Officer or the Associate
Administrator(s).
C. Filings with the Division
1. The filing of written
applications, petitions, protests, motions, briefs, objections,
complaints, notices, reports, utility contracts, agreements with
affiliates, or amendments to such documents with the Division as
required or allowed by these rules, by any rule, regulation, or order
of the Division, or by any applicable statute, shall be made by
delivering them to the Clerk within the time limit, if any, for such
filing, by one of the following methods:
a. by hand-delivery; or
b. by United States mail or
express delivery.
c. by electronically filing in
the format prescribed by the Clerk. Electronic filings must be
supplemented by hard copies of the written materials, as directed by
the Clerk, pursuant to § 1.9(G) of this Part; however, signature
pages will be accepted by facsimile and incorporated into the docket.
D. The Docket
1. The Clerk shall maintain a
docket of all proceedings, and each new proceeding shall be assigned
an appropriate docket number after preliminary review. The docket
shall be available for inspection and copying by the public during
the office hours of the Division. If a portion of the docket has been
judged proprietary by the Hearing Officer upon motion of any party in
accordance with § 1.3(D) of this Part, it shall not be available for
public inspection.
E. Hearing Calendar
1. The Clerk shall maintain a
hearing calendar of all proceedings set for hearing.
1.5 Appearances and Practice
before the Division
A. Appearances
1. Each party to and
participant in a proceeding, other than an individual who appears pro
se, shall be represented by an attorney, who shall enter an
appearance in writing with the Clerk.
a. Members of the Bar of the
State of Rhode Island are eligible to practice before the Division.
b. Members of the Bar of a
Federal Court or of the highest court of any State or Territory of
the United States are eligible to practice before the Division
subject to the provisions of Rhode Island Supreme Court Rules Article
II, Rule 9 or any successor rule.
c. The Division counsel must
be an attorney, or otherwise exempt from the unauthorized practice of
law pursuant to R.I. Gen. Laws § 11-27-11(7).
2. Any person compelled to
appear or voluntarily testifying or making a statement before the
Hearing Officer may be, but shall not be required to be accompanied,
represented, and advised by an attorney.
3. All attorneys appearing
before the Division must conform to the standards of ethical conduct
required of practitioners before the courts of Rhode Island. An
attorney may not represent two or more parties unless the parties
have substantially similar interests; provided, however, that in the
event a conflict develops between the Division and the Attorney
General in his or her capacity as counsel for the Division, the
Division may engage independent counsel, or continue to utilize the
service of the Department of Attorney General, in which case the
Attorney General shall designate different Assistants or Special
Assistants to represent the Division and the State or its citizens,
respectively.
B. Suspension
1. After hearing, the Division
may disqualify and deny, temporarily or permanently, the privilege of
appearing or practicing before it in any way to any person who is
found:
a. not to possess the
requisite qualification to represent others, or
b. to have engaged in
unethical or improper professional conduct, or
c. otherwise to be not
qualified.
2. Willful disobedience to an
order of the Hearing Officer shall be grounds for exclusion of any
person from such hearing and for summary suspension for the duration
of the hearing(s) by the Hearing Officer.
C. Appearance of Present and
Former Employees
1. No person who is an
employee or legal consultant of the Division or the Department of the
Attorney General may appear personally or on behalf of or represent
any other person or act as an expert witness before the Division
except in the performance of official duties.
2. No person having been so
employed may, within one (1) year after employment has ceased, appear
personally or on behalf of any other person or act as an expert
witness before the Division.
3. § 1.5(C)(2) of this Part
shall not apply to any person whose employment has been solely as a
technical consultant and/or expert witness, or to any employee or
legal consultant to the Department of the Attorney General who has
not engaged in the presentation or preparation of any matter before
the Division
1.6 Informal Inquiries or
Complaints
A. Form
1. No particular form of
informal inquiry or complaint is required. Informal inquires or
complaints may be made by letter, telephone, or in person. Pursuant
to R.I. Gen. Laws § 38-2-2(D)(16) any final action taken will be
deemed a public document, however, such final action does not thereby
make the investigatory file leading up thereto public documents and
such investigatory file is exempt from disclosure to non-parties.
B. Determination of Treatment
1. Unless otherwise directed
by the Administrator, written inquiries or complaints not complying
with § 1.9 of this Part, even if they designate themselves formal
complaints, are and will be treated informally.
C. Process
1. Informal inquiries or
complaints do not initiate formal procedures and do not exhaust
administrative remedies unless all affected persons agree in writing
to be bound by the informal decision. The Division staff will
consider and investigate informal inquiries or complaints without
prejudice to the right of the interested person to present the matter
formally to the Division, unless all affected persons agree in
writing to be bound by the informal decision. Settlement offers made
in the course of informal inquires or complaints are privileged.
Informal procedure is recommended and preferred for informal inquires
or complaints. However, the Administrator may formally consider any
informal inquiry or complaint presented to the Division.
1.7 Formal Complaints
A. Form
1. A written complaint may be
made against any public utility pursuant to R.I. Gen. Laws § 39-4-3,
with regard to the subject matters designated in the statute by any
city or town council, the Water Resources Board, any corporation, or
by any twenty-five (25) qualified electors. A complaint filed by an
individual or by less than twenty-five (25) qualified electors may,
in the discretion of the Administrator, Administration and Operations
Officer or Associate Administrator(s), be treated as a formal
complaint.
A. Process
1. The Division shall
determine whether or not the complaint states a cause of action
within its jurisdiction. If so, the Division shall make whatever
investigation it deems necessary or convenient to ascertain whether
probable cause exists for the complaint. If the Division determines
that a cause of action within its jurisdiction does not exist, or
that probable cause is absent, it will so advise the complainant in
writing. A public hearing on a formal complaint is not required
unless an order affecting rates, tolls, charges, regulations,
measurement, practices, acts or services complained of will be
issued.
C. Hearing
1. If a public hearing is to
be held, the Division will set a date and place for the hearing after
having given ten (10) calendar days written notice of the complaint
to all persons entitled to notice pursuant to Rule 12 and will inform
the public pursuant to R.I. Gen. Laws § 42-46-6. Upon request by the
city or town council for matters involving water rates, charges,
potability, or accommodation of the public, the Division shall hold
at least one session of the public hearing within the county where
the city or town is located, pursuant to R.I. Gen. Laws § 39-4-7.
D. Satisfaction of Complaint.
1. If the respondent desires
to satisfy the complaint, a written statement of the relief which the
respondent is willing to provide shall be filed with the Division and
contemporaneously served upon the complainant. Upon acceptance of
this offer by the complainant and notice to the Division, the
complaint shall be dismissed. If there is a partial settlement of the
case with dismissal in part, the complainant may proceed with the
remaining issues.
1.8 Division Investigations
A. Notice
1. An investigation initiated
by the Division sua sponte e.g., a summary investigation
pursuant to R.I. Gen. Laws § 39-4-13, or upon written complaint made
against any public utility by any city or town council, the Water
Resources Board, any corporation, or by any twenty-five (25)
qualified electors pursuant to R.I. Gen. Laws § 39-4-3, shall be
commenced by written notice which, unless the circumstances of the
investigation require otherwise, shall be served upon all public
utilities, cable companies or person under investigation. The
investigative notice shall be docketed in the same manner as other
proceedings under these rules.
B. Hearing
1. The Division shall give the
public utility or cable company and the complainant, if any, ten (10)
calendar days notice of any hearing, pursuant to R.I. Gen. Laws §
39-4-5. All public hearings held pursuant to a Division investigation
shall be conducted in accordance with these rules.
C. Payment of Investigation
Expense by Utility
1. The public utility or cable
company shall pay the expenses incurred by the Division in the
investigation and hearing, unless exemption is granted by the
Administrator.
1.9 Formal Requirements as to
Filings
A. Title
1. All filings with the
Division in any proceeding shall clearly show, in the title, the
names of all persons in whose behalf the filing is made. If more than
one person is involved, a single name only need be included in the
title of subsequent papers filed. All subsequent filings shall show
the docket designation assigned by the Clerk.
B. Form and Size
1. All pleadings shall be
typed or printed on paper 8.5” wide and 11” long. The impression
may be on both sides of the paper and shall be double spaced.
Footnotes and quotations may be single-spaced. Pleadings shall be
fastened only on the left side; one copy shall be provided unbound.
Reproductions may be made by any process provided that all copies are
clear and permanently legible.
C. Signature
1. Except as may be otherwise
required by the rules and regulations of the Division or ordered or
requested by the Division, the original copy of each application,
petition, protest, motion, objection, brief, notice, report,
statement and other paper or amendment thereto, shall be signed by
the party in interest, or by its attorney, as required by these
rules, and shall show the office, address and telephone number of the
same. In any filing, a copy may be substituted for the signed
original as long as the signed original is submitted within ten (10)
days thereafter. All other copies filed shall be fully conformed
thereto.
D. Effect of Signature
1. The signature of the
person, officer or attorney on any paper filed with the Division
constitutes a certification by such individual that he or she has
read the paper being subscribed and filed, and knows the contents
thereof; that to the best of the signatory’s knowledge, information
and belief formed after a reasonable inquiry, it is well grounded in
fact and is warranted by existing law, and that it is not interposed
for any improper purpose; that if executed in a representative
capacity, the matter has been subscribed and executed in the capacity
specified upon the pleading or matter filed with full power and
authority to so do; that the contents are true as stated, except to
matters and things, if any, stated on information and belief, and
that those matters and things are believed to be true.
E. Construction
1. All pleadings shall be
liberally construed and errors or defects therein which do not
mislead or affect the substantial rights of the parties involved
shall be disregarded.
F. Rejection of Pleadings and
Documents
1 Pleadings and documents
which are not in substantial compliance with these or other Division
rules, order of the Division, or applicable statutes may be rejected
within thirty (30) calendar days after filing. If rejected, such
papers will be returned with an indication of the deficiencies
therein. Acceptance of a pleading or document for filing is not a
determination that the pleading or document complies with all
requirements of the Division and is not a waiver of such requirement.
G. Electronic Filing
1. § 1.9(B) of this Part
shall not apply to any pleadings which are filed electronically. The
clerk shall establish requirements for the format and transmission of
such documents. Parties will be obligated to provide hard copies as
directed by the Clerk.
H. Confidential Information
1. Claims of privilege may be
made pursuant to § 1.3(D) of this Part.
1.10 Time
A. Computation
1. Except as otherwise
provided by law, in computing any period of time prescribed or
allowed by any rule, regulation, or order of the Division, or by any
applicable statute, the date of the act, event, or default from or
after which the designated period of time begins to run shall not be
included, but the last date of the period so computed shall be
included, unless it is a Saturday, Sunday or legal holiday in Rhode
Island, in which event the period shall run until the end of the next
business day.
B. Extensions of Time.
1. Except as otherwise
provided, whenever an act is required or allowed to be done at or
within a specified time, the time specified may, for good cause, be
extended by the Hearing Officer. Such a request must be made before
the expiration of the period originally specified. Upon a request
made after the expiration of the specified period the Hearing Officer
may extend the specified time upon good cause and upon a showing of
excusable neglect for failure to act within the specified period.
C. Continuances
1. Except as otherwise
provided by law, the Hearing Officer may, for good cause at any time,
with or without request, continue or adjourn any hearing. Division
hearings shall begin at the time and place fixed in an order or a
notice, but thereafter may be adjourned from time to time or from
place to place by the Hearing Officer.
1.11 Service
A. Service Upon Parties
1. A copy of all pleadings and
other documents filed in any proceeding governed by these rules shall
be served upon all other parties. If a party appears after the
original documents have been filed, a copy of all papers previously
filed shall be furnished to such party on request. Service shall also
be effected on any other person designated to receive service by the
Administrator, the Administration and Operations Officer, the Hearing
Officer or the Clerk.
B. Manner of Service
1. Unless otherwise ordered by
the Administrator or the Hearing Officer, service under these rules
shall be made upon a party or participant or upon his or her
attorney, if an appearance has been entered, by first class mail,
express delivery or hand-delivery to his or her place of business, or
by electronic service if the parties agree that it is appropriate..
C. Receipt to Govern
1. In addition to the
provision of § 1.10(A) of this Part, the time for response shall
commence on the date of receipt by mail, express delivery, or hand
delivery. By agreement, parties may use the date of facsimile
transmission to comply with this Rule.
D. Certificate of Service
1. There shall accompany and
be attached to the original of each paper filed with the Division in
a proceeding a certificate of service, showing service on all
parties.
1.12 Notice
A. Notice Required
1. The Division shall give, or
shall require any designated party to give, notice of the
commencement of scheduled hearings in any pending matter to all
parties and to such other persons as the Division designates. After
commencement, a hearing may be adjourned upon oral notice to those
present at the time of adjournment.
a. The Administrator may give,
or may require any designated party to give, notice of an
informational or record conference to all parties and to such other
persons as the Administrator designates.
(1) Such notice is required
for matters which have been docketed but not scheduled for hearing.
(2) The Division will follow
the requirements of R.I. Gen. Laws § 42-46-6 for any informational
or record conference which is not noticed under subsection (b).
b. The Administrator may give
notice of an informational or record conference, to the general
public and other persons as the Administrator designates, for matters
which have not been docketed. If such a conference is not noticed
under subsection, the Division will follow the requirements of R.I.
Gen. Laws § 42-46-6.
B. Form of Notice
1. Notice shall be by first
class mail or personal service unless otherwise specified by the
Administrator and shall be published in The Providence
Journal-Bulletin or other newspaper of general circulation serving
the affected ratepayers. Nothing herein, however, shall limit the
power of the Administrator to order notice by other means, including
but not limited to notice by publication or notice in periodic bills
sent to utility customers.
C. Contents of Notice.
1. The notice shall include:
a. A statement of the time,
place and nature of the hearing;
b. A statement of the legal
authority and jurisdiction under which the hearing is held;
c. A reference to the
particular section of any statutes and rules involved;
d. A short and plain statement
of the matters involved. If at the time notice is given the Division
or the party giving notice is unable to state the matters in detail
which are to be the subject of the hearing, the initial notice may be
limited to a statement of the issues involved and a detailed
statement may be furnished at a later time; and
e. A statement that the
Division is accessible to the handicapped, and that individuals
requesting interpreter services for the hearing impaired must contact
the Clerk seventy-two hours in advance of the hearing.
D. Period of Notice
1. Unless otherwise provided
by statute, or unless the Administrator, Administration and
Operations Officer, Associate Administrator(s) or Hearing Officer
finds that a shorter period of notice is reasonable and consistent
with the public interest, notice of a hearing shall be given at least
ten (10) calendar days prior thereto.
E. Address
1. Unless notice to the
contrary has been received by the Division, notice shall be
sufficient if mailed or delivered to the following:
a. If the addressee is a
holder of a certificate, permit or license, the address shown on the
last application for the issuance or amendment thereof.
b. If the addressee has
tariffs on file, to the address shown on any tariff in effect at the
time of notice.
c. If an attorney has entered
an appearance on behalf of the addressee, to the office of the
attorney.
F. Notice Regarding Adoption
of Rules
1. Prior to the adoption,
amendment, or repeal of any rule, the Division will:
a. Give at least thirty (30)
calendar days notice of its intended action. The notice shall include
a statement of either the terms or the substance of the intended
action or a description of the subjects and issues involved, and of
the manner in which interested persons may present their views
thereon. The notice will be mailed to all persons who have made
timely requests to the Division for advance notice of its rulemaking
proceedings, and published in The Providence Journal-Bulletin,
provided, however, that if said action is limited in its
applicability to a particular area, then said publication may be in a
newspaper having general circulation in said area.
b. Afford all interested
persons reasonable opportunity to submit data, views, or arguments,
orally or in writing.
2. If the Division finds that
an imminent peril to the public health, safety, or welfare requires
adoption of a rule upon less than thirty (30) calendar days notice,
and states in writing the reasons for that finding, it may proceed
without prior notice or hearing, or upon any abbreviated notice and
hearing that it finds practicable, to adopt an emergency rule. The
rule so adopted may be effective for a period of not longer than one
hundred twenty (120) calendar days. This procedure shall not preclude
adoption of the identical rule once the notice requirements of §
1.12(F)(1) of this Part are met.
1.13 Petitions
A. General
1. Petitions filed under any
statute or other authority delegated to the Division shall be in
writing, shall state clearly and concisely the petitioner’s
interest in the subject matter, the facts relied upon, and the object
of the petition, and shall cite by appropriate reference the
statutory provision or other authority relied upon in the filing.
Four (4) legible copies shall be filed with the original.
B. Petitions for Issuance,
Amendment, Waiver or Repeal of Rules
1. A petition for the
issuance, amendment, waiver or repeal of a rule by the Division
shall, in addition to stating the specific rule, amendment, waiver,
or repeal requested, state in detail with citations to appropriate
references, the reasons for the requested action. Four (4) legible
copies shall be filed with the original.
2. Upon submission of such a
petition, the Division will within thirty (30) calendar days, either
deny the petition in writing or initiate rulemaking procedures in
accordance with R.I. Gen. Laws § 42-35-3.
C. Petitions for Declaratory
Judgment
1. In addition to the
requirements of subsection (a) above, a petition for declaratory
judgment pursuant to R.I. Gen. Laws § 42-35-8 shall set forth the
rule or statutory provision in question and shall state in detail,
with appropriate citations, whether the rule or provision should or
should not apply.
1.14 Applications Relating to
Securities
A. Contents
1. A public utility seeking to
issue stocks, bonds, notes, or other evidences of indebtedness
payable more than twelve (12) months from the date of issue, must
obtain authorization from the Division pursuant to R.I. Gen. Laws §
39-3-15. Applications shall be in writing and under oath, shall state
clearly and concisely the authorization sought, and shall comport
with R.I. Gen. Laws § 39-3-17. In addition, the application shall
include:
a. Written direct testimony
and supporting exhibits, which shall include:
(1) an explanation of the
proposed transaction, specifically addressing in detail:
(AA) any ratepayer impact; and
(BB) any unusual features
which may have significant impact on the Division’s ability to
regulate the utility;
(2) investment memoranda,
prospectuses, information or registration statements or other
documents to describe the transactions or potential funding sources
(in cases where it is not practical to provide final versions of such
documents, drafts may be submitted);
(3) a summary of the proposed
contents of transaction documents, specifying:
(AA) terms and conditions of
the transaction that are firm;
(BB) ranges for interest rates
and dollar amounts involved in the transaction that are not firm.
(4) a summary of alternative
terms and conditions of the transactions being negotiated, including
interest rates, maturities, terms of call and restriction, necessity
for security, manner of sale, issuance costs, and proposed
purchasers.
(5) a present and proforma
capital structure presentation, showing the effect of the security
issuance.
b. Notice of the filing of the
application relating to securities on the Department of the Attorney
General.
c. Four (4) legible copies in
addition to the original.
2. Rejection of Filings
a. An application relating to
securities may be rejected if the utility’s annual reports to the
Commission are not current and if the utility has not demonstrated
good cause for its failure to make its annual filing when due.
3. Procedure Upon Receipt of
Application
a. Upon docketing of an
application relating to securities, the Administrator will assign a
Hearing Officer to conduct a public hearing and render a recommended
decision.
4. Public Notice of Filing
a. A utility filing an
application relating to securities shall, at its expenses, publish
notice of the filing in The Providence Journal-Bulletin or, with the
approval of the Administrator, in a newspaper of general circulation
in the county where the principal office of the utility is located,
in the form prescribed by § 1.12(C) of this Part. The notice must
appear at least once. The applicant shall ensure that an affidavit of
publication is promptly filed with the Clerk upon publication of the
notice.
1.15 Applications for Certificates
of Public of Convenience and Necessity
A. Form
1. Applications for
certificates of public convenience and necessity shall be made in
writing. Applications involving carriers must be submitted on forms
which may be obtained from the Motor Carrier Section, Division of
Public Utilities and Carriers, 89 Jefferson Boulevard, Warwick, RI
02888.
B. Procedure Upon Receipt of
Application
1. Upon receipt of an
application for a certificate of public convenience and necessity,
the Administrator or Administration and Operations Officer shall
assign a Hearing Officer to conduct the public hearing and render a
recommended decision.
C. Public Notice of Filing
1. Upon the filing of an
application for a certificate of public convenience and necessity the
Division shall publish notice of the filing in The Providence
Journal-Bulletin or in a newspaper of general circulation in the
county where the principal office of the utility is located, in the
form prescribed by § 1.12(C) of this Part. The notice will appear at
least once. The Administrator may, at his or her discretion, order
that the utility publish the notice itself and/or that the utility
bear the expense of the publication.
1.16 Emergency Relief
A. The Division has the power
to permit any public utility to temporarily alter, amend, or suspend
any existing rates, schedules, and orders relating to or affecting
any public utility or part of any public utility, pursuant to R.I.
Gen. Laws § 39-3-13. Such emergency relief may be sought by motion.
An original and four (4) legible copies must be filed with the Clerk.
1. Contents
a. In addition to the usual
contents of a pleading, the motion must allege such extraordinary
facts of immediate and irreparable injury as would justify the
Division’s exercise of discretion by granting emergency relief.
2. Testimony and Exhibits
a. The motion requesting
emergency relief shall be accompanied by written testimony and
exhibits in support of the motion.
3. Notice
a. Copies of the motion
seeking emergency relief and the testimony and exhibits filed in
support thereof shall be served upon the Department of Attorney
General, and any other known parties.
4. Hearing
a. Motions for emergency
relief other than emergency rate relief may be acted upon with or
without hearing.
5. Bond
a. Emergency relief shall be
granted subject to refund and may be conditioned upon a bond or other
adequate protection.
6. Commission Review
a. Except with regard to those
matters falling under R.I. Gen. Laws § 39-12-1 et seq , any
relief granted by the Division must be reaffirmed by the Commission
within ninety (90) calendar days.
1.17 Intervention
A. Procedure
1. Participation in a
proceeding as an intervenor may be initiated by order of the Hearing
Officer upon a motion to intervene.
B. Who May Intervene
1. Subject to the provisions
of these rules, any person with a right to intervene or an interest
of such nature that intervention is necessary or appropriate may
intervene in any proceeding before the Division. Such right or
interest may be:
a. A right conferred by
statute.
b. An interest which may be
directly affected and which is not adequately represented by existing
parties and as to which movants may be bound by the Division’s
action in the proceeding. The following may have such an interest:
consumers served by the applicant, defendant, or respondent and
holders of securities of the applicant, defendant, or respondent.
c. Any other interest of such
a nature that movant’s participation may be in the public interest.
C. Form and Contents of
Motion
1. A motion to intervene shall
set out clearly and concisely facts from which the nature of the
movant’s alleged right or interest can be determined, the grounds
of the proposed intervention, and the position of the movant in the
proceeding.
D. Filing and Service of
Motion
1. Except as otherwise
provided, motions to intervene and notices of intervention may be
filed at any time following the filing of an application, petition,
investigation or other documents seeking Division action, but in no
event later than the date fixed for the filing of motions to
intervene in any order or notice with respect to the proceedings
issued pursuant to these rules, or, where no date is fixed for the
filing of motions, the date of hearing, unless, for good cause shown,
the Hearing Officer authorizes late filing. Service shall be made as
provided in § 1.11 of this Part. Intervention other than as a matter
of right may be granted with such limitations and/or upon such
conditions as the Division shall determine.
E. Disposition of Motion
1. Unless the Hearing Officer
denies a motion for leave to intervene, all timely motions to
intervene not objected to by any party within ten (10) calendar days
of service of the motion for leave to intervene shall be deemed
allowed, provided that the Hearing Officer may, after notice and
hearing, thereafter terminate the party status of any intervenor.
F. Late Intervention
1. Intervenors are granted
party status and are bound by the agreements reached and orders
entered in the proceedings prior to their intervention. The Division
will not allow the broadening of issues unless the public interest
requires it and no undue prejudice or hardship will result to other
parties to the proceeding.
1.18 Protests
A. General
1. Any person other than a
party who objects to the approval of an application, petition,
motion, or other matter which is, or will be, under consideration by
the Division may file a protest. No particular form of protest is
required, but the letter or writing should contain the name and
address of the protestant and a concise statement of the protest. If
possible, four (4) legible copies of the protest should be forwarded
to the Division with the original. The Clerk shall serve copies of
all protests filed upon all parties.
B. Effect of Protest
1. A protest is intended
solely to alert the Division and the parties to a proceeding of the
fact and nature of the protestant’s objections to an application,
petition, or any other proposed action and does not become evidence
in the proceeding. The filing of a protest does not make the
protestant a party to the proceedings.
C. Motor Carrier Protests
1. In all matters before the
Motor Carrier Section of the Division, the following special protest
rules shall apply:
a. A protest filed with the
Administrator, against the granting of an application, shall set
forth specifically the ground or grounds upon which it is made and
shall contain a concise statement of the interest the protesting
party has in the proceeding. A protest shall be filed in writing
within seven (7) calendar days after notice of the filing has been
given to the public by legal notice in The Providence
Journal-Bulletin. A copy of any protest filed with the Administrator
under this rule shall be served simultaneously upon the applicant.
b. Protestants who have
satisfied the requirements of § 1.18(C)(1) of this Part shall be
treated as intervenors and accorded all appropriate rights.
c. Protestants who are
represented by legal counsel shall file with the Administrator, at
least three days prior to the scheduled hearings, direct testimony in
the form prescribed by § 1.23(D) of this Part, to be proffered by
the protestants at the hearing. A copy of the prefiled testimony
shall be served upon the applicant simultaneously by certified mail.
The requirements of this paragraph may be waived at the discretion of
the Hearing Officer.
d. Protestants filing direct
testimony shall make the witness whose testimony has been prefiled
available at the hearing for cross-examination. A protestant may
elicit rebuttal testimony from the witness through oral examination.
e. Members of the general
public wishing to be heard at Motor Carrier proceedings shall be
allowed to voice their opinions on the record. These witnesses shall
be limited to five minutes of testimony, or more at the discretion of
the Hearing Officer.
1.19 Motions
A. General
1. Other than oral motions
made during a hearing, any application to the Division to take any
action or to enter any order after commencement of a proceeding or
after commencement of an investigation by the Division shall be made
by filing and original and four (4) legible copies with the Clerk,
stating specifically the grounds therefore, setting forth the action
or order sought, and shall be served upon all parties.
B. Movant’s Certification
1. The movant shall make a
good faith effort to determine whether a motion will be opposed. If
the motion will not be opposed, the movant shall so state in the
motion. Opposed motions shall state affirmatively that concurrence of
other parties has been requested but denied, or shall state why no
request for concurrence was made.
C. Delay in Proceeding
1. Except as otherwise
directed by the Hearing Officer, the filing of a motion, either prior
to or during any proceeding, and any action thereon, shall not delay
the conduct of such proceeding.
D. Objections
1. Any party objecting to a
written motion filed pursuant to this rule shall, within ten (10)
calendar days of the service of the motion, file an objection thereto
in writing setting forth in detail the grounds for the objection. The
time for filing objections may be varied by order of the
Administrator.
E. Summary Disposition
1. Any party may file a motion
for summary disposition of all or part of any matter pending before
the Division. If the Hearing Officer determines that there is no
genuine issue of fact material to the decision, summary disposition
of all or part of the matter may be granted.
1.20 Pre-Hearing Procedure
A. General
1. It is the policy of the
Division to encourage the use of pre-hearing conferences in complex
or multi-party proceedings 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.
2. The Division may, with
reasonable written notice, require that all parties attend a
pre-hearing conference for the purpose of formulating and simplifying
the issues in the proceeding or addressing other matters that may
expedite orderly conduct and disposition of the proceeding. Such
matters may include but are not limited to:
a. details of the procedural
schedule;
b. the necessity or
desirability of amendments to the pleadings;
c. the possibility of
obtaining admissions of fact and documents which will avoid
unnecessary proof;
d. limitations on the number
of witnesses or time allocated to particular witnesses or issues at
the hearings;
e. procedures at the hearing;
f. the compilation of a
stipulated list of written testimony and exhibits to be admitted at
the hearing;
g. the consideration of
outstanding motions;
h. the status of any
settlement negotiations and, if appropriate, identification of any
interest in and resources to support professional assistance
therewith or other alternative means of dispute resolution;
i. agreements to modify the
time for or method of transmitting and responding to discovery
requests and for service of other documents.
B. Attendance.
1. All parties shall attend
the pre-hearing conference fully prepared for a productive discussion
of all matters and fully authorized to make commitments or take
positions. Preparation should include advance study of all material
filed and materials obtained through formal and informal discovery
and, if feasible, advance informal communication among the parties to
ascertain the extent to which the parties will be able to agree upon
the pending matter.
2. Failure of any party to
attend or be prepared for a pre-hearing conference without good cause
shown shall constitute a waiver of any objection to any agreement
reached or to any order or ruling made as a result of the conference.
1.21 Discovery
A. General
1. The Division favors prompt
and complete disclosure and exchange of information and encourages
informal arrangements amongst the parties for this exchange. Further,
it is the Division’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.
2. Techniques of pre-hearing
discovery permitted in state civil actions may be employed by any
party. Upon experiencing any difficulties in obtaining discovery, the
parties may seek relief from the Division by filing a proper motion.
B. Depositions
1. The testimony of any
witness may be taken by deposition at any time before the hearing is
closed. Objection to the deposition, if any, shall be made in
accordance with § 1.19 of this Part.
2. The deposition shall
proceed in the same manner and pursuant to the same procedures as
govern depositions in the Superior Court in the State of Rhode
Island.
C. Data Requests
1. In any proceeding pending
before the Division, the Division staff and any party may request
such data, studies, workpapers, reports, and information as are
reasonably relevant to the proceeding and are permitted by these
rules or by statute.
2. Data requests shall be in
writing, shall be directed to the party or its attorney, and shall
specify in as much detail as possible the material requested. Oral
data requests may be allowed at the Hearing Officer’s discretion
when made on the record during a hearing. Any requested material or
portion thereof to which objection is not made as set forth below
shall be produced for the requesting party as soon as practicable and
in no event later than twenty-one (21) calendar days after service of
the request, unless the time for production is otherwise shortened or
extended by agreement or order.
3. Objection to a data request
in whole or in part on the ground that the request is unreasonable
and/or the material is not relevant or not permitted or required by
law shall be made by motion filed as soon as practicable and in no
event later than ten (10) calendar days after service of the request.
An oral objection may be made at a hearing when the Hearing Officer
has allowed an oral data request. Objections shall include the
portions of the data request objected to and shall detail the basis
for the objection. The Hearing Officer shall thereupon determine the
validity of the request and shall establish a date for compliance.
The relevancy of a request shall be determined under the standards
established for such determinations under Rule 26 of the Superior
Court Rules of Procedure.
4. The failure of a party to
comply with a data request or a Division order related thereto shall
be grounds for striking any testimony related to such request.
5. Copies of all data requests
shall be served on all parties. In addition, two copies of both
requests and responses shall be filed with the Clerk.
6. Data requests and
responses, though part of the docket, are not evidence unless
admitted during a hearing, or by consent of the parties.
D. Supplementation of
Responses to Discovery Requests
1, A party who has responded
to a request for discovery is under a duty to reasonably and promptly
amend or supplement the previous response if information supplied in
the previous response is incorrect or incomplete.
E. Protective Orders
1. Upon motion by a party from
whom discovery is sought and for good cause shown, the hearing
officer may make an order when justice requires to protect the party
from unreasonable annoyance, embarrassment, oppression, burden or
expense or from disclosure of confidential business and financial
information. If the motion for a protective order is denied in whole
or in part, the hearing officer may order that the party provide or
permit the discovery.
1.22 Subpoenas
A. Issuance
1. Subpoenas for the
attendance of witnesses or for the production of documentary evidence
may be issued by any notary public pursuant to R.I. Gen. Laws §
9-17-3 or by the Administrator or Clerk pursuant to R.I. Gen. Laws. §
39-1-15.
B. Service and Return
1. Return of service evidences
service of a subpoena made by a Rhode Island sheriff or deputy
sheriff. If service is made by another person, an affidavit
describing the manner in which service was made, returned on or with
the original subpoena, evidences service. In making service, a copy
of the subpoena shall be shown to and left with the person to be
served. The original subpoena, bearing or accompanied by the
authorized return or affidavit, shall be delivered to the Clerk.
C. Fees of Witnesses.
1. Witnesses who are
subpoenaed shall be paid fees as provided by the Superior Court Rules
of Procedure.
D. Enforcement of Subpoena
!. All subpoenas issued in
accordance with these rules may be enforced in accordance with R.I.
Gen. Laws § 9-17-7.
1.23 Hearings
A. Public Hearings
1. Except as permitted or
required by law, or by order of the Hearing Officer with regard to
matters exempt from disclosure under the Access to Public Records
Act, R.I. Gen. Laws § 38-2-1, et seq ., all hearings shall be
public. The Hearing Officer may, however, limit the number of
spectators and participants to the extent that safety and good order
require. The Hearing Officer may also effect or bar the admission of
any person who disrupts or threatens to disrupt a public hearing.
B. Site
1. All hearings shall be held
in Warwick at the office of the Division, unless by statute or order
of the Administrator a different place is designated.
C. Hearing Officer
1. The hearing shall be
conducted by a Hearing Officer. The Hearing Officer, if a notary
public, the court stenographer, or the Clerk may administer oaths and
affirmation. The Hearing Officer shall make all decisions regarding
the admission or exclusion of evidence or any other procedural
matters which may arise in the course of the hearing. At any point
where the Hearing Officer’s impartiality is reasonably questioned,
the Hearing Officer is required to disqualify himself or herself.
D. Rights of Parties
1. Parties shall have the
right to present evidence, cross-examine witnesses, object, file
motions, and present arguments.
E. Direct testimony.
1. All direct testimony shall
be presented in writing, unless otherwise allowed by the Hearing
Officer. Written testimony, when properly authenticated by the
witness under oath, may be transcribed into the record or admitted as
an exhibit. Direct testimony shall be prefiled at least fourteen (14)
calendar days prior to a scheduled hearing. The fourteen (14) day
time limit may be waived upon agreement of the parties or order of
the hearing officer.
2. Written testimony shall be
prepared in question and answer form, numbering each line of text
along the left-hand margin, if possible; shall contain a statement of
the qualifications of the witness; shall be signed under oath; and
shall be accompanied by any exhibits to which it relates, Such
written testimony shall be subject to the same rules of admissibility
and cross-examination of the sponsoring witness as if it were
presented orally.
3. Cross examination of the
witness presenting such written testimony shall proceed at the
hearing at which it is authenticated if, not less than fourteen (14)
calendar days prior to such hearing, service of the written testimony
has been made upon each party, unless the Hearing Officer for good
cause shall otherwise direct.
4. The filing and service of
testimony and exhibits shall be made in accordance with the
pre-hearing conference schedule, if any.
F. Rebuttal Testimony
1. All rebuttal testimony
shall be presented in writing, unless otherwise allowed by the
Hearing Officer. Written testimony, when properly authenticated by
the witness under oath, may be transcribed into the record or
admitted as an exhibit. Where time permits, rebuttal testimony shall
be prefiled at least seven (7) calendar days prior to a scheduled
hearing. Cross-examination of a witness presenting rebuttal testimony
shall proceed at the hearing at which it is authenticated if, not
less than seven (7) calendar days prior to such hearing, service of
the rebuttal testimony has been made upon each party, unless the
presiding officer for good cause shall otherwise direct.
G. Objections
1. When objections are made to
the admission or exclusion of evidence before the Hearing Officer,
the grounds relied upon shall be stated briefly. Formal exception to
adverse rulings of the Hearing Officer is not necessary.
H. Number of Witnesses.
1. The Hearing Officer may
limit the number of witnesses that may be heard upon any issue.
I. Further Evidence
1. At any stage of the hearing
the Hearing Officer may call for further evidence upon any issue, and
require such evidence to be presented by the party or parties
concerned. At the hearing, the Hearing Officer may, if deemed
advisable, authorize any participant to file specific documentary
evidence as part of the record within a fixed time, expiring not less
than ten (10) calendar days before the date fixed for filing and
serving briefs. If requested by a party, cross examination of this
material shall be permitted.
J. Exhibits
1. All exhibits shall, to the
extent practicable, be marked for identification prior to
commencement of the hearing. The parties are encouraged to stipulate
to the admissibility of exhibits. Except as allowed by the Hearing
Officer, no exhibit shall be marked for identification unless copies
have been provided to all parties and the Hearing Officer. A list of
the exhibits to be admitted by stipulation shall be prepared by the
parties for the convenience of the stenographer and the Hearing
Officer.
K. Position Memoranda
!. If any party opposing the
application or any portion thereof shall elect not to file testimony,
it shall nevertheless file a memorandum which shall summarize the
basis for the opposition, and, if applicable, as to each aspect of
the applicant’s case which is opposed, shall state to the extent
possible the monetary difference between the applicant’s position
and that of the opponent.
L. Stenographic Record
1. Formal hearings shall be
stenographically reported by the official reporter of the Division
unless the Hearing Officer orders that an individual hearing will be
recorded in another manner, selected by the Hearing Officer A
transcript of the hearing shall be a part of the record. Such
transcripts shall include a verbatim report of the hearing and
nothing shall be omitted therefrom except as is directed on the
record by the Hearing Officer. Any person may record, with prior
notice to the Hearing Officer and parties, all or any portion of a
hearing by way of camera, video or tape recorder of any kind.
2. If a hearing is closed by
order of the Hearing Officer, the transcript or recording thereof
shall be treated as a document exempt from disclosure under the
Access to Public Records Act, R.I. Gen Laws § 38-2-1 et seq .,
and only those persons authorized to be present may independently
record the proceedings.
M. Close of Record.
1. The record in a proceeding
shall close at a time set by the Hearing Officer. The proceedings are
not automatically closed at the end of testimony unless ordered by
the Hearing Officer. Following the date the proceedings are ordered
closed by the Hearing Officer, there shall not be received in
evidence or considered as part of the record any document, letter or
other evidence submitted, unless permitted in the discretion of the
Hearing Officer.
1.24 Witnesses
A. Oral Examination
1. Witnesses shall be examined
orally unless the testimony is taken by deposition as provided in §
1.21 of this Part, or the facts are stipulated or testimony is
submitted in prepared written form as provided in § 1.23(E) of this
Part. Witnesses whose testimony is to be taken shall be sworn, or
shall affirm, before their testimony shall be deemed evidence in the
proceeding or any questions are put to them.
B. Privilege Against
Self-incrimination
1. Pursuant to R.I. Gen Laws
§§ 39-4-21 and 39-12-34, no person shall be excused from testifying
or producing any materials in any investigation or hearing on the
ground that such testimony or materials would tend to incriminate him
or her.
C. Expert Witnesses
1. Written testimony of an
expert witness may be received as provided in § 1.23 of this Part,
where properly supported by the oral testimony of its author on
direct examination, subject to cross-examination and motions to
strike.
D. Acceptance Subject to
Check
1. When a witness accepts a
proposition “subject to check”, it is the burden of the party
offering the witness to correct the record if subsequent study
reveals that the witness erred in accepting the proposition. If the
area is not explored further in the proceeding, a witness’
statement accepting the proposition “subject to check” will be
treated as though the witness had accepted the proposition without
reservation.
1.25 Rules of Evidence - Official
Notice
A. Rules of Evidence
1. 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 Court of this state shall be followed to
the extent practicable, the Division shall not be bound by technical
evidentiary rules. Evidence not otherwise admissible may be
submitted, unless precluded by statute, when necessary to ascertain
facts not reasonably susceptible of proof under the rules, if it 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
1. In all cases wherein
evidence is taken, documentary evidence may be received in the form
of copies or excerpts, if the original is not readily available. Upon
request, parties shall be given an opportunity to compare the copy
with the original.
C. Administrative Notice
1. 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.
1.26 Transcripts
A. Availability in Public
Hearings
1. If a hearing is
stenographically recorded in accordance with § 1.23(l) of this Part,
any party other than the Division who requests and receives
transcripts shall pay the specified costs to the official reporter.
If such receipt is earlier than the date on which the Division would
otherwise receive transcripts, the reporter shall deliver the
Division’s copy to the Division on the earlier date.
B. Corrections
1. Corrections in the official
transcript may be made only to make it conform to the evidence
presented at the hearing. Transcript corrections agreed to by
opposing attorneys may be incorporated into the record, if and when
approved by the Hearing Officer, at any time during the hearing, or
after the close of evidence, but not more than thirty (30) calendar
days from the date of receipt of the transcript, unless time is
shortened by the Hearing Officer. The Hearing Officer may call for
the submission of proposed corrections and may make disposition
thereof at appropriate times during the course of the proceeding.
1.27 Stipulations and Settlement
Offers
A. Stipulations
1. The parties may stipulate
as to any relevant matters of fact or the authenticity of any
relevant documents. Such stipulations may be received in evidence at
a hearing, and when so received in evidence at a hearing, shall be
binding on the parties with respect to the matters therein
stipulated.
B. Settlement Offers
1. Any party to a proceeding
may submit an offer of settlement at any time. The offer must be
filed with the Clerk, who will transmit the offer to the Hearing
Officer. An offer of settlement must include:
a. the signed settlement
offer;
b. an attestation by
signatories that the settlement is reasonable, in the public
interest, and in accordance with law and regulatory policy.
2. Settlement agreements
reached at a very early stage in an proceeding, before the
establishment of an adequate evidentiary basis, must be supported by
the proponent placing the details of the agreement into the record,
including its underlying rationale. The Hearing Officer will
determine whether this is appropriate on a case by case basis.
3. The failure of all parties
to agree to or execute a settlement document should not be fatal to
an otherwise reasonable settlement. However, nonsignatory parties
must have the right to fully present their evidence and legal
arguments and cross-examine all pertinent witnesses of other parties,
for the purpose of presenting and litigating the contested issues. A
party who does not sign settlement documents may not defeat or
challenge a settlement simply by refusing to sign the document.
4. If the Hearing Officer
determines that any offer of settlement is contested in whole or in
part by any party, the Hearing Officer may decide the merits of the
contested settlement issues, if the record contains substantial
evidence upon which to base a reasoned decision, or the Hearing
Officer determines there is no genuine issue of material fact.
a. If the Hearing Officer
determines that the contested issues are severable from the offer of
settlement, (s)he shall so inform the parties and, unless objected to
by any party to the offer of settlement, the uncontested portions may
be severed and decided upon a finding by the Hearing Officer that the
settlement appears to be fair and reasonable and in the public
interest. The Hearing Officer will not ever any contested issues; the
resolution of which, in the judgment of the Hearing Officer or any
party to the offer of settlement, would affect the offer of
settlement as a whole or the underlying bargain of the parties
thereto.
b. If the Hearing Officer
finds that the record lacks substantial evidence or that the
contested issues, cannot be severed from the offer of settlement, the
Hearing Officer will establish procedures for the purpose of
receiving additional evidence upon which a decision on the contested
issues may reasonably be based.
5. The Hearing Officer is not
bound by settlement agreements, and (s)he will independently review
any settlement proposed to determine whether the settlement is just,
fair and reasonable, in the public interest, or otherwise in
accordance with law and regulatory policy. When a settlement
agreement is presented for decision, the Hearing Officer may accept
the settlement, reject the settlement, or state additional conditions
under which the settlement will be accepted. If the Hearing Officer
rejects the settlement or if the Hearing Officer’s conditional
acceptance of the settlement is rejected by the parties to the
settlement, the matter shall continue, as though no settlement had
been presented, and the settlement shall be deemed withdrawn.
6. An offer of settlement that
is not approved by the Hearing Officer is not admissible in evidence
against any participant who objects to its admission. Any discussion
of the parties with respect to an offer of settlement that is not
approved by the Hearing Officer is not subject to discovery or
admissible in evidence against any participant who objects to its
admission.
C. Hearing on Settlement Offer
1. The Hearing Officer has
discretion to conduct a public hearing on any settlement (s)he
accepts. No separate public notice shall be required prior to such
hearing.
1.28 Briefs and Oral Argument
A. Briefs and Memoranda of Law
1. Unless requested by the
Hearing Officer, no briefs or memoranda of law shall be filed.
B. Oral Argument
1. When time permits and the
nature of the proceedings, the complexity or importance of the issues
of fact or law involved, or the public interest warrants, the Hearing
Officer may allow the presentation of oral argument, imposing such
limits or time on the argument as deemed appropriate in the
proceeding. Such argument shall be transcribed and bound with the
transcript of the testimony.
1.29 Reopening Proceedings
A. By Parties
1. At any time after the
conclusion of a hearing in a proceeding, but before the issuance of a
written order, any party to the proceeding may, for good cause shown,
move to reopen the proceedings for the purpose of taking additional
evidence. Copies of such motion shall be served upon all parties or
their attorneys of record, and shall set forth clearly the facts
claimed to constitute grounds requiring reopening of the proceedings,
including material changes of fact or of law alleged to have occurred
since the conclusion of the hearing, and shall in all other respects
conform to the applicable requirements of §§ 1.9 through 1.12 of
this Part, inclusive.
2. Within ten (10) calendar
days following the service of such motion, or such shorter or longer
time as the Hearing Officer shall order, any other party to the
proceedings may object or shall be deemed to have waived any
objections to the granting of such petition.
B. By the Hearing Officer
1. At any time prior to the
issuance of the written order, after notice to the parties and
opportunity to be heard, the Hearing Officer may reopen the
proceeding for the receipt of further evidence.
1.30 Division Orders
A. Written Orders
1. The Administrator or the
Administration and Operations Officer will issue Division orders in
writing in every proceeding. The timeliness of applications for
rehearing and notices of appeal shall be calculated from the date the
written order is issued.
B. Adjudication’s for Equal
Access to Justice for Small Businesses and Individuals
1. 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 certain adjudicatory proceedings, if the Hearing Officer
concludes that there was no reasonable basis in fact and law for the
Advocacy Section’s position. The following conditions must be met:
a. the adjudicatory
proceedings must involve loss of benefits, the imposition of a fine,
the suspension or revocation of a license or permit, or the
compulsion or restriction of activities; and
b. the prevailing party just
be either:
(1) an individual whose net
worth is less than $500,000.00 at the time the adjudication is
initiated; or
(2) 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
100 persons at the time the adjudication is initiated; and
C. the prevailing party must
request reimbursement not later than thirty (30) days following the
issuance of the written order, detailing:
(1) compliance with §§
1.30(B)(1) and (2) of this Part; and
(2) the costs incurred in
defending against the unreasonable adjudicatory proceedings,
including, but not limited to, attorney’s fees and witness fees.
C. If found to the applicable,
the Hearing Officer shall issue a supplementary order directing the
Division to pay reasonable litigation expenses, as limited by R.I.
Gen. Laws § 42-92-2(c).
1.31 Relief from Order
A. Clerical Mistakes
1. Clerical mistakes in orders
or other parts of the record and errors therein arising from
oversight or omission may be corrected by the Administrator at any
time on his or her own initiative, or on motion of any party and
after such notice as the Administrator orders. During the pendancy of
an appeal, such mistakes may be so corrected before the appeal is
docketed in the Superior Court and thereafter, while the appeal is
pending, may be so corrected with leave of the Superior Court.
B. Mistake, Inadvertence,
Excusable Neglect, Newly Discovered Evidence, Fraud, Other
1. On motion or sua sponte ,
and upon such terms as are just, the Administrator may relieve a
party from a final order or proceeding for the following reasons:
a. Mistake, inadvertence,
surprise, or excusable neglect;
b. Newly discovered evidence,
which by due diligence could not have been discovered in time to move
to reopen the proceedings under § 1.29 of this Part;
c. Fraud, misrepresentation,
or other misconduct of an adverse party;
d. The order is void;
e. A prior order on which the
order is based has been reversed or otherwise vacated, or it is no
longer equitable that the order should have prospective application;
or
f. Any other reason justifying
relief from the operation of the order.
C. Time
1. A motion under §§ 1.31(A)
or (B) of this Part above shall be made within a reasonable time not
more than one (1) year after the order is entered. A motion under
subsection § 1.31(B) of this Part does not affect the finality of an
order or suspend its operation. This rule does not limit the power of
the Administrator to entertain an independent action to relieve a
party from an order or to set aside an order for fraud upon the
Hearing Officer.
D. Motion for Reconsideration
1. Upon motion of any party
made not later than ten (10) calendar days after the date of the
Division order the Hearing Officer or Administrator may amend his or
her findings or make additional findings and may amend the order
accordingly.
E. Jurisdiction
1. The Division retains
jurisdiction over all matters until an appeal is docketed in the
Superior Court. Once an appeal has been docketed jurisdiction lies in
the Superior Court and any request for relief must be made to the
Superior Court.
2. Unless the Division acts
upon a motion for reconsideration within fourteen (14) calendar days
after the request is filed, the request is denied.
1.32 Judicial Review
A. Appeal from Division Orders
1. Any person aggrieved by a
written order of the Administrator may, within thirty (30) calendar
days from the date of such order, file a complaint with the Superior
Court pursuant to R.I. Gen. Laws. § 42-35-15.
2, If a motion for
reconsideration is filed in accordance with § 1.31(D) of this Part,
computation of the time for appeal runs as follows:
a. If the motion is granted,
from the date of the amended order
b. If the motion is denied,
from the date of the order denying reconsideration.
c. If the Division takes no
action on the motion for reconsideration, fourteen (14) calendar days
after the filing of the motion for reconsideration, in accordance
with §1.31(E)(2)of this Part..
B. Judicial Review of Rules.
1. The validity or
applicability of any rule may be determined in an action for
declaratory judgment in the Superior Court of Providence County, when
it is alleged that the rule, or its threatened application,
interferes with or impairs, or threatens to interfere with or impair,
the legal rights and privileges of the plaintiff. The Division shall
be made a party to the action.