Friday, October 16, 2009

A possible Set of Hearing Rules to Adopt for Future Hearings


(a)Any person entitled to notice of a hearing shall be given timely notice of the time, place, nature thereof, the legal authority and jurisdiction under which it is to be held, and the subject matter of the hearing, including but not limited to, any complaints filed, any evidence to be presented, and witness statements gathered, and any recommendations or reports produced.
(b)In the absence of provision by ordinance, bylaw, or by rule for the time of notice, ten (10) days notice shall be deemed reasonable and timely.

Fixing Time and Place of Hearing.
(a)In fixing the time and place of a hearing, due regard shall be had for the convenience and necessity of the parties and their representatives.
(b)Except when otherwise provided by ordinance, bylaw, or by rule, the time and place of hearing shall be fixed by the Selectmen, by the Chairman or his designee.

Authority of Presiding Officer. The Chairman shall have authority to:
(a)Administer oaths and affirmations.
(b)Authorize the issuance of subpoenas, if the power of subpoena is provided by law.
(c)Rule upon offers of proof and receive evidence.
(d)Regulate the course of the hearing.
(e)Set the time and place for continued hearings.
(f)Fix the time for filing of papers, documents and briefs.
(g)Require any persons intending to speak at the hearing to register with the secretary their names and addresses, and, where applicable, their support or opposition to the subject matter of the hearing.
(h)Issue appropriate orders which shall control the course of the proceedings.
(i)Announce the rulings on motions and procedural matters.
(j)Reprimand or exclude from the hearing any person for any improper or indecorous conduct.
(k)Take any other action authorized by law.

Burden of Proof.
(a)In any quasi-judicial hearing, except as otherwise provided by law, the burden of proof shall be upon:
(1)The proponent of an order;
(2)The applicant for any license, permit, privilege or right;
(3)The complainant in any proceeding for cancellation, suspension or revocation of any license, permit, privilege or right;
(4)The party appealing from any decision of an officer, department, or commission of the Town of Middleborough;
(5)In any case, not otherwise herein provided for, the party initiating the proceeding.
(b)Except as otherwise provided by law, the burden of proof shall be a preponderance of the evidence.
(c)Nothing contained in this section shall affect or negate any provision of a statute requiring the vote of a specified number of members of the Board of Selectmen upon a decision.
Rights of Parties to Present Evidence.
(a)Every party to a hearing shall have the right to present his case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(b)Every party to a hearing and every person compelled to testify or to submit data or evidence at any hearing shall be entitled to the benefit of counsel.
(c)In any hearing in which a record is made, every party to the hearing shall be entitled, upon payment of reasonable charges therefore, to obtain a copy of the transcript of the record.

Order of Procedure.
(a)Except as otherwise provided by statute:
(1)At the opening of a hearing, the presiding officer shall announce the nature of the hearing, the parties thereto, the legal authority and jurisdiction under which it is held, and the subject matter thereof.
(2)The agency shall hear and determine any objections to the jurisdiction, or to the form or substance of the proceedings.
(3)Opening statements may be made or waived by any party to the proceedings, or such opening statement may be reserved to a later time in the proceedings.
(b)The order of presentation of evidence in any proceeding concerning an application for a permit, right, privilege or license, shall be:
(1)The applicant and all persons in support of the application;
(2)All persons opposed to the application;
(3)All other persons entitled to be heard.
(c)The order of presentation of evidence in a quasi-judicial proceeding other than an application as described above, shall be:
(1)The party having the burden of proof;
(2)The responding or opposing party;
(3)All other persons entitled to be heard.
(d)Any witness testifying in a hearing shall be subject to examination or cross examination by any party, counsel for any party or any Selectman.
(e)Any party to the proceedings shall be afforded the opportunity to rebut testimony or evidence of another party, if request therefore is made during the hearing and such party is ready to proceed therewith without delaying or obstructing the hearing.

(a)After the close of a public hearing, the agency shall render a decision within the time provided by law, or within a reasonable time.
(b)Such decision shall be reduced to writing and communicated to all parties to the hearing.
(c)The time for application for rehearing or appeal of any decision shall begin to run from the date of the decision.


Bellicose Bumpkin said...

Seems pretty straight forward.

I'll be interesting to see if the BOS follows this perfectly sensible solution or circles the wagons because they don't like the messenger.

AMB said...

I think they will spend the Town's resources fighting their loss of the appeal and follow through with a frivolous appeal--even though the statute they rely on says that the Judge's decision is "final and conclusive." What a waste of time and energy, rather than just fixing the problem.

Anonymous said...

Too many multi-syllable words. They'll never get it.

Anonymous said...

[Edited Comment] what happens if they choose to do an appeal? Will you charge them for your time in court fighting them?
What are the guidelines for BOS individuals being sued?
Does the BOS get sued by individually, collectively or not be able to be sued at all?
For instance, why would we sue Steve when he has been fighting for our rights?
Could we just sue the rest of the group?
I am tired of voting for the ones that I think would represent me but actually has agenda's for being on the board. They have proven to me that they are only in it for the power, not for my rights.
especially ___ Rogers who I believe lives on the outside and uses his old address?
How long does he get to possibly break the by-laws before he has violated the rules of the town?
Can a class action suit go in for that?