Code of Massachusetts Regulations › 840 CMR - PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION › Title 840 CMR 15.00 - Miscellaneous › Section 15.07 - Non-disability Hearings by a Retirement Board

Current through Register 1525, July 5, 2024
(1)
Purpose
. The
			 following procedures shall be used for all Board hearings not related to
			 disability applications including, but not limited to, matters involving M.G.L.
			 c. 32, §§ 15, 16 (involuntary superannuation), 91, and 91A.
(2)
Notice
. The
			 retirement board shall give all parties at least 30 days notice of the time and
			 place for the hearing and of the issues involved in the hearing. If the issues
			 cannot be fully stated in advance of the hearing, they shall be fully stated as
			 soon as practicable.
(3)
Discovery
. Any party and any authorized representative
			 shall, at any time after a hearing has been requested or ordered and after
			 reasonable notice to the retirement board, be permitted to examine and/or copy,
			 during normal business hours, any document in the case file pertaining to the
			 member's file or the record of the hearing. All other discovery shall be at the
			 discretion of the retirement board. A request for discovery may be made by any
			 party at any time after a hearing has been requested or ordered.
(4)
Conduct of
			 Hearing
. Hearings shall be conducted in an informal manner that
			 affords all parties an opportunity to present all information and argument
			 relevant to the proceeding.
(a)
Presiding Officer
. The chairperson of the retirement
			 board, any other member of the board acting as chairperson, or any individual
			 designated by the board, shall be the presiding officer and shall assure
			 parties the right to call and question witnesses and introduce exhibits, and to
			 present argument relevant to the proceeding. The presiding officer shall assure
			 an orderly presentation of the evidence and argument and that a record is made
			 of the hearing.
(b)
Continuances
. The presiding officer may change the
			 date, time or place of the hearing on his or her own motion or on the request
			 of any party, upon due notice to all other parties, and may continue the
			 hearing to a subsequent date to permit any party to present additional
			 evidence, witnesses or other materials. At any time prior to decision, the
			 presiding officer may reconvene the hearing for any purpose upon ten days
			 written notice to all parties, stating therein the purposes for reconvening,
			 and the date, time and place of the reconvened hearing.
(c)
Oaths; Rulings;
			 Briefs
. The presiding officer shall administer the oath or
			 affirmation to witnesses, shall rule upon the admissibility of evidence and
			 upon any requests for rulings, and may order that pre and/or post hearing
			 written briefs be submitted by the parties.
(d)
The Record
. All
			 proceedings in connection with the hearing shall be recorded by electronic or
			 stenographic means and such record shall be maintained as part of the hearing
			 record. Transcripts or duplicate tapes of the proceedings shall be supplied to
			 any party, upon request. At the discretion of the presiding officer, any party
			 may be permitted to record the hearing (except, in the case of those hearings
			 taking place at a meeting of the retirement board, those portions of the
			 hearing which may be held in executive session) so long as this does not
			 interfere with the conduct of the proceedings. All documents and other evidence
			 received shall also become part of the record.
(e)
Executive
			 Session
. If a hearing occurs at a meeting of the retirement board,
			 and if the subject of the hearing is such that the matter may proceed in
			 executive session the board must first convene in open session for which notice
			 has been given, a majority of the members of the board must vote to go into
			 executive session and the vote of each member must be recorded on a roll call
			 vote and entered into the minutes, the presiding officer must have stated the
			 purpose for an executive session, and stated before the executive session if
			 the board will reconvene after the executive session. In such executive session
			 only the retirement board, the secretary and the retirement board's counsel,
			 the parties and their authorized representatives and such other persons as the
			 presiding officer shall deem necessary for the conduct of the hearing shall be
			 permitted to be present. The records of the hearing in executive session shall
			 not be made available to the public except in accordance with the board's
			 regulations on privacy and confidentiality and such other laws or regulations
			 as may be applicable to such records.
(f)
Evidence
.
1.
General
. The
			 retirement board need not observe the rules of evidence observed by courts but
			 shall observe the rules of privilege recognized by law. Evidence shall be
			 admitted and given probative effect only if it is the kind of evidence on which
			 reasonable persons are accustomed to rely upon. Unduly repetitious evidence may
			 be excluded.
2.
Testimony; Stipulation
. Witnesses shall testify under
			 oath or affirmation and shall be available for questions by all parties. If a
			 witness cannot, as a practical matter, be available in person the witness shall
			 be available and testify remotely using adequate electronic means as ordered by
			 the presiding officer. Stipulations by the parties as to any fact or as to the
			 testimony that would be given by an absent witness may be offered and received
			 as evidence.
3.
Documentary Evidence
. Documentary evidence may be
			 received in the form of copies or excerpts or by incorporation by reference at
			 the discretion of the presiding officer.
4.
Taking Notice of
			 Facts
. The retirement board may take notice of any fact which may
			 be judicially noticed by the courts, and any fact within the retirement board's
			 specialized knowledge. Parties shall be notified and afforded an opportunity to
			 contest any facts so noticed.
5.
Evidence to Be Part of Record
. All evidence, including
			 any records, reports and documents of the retirement board, to be considered in
			 making a decision shall be offered and made a part of the record of the
			 proceeding and the record shall at all times be open for inspection by any
			 party or authorized representative during business hours. The retirement board
			 may, with notice to all parties, require any party to submit additional
			 evidence for the record and shall afford parties an opportunity to submit
			 rebuttal evidence.
(g)
Subpoenas
.
1.
Issuance
. The presiding officer shall, within five
			 days of a written request of a party, issue a subpoena requiring the attendance
			 and testimony of a witness or the production of any evidence including books,
			 records, correspondence or documents relating to any matter in question at the
			 hearing.
2.
Request to
			 Vacate
. Any person subpoenaed may file a written request to the
			 presiding officer to vacate or modify the subpoena.
3.
Decision on Request to Vacate
			 or Modify Subpoena
. The presiding officer shall notify all parties
			 of the request to vacate or modify the subpoena and afford parties a reasonable
			 time to respond. The presiding officer shall grant the request to vacate or
			 modify the subpoena if the testimony or evidence subpoenaed does not relate
			 with reasonable directness to any matter at issue in the proceeding or if the
			 subpoena is otherwise unreasonable or oppressive.
4.
Failure to Comply with
			 Subpoena
. If any person fails to comply with a properly issued
			 subpoena, the retirement board or the party requesting the issuance of the
			 subpoena may petition the Superior Court for an order requiring
			 compliance.