Code of Massachusetts Regulations › 840 CMR - PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION › Title 840 CMR 10.00 - Standard Rules for Disability Retirement › Section 10.12 - Hearing by Retirement Board

Current through Register 1525, July 5, 2024
(1)
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. In all cases of
			 delayed statements, or where subsequent amendment of the issues is necessary,
			 sufficient time shall be allowed after full statement or amendment to afford
			 all parties reasonable opportunity to prepare and present evidence and argument
			 respecting the issues.
(2)
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 copy or
			 photocopy, at cost and 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.
(3)
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 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 that party's
			 expense. At the discretion of the presiding officer, any party may be permitted
			 to maintain a record 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
. Since the principal purpose of a
			 hearing on a disability retirement application is to discuss and evaluate the
			 physical condition or mental health of the member, the hearing shall be held in
			 executive session unless the member requests that the meeting be open. 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. In emotional disability cases the
			 hearing officer shall have discretion to limit attendance during the
			 proceedings. No executive session shall be held until the retirement board has
			 first convened in open session for which notice has been given, a majority of
			 the members of the board have voted to go into executive session and the vote
			 of each member is recorded on a roll call vote and entered into the minutes,
			 the presiding officer has stated the purpose for an executive session, and has
			 stated before the executive session if the board will reconvene after the
			 executive session. 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 in the conduct of serious affairs. 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. In cases involving a claim for
			 emotional disability the hearing officer may require that questions by the
			 parties be directed through the hearing officer to the witness. If a witness
			 cannot, as a practical matter, be available in person the witness shall be
			 available and testify by telephone conference call, or by any other reasonable
			 means 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 in 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 a hearing on a disability
			 application.
2.
Request
			 to Vacate
. Any person subpoenaed may file a written request
			 requesting 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.
(h) 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.