# COMAR Title 14 — Independent Agencies

## Subtitle 03 — Commission on Human Relations

### Chapter 05 — Commercial Nondiscrimination Policy

**Authority:** State Finance and Procurement Article, §§19-106—19-110, 19-116, and 19-119; State Government Article, §10-204; Annotated Code of Maryland

**Administrative History:** Effective date: April 7, 2008 (35:7 Md. R. 750)

**Administrative History:** Regulation .01D amended effective April 18, 2011 (38:8 Md. R. 507)

**Administrative History:** Regulation .08A, C amended effective April 18, 2011 (38:8 Md. R. 507)

**Administrative History:** Regulation .09A, H amended effective April 18, 2011 (38:8 Md. R. 507)

**Administrative History:** Regulation .14F amended effective April 18, 2011 (38:8 Md. R. 507)

**Administrative History:** Regulation .15C amended effective April 18, 2011 (38:8 Md. R. 507)

**Administrative History:** Regulation .16B amended effective April 18, 2011 (38:8 Md. R. 507)

**Administrative History:** Regulation .19E amended effective April 18, 2011 (38:8 Md. R. 507)

#### Regulation .01 Scope.

*COMAR 14.03.05.01*

A. It is the policy of the State not to enter into a contract with any business entity that has discriminated in the solicitation, selection, hiring, or commercial treatment of vendors, suppliers, subcontractors, or commercial customers on the basis of race, color, religion, ancestry, or national origin, sex, age, marital status, sexual orientation, or disability, or any otherwise unlawful use of characteristics regarding the vendor's, supplier's, or commercial customer's employees or owners.

B. These regulations provide the Commission's interpretation and regulations to implement the commercial nondiscrimination policy, as required by State Finance and Procurement Article, §19-119(a), and pursuant to State Government Article, §§10-110—10-112, Annotated Code of Maryland.

C. The rules of procedure provided in this chapter apply to the processing of complaints of commercial discrimination and retaliation filed under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

D. Rules of procedure for directing and conducting investigations of discrimination and retaliation complaints filed under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, shall be in a manner consistent with State Government Article, §§20-207, 20-1005, and 20-1006, Annotated Code of Maryland.

E. These regulations may not be construed to prohibit or limit otherwise lawful efforts to remedy the effects of discrimination that have occurred or are occurring in the marketplace.

#### Regulation .02 Exemptions.

*COMAR 14.03.05.02*

A. This chapter does not apply to:

  (1) Any real property acquisition by the State, including property subject to condemnation, other than a lease of real estate for the State's use;

  (2) The settlement of litigation;

  (3) The settlement of judicial or administrative enforcement proceedings by or on behalf of the State, except for proceedings to enforce State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland; and

  (4) Agreements concerning standards for locating facilities in a State right-of-way if a business entity has a statutory right to be in the right-of-way.

B. A government entity receiving federal financial assistance under Title VI of the Civil Rights Act of 1964 is not covered under this chapter unless the government entity is participating in an economic development project.

#### Regulation .03 Definitions.

*COMAR 14.03.05.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Administrative law judge” means the individual assigned by the Office of Administrative Hearings to conduct a hearing under this chapter.

  (2) “Aggrieved person” means any business entity that claims to have been injured by a discriminatory commercial practice.

  (3) “Business entity” means any person, as defined in State Finance and Procurement Article, §1-101(d), Annotated Code of Maryland, firm, sole proprietorship, partnership, corporation, limited liability company, or other business entity, or a combination of any of these entities, including any financial institution, developer, consultant, prime contractor, subcontractor, supplier, or vendor, that has submitted a bid or proposal for, has been selected to engage in, or is engaged in providing goods or services to the State.

  (4) “Charge” means a written statement prepared by the Commission's general counsel and issued under this chapter that contains a factual allegation of an unlawful discriminatory commercial practice.

  (5) “Commercial customer” means a business entity that procures or attempts to procure goods or services from a business entity for business use as opposed to personal, family, or household use.

  (6) “Commercial nondiscrimination policy” means the provisions under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, and any regulation, or documentation requirement, adopted by the Maryland Commission on Human Relations.

  (7) “Commercial treatment” means the treatment of a vendor, supplier, subcontractor, or commercial customer by a business entity that affects the conduct of business and the terms and conditions under which business is transacted between two or more business entities.

  (8) “Commission” means the Maryland Commission on Human Relations.

  (9) “Commission staff” means employees of the Maryland Commission on Human Relations designated by the Commission to process, investigate, and pursue complaints filed under these regulations.

  (10) “Complainant” means the person or business entity who files a complaint of discriminatory commercial practice or practices under these regulations.

  (11) “Complaint” means a written statement by a person or business entity alleging an act or acts of commercial discrimination as prohibited by State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

  (12) “Conciliation” means the attempted resolution of issues raised by a complaint or by investigation of a complaint through informal negotiations involving the complainant, the respondent, and the Commission.

  (13) “Conciliation agreement” means a written agreement setting forth the resolution of the issues in conciliation.

  (14) “Contract” means an agreement with a business entity that is awarded by or on behalf of the State for that business entity to sell or lease supplies or goods, or to provide construction, real estate development, financial, insurance, professional, or other services to the State in return for a fee, or any other form of compensation to be paid or provided by the State.

  (15) Discrimination.

    (a) “Discrimination” means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or commercial treatment of a vendor, supplier, subcontractor, or commercial customer on the basis of race, color, religion, ancestry, national origin, sex, age, marital status, sexual orientation, disability, or any other unlawful use of characteristics regarding the vendor's, supplier's, or commercial customer's employees or owners.

    (b) “Discrimination” does not include lawful efforts to remedy the effects of discrimination that have occurred or are occurring in the marketplace.

  (16) “Economic development project” means a real estate development, construction, or renovation project for which the State provides:

    (a) Funding or other financial assistance, other than payments in exchange for goods or services;

    (b) Land;

    (c) Road improvements;

    (d) Tax credits; or

    (e) A below market purchase price.

  (17) “Executive Director” has the meaning stated in COMAR 14.03.01.02.

  (18) Financial Institution.

    (a) “Financial institution” means a person:

      (i) Engaged in the business of lending money, guaranteeing loans, extending credit, securing bonds, or providing venture or equity capital; or

      (ii) That offers financial services in connection with State projects or the administration of State government.

    (b) “Financial institution” includes banks, savings and loans, venture capital companies, insurance companies, bonding companies, mortgage companies, credit unions, and brokers.

  (19) “Investigator” has the meaning stated in COMAR 14.03.01.02.

  (20) “Notice” has the meaning stated in COMAR 14.03.01.02.

  (21) “Party” means:

    (a) A person who has filed a complaint under this chapter;

    (b) A respondent business entity that has been alleged to have violated State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland; or

    (c) The Commission, which is responsible for investigating the complaint and rendering the initial findings.

  (22) “Proceeding” means a conference, meeting, hearing, investigation, inquiry, or other fact-finding or decision-making procedure, including the dismissal of a complaint.

  (23) “Respondent” means a person or business entity:

    (a) Accused in a complaint of a discriminatory commercial practice; or

    (b) Identified during an investigation of a complaint and joined as an additional or substitute respondent under this chapter.

  (24) “Services” includes construction, real estate development, financial, insurance, professional, and other services.

  (25) “State subcontract” means an agreement for the provision of goods or the performance of a particular portion of work to be performed under a contract with the State, where:

    (a) The party providing the goods or services is on reasonable notice that the work is to be performed under a State contract; and

    (b) The amount to be paid for the goods and services is material with respect to the overall amount of the contract.

  (26) “State subcontractor” means the party providing goods or services under a State subcontract.

  (27) “Time” has the meaning stated in COMAR 14.03.01.02.

#### Regulation .04 Unlawful Practices Generally.

*COMAR 14.03.05.04*

A. Commercial Discrimination Practices Prohibited.

  (1) It is unlawful for a business entity that has entered into a contract with the State to discriminate in the solicitation, selection, hiring, or commercial treatment of vendors, suppliers, subcontractors, or commercial customers.

  (2) A business entity may not discriminate on the basis of race, color, religion, ancestry, national origin, sex, age, marital status, sexual orientation, disability, or any other unlawful use of characteristics regarding the vendor's, supplier's, or commercial customer's employees or owners.

B. Retaliation Prohibited. It is unlawful for a business entity that has entered into a contract with the State to take any action that has a material negative effect against any person, business, or other entity for:

  (1) Reporting any incident of discrimination;

  (2) Testifying as a witness at a hearing; or

  (3) Providing requested assistance to Commission staff in any investigation of an incident of discrimination under these regulations.

#### Regulation .05 Commercial Discrimination or Retaliation Complaint—Filing.

*COMAR 14.03.05.05*

A. Who May File. Any business entity who claims to have been aggrieved by an act or acts of unlawful commercial discrimination or retaliation prohibited by State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, may file a complaint with the Commission.

B. Persons Against Whom Complaint May Be Filed. A complaint may be filed against any business entity that has entered into a contract with the State and is alleged to have engaged in commercial discrimination or retaliation as prohibited by State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

C. Manner of Filing.

  (1) A complaint shall be filed at the offices of the Commission in person, by registered, certified, or regular mail, facsimile or other electronic media, or by delivery to any duly appointed representative of the Commission.

  (2) Telephone Initiated Complaints.

    (a) A complaint may be initiated by telephone to the Commission.

    (b) If a complaint is issued by telephone:

      (i) The Commission shall reduce information provided by telephone to writing on the prescribed complaint form; and

      (ii) The Commission shall send the complaint form to the aggrieved person to be signed and affirmed as provided in §E of this regulation.

    (c) A telephone initiated complaint is considered filed only upon receipt of the signed form or signed writing.

D. When Filed.

  (1) A complaint shall be filed within 4 years after an alleged unlawful commercial discrimination or retaliation practice has occurred or terminated.

  (2) If the alleged commercial discrimination or retaliation is of a continuing nature, the date of the occurrence of the unlawful practice shall be considered to be the date up to and including that date on which the unlawful practice ceased.

  (3) A complaint is timely if filed within 4 years of the last alleged occurrence of an unlawful commercial discrimination or retaliation practice.

E. Form and Content of Complaint.

  (1) A complaint shall be in writing and shall be signed and affirmed by the aggrieved person filing the complaint.

  (2) The affirmation shall state “I declare under the penalty of perjury that the foregoing is true and correct.”

  (3) Complaint Forms.

    (a) A complaint may be filed on a form provided by the Commission.

    (b) A complaint form shall be made available to all persons at the Commission in Baltimore, Maryland, or other offices within the State that may be established.

    (c) Personnel of the Commission shall render appropriate assistance to a complainant in filling out forms.

    (d) Notwithstanding the availability of a Commission form, the Commission shall accept a written statement which substantially sets forth under this section the allegations of commercial discrimination or retaliation practices prohibited under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

  (4) Each complaint shall contain substantially the following information:

    (a) The name and address of the aggrieved person;

    (b) The name and address of the respondent; and

    (c) A concise statement of facts to include:

      (i) A description of the activities constituting the alleged unlawful commercial discrimination or retaliation practice;

      (ii) Pertinent dates showing that the alleged unlawful practice occurred within the past 4 years; and

      (iii) A statement indicating that the discrimination or retaliation occurred in the State pursuant to State Finance and Procurement Article, §19-107(f)(2), Annotated Code of Maryland.

F. Amendment of Complaint.

  (1) A complaint may be reasonably and fairly amended at any time.

  (2) The amendments may include, but are not limited to:

    (a) Curing technical defects or omissions, including failure to sign or affirm the complaint;

    (b) Clarifying and amplifying an allegation made in the complaint;

    (c) Joining additional or substitute respondents; or

    (d) Alleging additional acts that constitute unlawful commercial discrimination or retaliation practices under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, and that relate back to or grow out of the subject matter of the original complaint.

  (3) All amendments shall relate back to the original filing date.

#### Regulation .06 Commercial Discrimination or Retaliation Complaint—Processing.

*COMAR 14.03.05.06*

A. Review and Authorization. After the filing of a complaint, the Executive Director or designee shall:

  (1) Review the complaint to determine whether it should be issued for reasons of standing of the parties, timeliness of the filing, or other matters upon which its issuance may depend; and

  (2) Do one of the following:

    (a) If the complaint is acceptable, authorize an investigation by dating and signing the complaint; or

    (b) If the complaint is unacceptable and not susceptible to amendment, reject the complaint and serve notice on the complainant stating the reasons for rejection.

B. Notification of Respondent.

  (1) Within 10 days of the filing of a complaint or an amended complaint, including authorization, the Commission shall serve notice on each respondent by certified mail or personal service.

  (2) The notice shall:

    (a) Acknowledge the filing of the complaint;

    (b) State the date that the complaint was accepted for filing;

    (c) Include a copy of the complaint;

    (d) Identify the alleged commercial discrimination or retaliation practice upon which the complaint is based;

    (e) Advise the respondent of the time limits applicable to complaint processing, and the procedural rights and obligations of the respondent under this chapter;

    (f) Advise the respondent that retaliation against an aggrieved person because the person made a complaint or testified, assisted, or participated in an investigation or conciliation under this chapter is an unlawful commercial practice prohibited by State Finance and Procurement Article, §19-106(a), Annotated Code of Maryland; and

    (g) Inform the respondent of the opportunity to enter into mediation for the purpose of resolving the complaint.

C. Joinder of Additional or Substitute Respondents. A person who is not named as a respondent in the complaint, but who is identified in the course of the investigation as a person who is alleged to be engaged or have engaged in commercial discrimination or retaliation upon which the complaint is based, may be joined as an additional or substitute respondent by service of notice on the person under this regulation within 10 days of the identification.

D. Answer to Complaint.

  (1) A respondent may file an answer not later than 10 days after receipt of the notice described in §B of this regulation.

  (2) A respondent may assert any defense that might be available to a defendant in a court of law.

  (3) The answer shall be signed and affirmed by the respondent, as described in Regulation .05E(1) and (2) of this chapter.

  (4) An answer may be reasonably and fairly amended at any time with the consent of the Executive Director or designee.

E. Withdrawal. A complaint filed by an aggrieved person may be withdrawn in writing at any time by the aggrieved person who filed the complaint.

F. Administrative Closure—Notice and Reopening.

  (1) The Executive Director or designee may administratively close a complaint under those circumstances, which, by way of example but not limitation, may include:

    (a) Absence of information that establishes the whereabouts of the complainant; or

    (b) A determination that statutory requisites have not been met.

  (2) Notice of Administrative Closure.

    (a) The Commission shall provide written notice of the administrative closure to the complainant at the last known address informing the complainant of the right to object to this closure within 15 days of the date on which the notice was mailed.

    (b) In a case where the complaint has been withdrawn by a complainant, the 15-day notice provision to the complainant is not required.

    (c) Written notice of the closure shall be sent to the respondent upon whom the complaint has been served.

  (3) Objection to Administrative Closure.

    (a) If the complainant files a timely objection, the Executive Director or designee shall consider the closure in light of the reasons stated by the complainant and make a determination.

    (b) In the absence of a timely objection, the Executive Director or designee shall:

      (i) Close the complaint and mark the complaint file closed; and

      (ii) Send written notice of the closure to the respondent upon whom the complaint was served.

  (4) Request to Reopen Case.

    (a) A request to reopen a case administratively closed for lack of information establishing the whereabouts of the complainant that is received beyond the time for objecting specified in §F(2) of this regulation shall be considered only upon a showing of good cause made by the complainant.

    (b) Factors to be considered in determining whether good cause exists include but are not limited to:

      (i) The amount of time elapsed since the complainant last had contact with the Commission;

      (ii) The circumstances surrounding the complainant's failure to inform the Commission of their whereabouts; and

      (iii) Prejudice to the respondent.

G. Dismissal of Proceedings. The Executive Director or designee may dismiss cases which have not been certified for public hearing, at any state of the proceeding in accordance with COMAR 14.03.01.04E.

#### Regulation .07 Mediation Process.

*COMAR 14.03.05.07*

A. Mediation.

  (1) To promote a prompt and just resolution of a complaint, parties to a complaint are encouraged to enter into mediation to settle the complaint.

  (2) Before the commencement of an investigation of a complaint, Commission staff shall review the complaint to determine whether mediation would be appropriate.

  (3) The Commission shall provide each party with written notice of the opportunity to mediate.

B. Process.

  (1) Participation in mediation is voluntary. Before mediation may occur, all parties shall sign a request form indicating their intent to mediate the complaint.

  (2) Upon receipt of a signed mediation request from all parties, the Commission shall suspend the normal investigation process and the parties shall be assigned to a neutral mediator in an attempt to resolve the complaint.

  (3) As a condition precedent to the convening of any mediation meeting, the Commission may require a party to submit information which will facilitate an understanding of the case and promote its resolution.

  (4) Information shared with the mediator during the mediation meeting may not become a part of the investigative record and may not be used against any party.

C. Agreement. If the parties reach an agreement to settle the complaint:

  (1) The terms of the agreement shall be put in a written document and signed by all parties; and

  (2) The complainant shall authorize a withdrawal of the complaint.

D. Order of the Commission. An agreement resulting from the mediation shall be executed on behalf of the Commission by the Executive Director or designee and shall constitute an order of the Commission as provided by law.

E. Termination of Mediation Efforts.

  (1) If no agreement is reached within 20 days of the initial meeting, the mediator shall refer the complaint back to the Commission for processing. The mediator may extend the 20-day period with the consent of the parties.

  (2) The mediator shall destroy all information gathered during the mediation meeting.

#### Regulation .08 Investigative Process.

*COMAR 14.03.05.08*

A. Investigations.

  (1) Upon the authorization of a complaint, the Executive Director or designee, within 30 days after the filing of the complaint, shall assign, or cause to be assigned, the investigation of the complaint to an investigative unit.

  (2) Commission staff shall direct and conduct investigations in a manner consistent with State Government Article, §§20-207, 20-1005, and 20-1006, Annotated Code of Maryland.

  (3) In determining whether to proceed further with an investigation and in making findings, the Commission staff may consider any evidence provided by the complainant or the respondent as to the following factors:

    (a) Whether there was an intent to discriminate on the part of the respondent;

    (b) Whether there was a pattern and practice of discrimination on the part of the respondent;

    (c) Any actions taken by the respondent to remedy the alleged discrimination;

    (d) The effectiveness of any prior attempts by the respondent to remedy the discrimination;

    (e) Whether the respondent has procured goods or services from or otherwise engaged in business with persons or entities of the same protected class as the complainant to an extent sufficient to demonstrate that the respondent has not discriminated against that protected class in the overall context of its business; and

    (f) Any other evidence considered relevant by the Commission.

  (4) The Commission may request assignment of additional State personnel or outside consultants as may be reasonably necessary or appropriate to conduct an investigation.

B. Systemic Processing.

  (1) The Executive Director or designee may identify the complaint for systemic processing when the Executive Director or designee determines that:

    (a) The alleged commercial discrimination or retaliation practices contained in the complaint are pervasive within a particular industry or institutional in nature;

    (b) The processing of the complaint will involve complex issues, or novel questions of law or fact; or

    (c) A large number of business entities within a particular industry will be affected.

  (2) The determination in §B(1) of this regulation may be based on the facts of the complaint or on information gathered in connection with an investigation.

  (3) A systemic investigation may focus on:

    (a) Documenting facts involved in the alleged commercial discrimination or retaliation practice that is the subject of the complaint; and

    (b) Reviewing other policies and procedures related to the matters under investigation, to ensure their compliance with the commercial nondiscrimination and retaliation requirements of State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

C. Conduct of Investigation.

  (1) Fact-Finding Conference. The Commission staff may require that the complainant and respondent appear at a fact-finding conference convened to:

    (a) Define the issues contained in a complaint;

    (b) Determine which elements are undisputed; and

    (c) Resolve those issues that can be resolved and ascertain whether or not there is a basis for a negotiated settlement of the complaint.

  (2) Request for Information.

    (a) The Commission staff shall exercise reasonable judgment in seeking relevant evidence from the complainant, the respondent, and as necessary, external sources.

    (b) The Commission staff shall require the respondent or an external source to promptly provide answers to requests for information that will be used to assist in determining the merits of the allegations contained in the complaint.

    (c) The request for information shall be accompanied by the following:

      (i) A copy of the charge; and

      (ii) The date on which the response shall be submitted.

    (d) Additional requests for information may be made to further the investigation.

  (3) Interrogatories—Content and Response.

    (a) The Commission staff may serve, upon authorization by the Executive Director or designee, interrogatories on a respondent by registered or certified mail, or by personal service.

    (b) The interrogatories shall be accompanied by the following:

      (i) The date by which a response is required, which date may not be less than 30 days after the date on which the interrogatories were delivered to the respondent; and

      (ii) A statement describing the consequences to the respondent if the respondent fails to answer the interrogatories, as set forth in Regulation .09 of this chapter.

    (c) The interrogatories shall be answered within the time prescribed in the accompanying notice and shall be under oath.

    (d) Time extensions shall be granted for good cause shown and upon a written request submitted to the Commission's Executive Director or designee.

    (e) Upon a determination that they are relevant or necessary to complete the administrative process, subsequent interrogatories may be authorized and promulgated by the Commission's staff.

  (4) Motion to Strike or Exceptions.

    (a) The respondent may file a motion to strike or exceptions to the interrogatories within the time period set forth in §C(3)(b)(i) of this regulation.

    (b) The motion or exceptions shall state the reason for them and be supported by a memorandum of points and authorities.

    (c) The Executive Director or designee shall rule on the motion papers without oral argument.

    (d) If the motion or exceptions are granted, the interrogatories may be limited, modified, or stricken in accordance with the order of the Executive Director or designee.

    (e) If the motion or exceptions are denied, or if the order of the Executive Director or designee requires the respondent to answer any portion of the interrogatories, the respondent shall be given not more than 10 days from the date of receipt of the order to answer the interrogatories.

  (5) Investigatory Subpoena.

    (a) Pursuant to its authority under State Government Article, §20-1010, Annotated Code of Maryland, Commission staff may issue a subpoena upon written authorization of the Executive Director or designee.

    (b) If completion of an investigation requires the issuance of a subpoena, the Commission staff may, upon written authorization of the Executive Director or designee, issue a subpoena to compel the:

      (i) Attendance and testimony of a witness; or

      (ii) Production of books, papers, records, and documents relevant or necessary to the investigation.

    (c) Service of this subpoena shall be made in accordance with State Government Article, §20-1010(b), Annotated Code of Maryland.

    (d) The subpoena shall contain the following:

      (i) The name of the person whose testimony is required;

      (ii) Identification of the books, papers, records, and documents to be submitted;

      (iii) The time, date, and location where the person subpoenaed is directed to appear and produce the information sought, which date may not be less than 15 days after the date on which the subpoena was served; and

      (iv) The signature of the Executive Director authorizing the issuance of the subpoena.

    (e) Upon failure by the person subpoenaed to appear, or to produce the requested records, documents, papers, or books, the Executive Director or designee may apply to the circuit court in the city or county having jurisdiction for an order requiring the attendance and testimony of the person subpoenaed, or the production of the requested records, documents, papers, or books.

  (6) Confidentiality.

    (a) In accordance with State Government Article, §20-1101, Annotated Code of Maryland, the Public Information Act, and the Open Meetings Act, the Commission shall protect the confidential nature of information relating to an investigation.

    (b) Permissive Disclosure of Information. Information relating to an investigation may be disclosed in the following circumstances:

      (i) Any information may be released at any time if the release has been agreed to in writing by both the complainant and the respondent;

      (ii) The identity of the complainant may be disclosed to the respondent at any time; and

      (iii) Information may be disclosed if a party requests a contested case hearing.

    (c) Protective Orders.

      (i) The Commission may issue a protective order for good cause to limit, or otherwise impose conditions on, access by any person to any document in the possession of a party.

      (ii) A protective order issued under this regulation may include a document in the possession of the State or otherwise in the record that is not a public record and information disclosed in accordance with State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

#### Regulation .09 Interrogatories — Default Procedure.

*COMAR 14.03.05.09*

A. If, after a respondent has been served with duly authorized interrogatories together with a notice of the consequences of the failure to answer them, the respondent fails either to answer the interrogatories or to file a motion to strike or exceptions to the interrogatories within the time specified, the Executive Director or designee shall serve or cause to be served upon the respondent the following notice:

  (1) An admission that the interrogatories, if answered, would have established facts consistent with the claim of the complainant; and

  (2) A waiver of your right to have this Commission conduct further investigation, find whether there is probable cause, make conciliation efforts, or hold a hearing allowing the presentation of any and all defenses to the complaint which you might have otherwise raised.”

B. Upon failure by the respondent to file full and complete answers to the interrogatories in accordance with this notice, the Executive Director or designee may certify the file and forward it to the general counsel.

C. The general counsel shall prepare the following for submission to the Office of Administrative Hearings:

  (1) The case file;

  (2) A petition seeking a default order; and

  (3) An affidavit of the Executive Director or designee.

D. The affidavit shall include:

  (1) A statement that the complainant has filed the allegations of commercial discrimination or retaliation within the time prescribed in the State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland;

  (2) The date of service of the complaint and interrogatories on the respondent;

  (3) The date of service of any notices requiring an answer to the interrogatories, or extending the time in which to answer;

  (4) The date of service of the complaint and interrogatories as appears from the return of process;

  (5) A statement that the respondent has failed to reply to the interrogatories within the time required; and

  (6) A statement that the respondent has been given notice of the consequences of failure to respond to the interrogatories.

E. Administrative Determination.

  (1) An administrative law judge shall determine whether the respondent is in default, issue the appropriate order, and serve a copy of the order on all parties.

  (2) If the administrative law judge determines that the respondent is not in default, the administrative law judge shall deny the petition and return the case file to the Executive Director or designee for further investigative proceedings.

  (3) If the administrative law judge determines that the respondent is in default, the administrative law judge may impose any or all of the sanctions set forth in §A of this regulation as the administrative law judge finds appropriate.

F. Petition to Vacate Default Order.

  (1) Within 30 days after notice to the respondent of the entry of any default order, the respondent may petition the Commissioners sitting in their appellate capacity, as set forth in COMAR 14.03.01.12, to vacate the order and reopen the case for good cause shown.

  (2) The respondent's assertion of good cause shall be in the form of an affidavit and shall include full and complete answers to the unanswered interrogatories.

  (3) Oral argument may not be permitted.

G. Issuance of Default Order. After the issuance of an order by the administrative law judge imposing sanctions:

  (1) The case shall be logged in the Commission's official docket book for the purpose of certifying the case for public hearing of the complainant's evidence in support of the allegation of commercial discrimination or retaliation;

  (2) Finding of probable cause shall be considered made against the respondent; and

  (3) Failure of conciliation shall be presumed by respondent's default.

H. Public Hearing.

  (1) The public hearing to be subsequently held on the merits of the complaint shall be limited to whatever sanctions may be applied pursuant to §A of this regulation.

  (2) The hearing may result in the issuance of a commission order, pursuant to State Government Article, §20-1009(e), Annotated Code of Maryland.

#### Regulation .10 Completion of Investigation.

*COMAR 14.03.05.10*

A. Written Findings.

  (1) The Commission shall set forth the results of its investigation in a written report entitled “written findings” which shall chronicle the facts found to exist and the conclusions drawn.

  (2) The Commission staff shall make an initial finding of each allegation stated in the complaint, to include a finding of:

    (a) Probable cause;

    (b) No probable cause;

    (c) False or frivolous;

    (d) Settled; or

    (e) Withdrawn.

  (3) Except as provided in §A(4) of this regulation, the Commission shall make the initial findings and issue recommendations for appropriate action within 120 calendar days of the receipt of the complaint.

  (4) The Commission may extend the time limit set forth in §A(3) of this regulation if:

    (a) Good cause exists; or

    (b) The parties agree to mediate a settlement to the complaint.

  (5) The Commission shall serve written findings on all parties to the complaint.

B. Probable Cause.

  (1) The Commission shall determine whether, based upon a preponderance of the evidence and the totality of the factual circumstances known at the time of the decision, probable cause exists to believe that a commercial discrimination or retaliation practice has occurred.

  (2) The Commission shall base a probable cause determination on the facts concerning the alleged commercial discrimination or retaliation practice, provided by the complainant, respondent, or otherwise obtained and disclosed during the investigation.

  (3) If the Commission determines that probable cause exists, the Commission shall notify the complainant and respondent within 5 business days of the issuance of initial findings and recommendations and include an explanation of the reasons justifying the initial findings.

C. No Probable Cause.

  (1) If, based upon a preponderance of the evidence, the investigation fails to produce sufficient evidence to find that the alleged commercial discrimination or retaliation occurred, the Commission may issue a finding of no probable cause.

  (2) If the Commission determines that no probable cause exists, the Commission shall notify the complainant and respondent within 5 business days of the issuance of initial findings and recommendations and include an explanation of the reasons justifying the initial findings.

D. False or Frivolous Claim.

  (1) Based upon a preponderance of the evidence, the Commission may issue a finding that the claim is false or frivolous if:

    (a) The investigation produced sufficient evidence to establish that the complainant knowingly made one or more false or frivolous allegations; and

    (b) Further investigation does not appear likely to produce sufficient evidence that the alleged commercial discrimination or retaliation occurred.

  (2) If the Commission determines that the claim is false or frivolous, the Commission shall notify the complainant and respondent within 5 business days of the issuance of initial findings and recommendations and include an explanation of the reasons justifying the initial findings.

E. Recommendation for Appropriate Action.

  (1) Upon completion of the investigation, the Commission staff shall recommend to the Commission the appropriate action to be taken.

  (2) Commission staff may recommend the following actions:

    (a) Additional investigation of the complaint;

    (b) The Commission's adoption of the initial findings rendered by the Commission staff;

    (c) Imposition of sanctions;

    (d) Imposition of remedies; or

    (e) Other action consistent with State Finance and Procurement Article, §19-108(d), Annotated Code of Maryland.

  (3) In determining appropriate action on a commercial discrimination claim, the Commission may take into account evidence provided or discovered in the course of the investigation regarding:

    (a) The impact of the discrimination on affected parties;

    (b) The impact of any authorized remedy on the State or any other party;

    (c) Actions taken by the respondent to remedy the alleged discrimination;

    (d) The effectiveness of any prior attempts by the respondent to remedy the discrimination;

    (e) Whether the respondent has procured goods or services from or otherwise engaged in business with persons or entities of the same protected class as the complainant to an extent sufficient to demonstrate that the respondent has not discriminated against that protected class in the overall context of its business;

    (f) The number and scope of prior violations of this policy by the respondent; and

    (g) Any other evidence determined to be relevant by the Commission.

  (4) Unless a contested case hearing is requested in accordance with Regulation .12 of this chapter, the Commission's findings and recommendations shall become the final administrative decision of the State, subject to judicial review pursuant to Regulation .16 of this chapter.

F. Reconsideration.

  (1) If the findings conclude that there is no probable cause to believe that a discriminatory or retaliatory act has been or is being committed, the complainant shall be given the opportunity to apply to the Commission's Executive Director or designee for reconsideration of the Commission's written findings and recommendations.

  (2) Reconsideration Process.

    (a) The application and authority shall be in writing and shall state specifically the grounds upon which it is based.

    (b) The application and authority shall be filed with the Executive Director or designee within 15 days from the date on which the findings were mailed to the complainant.

    (c) The Commission shall promptly give the respondent written notice that the complainant has requested reconsideration.

    (d) Not later than 30 days after receipt of an application, the Executive Director or designee shall review the entire file, including the request for reconsideration, and may:

      (i) Grant or deny the application for reconsideration; and

      (ii) Issue an order the Executive Director or designee considers appropriate.

    (e) Not later than 30 days after making a determination, the Executive Director or designee shall notify the complainant and respondent in writing of the determination, and do one of the following:

      (i) If the application for reconsideration is granted, remand the matter to the investigative staff for the appropriate action; or

      (ii) If the application for reconsideration is not granted, administratively close the case.

  (3) The times set forth in §F of this regulation may be extended by the Executive Director or designee for good cause.

#### Regulation .11 Conciliation Process.

*COMAR 14.03.05.11*

A. Upon a written finding of probable cause, the Commission, the complainant, and the respondent shall enter the conciliation process.

B. Written notice of the opportunity to conciliate shall be provided to the parties.

C. Termination of Conciliation Efforts—Respondent's Actions.

  (1) The Commission may terminate its efforts to conciliate if a respondent fails or refuses to:

    (a) Confer with Commission staff; or

    (b) Negotiate in good faith to resolve the dispute.

  (2) If the prerequisites listed in §C(1) of this regulation are met, the Executive Director or designee may:

    (a) Terminate the efforts to conciliate;

    (b) Notify the parties that conciliation has failed; and

    (c) Certify the case for public hearing as set forth in Regulation .13 of this chapter.

D. Termination of Conciliation Efforts—Complainant's Actions.

  (1) The Executive Director or designee may administratively close a case if the complainant:

    (a) Fails to negotiate in good faith; or

    (b) Rejects an offer of settlement or compromise made by the respondent, in a formal offer of settlement, which provides the complainant with the full relief which is available under State Finance and Procurement Article, §§19-108(d) and 19-110, Annotated Code of Maryland.

  (2) Before administratively closing the case, the Executive Director or designee shall:

    (a) Provide written notice to the complainant;

    (b) Give the complainant 15 days after the mailing of the notice to object in writing and give reasons why the case should not be administratively closed;

    (c) Consider the objections filed by the complainant;

    (d) Administratively close the case, if no objections are filed; and

    (e) Promptly notify both the complainant and the respondent of the determination.

E. Prohibitions and Requirements—Disclosure of Information Obtained During Conciliation.

  (1) Except as provided in §E(2) of this regulation, nothing that is said or done in the course of conciliation under this regulation shall be made public or used as evidence in a subsequent administrative hearing under State Finance and Procurement Article, §19-109, Annotated Code of Maryland, without written consent of the persons concerned or as otherwise permitted by law.

  (2) Conciliation agreements shall be made public unless:

    (a) The aggrieved person and respondent request nondisclosure; and

    (b) The Commission determines that disclosure is not required to further the purposes of State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland.

  (3) Notwithstanding a determination that disclosure of a conciliation agreement is not required, the Commission may publish tabulated descriptions of the results of all conciliation efforts.

F. Review of Compliance with Conciliation Agreement.

  (1) The Commission may review compliance with the terms of any conciliation agreement.

  (2) Whenever the Commission has reasonable cause to believe that a respondent has breached a conciliation agreement, the Commission general counsel may file a civil action for the enforcement of the terms of the conciliation agreement.

G. Order of the Commission. An agreement resulting from conciliation shall be executed on behalf of the Commission by the Executive Director or designee and shall constitute a final order of the Commission as provided by law.

#### Regulation .12 Request for Contested Case Hearing.

*COMAR 14.03.05.12*

A. Who May Request. A request to submit a matter to an administrative hearing as a contested case hearing under this chapter may be made by a:

  (1) Respondent upon a Commission determination of probable cause for one or more of the allegations stated in the complaint against the respondent, and the failure of timely conciliation; or

  (2) Complainant if the Commission determines that one or more allegations contained in the complaint were knowingly false or frivolous when made.

B. Manner of Request.

  (1) A party shall request a contested case hearing by filing a written notice with the Commission within 15 calendar days of notice of the initial findings and recommendations.

  (2) The notice shall contain the following information:

    (a) A demand that the matter be referred to the Office of Administrative Hearings for a contested case hearing in accordance with State Government Article, §10-205(c)(2), Annotated Code of Maryland;

    (b) The names, addresses, and telephone numbers of the Commission, the business entity's representatives, and any other parties;

    (c) A reference to State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland; and

    (d) A summary of the Commission's findings and recommendations that are being submitted for resolution to the administrative law judge for the contested case hearing.

  (3) The requesting party shall immediately serve notice of the request for a contested case hearing upon all other parties.

C. Failure to Properly Request Hearing.

  (1) If a respondent fails to properly request a contested case hearing:

    (a) The initial findings and recommendations of the Commission shall become the final administrative decision of the State; and

    (b) The Commission shall then be authorized to enter any order and to take any action reasonably necessary or convenient to:

      (i) Implement remedies under State Finance and Procurement Article, §19-110, Annotated Code of Maryland;

      (ii) Impose sanctions under State Finance and Procurement Article, §19-111, Annotated Code of Maryland; and

      (iii) Govern the conduct of the parties in the manner described under State Finance and Procurement Article, §19-112, Annotated Code of Maryland, so that the purposes of the commercial nondiscrimination policy are achieved.

  (2) If a complainant fails to properly request a contested case hearing regarding a determination that a claim is false or frivolous, the initial findings and recommendations of the Commission shall become the final administrative decision of the State.

D. When a Request for Contested Case Hearing Is Not Made.

  (1) If a timely contested case hearing is not requested, the Commission may vacate the Commission staff's recommended remedy on written notice to all parties within 5 business days after the time for requesting a contested case hearing has expired.

  (2) In the absence of such notice as described in §D(1) of this regulation, the Commission is considered to have approved the Commission staff's recommended remedy.

#### Regulation .13 Certification for Hearing and Preliminary Proceedings.

*COMAR 14.03.05.13*

A. Certification of File.

  (1) Upon receipt of a request for a contested case hearing, the Executive Director or designee shall certify the case for public hearing.

  (2) An entry identifying this case shall be logged in the Commission's official docket book, which shall be maintained by the Executive Director for cases pending public hearing.

  (3) The Executive Director or designee shall forward the certified file to the Commission's General Counsel for further processing.

  (4) The General Counsel, on review of a file so certified, may remand the case to the Executive Director or designee for:

    (a) Further investigation and, in this case, shall state clearly the issues requiring further investigative proceedings; or

    (b) Review of the findings and, in this case, shall state clearly the reason for the review.

B. Statement of Charges.

  (1) For each contested case hearing properly requested, the Commission shall:

    (a) File a statement of charges with the Office of Administrative Hearings; and

    (b) Request a hearing before an administrative law judge in a manner consistent with the requirements of COMAR 28.02.01.04.

  (2) The statement of charges shall contain:

    (a) An allegation that the person on whose behalf the complaint is being issued is a proper complainant within the meaning of State Finance and Procurement Article, §19-106, Annotated Code of Maryland;

    (b) An allegation that the respondent is the proper respondent within the meaning of, and subject to provisions of State Finance and Procurement Article, §19-102, Annotated Code of Maryland;

    (c) A factual allegation or allegations of an unlawful commercial discrimination or retaliation practice or practices; and

    (d) A request for relief sought.

C. Answer.

  (1) Any answer made to the statement of charges shall be filed within 15 days after service of the statement of charges.

  (2) Upon application in writing to the administrative law judge before the end of the 15 days, the administrative law judge may extend the time within which the answer may be filed upon a showing of good cause.

  (3) The answer shall be filed with the Office of Administrative Hearings and the original of the answer shall be signed under oath or affirmation of the respondent and shall contain:

    (a) The name and address of the respondent;

    (b) The name, address, and telephone number of the respondent's attorney, if any;

    (c) A specific admission, denial, or assertion that the respondent is without sufficient knowledge or information to form a belief with respect to each and every allegation of the complaint;

    (d) A statement of any matter constituting a defense to any allegations in the statement of charges; and

    (e) A certification that service of this answer has been made upon all other parties.

  (4) Any allegation in the statement of charges which is not denied or admitted in the answer is considered admitted, unless the respondent states in the answer that it is without sufficient knowledge or information to form a belief with respect to this allegation.

  (5) Any allegation of new matter contained in the answer is considered denied without the necessity of a reply being filed, unless a reply is ordered by the administrative law judge conducting the hearing.

#### Regulation .14 Administrative Hearing Proceedings.

*COMAR 14.03.05.14*

A. General Information.

  (1) Scope. This regulation applies only to an administrative law judge adjudication of a request for a contested case hearing filed in accordance with Regulation .12 of this chapter pursuant to State Finance and Procurement Article, §19-109, Annotated Code of Maryland.

  (2) Venue. The Commission may designate the venue for the contested case hearing, taking into consideration the convenience of the parties and the location of the evidence.

  (3) Burden of Proof. The Commission shall bear the burden of proof by a preponderance of the evidence.

  (4) The Office of Administrative Hearings shall conduct a contested case hearing in accordance with its rules of procedure under COMAR 28.02.01.

  (5) Time Computation.

    (a) Time computations under this regulation shall be in accordance with Article 1, §36, Annotated Code of Maryland.

    (b) Except for time periods required by statute, the administrative law judge may enlarge or reduce any time period required under this regulation when necessary to avoid prejudicing the public interest or the rights of the parties.

    (c) In computing any time period involved, the date of issuance of an order or decision by an administrative law judge is the date the order or decision is served by the Office of Administrative Hearings.

    (d) A document is not filed until received by the Office of Administrative Hearings.

  (6) Service and Filing.

    (a) Service of a document under this regulation shall be in accordance with COMAR 28.02.01.24.

    (b) A copy of all filed documents shall be served on all parties of record.

    (c) All filed documents shall clearly state:

      (i) The docket number, if any;

      (ii) The title of the proceeding; and

      (iii) Certificate of service.

    (d) A party shall file all documents with the Office of Administrative Hearings.

B. Administrative Law Judge.

  (1) Authority. The powers and duties of an administrative law judge shall be in accordance with COMAR 28.02.01.08A and B.

  (2) Disqualification. A disqualification of an administrative law judge shall be in accordance with COMAR 28.02.01.08C.

  (3) Ex Parte Communications. An ex parte communication shall be defined and prohibited in accordance with State Government Article, §10-219, Annotated Code of Maryland.

C. Parties. Parties to the proceeding shall include:

  (1) The Commission that files the charge under Regulation .13B of this chapter seeking appropriate relief for an aggrieved party and the public interest;

  (2) A complainant who is the person who files a complaint of commercial discrimination or retaliation issued under Regulation .05 of this chapter;

  (3) A respondent who is the person named in the complaint of commercial discrimination or retaliation issued under Regulation .05 of this chapter against whom relief is sought; and

  (4) Representation of the parties, which shall be in accordance with COMAR 28.02.01.09.

D. Pleadings and Motions.

  (1) Pleadings.

    (a) Form. Every pleading, motion, brief, or other document shall contain a caption setting forth the:

      (i) Title of the proceeding;

      (ii) Case number assigned by the Commission; and

      (iii) Designation of the type of document, for example, charge, answer, or motion to dismiss.

    (b) Signature.

      (i) Every pleading, motion, brief, or other document filed by a party shall be signed by the party, the party's representative, or the attorney representing the party, and shall include the signer's address and telephone number.

      (ii) The signature constitutes a certification that the signer has read the document, that to the best of the signer's knowledge, information, and belief there is good ground to support the document, and that it is not interposed for delay.

  (2) Motions. All motions to an administrative law judge shall be in accordance with COMAR 28.02.01.16 except as otherwise provided in §G(4) of this regulation.

E. Discovery. Discovery shall be conducted in accordance with COMAR 28.02.01.10.

F. Subpoenas. A subpoena shall be issued in accordance with State Government Article, §20-1010, Annotated Code of Maryland, and COMAR 28.02.01.11.

G. Prehearing Procedures.

  (1) Prehearing Conference. A prehearing conference shall be conducted in accordance with COMAR 28.02.01.13.

  (2) Notice of Prehearing Conference and Hearing.

    (a) The administrative law judge shall set the matter in for a prehearing conference, hearing, or both, on the earliest date practicable.

    (b) The administrative law judge shall, by registered or certified mail, forward to the complainant and to the respondent, a statement of the charges and a notice of prehearing conference or hearing, which shall include the following:

      (i) The place, date, and hour of the prehearing conference, public hearing, or both;

      (ii) A statement advising both the complainant and respondent of their respective rights to appear and be represented in this hearing in person, by their attorneys, or both, and that the case in support of the complaint shall be presented by the Commission's General Counsel;

      (iii) A statement advising the respondent of the right to file an answer to the statement of charges; and

      (iv) The name of the administrative law judge designated to conduct the prehearing conference or hearing, or a statement that an administrative law judge will be subsequently designated.

    (c) The administrative law judge shall forward a copy of the notice of prehearing conference, public hearing, or both, to the General Counsel of the Commission.

    (d) The prehearing conference, public hearing, or both, may not occur less than 20 or more than 60 days after the issuance and service of the statement of charges and notice of prehearing conference, public hearing, or both.

  (3) Prehearing Memorandum.

    (a) Before the commencement of a prehearing conference, the administrative law judge may direct parties to file a prehearing memorandum.

    (b) Contents of Memorandum. The memorandum shall state the name of the party or parties presenting the statement and, unless otherwise directed by the administrative law judge, briefly set forth the following:

      (i) Issues involved in the proceeding;

      (ii) Facts stipulated by the parties and a statement that the parties have made a good faith effort to stipulate to the greatest extent possible;

      (iii) Facts in dispute;

      (iv) Witnesses and exhibits to be presented at the hearing;

      (v) A brief statement of applicable law;

      (vi) Conclusions to be drawn;

      (vii) Estimated time required for presentation of the party's case; and

      (viii) Such other information as may assist in the disposition of the proceeding.

  (4) Preliminary Matters—Motions.

    (a) All preliminary matters shall be raised by motion filed at either the prehearing conference or not later than 45 days before the public hearing.

    (b) The motion shall be in writing, stating briefly the relief applied for, with a memorandum stating the reasons and any law that may support the motion.

    (c) The motion and two copies together with a certificate of mailing to all parties shall be filed with the administrative law judge.

    (d) An answer to a preliminary motion shall be in writing and include:

      (i) A memorandum stating the reasons and any law that may be in support of the answer; and

      (ii) Certification that a copy has been mailed to all parties.

    (e) The original and two copies of the answer shall be filed with the administrative law judge within 15 days of receipt of the original motion unless otherwise directed by the administrative law judge.

    (f) The administrative law judge shall decide all motions without oral argument on the motions, unless the administrative law judge desires oral argument or testimony.

    (g) If the administrative law judge requests oral arguments, the administrative law judge shall set the date, place, and time, and notify all parties.

  (5) Settlement Conference. If required, a settlement conference shall be conducted in accordance with COMAR 28.02.01.14.

H. Hearing Procedures.

  (1) Date. All parties shall cooperate in good faith to have the contested case hearing concluded within 180 days after the issuance of a notice for a contested case hearing.

  (2) Place. The Commission may designate the venue for the contested case hearing, taking into consideration the convenience of the parties and the location of the evidence pursuant to State Finance and Procurement Article, §19-109(d)(1)(ii), Annotated Code of Maryland.

  (3) Notice of Hearing. The parties shall be notified of the hearing in accordance with §G(2) of this regulation.

  (4) Conduct of Hearing. The hearing shall be conducted in accordance with COMAR 28.02.01.17.

  (5) Evidence. Evidence shall be admitted in accordance with State Government Article, §10-213, Annotated Code of Maryland, and COMAR 28.02.01.18.

  (6) Stipulations. The administrative law judge may accept stipulations in accordance with COMAR 28.02.01.15 upon the showing of mutual consent of all parties.

  (7) Affidavits. The administrative law judge may accept affidavits in accordance with COMAR 28.02.01.15 upon showing:

    (a) Mutual consent of the parties;

    (b) The affiant is unavailable to testify; and

    (c) The party seeking to introduce the affidavit has exercised reasonable diligence to locate the affiant.

  (8) Failure to Attend Hearing and Default. The failure of a party to attend a hearing and the subsequent default process shall be in accordance with COMAR 28.02.01.20.

  (9) Appointment of Interpreter. In situations where an interpreter is required, appointment shall be made in accordance with COMAR 28.02.01.19.

  (10) Public Hearings. Proceedings under this regulation shall be open to the public in accordance with COMAR 28.02.01.21.

  (11) Transcript of Hearing Record.

    (a) The administrative law judge shall cause the testimony taken at the hearing to be transcribed.

    (b) The transcript, together with all pleadings, exhibits, and other materials introduced into evidence, shall constitute the record of the case as defined in State Government Article, §10-218, Annotated Code of Maryland.

#### Regulation .15 Administrative Decisions and Orders.

*COMAR 14.03.05.15*

A. Decision of Administrative Law Judge.

  (1) In General.

    (a) At the conclusion of the contested case hearing, the administrative law judge shall issue a written decision and order including findings of fact and conclusions of law upon each material issue of fact and law presented on record.

    (b) A decision and order of the administrative law judge shall be in accordance with COMAR 28.02.01.22.

    (c) The written decision may:

      (i) Affirm or reject all or part of the statement of charges; or

      (ii) Substitute different findings and recommend appropriate remedies.

    (d) The administrative law judge shall base the decision solely on a preponderance of the evidence contained in the record of the contested case hearing and shall reflect the evidentiary basis for its findings.

    (e) An administrative law judge may consider any evidence regarding the factors described in Regulation .08A(3) of this chapter when determining whether to sustain an allegation presented in a statement of charges.

  (2) Finding Against Complainant—False or Frivolous Complaint. If the administrative law judge finds that the complainant knowingly made a false or frivolous allegation, the administrative law judge shall make an initial decision dismissing the charge and order such relief as may be appropriate.

  (3) Finding Against Respondent.

    (a) If the administrative law judge affirms all or part of an allegation contained in the statement of charges, the administrative law judge may take additional evidence on the appropriate remedy to be recommended pursuant to State Finance and Procurement Article, §19-110(a), Annotated Code of Maryland.

    (b) The administrative law judge may consider:

      (i) Evidence relating to the factors described in Regulation .10E(3) of this chapter; and

      (ii) Other evidence considered relevant by the administrative law judge.

    (c) Recommendations for Appropriate Action. If the administrative law judge affirms all or part of an allegation contained in the statement of charges, the administrative law judge may order any one or more of the following actions:

      (i) Any remedy agreed upon by the respondent, complainant and the Commission;

      (ii) Referral of the complainant to the Board of Public Works for a determination of disbarment pursuant to State Finance and Procurement Article, §§16-306 and 16-307, Annotated Code of Maryland, to preclude the business entity from bidding on or receiving contract awards on State projects, and participating in State contracts as a subcontractor, vendor, or supplier for a period of not more than 3 years;

      (iii) Rescission, suspension, or termination of any current contract between the respondent and the State under the terms of that contract;

      (iv) Exercise any other rights or remedies available to the State under any current contract between the respondent and the State;

      (v) Finding that the respondent is not a “responsible bidder” within the meaning of State Finance and Procurement Article, §11-101(r), Annotated Code of Maryland, with respect to specific contracts that the State has put out for bids or intends to put out for bids;

      (vi) Referral of the matter for criminal prosecution of fraud and other violations under State law if appropriate under the circumstances; or

      (vii) Mediation.

  (4) Finding in Favor of Respondent. If the administrative law judge determines that the respondent has not engaged in an unlawful act of commercial discrimination or retaliation, the administrative law judge shall make an initial decision dismissing the charge.

B. Service of Decision. The decision of the administrative law judge shall be delivered to all parties with a notice indicating the right of any party to appeal the decision in accordance with State Finance and Procurement Article, §19-113, Annotated Code of Maryland, and Regulation .16 of this chapter.

C. Final Decision and Order.

  (1) The written opinion of the administrative law judge shall become the final administrative decision of the State, subject to judicial review pursuant to Regulation .16 of this chapter.

  (2) On issuance of the final decision, the Commission or the administrative law judge may enter any order reasonably necessary or convenient to govern the conduct of the State and the parties so that the purposes of the commercial nondiscrimination policy are achieved.

D. Costs.

  (1) Notwithstanding any contrary provision contained in these regulations or State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, each party shall bear the costs of its own legal representation and expert witness fees.

  (2) If the administrative law judge finds that one or more allegations giving rise to the Commission's findings or the respondent's challenge to the findings were knowingly false or frivolous when made, the administrative law judge may require the party who made the knowingly false or frivolous allegations to bear all or a portion of the other party's legal fees and expert witness fees.

E. Applicable Provisions. To the extent that procedures and standards stated in this regulation differ from those contained in Title 10, Subtitle 2 of the State Government Article, these regulations shall govern, but in all other respects, the provisions in the State Government Article shall govern.

#### Regulation .16 Judicial Review and Enforcement of Final Decision and Order.

*COMAR 14.03.05.16*

A. Judicial Review of Final Decision and Order. Any party who, after having exhausted all administrative remedies available, is aggrieved by a final decision of the Commission or the administrative law judge issued under this chapter may seek judicial review pursuant to State Government Article, §10-222, Annotated Code of Maryland.

B. Enforcement of Final Decision and Order. Following the issuance of a final decision and order under this chapter, the Commission’s General Counsel may petition the appropriate circuit court for the enforcement of the final decision and order and for appropriate temporary relief or restraining order in accordance with State Government Article, §20-1011, Annotated Code of Maryland.

#### Regulation .17 Required Language in State Contracts.

*COMAR 14.03.05.17*

Every contract that the State enters into shall contain the commercial nondiscrimination policy clause, as written in State Finance and Procurement Article, §19-116, Annotated Code of Maryland.

#### Regulation .18 Public Information Act Requests.

*COMAR 14.03.05.18*

A. General.

  (1) This regulation sets out the procedures for filing requests with the Maryland Commission on Human Relations for the inspection and copying of records under the Public Information Act, State Government Article, §§10-611—10-630, Annotated Code of Maryland.

  (2) It is the policy of the Commission to facilitate public access to records of the Commission, if that access is allowed by law, by minimizing costs and time delays to persons requesting information.

  (3) It is the policy of the Commission to safeguard and preserve the confidentiality of investigations of complaints made under State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, by restricting access to records when access is prohibited or restricted by law.

B. Definitions.

  (1) “Act” means the Public Information Act, State Government Article, §§10-611—10-628, Annotated Code of Maryland.

  (2) “Applicant” means a person requesting disclosure of public records.

  (3) “Commission” means the Maryland Commission on Human Relations.

  (4) Custodian or Official Custodian.

    (a) “Custodian” or “official custodian” means the person who is responsible for maintenance, care, and keeping of the public records of the Commission.

    (b) Unless otherwise provided by law, the Executive Director or designee is the official custodian of the Commission's records.

  (5) “Executive Director” means the Executive Director of the Maryland Commission on Human Relations, or designee.

  (6) “Investigative case file” means any record, regardless of physical form, generated or received by Commission staff during the course of the investigation until the stage of public hearing of a complaint alleging a violation of the Commercial Nondiscrimination Policy pursuant to State Finance and Procurement Article, §§19-101—19-120, Annotated Code of Maryland, including the complaint itself and any documents indicating the identity of a complainant or respondent.

  (7) “Public hearing” means any public hearing or trial before either the Office of Administrative Hearings or any federal or State court of law.

  (8) Public Record.

    (a) “Public record” means all papers, correspondence, forms, books, photographs, photostats, films, microfilms, sound recordings, video recordings, maps, drawings, or other written documents, regardless of physical form or characteristics.

    (b) “Public record” includes all copies made or received by the Commission in connection with “investigative case files” as defined in §B(6) of this regulation, and as set forth in Regulation .19E of this chapter.

    (c) “Public record” includes salaries of all employees of the Commission.

  (9) “Working day” means a day other than Saturday, Sunday, or a State holiday.

  (10) “Written document” means all books, papers, maps, photographs, cards, tapes, recordings, computerized records, and other documentary material, regardless of physical form or characteristics.

C. Retention of Investigative Case Files.

  (1) The custodian shall maintain, as a public record of the Commission, all documents made or received by the Commission contained in the investigative case files, for a period of 18 months from the date of final disposition.

  (2) Final disposition means the:

    (a) Commission has found no probable cause, or has otherwise terminated the investigation;

    (b) Administrative law judge has rendered their decision; or

    (c) Time to request judicial review pursuant to Regulation .16 of this chapter has passed.

D. Records Temporarily Unavailable. If a requested public record is in the custody or under the control of the person to whom written application is made but is not immediately available for inspection or copying, the custodian shall, within 10 working days of receipt of the request, so notify the applicant and set a date and hour within a reasonable time for inspection or copying.

E. Records Destroyed or Lost. If a requested record has been destroyed or lost, the custodian to whom written application is made shall, within 10 working days of receipt of the request, notify the applicant of this fact and explain in the response the reasons why the record cannot be produced.

F. Who May Request. Any person may request to inspect or copy a public record of the Commission.

#### Regulation .19 Application and Processing of Public Information Act Requests.

*COMAR 14.03.05.19*

A. Applications.

  (1) A person or governmental unit that wishes to inspect a public record shall submit a written application to the custodian.

  (2) If the individual to whom the application is submitted is not the custodian of the record, within 10 working days after receiving the application, the individual shall give the applicant notice of that fact and, if known, shall provide the name of the custodian and the location or possible location of the public record.

B. Contents of Written Application. A written application shall contain the applicant's name and address, shall be signed by the applicant, and shall reasonably identify by brief description the record sought.

C. Response to Written Application.

  (1) Granting of Request. If the custodian decides to grant a written application for inspection, the custodian shall produce the record for inspection immediately or within a reasonable period that is needed to retrieve the public record, not to exceed 30 days from the date of the application.

  (2) Denial of Request.

    (a) If the custodian denies the application, the custodian immediately shall notify the applicant and within 10 working days, give the applicant a written statement that states the reason for the denial, the legal authority for the denial, and notice of the remedies under State Government Article, §§10-622 and 10-623, Annotated Code of Maryland, for review of denial.

    (b) The custodian shall permit inspection of any part of the record that is subject to inspection and reasonably severable from the material to which access is denied by the custodian.

  (3) Request Made to an Individual Who Is Not the Custodian of the Request Record.

    (a) If a requested public record is not in the custody or control of the person to whom written application is made, that person shall, within 10 working days of the receipt of the request, notify the applicant.

    (b) If the person to whom the application is made knows the name of the custodian of the record or the location or possible location of the record sought, this information also shall be given to the applicant.

  (4) With the consent of the applicant, any time limit imposed under this section may be extended for not more than 30 days.

D. Notification of Persons Who May Be Affected by Disclosure.

  (1) Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure that an application for inspection or copying of the record has been made.

  (2) The custodian may consider the comments of that person before deciding whether to disclose the record of the applicant.

E. Precertification Production of Investigative Case Files.

  (1) Pursuant to State Government Article, §20-1101, Annotated Code of Maryland, during the investigation of any complaint alleging a violation of State Government Article, §§20-301—305, 20-602, 20-606—20-607, 20-705—20-706, and 20-901—20-902, Annotated Code of Maryland, and until the matters reach the stage of public hearings, the Commission is required to hold confidential any information in relation to investigative case files.

  (2) Release of Information.

    (a) Any request for information relating to investigative files before the charge has reached the public hearing stage shall be denied, except those made pursuant to provisions of State Government Article, §20-1101, Annotated Code of Maryland.

    (b) Any information may be released at any time if the release has been agreed to in writing by both complainant and respondent.

    (c) The identity of the complainant may be disclosed to the respondent at any time.

F. Certified Investigative Case Files.

  (1) The custodian may deny inspection of:

    (a) Cases which have been certified for public hearings under Regulation .13 of this chapter, and any other requests for information, in accordance with State Government Article, §10-618, Annotated Code of Maryland; and

    (b) An investigative case file or other document if the custodian believes it would be against public interest, subject to the provisions of §E(2) of this regulation.

  (2) The custodian may deny inspection by a person in interest only to the extent it would:

    (a) Interfere with a valid and proper law enforcement proceeding;

    (b) Deprive another person of a right to a fair trial or an impartial adjudication;

    (c) Constitute an unwarranted invasion of personal privacy;

    (d) Disclose the identity of a confidential source;

    (e) Disclose an investigative technique or procedure;

    (f) Prejudice an investigation; or

    (g) Endanger the life or physical safety of an individual.

G. Privileged Information. A person may not inspect or copy any information which is privileged by law.

#### Regulation .20 Review of the Denial of Public Information Act Requests.

*COMAR 14.03.05.20*

A. Request for Review.

  (1) If a written application is denied by the custodian for a reason other than the record is temporarily unavailable, the applicant may, within 30 days after receipt of the notice of the denial, request administrative review of the denial, as described in §A(2) of this regulation.

  (2) An applicant shall request administrative review of denial of application for information by filing a written request within 30 days of the denial with the Chairperson of the Commission on Human Relations.

  (3) In the written request for review, the applicant shall:

    (a) State their name;

    (b) Sign the request;

    (c) Identify, by brief description, the record sought; and

    (d) Include a copy of the writing from the custodian denying the request.

  (4) The chairperson shall issue the final decision of the Commission within 60 days of the request for review, unless the applicant requests a hearing as described in §A(5) of this regulation.

  (5) Request for Administrative Hearing.

    (a) If the applicant requests a hearing, the hearing shall be conducted by an administrative law judge designated by the chairperson.

    (b) The hearing shall be governed by the Commission's rules of procedure pursuant to COMAR 14.03.01.11G.

    (c) After the hearing, the administrative law judge shall prepare a recommended decision for the chairperson.

    (d) The chairperson shall issue the final decision of the Commission within 60 days of the date of the hearing.

  (6) Request for Judicial Enforcement. If the applicant chooses not to request administrative review under §A(1) of this regulation, the applicant may file an action for judicial enforcement under State Government Article, §10-623, Annotated Code of Maryland, without exhausting that administrative remedy, as provided by State Government Article, §§10-622 and 10-623, Annotated Code of Maryland.

B. Disclosure Against Public Interest.

  (1) If, in the opinion of the Executive Director, disclosure of a public record that is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the Executive Director may temporarily deny the request in writing and apply within 10 working days of the denial to the appropriate court for an order permitting continued denial or restriction of access.

  (2) Notice of an application filed with the circuit court shall be served on the applicant in the manner that is provided for service of process by the Maryland Rules of Procedure.

C. Fees.

  (1) The custodian shall provide copies, printouts, or photographs only upon payment of the applicable fee by the applicant.

  (2) The fees to be charged for any copies, printouts, or photographs shall be established by the Executive Director.

  (3) If the custodian is unable to copy a record within the Commission, the custodian shall make arrangements for the prompt reproduction of the record at public or private facilities outside the Commission.

  (4) In a case as described in §C(3) of this regulation, the custodian shall either collect from the applicant a fee to cover the actual cost of reproduction or direct the applicant to pay the cost of reproduction directly to the facility making the copy.

  (5) Before copying a record, the custodian shall estimate the cost of reproduction and either obtain the agreement of the applicant to pay the costs or demand prepayment of any estimated fee before reproducing the record.

  (6) The official custodian may charge reasonable fees for an official's or employee's time expended searching for requested records or for any time expended preparing records for inspection and copying, except for the first 2 hours of official or employee time that is needed to respond to a request for information.

  (7) Fee Waiver or Reduction.

    (a) Upon request, the official custodian may waive or reduce any fee charged pursuant to this section if the custodian determines that the waiver or reduction is in the public interest.

    (b) The custodian shall consider, among other relevant factors, the ability of the applicant to pay the costs or fee.

  (8) If the applicant requests that copies be mailed or delivered to the applicant, the custodian may charge the applicant for the costs of postage or delivery to the applicant.

D. Time of Inspection. An applicant may inspect any public record that the applicant is entitled to inspect during the normal working hours of the Commission.

E. Place of Inspection. The place of inspection shall be the place where the document is located unless the custodian, after taking into account the applicant's expressed wish, determines another place of inspection is more suitable and convenient.