# COMAR Title 14 — Independent Agencies ## Subtitle 30 — Public Employee Relations Board ### Chapter 08 — Procedures Applicable to All Proceedings **Authority:** State Government Article, §22-306(e), Annotated Code of Maryland **Administrative History:** Effective date: **Administrative History:** Regulation .01 adopted effective April 1, 2002 (29:6 Md. R. 568) **Administrative History:** Regulation .02 adopted effective May 27, 2002 (29:10 Md. R. 826) **Administrative History:** Regulation .03 adopted effective April 1, 2002 (29:6 Md. R. 568) **Administrative History:** Regulations .01—.03 under State Higher Education Labor Relations Board, Permissible Labor-Related Activities repealed and new Regulations .01—.26 under Public Employee Relations Board, Procedures Applicable to All Proceedings adopted effective May 13, 2024 (51:9 Md. R. 414) #### Regulation .01 When a Hearing May Be Held. *COMAR 14.30.08.01* The Board or its delegee shall hold a hearing when: A. The Board finds there is a dispute of a material fact or facts and probable cause that an unfair labor practice has been committed; B. The Board finds that there is a dispute over the appropriateness of a bargaining unit; or C. There is a request to deny or revoke certification of an exclusive representative for willfully failing to comply with the State Government Article, Title 22, Annotated Code of Maryland. #### Regulation .02 Representation Hearings. *COMAR 14.30.08.02* The Board or its delegee may hold a hearing in representation proceedings other than bargaining unit disputes: A. To establish procedures for resolving disputes about negotiability; or B. In impasse proceedings. #### Regulation .03 Informal Resolution with Parties. *COMAR 14.30.08.03* A. Parties on their own may voluntarily settle any matter. B. A Deputy Director may assist the parties with the settlement of an unfair labor practice case. #### Regulation .04 Terms of Settlement. *COMAR 14.30.08.04* Terms of any voluntarily approved settlement shall be approved by the Board. #### Regulation .05 Withdrawal of Charge. *COMAR 14.30.08.05* A party may withdraw a charge prior to the issuance of a complaint by providing notice to the appropriate Deputy Director. #### Regulation .06 Expedited Proceedings at the Board’s Discretion. *COMAR 14.30.08.06* A. If the Board after review and discussion of all the materials in a case determines that there are no material facts in dispute, the Board may choose to expedite review of the case and decide it without a hearing. B. If the Board chooses expedited review, the Chair shall inform the parties that the case will be decided without a hearing, unless the parties show that there are material facts in dispute or offer another compelling reason or reasons. C. In expedited review, the Board shall establish deadlines for the parties to submit a joint statement of material facts, any facts that a party contends are in dispute, and briefs with arguments and precedents in support of their position. D. The Board shall decide the case based on the submissions of the parties. #### Regulation .07 Notice of Hearing. *COMAR 14.30.08.07* A. Service by Mail. Written notice of a Board or delegated hearing shall be delivered by the Board to all parties by mail or email. B. Contents. For Board hearings, the notice shall include: (1) A statement of the date, time, place, nature, and method, whether in-person, by mail, or by electronic means, of the hearing; (2) A statement of the legal authority and jurisdiction under which the hearing is to be held; (3) A reference to the particular sections of the statutes and regulations involved; (4) A copy of the document or documents that prompted the hearing; and (5) Any other information required by State Government Article, §10-208, Annotated Code of Maryland. C. For hearings conducted by the Office of Administrative Hearings, notice shall comply with the requirements of COMAR 28.02.01.05. #### Regulation .08 Determination of Presiding Hearing Officer. *COMAR 14.30.08.08* A. In hearings conducted by the Board, the Chair shall preside for purposes of administering the hearing pursuant to this chapter. B. The Chair may designate a Board member to preside in the Chair’s absence. C. The presiding hearing officer shall fix the time, place, and method for all hearings. #### Regulation .09 Representation. *COMAR 14.30.08.09* A. Except as otherwise provided by law, a party with standing to participate in a proceeding before the Board may appear and represent themselves or be represented by an attorney licensed to practice law in Maryland. B. In the event that an out-of-State attorney seeks to represent a party before the Board, the attorney shall apply for admission under Business Occupations and Professions Article, §10-215, Annotated Code of Maryland, and Rules Governing Admission to the Bar of Maryland, Rule 19-217. #### Regulation .10 Prehearing Submissions and Conference. *COMAR 14.30.08.10* A. In hearings conducted by the Board, any party and any interested employee organization may submit to the presiding hearing officer prior to the hearing any motions, pleadings, or briefs for consideration. B. Documents submitted under §A of this regulation shall be submitted at least 10 days prior to the hearing. C. The presiding hearing officer may order a prehearing conference for any administrative purpose the presiding hearing officer considers necessary for the appropriate and orderly conduct of a pending matter. D. The parties shall cooperate in good faith with the presiding hearing officer in the appropriate and orderly conduct of any pending matter. E. The presiding hearing officer may order, with the consent of all parties, a prehearing conference for the purpose of seeking the voluntary resolution of a pending matter. #### Regulation .11 Subpoenas. *COMAR 14.30.08.11* A. Issuance of Subpoenas. (1) The Board, the Executive Director, or the Office of Administrative Hearings, as appropriate, may issue subpoenas requiring the attendance and testimony of witnesses and production of documents or tangible items at any hearing. (2) Subpoenas issued by the Office of Administrative Hearings shall be issued in accordance with COMAR 28.02.01.14. B. Request for Subpoenas. (1) A request for issuance of a subpoena shall: (a) Be made in writing to the Board, Executive Director, or Office of Administrative Hearings, as appropriate; (b) State: (i) The name and address of the individual to be subpoenaed; (ii) If production of documents or tangible items is sought, a particular description of the documents or tangible items sought; and (iii) The name, address, email address, if any, and telephone number of the party requesting the subpoena; and (c) Be sent by personal delivery, certified mail, or email to each party. (2) To the extent practicable, a request for subpoena shall be filed with the Board, Executive Director, or Office of Administrative Hearings, as appropriate, at least 7 days before: (a) A prehearing conference, if one has been scheduled; or (b) The hearing, if no prehearing conference has been scheduled. C. Service of Subpoenas. A subpoena may be served by personal service, by certified mail or by email. D. If the subpoena is served by an individual other than the Office of Administrative Hearings, a certificate of service attesting to the method of service and date of service shall be filed with the Board, Executive Director, or Office of Administrative Hearings, as appropriate. E. Objections to Subpoenas. A party or an individual who has been served a subpoena may object to the subpoena by filing a motion to modify or quash the subpoena within 7 days of service of the subpoena or by the date of the hearing, whichever is earlier. F. Enforcement of Subpoenas. (1) If a person fails to comply with a properly served subpoena, the Board shall issue an order requiring compliance with the subpoena. (2) The Board or the Office of Administrative Hearings as appropriate may apply to the appropriate circuit court for an order to show cause why an individual should not be sanctioned for refusal to comply with a subpoena. #### Regulation .12 Continuance. *COMAR 14.30.08.12* A. Application. A party may request a continuance for good cause upon written application to the presiding hearing officer before commencement of the hearing or other proceeding, or by oral application to the presiding hearing officer during the hearing and shall give simultaneous notice of the request to all parties. B. Order. Board hearings or proceedings on any matter may be continued by order of the presiding hearing officer with the reasons or other conditions stated in the order, with notice to all parties. #### Regulation .13 Failure to Attend Hearing or Proceeding and Default. *COMAR 14.30.08.13* A. If, after receiving notice, a party fails to attend a prehearing conference, hearing, or other scheduled proceeding, the Board or delegee, as appropriate, may impose sanctions, which may include a final default decision and order, against the defaulting party. B. Within 7 days after service of a default decision and order, the party may file a written motion: (1) Requesting that the default decision and order be vacated or modified; and (2) Stating the grounds for the request. C. If the Board or delegee, as appropriate, finds that there is a substantial and sufficient basis for an actual controversy on the merits and that there is good cause to excuse the default, the Board or its delegee, as appropriate, may vacate the default decision and order. D. A final default decision and order is the final administrative action. #### Regulation .14 Consolidation. *COMAR 14.30.08.14* Upon application of a party or upon its own motion, the Board may consolidate for hearing any cases that involve common questions of law or fact. #### Regulation .15 Stipulations and Affidavits. *COMAR 14.30.08.15* A. Stipulations. (1) The parties, by stipulation, may agree to any substantive or procedural matter. (2) A stipulation may be filed in writing or entered on the record at the hearing. B. Affidavits. A party, the Board or any Board staff, or the presiding hearing officer, because a witness is unavailable for another appropriate reason, may admit an affidavit as evidence. All affidavit testimony shall be under oath or affirmation and subject to the penalties of perjury. #### Regulation .16 Motions. *COMAR 14.30.08.16* A. Process. (1) Unless otherwise provided by this subtitle, a party: (a) May move for appropriate relief before or during a hearing, including, if appropriate, for summary decision by the Board; and (b) Shall submit all motions in writing in accordance with §A(2) of this regulation, or orally at a hearing. (2) A written motion shall: (a) Be filed not later than 5 days before the date of a prehearing conference, if any, or 7 days before the date of the hearing; (b) State concisely the question to be determined; (c) Be accompanied by all supporting documentation; (d) Be accompanied by a memorandum of points and authorities; and (e) Be served on each party. (3) A response to a written motion shall be filed on the earlier of: (a) 5 days after service of the motion; or (b) The date of the hearing. B. Amendments. (1) A charge, motion, or response may be amended for good cause shown, but not ex parte, upon motion at any time before the start of the hearing. (2) Form. Motions to amend shall be in writing filed with the presiding hearing officer, and the moving party shall serve a copy upon all parties by regular mail or email. (3) The Board, the Executive Director, or the administrative law judge, as appropriate, may schedule a hearing to consider a written motion. C. Rulings. (1) The Board may rule on a motion for summary decision prior to, during, or after hearing. The Board may grant such a motion if it finds that: (a) There is no genuine issue as to any material fact; and (b) The moving party is entitled to prevail as a matter of law. (2) The Board or administrative law judge may reserve ruling on a motion until during or after a hearing. The presiding hearing officer may issue a written ruling or orally state the ruling on the record. (3) If the Board decides that a ruling on a motion shall be reserved until after the hearing, the Board shall issue the ruling in writing and may include the ruling in the final decision. (4) The filing or pendency of a motion does not alter or extend any time limit otherwise established by this chapter. #### Regulation .17 Conduct of Hearings. *COMAR 14.30.08.17* A. On a genuine issue in a contested case, each party is entitled to: (1) Call witnesses; (2) Offer evidence, including rebuttal evidence; (3) Cross-examine opposing witnesses; and (4) Make opening and closing statements. B. Virtual Hearings. (1) The Board or the administrative law judge, as appropriate, may conduct all or part of the hearing by video conferencing or other electronic means. (2) All substantive and procedural rights apply to video or other electronic hearings, subject only to the limitations of the physical arrangement. C. Quorum. (1) A quorum of the Board shall attend all hearings conducted by the Board. (2) If reasonably practicable, the attending Board members shall be the Chair, and at least one of the Members from the list submitted by exclusive representatives, and at least one of the Members from the list submitted by public employers. (3) If all parties consent, it is permissible for a variation from the composition of Board members described in §C(2) to attend the hearing. #### Regulation .18 Evidence. *COMAR 14.30.08.18* A. Evidence shall be admitted in accordance with this chapter and State Government Article, §10-213, Annotated Code of Maryland. B. The rules of evidence observed by courts do not apply to hearings under this subtitle. C. The presiding hearing officer shall admit evidence, including reliable hearsay evidence, if it is the kind upon which reasonable persons are accustomed to relying in administrative proceedings. D. Irrelevant or unduly repetitive evidence may be excluded. E. The presiding hearing officer shall observe the rules of privilege recognized by law. F. All testimony at a hearing shall be under oath or affirmation and subject to the penalties of perjury. G. The presiding hearing officer may admit as evidence all or part of the information described under COMAR 28.02.01.21. H. Sequestration of Witnesses. (1) Upon request by a party, or on their own behalf, the presiding hearing officer may sequester witnesses from the hearing room. (2) The presiding hearing officer shall order the witnesses, parties, attorneys, and all others present in the hearing room not to disclose to any witness sequestered under this section the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness’s absence. #### Regulation .19 Expert Testimony. *COMAR 14.30.08.19* Expert testimony may be accepted by the presiding hearing officer if the testimony, as proffered, would aid in an understanding of the case. #### Regulation .20 Appointment of Interpreter. *COMAR 14.30.08.20* A. If a party or witness cannot readily hear, speak, or understand the spoken or written English language, on motion timely submitted, the Board, the Executive Director, or the presiding hearing officer, as appropriate, shall appoint a qualified interpreter to provide assistance during the hearing. B. An interpreter shall take an oath or affirmation that the interpreter will accurately translate. C. The party requesting the interpreter shall bear the cost of the interpreter, unless the party or witness is hearing-impaired. D. Waiver of Cost of the Interpreter. (1) A party who by reason of indigence is unable to pay the cost of the interpreter may file a request for waiver of that cost with the presiding hearing officer. The waiver request shall be accompanied by an affidavit verifying the facts set forth in the request and the applicant’s inability to pay. (2) If the presiding hearing officer is satisfied that the applicant is unable by reason of indigence to pay the cost of the interpreter, the presiding hearing officer may waive the payment of cost, with the cost paid by the Board. (3) A waiver of the cost of an interpreter shall be available only to an individual applicant and not to a group or other entity. #### Regulation .21 Burdens of Going Forward and Persuasion. *COMAR 14.30.08.21* A. In any proceeding under this chapter, the petitioner, moving party, or appellant bears the burden of going forward to establish a prima facie case as to the existence of grounds for its action. B. The Board or the presiding hearing officer, as appropriate, shall find against a party with the burden of: (1) Going forward, if that party has not presented sufficient evidence to establish a prima facie case for the party’s claim or defense; or (2) Persuasion, if that party has not presented evidence sufficient to establish the correctness of the party’s claim or defense by a preponderance of the evidence. #### Regulation .22 Ex Parte Communications. *COMAR 14.30.08.22* A. A party or a party’s representative may not communicate ex parte with members of the Board, the Executive Director, an administrative law judge, or any of their staff who have participated in the contested case regarding the merits of any issue in the hearing. B. Actions taken by the Board, Board staff, or an administrative law judge following an ex parte communication are governed by State Government Article, §10-219, Annotated Code of Maryland. #### Regulation .23 Transcripts; Costs. *COMAR 14.30.08.23* A. The Board shall provide a court reporter and transcription services for the hearing, with the cost, including a copy of the transcript being provided to the Board, to be split by the parties. B. Waiver of Transcription Costs. (1) A party who by reason of indigence is unable to pay the cost of transcription may file a request for waiver of the costs with the presiding hearing officer. (2) The request of waiver shall be accompanied by an affidavit verifying the facts set forth in the request and the applicant’s inability to pay. (3) If the presiding hearing officer is satisfied that the party is unable by reason of indigence to pay the cost of transcription, the presiding hearing officer may waive the payment of cost, and that party’s cost shall be paid by the Board. (4) A waiver of transcription costs shall be available only to an individual applicant and not to a group or other entity. #### Regulation .24 Briefs and Oral Arguments. *COMAR 14.30.08.24* A. Oral Arguments. At the discretion of the presiding hearing officer, oral arguments may be presented by the parties with time limits determined by the presiding hearing officer. B. Briefs. Briefs may be filed in the order and within the time and any page limits set by the presiding hearing officer. C. All briefs shall be served on all parties in the proceeding by mail, email, or personal delivery. #### Regulation .25 Board Decision. *COMAR 14.30.08.25* A. The Board, as soon as reasonably practicable after the conclusion of the hearing, and in accordance with any timelines prescribed by statute, shall issue a written decision. B. The decision of the Board is the final administrative decision for purposes of judicial review. Unless the matter is remanded for further proceedings, or a motion for reconsideration is filed, the date of the written decision of the Board is the date of the final decision of the agency for purposes of judicial review. C. A final decision shall: (1) Be in writing; (2) Be served on all parties by mail or email; and (3) Contain: (a) Findings of fact and conclusions of law, separately stated; (b) An order; and (c) A statement of the available procedures and time limitations for review. D. Reconsideration. In the event of fraud, mistake, or irregularity, a final decision may be reconsidered and corrected at any time. #### Regulation .26 Judicial Review. *COMAR 14.30.08.26* A. A party who is aggrieved by a final decision is entitled to judicial review in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. B. The Board may request to intervene as a party to the judicial proceeding.