Code of Vermont Rules › Agency 21 - DEPARTMENT OF FINANCIAL REGULATION › Sub-Agency 000 - GENERAL › Chapter 001 - VERMONT DEPARTMENT OF FINANCIAL REGULATION ADMINISTRATIVE PROCEDURES › Section 21 000 001 - VERMONT DEPARTMENT OF FINANCIAL REGULATION ADMINISTRATIVE PROCEDURES

Current through
				June, 2024
Section 1.01
				Scope.
This regulation establishes the procedures for administrative
				  proceedings. This regulation supersedes and replaces Department Regulation No.
				  82-1 (REVISED).
Section
				1.02 Definitions.
"Commissioner " means the Commissioner of Financial
				  Regulation.
"Contested Case Hearings " mean hearings held in contested
				  cases (as defined in the Vermont Administrative Procedure Act). Such hearings
				  are held in accordance with the General Procedures Section 1.04 and, when
				  applicable, the Evidentiary Hearing Procedures Section 1.05. The Commissioner
				  may appoint a Hearing Officer in any contested case hearing. Uncontested case
				  hearings are hearings that are not required by law, and for which the
				  Department will follow sufficient procedures to satisfy the purpose of the
				  hearing, due process, and the public interest.
"Department " means the Vermont Department of Financial
				  Regulation.
"Docket Clerk" means the individual responsible for
				  overseeing all administrative matters related to docketed proceedings,
				  including, but not limited to, scheduling hearings, keeping a current service
				  list, and maintaining the official repository for all filings.
"Evidentiary Hearing Procedures " mean those procedures
				  required in contested cases requiring the presentation of evidence at a
				  hearing. Some or all of these procedures may be used in any contested case if
				  the Hearing Officer determines such use is necessary to satisfy the purpose of
				  the hearing, due process, or the public interest.
"Formal Rulemaking Proceedings " mean proceedings required
				  under 3 V.S.A. §§ 836-845. for the adoption of a rule or regulation
				  by the Department.
"Hearing " means any hearing conducted under the jurisdiction
				  of the Department of Financial Regulation.
"Hearing Officer " means the Commissioner or the person
				  designated by the Commissioner to conduct a contested case hearing and
				  associated proceedings.
"General Procedures " mean those procedures generally
				  applicable to administrative proceedings.
"Order " means the whole or any part of a final decision of
				  the Commissioner.
Section
				1.03 Rules of Construction.
The statutory definitions of other terms, including but not
				  limited to "contested case," "license," "party," "person," "practice,"
				  "procedure," and "rule" set forth in
				  3 V.S.A. §
											801 are hereby adopted and made a part of
				  this regulation.
Unless doing so leads to results contrary to applicable law,
				  singular words may extend to and be applied to more than one person or thing
				  and plural words may be applied as if singular.
Section 1.04 General Procedures.
(A)
Docketing.
All contested cases, and such
				other matters as the Commissioner or Docket Clerk shall designate, will be
				assigned a docket number.
(B)
Initiation of Proceedings.
(1) Initiation by the Department. The
				Department's petition or other pleading initiating a contested case must be
				filed with the Docket Clerk.
(2)
				Initiation by External Parties.
(a) In all
				other cases, a proceeding is initiated by filing a pleading with the Docket
				Clerk at the Commissioner's office as provided in Section 1.04(E). An
				application that is treated as a contested case under the Vermont
				Administrative Procedure Act shall be considered a pleading for the purposes of
				initiating a proceeding.
(b) At the
				commencement of any proceeding, the party must file a statement identifying by
				name and address each person, party, or other entity entitled to notice of such
				proceeding. Such a filing must identify specifically any attorney representing
				the party in the matter.
(c) In the
				Commissioner's discretion, any written communication concerning a matter within
				the Commissioner's jurisdiction, may be treated as a pleading which initiates a
				contested case.
(3)
				Service of Initial Pleading. Service of the initial pleading or notice upon
				each party entitled to be served must be accomplished by delivery in person or
				by certified mail, return receipt requested, to the party's last known address,
				except in cases where a different manner of service is required by
				law.
(C)
Pleadings and Motions.
(1) Every pleading or motion must describe in
				detail the order or relief sought; include a statement of reasons and the legal
				authority on which it is based; and contain an attorney's certificate, or an
				affidavit of a party or pro se representative, stating upon whom and the means
				by which the pleading or motion has been served.
(2) Every pleading or motion must be signed
				by at least one attorney or pro se representative of record in the individual
				name of the attorney or pro se representative and must state such person's
				address and telephone number. The signature of an attorney or pro se
				representative of record constitutes a certificate by such person that to the
				best of the person's knowledge, information, and belief there are good grounds
				to support the motion or other pleading, and that it is not intended to delay
				the proceedings.
(D)
Hearing Notice Requirements.
(1) Proposed Notice of Hearing. The
				Commissioner may require any party who seeks relief to file a proposed Notice
				of Hearing. When the Department is the party seeking relief and a hearing is
				required by law, the Department shall file a proposed Notice of
				Hearing.
(2) Content of Notice. A
				Notice of Hearing must clearly state the issues involved, the primary statutes
				and rules involved, the time, place and nature of the hearing, any remote or
				virtual options for attendance, and the legal authority and jurisdiction under
				which the hearing is to be held.
(3) Service of Notice. Service is complete
				when the Notice of Hearing is served in person or deposited in the United
				States mail, postage prepaid, registered or certified, addressed to the last
				known address of the persons and parties involved, not less than ten (10) days
				before the date designated for the hearing, or as otherwise required by
				law.
(4) Expenses. The expense of
				furnishing notice must be borne by the party on whose behalf or for whose
				benefit such notice is given.
(E)
Filing.
(1) Filing, manner and significance. A hard
				copy of all filings must be addressed to and delivered by United States mail,
				postage prepaid, or filed in person with the Department's Docket Clerk, 89 Main
				Street, Montpelier, Vermont 05620-3301 and an electronic copy shall be emailed
				to DFR. Docket.Clerk@Vermont.gov.
The offices of the Department are open for filing,
				  inspection, and copying of public documents from 7:45 a.m. to 4:30 p.m., Monday
				  through Friday, except on National and State legal holidays and during states
				  of emergency. Regardless of the method of delivery employed, filing occurs only
				  upon the receipt of the hard copy by the Department's Docket Clerk, unless an
				  alternate method has been authorized by the Commissioner. An initial filing may
				  include a request that future filings in a particular matter be accepted via
				  e-mail only and the Commissioner shall have discretion to grant such requests
				  after an opportunity for each party to be heard on the request.
(2) Number of copies. Except as
				provided herein, or as otherwise authorized by the Commissioner, all filings
				must include an original and two copies of each document.
(3) Form of Filings Generally. Except as
				provided in Section 1.04(E)(4) or as ordered by the Commissioner, all filings
				must be printed on paper 8 1/2" x 11" in size. The name and docket number of
				the case, the page numbering of the filing and the date upon which it was
				prepared must appear in the upper right-hand corner of all filings. Page
				numbering must show both the number of the particular page and the total number
				of pages in the filing. Filings should be headed by a descriptive title. The
				Commissioner may refuse to accept for filing or, after filing, may reject any
				filing which fails to conform to the requirements of this regulation; provided,
				that if no substantial prejudice will occur to any other party, the filing
				party shall be afforded a reasonable opportunity to cure the defect, and such
				cure, if made, shall be deemed to relate back to the original date of
				filing.
(4) Special rules for
				certain exhibits. Exhibits need not comply with the printing or size
				requirement of Section 1.04(E)(3) when their purpose or content makes it
				impracticable to do so, but in all cases where it is not manifestly
				impracticable to do so, exhibits must be so designed that they can be folded to
				a size 8 1/2" x11". The identity and page number of any exhibit which measures,
				or which is folded to measure 8 1/2" x 11", must appear in the upper right-hand
				corner when the exhibit is positioned with the 8 1/2" sides as its top and
				bottom. The identification and page number must be set out horizontally when
				the exhibit is positioned in the manner described in the preceding sentence.
				The Commissioner may refuse to accept for filing, or after filing, may at any
				time reject any exhibit which fails to conform to the requirements of this
				regulation, provided, that if no substantial prejudice will occur to any other
				party, the filing party must be offered a reasonable opportunity to cure the
				defect, and such cure, if made, shall be deemed to relate back to the original
				date of filing.
(F)
Service.
(1) In addition to any other requirement
				imposed by law, every filing must on the same day on which it is filed, be
				served by the party filing the same upon every other party who has filed a
				notice of appearance.
(2) Whenever
				under this regulation service is required to be made on a party, it must be
				made upon the attorney or pro se representative whose appearance has been filed
				on behalf of such party.
(3) For
				all filings, except the initial pleading, service may be made by mailing a copy
				of the filing, first class postage prepaid, to the person whose notice of
				appearance is on file; but service may also be made by personal delivery or by
				any other means authorized by the party entitled to service or authorized by
				the Commissioner.
(G)
Appearances.
(1) Attorney Notice of Appearance. Attorneys
				must file a written notice of appearance with respect to any matter in which
				they are representing a party.
(2)
				Pro Se Representative Notice of Appearance.
(a) Any individual may be a pro se
				representative in a particular matter. For purposes of these rules a person
				engaged in selfrepresentation shall be known as a pro se representative. At the
				discretion of the Hearing Officer, persons who are not attorneys may be
				permitted to be pro se representatives for an entity as follows: a partnership
				may be represented by a partner, an LLC may be represented by an officer or
				managing member, and a cooperative or association may be represented by an
				officer thereof or by an employee designated in writing by an officer thereof.
				Upon motion, such permission shall be given in all proceedings unless, because
				of their factual or legal complexity or because of the number of parties, the
				Hearing Officer is of the opinion that there is a substantial possibility that
				the participation of a pro se representative will unnecessarily prolong such
				proceeding or will result in inadequate exposition of factual or legal
				matters.
(b) Corporations must
				appear through an attorney except as set forth in this rule. Upon motion, the
				Hearing Officer may permit a corporation to appear through a non-attorney
				representative only if the proposed representative establishes that:
(1) the organization cannot afford to hire
				counsel, nor can it secure counsel on a pro bono basis;
(2) the proposed lay representative is
				authorized to represent the organization;
(3) the proposed lay representative
				demonstrates adequate legal knowledge and skills to represent the organization
				without being unduly burdensome; and
(4) the representative shares a common
				interest with the organization.
(c) A business entity or an individual
				engaged in self-representation must file a written Notice of Pro Se
				Representative Appearance with respect to any matter in which they are
				appearing. This regulation shall in no respect relieve any party from the
				necessity of compliance with any applicable rule, law, practice, procedure, or
				other requirement.
(3)
				Failure to File Notice of Appearance. Except as otherwise provided by law, a
				party, or party's pro se representative or attorney, who has failed to file a
				Notice of Appearance will not be entitled to notice or service of any document
				in connection with such matter, whether such notice or service is required to
				be made by the Department, by a party, or by a person seeking party status.
(4) Service. A copy of each Notice
				of Appearance must, on the same day it is filed, be served by the party filing
				the same upon all parties on whose behalf a notice of appearance has been
				filed. A list of such persons and parties will be provided by the Docket Clerk
				upon request.
(5) Attorneys
				admitted elsewhere. An attorney admitted to practice and in good standing in
				any other state or American or common law jurisdiction may represent a party
				under this rule with the written permission of the Hearing Officer provided
				that such attorney must have co-counsel of record who is admitted to practice
				in Vermont.
(6) Withdrawal of
				appearance. An attorney who has appeared on behalf of a party may withdraw only
				upon permission of the Hearing Officer. A person appearing as a pro se
				representative may withdraw without permission of the Hearing Officer,
				provided, that if other counsel or pro se representative has not appeared for
				such person within such reasonable time as allowed by the Hearing Officer, such
				withdrawal must be deemed to constitute withdrawal of that party and as such
				may result in a default judgement being entered against the party.
(H)
Answer to
				Contested Matters.
(1) The
				Respondent must file an answer to the pleading which initiated the contested
				case. The answer must be filed within the time frame established by law or
				within thirty (30) days of the date on which the pleading initiating the
				contested case was served, whichever is shorter. An answer must include the
				following:
(a) A response to each allegation
				made in the document that initiated the contested case which the Respondent
				disputes. When the Respondent intends in good faith to deny only part of an
				allegation, Respondent must specify the part of the allegation that is
				contested. Any allegation that is not contested may be deemed
				admitted.
(b) A brief statement of
				the legal and factual basis of any defense the Respondent intends to offer at
				the hearing.
(c) Whether the
				Respondent waives a hearing.
(2) If a Respondent does not file an answer
				within the time frame allowed under this regulation, the allegations contained
				in the pleading which initiated the contested case may be treated as proven and
				a default judgment may be entered in the case as provided in Section
				1.04(T).
(I)
Defective Filings.
Substantially defective or
				insufficient filings may be rejected by the Department, provided, that if it
				will not unreasonably delay any proceeding nor unreasonably adversely affect
				the rights of any party, the Department should allow a reasonable opportunity
				for a party to cure any defect or insufficiency. A filing which is found to be
				defective or insufficient is not deemed to have been cured until the date on
				which the last document is filed which removes the defect or makes the filing
				complete. A filing is substantially insufficient if, among other things, it
				fails to include all material information required by statute or
				rule.
(J)
Computation of Time.
The provisions of the
				Vermont Rules of Civil Procedure, Rule 6 and 6 (Time - Computing Time and
				Extending Time) apply.
(K)
Remote Hearings.
At the Hearing Officer's
				discretion, a hearing may be held in whole or in part by telephone conference,
				video conference, or other electronic means. In deciding whether a hearing
				should be held remotely, factors for consideration include safety, timeliness,
				cost-effectiveness, efficiency, facility accommodations, witness availability,
				public interest, the parties' preferences, and the proceeding's
				complexity.
(L)
Postponement or Continuance of Hearing.
A
				hearing may be postponed or continued for good cause by the Hearing Officer
				either sua sponte or upon motion of a party. Notice of any postponement or
				continuance must be given in writing to all parties to the hearing within a
				reasonable time. All parties involved in a hearing must attempt to avoid undue
				delay caused by repetitive postponements or continuances.
(M)
Motions.
Motions made during a hearing
				may be required to be in writing and supported by a brief within such period as
				the Hearing Officer may direct. Motions not made during the hearing must be in
				writing and, if they raise a substantial issue of law, must be accompanied by a
				brief. The Hearing Officer may decline to consider a motion not made within a
				reasonable time after the issue first arises with respect to the moving
				party.
(N)
Briefs.
Briefs shall address each issue
				of law which a party desires the Hearing Officer to consider. Whenever a brief
				addresses more than one issue, it shall be suitably divided into sections which
				separately address each issue. Such a brief shall contain, immediately
				following the cover page, a detailed table of contents.
(O)
Ex Parte
Orders.
(1) Where the
				Commissioner is authorized by law to issue a cease-and-desist or other
				injunctive order, including an order suspending a license, he or she may do so
				without written or oral notice to the Respondent. A request for such an ex
				parte order shall be in the form of a written pleading. Unless a different
				standard is provided by law, the Commissioner may only issue an ex parte order
				effecting the revocation, suspension, annulment, or withdrawal of a license if
				the Commissioner finds that the public health, safety, or welfare imperatively
				requires emergency action before a hearing can be held upon proper
				notice.
(2) Where a
				cease-and-desist or other injunctive order is issued without notice, the
				Respondent shall be notified of the Respondent's right to a hearing at the time
				such cease-and-desist or other injunctive order is issued. The notice shall
				specify the deadline to request a hearing. Such hearing shall generally be held
				within thirty days of receipt by the Commissioner of the Respondent's request
				for hearing and a decision shall be rendered within sixty days after the
				conclusion of the hearing. The Commissioner may enlarge the time to hold the
				hearing or render a decision upon a showing of good cause.
(P)
Harmless
				Error.
The provisions of the Vermont Rules of Civil
				Procedure, Rule 61 (Harmless Error) apply.
(Q)
Relief from
				Order.
The provisions of the Vermont Rules of Civil
				Procedure, Rule 60 (Relief from Judgment or Order) apply.
(R)
Sanctions.
(1) Proposed findings and briefs. An attorney
				or pro se representative who fails to submit proposed findings or briefs, after
				having been directed to do so, or who fails to conform to the requirements
				respecting proposed findings or briefs in Sections 1.04(N) and (X), may be
				suspended from further participation in the proceeding or for such period of
				time as the Hearing Officer finds to be just. In addition, with respect to any
				issue of law as to which a party has failed to conform to the requirements of
				Section 1.04(N), such party may be deemed to have waived any claims of law with
				respect to such issue, and the claims of the opposing party with respect
				thereto may be deemed to be the law of the case.
(2) Contemptuous or disruptive behavior. An
				attorney, party, pro se representative, or witness who engages in contemptuous
				or disruptive behavior before the Hearing Officer during a hearing shall first
				be warned once off the record in a bench conference with the parties.
				Thereafter, if such person persists in such behavior, the individual shall be
				warned once on the record by the Hearing Officer. Thereafter, if such person
				continues to persist in such behavior, such person may be suspended from
				further participation in the proceeding or for such period of time as the
				Hearing Officer finds to be just.
(S)
Ex Parte
Communication.
(1) Unless
				required for the disposition of ex parte matters authorized by law, members or
				employees of the Department assigned to render a decision or to make findings
				of fact and conclusions of law in a contested case shall not communicate,
				directly or indirectly, in connection with any issue of fact, with any person
				or party, nor, in connection with any issue of law, with any party or the
				representative of any party, except upon notice and opportunity for all parties
				to participate. The Department member or employee member:
(a) may communicate with other members or
				employees of the Department; and
(b) may have the aid and advice of one or
				more personal assistants.
(T)
Waiver of
				Rules.
Except where precluded by statute, the Commissioner
				may waive these rules when the interest of justice requires.
(U)
Informal
				Disposition
Unless precluded by law, informal disposition
				may be made of any contested case by stipulation, agreed settlement, consent
				order, or default.
(V)
Default Judgment.
If a Respondent, against whom
				a pleading initiating a contested case has been properly filed and served,
				fails to answer within the time period specified in Section 1.04(H)(1), fails
				to request a hearing, fails to appear at a scheduled hearing, withdraws from a
				hearing, or otherwise fails to defend the charge, the Petitioner may move for a
				decision by default. The Commissioner may render a decision by default at any
				time after the passage of ten days from the filing and service of the motion
				for default, whereupon the Commissioner may issue an order based on the
				record.
(W)
Official Notice.
Official notice may be taken
				of all facts of which judicial notice may be taken and of other facts, of a
				technical nature, within the specialized knowledge and experience of the
				Department.
(X)
Public Hearings.
(1) In matters in which the Commissioner must
				hold a public hearing, other than rulemaking and evidentiary hearings, any
				person may submit written statements up until the close of business on the day
				of the public hearing or offer oral comments relevant to the subject matter of
				the hearing. The Commissioner may place reasonable time limitations on oral
				comments as necessary for the orderly conduct of the hearing.
(2) All public hearings must be recorded, and
				the recording retained at the Department. A public hearing, or any part
				thereof, shall be transcribed at the request of a party and upon payment by the
				requesting party of the reasonable costs thereof.
(Y)
Proposed Findings of
				Fact and Conclusions of Law.
The Hearing Officer may
				require each party to submit proposed findings of fact and conclusions of law.
				Each proposed finding shall deal concisely with a single fact or with a group
				of facts so interrelated that they cannot reasonably be treated separately.
				Proposed findings shall be consecutively numbered and shall be in logical
				sequence. Where the party claims to have established more than one ultimate
				fact, proposed findings shall be arranged into separate groups, appropriately
				identified as to subject matter. Each proposed finding shall contain a citation
				or citations to the specific part or parts of the record containing the
				evidence upon which the proposed finding is based.
(Z)
Commissioner's
				Order.
(1) The
				Commissioner will review the proposed findings of fact and conclusions of law,
				if any, and timely issue an Order as required by applicable law or, if no law
				dictates the time, within a reasonable time.
(2) The Order shall be in writing and shall
				include findings of fact and conclusions of law separately stated. Findings of
				fact shall be based exclusively on the evidence presented at the hearing or
				known to all parties, including matters officially noticed. Findings of fact,
				if set forth in statutory language, shall be accompanied by a statement of the
				underlying supporting facts. If a party submits proposed findings of fact, the
				Order shall include a ruling upon each proposed finding. Each conclusion of law
				shall be supported by authority or reasoned opinion. An Order shall not be made
				except upon consideration of the record as a whole or such portion thereof as
				may be supported by competent material and substantial evidence.
(3) The Order will become effective
				immediately, or as otherwise specified by either the Order or applicable
				law.
(4) Parties must be promptly
				notified of the Order, either personally or by mail, postage prepaid, certified
				or registered, addressed to the last known address of the person involved, or
				by electronic means if all parties have agreed to employ such means. A copy of
				the Order must be delivered or mailed to each party or to the attorney of each
				party or pro se representative of record. In addition, when practicable, Orders
				may be sent via electronic mail to all parties to a proceeding.