Loading...
(a) Time and place. The hearing for the purpose of the taking of evidence upon a contested matter shall be held at such time and place as designated in the notices therefor, except for continued hearings. All such hearings shall be public except where otherwise ordered by the hearing authority or provided by law.
(b) Official record.
(1) The hearing authority must prepare, maintain and supervise the custody of an official record in each case. The record must include testimony, exhibits and verbatim transcript, if any, submitted during the hearing and at other times the record is open to receive evidence. Documentary evidence may be received in the form of copies, excerpts, photographic reproductions or by incorporation by reference. The hearing authority must make the official record available for inspection to all affected persons before any hearing.
(2) Section 19A-15(b) applies to any ex parte or private communications received by a member of a hearing authority. The hearing authority must include the ex parte or private communication in the record and may:
(i) consider the communication as a basis for its decision after giving all parties an opportunity to respond to the communication; or
(ii) decide the matter if the hearing authority expressly finds that it has not considered the communication as a basis for its decision.
The substance of an ex parte or private communication received after a final administrative decision and before appellate rights have been exhausted must be maintained in the case file and, in any remand, treated as required by this paragraph.
(3) The hearing authority may seek additional evidence if the evidence is included as part of the record and the parties are given due notice and opportunity to respond.
(c) Subpoena power. The hearing authority shall have the power to issue subpoenas enforceable by injunction by the party requesting same or by the County itself, in a court of competent jurisdiction, to compel the attendance of witnesses and require the production by them of books, papers, documents and other materials relevant to any case under consideration. Subpoenas may be served by certified mail, by private process server designated by the hearing authority or by anyone who could lawfully serve said subpoena in a judicial proceeding of a civil nature.
(d) Burden of going forward with the evidence. The charging party shall have the burden of going forward with the production of evidence at the hearing before the hearing authority; provided, however, where a governmental agency or an administrative authority is a party, such agency or administrative authority shall have the burden of going forward with the production of evidence at the hearing before the hearing authority. Such evidence shall be competent, material and relevant to all matters at issue and relief requested.
(e) Evidence. The hearing authority may admit and give appropriate weight to evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs, including hearsay evidence which appears to be reliable in nature. It shall give effect to the rules of privilege recognized by law. It may exclude incompetent, unreliable, irrelevant or unduly repetitious evidence, or produce evidence at its own request.
The hearing authority may take official notice of commonly cognizable facts, facts within its particular realm of administrative expertise and documents or matters of public record. Parties shall be notified of matter and material so noticed while the record in the case is open and shall be afforded an opportunity to contest the facts so noticed.
(f) Cross-examination. Every party shall have the right of reasonable cross-examination of witnesses who testify, and shall have the right, upon request, to submit rebuttal evidence. Repetitious questions and examination on irrelevant matters shall not be permitted. Cross-examination shall be subject to reasonable regulation by the hearing authority who is authorized to require the designation of specific persons to conduct cross-examination on behalf of other individuals.
(g) Right to counsel. In any case governed by the procedures established in this chapter, the parties have the right to be represented by themselves or by legal counsel of their choice.
The appearance of counsel shall be entered and the hearing authority shall be notified in writing expeditiously following counsel's retention. All parties of record shall be notified simultaneously with the hearing authority.
(h) Powers of the hearing authority. In addition to any other power granted by this article, a hearing authority is empowered:
(1) To administer oaths and affirmations.
(2) To grant or deny requests for subpoenas or issue subpoenas on its own initiative and to call independent witnesses or seek additional evidence to be made part of the record as justice may require.
(3) To rule on petitions to quash subpoenas.
(4) To rule upon motions, offers of proof and receive relevant and probative evidence, to exclude incompetent, irrelevant, immaterial or unduly repetitious evidence and to give effect to the rules of privilege recognized by law.
(5) To regulate the course of the hearing and to allow the record in hearings to remain open.
(6) To hold conferences for simplification of the issues.
(7) To dispose of procedural requests or similar matters including motions for continuance, to amend a pre-hearing statement and to order hearings reopened, consolidated or grant rehearings.
(8) To call, examine and cross-examine witnesses and to obtain and introduce into the record documentary or other evidence.
(9) To request the parties at any time during the hearing to state their respective positions concerning any issue in the case or theory in support thereof.
(10) To take any other action authorized by this article or necessary to a fair disposition of the case.
(11) To accept evidence by stipulation of facts which may be introduced at any time.
(12) To schedule, suspend or continue hearings to a time and date certain with notification to all parties.
(13) Upon its own motion and at the request of an affected party to order that witnesses other than a party be excluded from the hearing room until called to testify.
(14) To order that statements of witnesses who are beyond the jurisdiction of the hearing authority or who for sufficient reason are unavailable to testify be taken by written interrogatories or deposition made under oath. The original of any interrogatories, answers thereto or depositions must be filed in the case file of the proceedings.
(15) To promulgate rules for witness reimbursement of expenses actually incurred by reason of such witness's required presence at a hearing or if such witness is a County employee promulgate rules for the extension of appropriate leave to said witnesses.
(16) To permit additional parties to participate in the proceedings as justice may require.
(i) Hearing conduct and procedure.
(1) Unless otherwise provided by law:
a. A quorum of the hearing authority must be present to conduct a hearing. A majority of the persons appointed to any hearing authority shall constitute a quorum. The quorum requirements shall not apply to hearings conducted by a hearing examiner or hearing officer. A ruling of the presiding officer shall stand unless overruled by a majority vote of the members of the hearing authority present and participating.
b. All hearings shall be de novo before the hearing authority.
c. The members of any hearing authority shall be subject to disqualification for conflict of interest, and suggestions for disqualification of any member may be made on petition of any party.
(2) The presiding officer of the hearing authority shall preside at hearings and have full authority at all times to maintain orderly procedure and restrict the hearing to relevant and material facts. A ruling of the presiding officer shall stand unless overruled by a majority vote of the members of the hearing authority, present and participating.
(3) All exhibits accepted shall be marked and held in the hearing file. Those exhibits whose admission is rejected shall either be returned to the offering party or retained in the file with appropriate notations reflecting that the material was rejected as an exhibit.
(4) Rulings on motions, petitions and objections made during the course of a hearing shall be ruled on as received or as soon thereafter as practicable.
(5) The ordinary, but not mandatory, order or procedure for the conduct of the hearing and the presentation of evidence is as follows, subject to subsection (d) of section 2A-6 or waiver or such reasonable changes as may be ordered by the hearing authority or by law:
a. Disposition of all outstanding preliminary motions and preliminary matters.
b. Opening statement of parties.
c. Presentation of factual case of appellant: cross-examination of all witnesses thereof.
d. Presentation of factual case of responding party: cross-examination of witnesses thereof.
e. Presentation of factual case of other interested persons: cross- examination of witnesses thereof.
f. Rebuttal evidence of appellant: cross-examination of witnesses thereof.
g. Surrebuttal evidence of responding party: cross-examination of witnesses thereof.
h. Closing arguments.
(j) Sanctions. The hearing authority may impose sanctions against parties and witnesses for failure to abide by the provisions of this article, or for unexcused delays or obstructions to the pre-hearing and hearing process. Such sanctions may include suspension or continuance of scheduled hearings, dismissals of actions, denial of admission of documents and exhibits and admission of matters as adverse to a defaulting party.
In addition to any other sanction, the hearing authority is authorized to assess any offending party the full cost of verbatim recording and transcription of any hearing delayed or obstructed by such party; and further to assess such party the cost of re-advertisement, if such notification is either required by law or necessary in the discretion of the hearing authority, to give adequate notice to interested or affected parties. (1978 L.M.C., ch. 30, § 1; 1984 L.M.C., ch. 24, § 1; 1990 L.M.C., ch. 25, § 1; 2010 L.M.C., ch. 4, § 2.)
Editor’s note-The above section is cited in Sweeney v. Montgomery County, 107 Md.App. 187, 667 A.2d 922 (1995).
Where the ordinary processing of any appeal may, due to time constraints, cause injury to any party, the hearing authority may for good cause grant an emergency hearing on its own motion or upon good cause shown by any party thereto. Where an emergency hearing is ordered by a hearing authority, it may suspend or alter any provisions of this article necessary to avert such undue injury; provided, however, that in such cases, the hearing authority shall notify all parties of the operation of this section, and make every reasonable effort to provide substantive due process of law to all parties. All hearings pursuant to section 2A-2(c) of this chapter involving the removal or suspension of a County merit system employee and all hearings pursuant to chapter 41A, rent supplement and assistance program, shall be governed by this section. (1978 L.M.C., ch. 30, § 1; 1984 L.M.C., ch. 18, § 2; 1984, ch. 24, § 1; 1984, ch. 27, § 2.)
(a) Content. All recommendations and/or decisions of the hearing authority except rulings on preliminary matters or on motions or objections shall be in writing, based on evidence of record and shall contain findings of fact, conclusions of law and an appropriate decision and order; provided, however, any decision stipulated or consented to by the parties need only be reflected by an appropriate written order or consent decree.
(b) Evidence required. All recommendations and/or decisions of the hearing authority shall be based upon and supported by a preponderance of the evidence of record.
(c) Voting requirements. Any decision rendered in conformance with the provisions of this article must have the concurrence of a majority of the voting members of the decision-making authority unless a greater number of votes are required by law. Members of the hearing authority absent during a hearing may vote upon a matter upon written certification that they have read the transcripts and reviewed the evidence of record.
Failure to achieve the necessary affirmative votes shall act as a denial of the relief requested by the charging party by operation of law. No written opinion in this instance shall be required; provided, however, individual members of the hearing authority may file written reasons supporting their respective positions.
(d) Time requirements for decisions. All recommendations and/or decisions of the hearing authority shall be rendered within forty-five (45) days after the closing of the record in the case; provided, however, the hearing authority on its own motion may extend the time for recommendation and/or decision for an additional period upon written notification to all parties.
(e) Notification of recommendation and/or decision. All recommendations and/or decisions of the hearing authority shall be released and sent simultaneously to all parties of record and their counsel.
(f) Rehearing and reconsideration. Where otherwise permitted by law, any request for rehearing or reconsideration shall be filed within ten (10) days from a final decision. Thereafter a rehearing or reconsideration may be approved only in the case of fraud, mistake or irregularity. Any request for rehearing or reconsideration shall be in writing, containing supporting reasons therefor, with copies served on all parties of record. Any decision on a request for rehearing or reconsideration not granted within ten (10) days following receipt of the request therefor in accord with subsection (c) of this section shall be deemed denied. Any request for rehearing or reconsideration shall stay the time for any administrative appeal pursuant to judicial review until such time as the request is denied or in the event such request is granted such further time or a subsequent decision is rendered. A request for reconsideration or rehearing shall not stay the operation of any order unless the hearing authority so states.
(g) Informal disposition. Where appropriate to the nature of the proceedings and the governing laws, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default. (1978 L.M.C., ch. 30, § 1; 1984 L.M.C., ch. 24, § 1.)
Editor's note-In Montgomery County v. McDonald, 68 Md. App. 307, 511 A.2d 560 (1986), the court held that under § 2A-10(f), the failure of an administrative agency expressly to either grant or deny a party's request for a rehearing within 10 days after receipt of such request shall be deemed a denial of such request. If within such 10-day period, however, the agency grants the right to a rehearing, the failure to render a decision on the merits of the matter within such 10-day period shall not be deemed a denial of the relief requested. The above section is quoted in part in Sweeney v. Montgomery County, 107 Md.App. 187, 667 A.2d 992 (1995); cited in Meyers v. Montgomery County Police Dept., 96 Md.App. 668, 626 A.2d 1010 (1993); quoted and interpreted in Robinson v. Montgomery County, 66 Md.App. 234, 503 A.2d 275 (1986); interpreted in Montgomery County v. McDonald, 68 Md.App. 307, 511 A.2d 560 (1986); quoted in part in Sweeney v. Montgomery County, 107 Md.App. 187, 667 A.2d 922 (1995) and cited in Miller v. Maloney Concrete Company, 63 Md.App. 38, 491 A.2d 1218 (1985).
(a) A party aggrieved by a final decision in a case governed by this Article may seek judicial review of the decision in the Circuit Court under the applicable Maryland Rules of Procedure governing judicial review of administrative agency decisions. A party aggrieved by the decision of the Circuit Court may appeal that decision to the Court of Special Appeals.
(b) Unless the court reviewing the decision of the hearing authority orders a stay, the hearing authority’s decision remains in effect pending a final decision of the court. (1978 L.M.C., ch. 30, § 1; 1984 L.M.C., ch. 24, § 1; 2011 L.M.C., ch. 17, § 1.)
Editor’s note—Section 2A-11 is cited in Manor Country Club v. Flaa, 387 Md. 297, 874 A.2d 1020 (2005), reversing and remanding 158 Md. App. 483, 857 A.2d 604 (2004), where the Court interpreted factors for calculating attorney’s fees under former language contained in Section 27-7; the section was amended prior to the Court’s decision. Section 2A-11 was interpreted in Kant v. Montgomery County, 139 Md. App. 157, 774 A.2d 1229 (2001), reversed and remanded, 365 Md. 269, 778 A.2d 384 (2001), to provide appellate jurisdiction to the Court of Special Appeals after judicial review in the Circuit Court of decisions made by the Commission on Landlord-Tenant Affairs; and further the Court explained that, although Montgomery County Code §§ 29-14A and 29-45 do not provide appellate jurisdiction for an appeal to the Court of Special Appeals, Montgomery County Code §§ 2A-2 and 2A-11 provide adequate jurisdiction.
2011 L.M.C., ch. 17, §§ 2 and 3, state:
Sec. 2. Transition. This Act does not apply to any appeal to the Board of Appeals that was filed before this Act took effect.
Sec. 3. Regulations. Regulations 6-06AM and 7-06AM remain in effect, notwithstanding any amendment to the County Code in Section 1 of this Act, except for any provision of the National Fire Code that authorizes or refers to an appeal to the Board of Appeals.
Cross reference—Rules of Procedure of County Council, app. C.
(a) Purpose. It is the purpose of this article to prescribe a single and consistent procedure for the adoption, review and repeal of regulations, and to provide a uniform procedure for their public notification and compilation.
(b) Scope. Unless otherwise provided, this article applies to all regulations. However, this Article does not apply to the County Council, meeting as the Board of Health, when it adopts a regulation. (1984 L.M.C., ch. 24, § 1; 1994 L.M.C., ch. 15, § 1; 2000 L.M.C., ch. 25, § 1.)
Editor’s note-The above section is quoted in FOP, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 680 A.2d 1052 (1996).
(a) In general. Unless otherwise clearly indicated by the context, in this article the following words have the meanings indicated.
(b) Administrative procedure means a written directive concerning the internal management of one or more than one County agency or department.
(c) CAO means the chief administrative officer of the County.
(d) COMCOR means the Code of Montgomery County Regulations established under this article.
(e) Executive order means an order issued by the County Executive that directs a specific action.
(f) Issuer means:
(1) The County Executive; or
(2) A person or agency authorized by law to issue regulations.
(g) Register means the Montgomery County Register established under this article.
(h) Regulation means any rule or standard that an issuer by law is authorized to issue. Regulation includes any amendment to an existing regulation. (1984 L.M.C., ch. 24, § 1; 1984, L.M.C., ch. 27, § 1; 1994 L.M.C., ch. 15, § 1.)
Editor’s note-Section 2A-13 is cited in Anastasi v. Montgomery County, 123 Md. App. 472, 719 A.2d 980 (1998). Sections 2A-13(g) and (h) are cited and discussed in FOP, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 680 A.2d 1052 (1996).
See County Attorney Opinion dated 1/8/08 regarding collection of debts owed to the County.
Loading...