Title 28 — Subtitle 02. Rules of Procedure

“Affidavit” means a written statement, signed under penalties of perjury, affirming that the statements it contains are true:

“Agency” means a unit of government the action of which gives rise to:

“ALJ” means an individual:

“Authorized representative” means an attorney or, when permitted by applicable law, another individual.

“Certified mail” means mail deposited with the United States Postal Service, postage prepaid, return receipt requested.

Docket Entry.

“Filed” means that a document is postmarked or received in accordance with Regulation .04D of this chapter.

“Final decision maker” means the person or entity authorized by law or delegation to render the final decision in a contested case or other proceeding before the Office.

“Initial pleading” means a notice of agency action, a request for a hearing on an agency action, or any other transmittal that initiates a proceeding scheduled by the Office.

“Law” means State and federal constitutions, statutes, regulations, and relevant case law.

“Office” means the Office of Administrative Hearings.

“Office business hours” means 8 a.m. to 4:30 p.m. on a day that is not a Saturday, Sunday, or holiday.

“Office proceeding” means any type or stage of legal process, remote or in person, scheduled by the Office.

“Party” means a person named or permitted to participate in a case before the Office.

“Person” means an individual, representative, corporation, or other entity, including a public or nonprofit corporation, or an agency or instrumentality of federal, State, or local government.

“Proposed decision” means a document issued pursuant to a delegation under State Government Article, §10-205(b), Annotated Code of Maryland, authorizing one or more of the following:

“Remote proceeding” means any Office proceeding conducted in whole or part by telephone or other audio means, by video or other audio-visual means, or by a combination of in-person, audio, and audio-visual means.

On transmittal forms provided by the Office and accompanied by copies of all pertinent documents;

On forms provided by the agency; or

In any other manner permitted by law.

The name of the person requesting the hearing;

The mailing address of the person requesting the hearing;

The email address and phone number of the person requesting the hearing or an affirmative statement that this information is not available;

The notice of agency action regarding which, or the name of the party against whom, the hearing request has been filed;

An affirmative statement that the person requesting the hearing consents or declines to consent to electronic delivery of notice to the email address provided to the Office.

Additional documents and fees required by this chapter or COMAR 28.03.01; and

Other information required by law.

Pursuant to a delegation of authority under State Government Article, §10-205, Annotated Code of Maryland; or

As otherwise directed by an agency.

Within the time period specified by relevant law; or

If no time period is specified, within 30 days of the date of the notice of contested action.

In computing a period of time, the day of the act, event, or default after which the designated period of time begins to run shall not be included.

When computing a period of fewer than 8 days, intermediate Saturdays, Sundays, and holidays shall not be included.

When computing a period of time for filing a document at the Office:

An initial pleading is deemed to be filed on the earlier of the date that a request for hearing, along with all required fees, necessary documents, and other information, is postmarked or received by the:

Other pleadings are deemed to be filed on the earliest of the date on which they are:

Non-postmarked documents delivered or electronically transmitted to the Office after the close of Office business hours are deemed to be filed on the next day on which the Office is open for business.

The nature of the hearing and the date, time, and physical address, remote URL location and meeting number, or telephone number;

A statement of the right to present witnesses and documents, or other evidence, and the right to cross-examine any witness that another party calls under State Government Article, §10-213(f), Annotated Code of Maryland, if applicable;

A statement of the right to request subpoenas for witnesses and evidence, and specifying the costs, if any, associated with the request;

A statement that a copy of the hearing procedures is available on request, and specifying the costs, if any, associated with the request;

A statement of any rights, restrictions, or requirements pertaining to representation;

A statement that failure to appear for the scheduled hearing may result in an adverse action against that party; and

A statement that, unless otherwise prohibited by law, the parties may agree to the evidence and may waive their right to appear at the hearing.

Except as otherwise required by law, a notice issued by the Office shall be sent to the parties by United States mail, by personal delivery, by courier delivery at their addresses on record with the Office, or, with the consent of the party, electronically.

If notice is given by United States mail, the notice is effective at the end of the 5th day after its deposit in the mail.

Proof that notice has been given may be made by the dated file copy in the case file.

A motion for expedited hearing shall be granted only if the moving party establishes good cause.

The Office shall notify all parties of the decision on a motion for expedited hearing and, if granted, shall schedule the hearing as soon as practical.

An individual may represent himself or herself; and

A person may be represented by an attorney authorized to practice law in Maryland.

An employee of a business entity who is representing that business entity in accordance with State Government Article, §9-1607.1, Annotated Code of Maryland, shall provide the Office with a power of attorney.

The Office shall accept any properly executed power of attorney meeting the requirements of State Government Article, §9-1607.1, Annotated Code of Maryland.

The Office may provide a form for a power of attorney.

A power of attorney required by this regulation may be:

By United States mail;

By personal or courier delivery;

Electronically; or

As otherwise agreed to by the parties.

All other materials filed with the Office, and all correspondence with the Office, shall contain or be accompanied by a certificate of service.

The certificate of service shall be signed and shall contain the:

Conduct a full, fair, and impartial hearing;

Take action to avoid unnecessary delay in the disposition of the proceedings; and

Maintain order.

Administer oaths and affirmations;

Issue subpoenas for witnesses and the production of evidence;

Rule upon offers of proof and admit relevant and material evidence;

Consider and rule upon motions in accordance with this chapter;

Examine witnesses and call witnesses as necessary to ensure a full and complete record;

Limit unduly repetitious testimony and reasonably limit the time for presentations;

Grant a continuance or postponement;

Modify or waive, reasonably and for good cause, any time periods established by this chapter;

Request parties to submit legal memoranda, proposed findings of fact, and proposed conclusions of law;

Make proposed or final decisions and take any other appropriate action authorized by law;

Require the parties to participate in remote proceedings unless a party establishes good cause for an in-person proceeding as provided by Regulation .20B of this chapter;

Issue such orders as are necessary to procure procedural simplicity and administrative fairness and to eliminate unjustifiable expense and delay;

Conduct the hearing in a manner suited to ascertain the facts and safeguard the rights of the parties to the hearing; and

Impose appropriate sanctions for failure to abide by this chapter or a lawful order of the ALJ.

Conditions.

Motion for Disqualification.

Substitution of ALJs.

An application to the Office for an order shall be by motion that, unless made during a hearing, shall be made in writing, and shall set forth the relief or order sought.

A written motion and response to a motion shall state their respective grounds and a party shall attach any relevant documents as exhibits.

An answer to a written motion shall be filed on the earlier of:

Upon notice to all parties, the ALJ may schedule a prehearing conference or hearing to consider a written motion.

The ALJ may issue a written decision on a motion or state the decision on the record.

If a ruling on a motion is not stated on the record, the ruling shall be included in the ALJ’s proposed or final decision.

The filing or pendency of a motion does not alter or extend any time limit otherwise established by this chapter.

A party may file a motion for summary decision on all or part of an action on the ground that there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law.

A motion for summary decision shall be supported by one or more of the following:

A response to a motion for summary decision:

An affidavit supporting or opposing a motion for summary decision shall:

The ALJ may issue a proposed or final decision in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party. The moving party shall state all reasons why the motion should be granted. No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of any opposing party's case.

When a party moves for judgment at the close of the evidence offered by an opposing party, the ALJ may:

A party who moves for judgment at the close of the evidence offered by an opposing party may offer evidence if the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.

Relevant to the subject matter of the case; and

Not privileged.

On motion by the parties or on the ALJ’s own initiative, an ALJ may enter an order establishing reasonable limits on the scope of discovery, the method of delivery of discovery, and such other orders regarding discovery as the ALJ determines to be just.

Orders regarding discovery may include, but are not limited to, orders regarding expert testimony pursuant to Regulation .21D of this chapter and orders governing the electronic exchange of exhibits.

An order to compel a response;

An order imposing sanctions; or

Both.

Copies of requested documents and records shall be made at the expense of the party making the request.

The charge for copies of requested documents or public records may be waived by the custodian of the documents in accordance with General Provisions Article, §4-206, Annotated Code of Maryland, or other applicable law.

A request for a subpoena shall be made in writing, filed with the Office, and served on all other parties.

To the extent practicable, subpoena requests shall be filed at least 15 days before the hearing.

A request for a subpoena shall specify the:

A party requesting a subpoena for the production of tangible items, books, papers, other documents, or electronic files shall describe those items with particularity.

A party requesting a subpoena for the production of medical records shall:

A party requesting a subpoena for the production of financial records shall:

Subpoenas may be served:

Unless the subpoena request specifies otherwise, a subpoena served by the Office shall be mailed by First-Class United States mail.

The Office will not seek to enforce a subpoena pursuant to State Government Article, §9-1605(d)(2)(i), Annotated Code of Maryland, and §F of this regulation absent proof of service by certified mail or personal delivery.

Costs of certified mailing or personal delivery of subpoenas are the responsibility of the person requesting service.

Proof of service of subpoenas by certified mail or personal delivery is the responsibility of the person requesting the subpoenas.

The party requesting the subpoena is responsible for notifying the person subpoenaed if the hearing is cancelled or postponed. Subpoenas shall remain in effect until the conclusion of the hearing.

When service is by certified mail, by the filing of the original return receipt; and

When service is by personal delivery, by the filing of an affidavit, signed by the person who made service, containing:

Has an unconditional right to intervene as a matter of law; or

Claims an interest relating to the subject matter of the hearing that is:

The ALJ shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

As soon as practicable, the ALJ shall issue an order denying or allowing intervention.

In an order allowing intervention, the ALJ may place conditions upon the intervenor’s participation in the proceedings.

If the ALJ is not the final decision maker, the denial of a motion to intervene may be appealed to the final decision maker in accordance with the agency’s regulations.

When the ALJ is the final decision maker, a party or other affected person may seek judicial review of the denial of a motion to intervene in accordance with law.

In the discretion of the ALJ, a request for further review of the denial of a motion to intervene may stay the proceedings.

United States mail;

Personal or courier delivery;

Facsimile to (410) 229-4266; or

Email to oah.postponements@maryland.gov.

For purposes of this section, “emergency” means a sudden, unforeseen occurrence requiring immediate attention which arises within 5 days of the hearing.

In an emergency, a request for postponement may be made by telephone to the Office and promptly supported by documentation of the reason for the request.

Issuance of subpoenas;

Factual and legal issues;

Stipulations;

Requests for official notice;

Identification and exchange of documentary evidence;

Admissibility of evidence;

Identification and qualification of witnesses;

Motions;

Discovery disputes;

Order of presentation and burden of proof;

Scheduling;

Alternative dispute resolution; and

Any other matters that will promote the orderly and prompt conduct of the hearing.

Except as otherwise indicated in this chapter, at the discretion of the ALJ, all or part of a prehearing conference may be recorded.

Prehearing conferences may be conducted by telephone or videoconference.

When a prehearing conference has been held, a prehearing order shall be issued by the ALJ.

The prehearing order shall set forth the actions taken or to be taken regarding any matter addressed at the prehearing conference.

If a prehearing conference is not held, the ALJ may issue a prehearing order to regulate the conduct of the proceedings.

The prehearing order shall be a part of the case record.

Alternative dispute resolution proceedings are confidential and are closed to the public.

Discussions in an alternative dispute resolution proceeding may not be made a part of the case record in any subsequent proceeding.

Alternative dispute resolution proceedings, in whole or in part, may not be recorded electronically, captured through a screen shot, or preserved in any other manner.

Parties participating in a remote alternative dispute resolution proceeding shall consent to an Agreement to Mediate Remotely, allow the mediator to sign the Agreement to Mediate Remotely on their behalf, and agree to participate from a private space that ensures the confidentiality of the alternative dispute resolution proceeding.

An ALJ or other individual who conducts an alternative dispute resolution proceeding may not be called to testify, participate in discovery, or otherwise provide information in a subsequent proceeding related to the alternative dispute resolution proceeding or any other matter arising from the same facts as that proceeding.

Remove individuals whose conduct impedes the orderly progress of the remote or in-person hearing; and

Restrict attendance because of physical or technical limitations of the remote or in-person hearing room.

On a genuine issue in a contested case, each party is entitled to call witnesses, offer evidence, cross-examine any witness who testifies, and make opening and closing statements.

A hearing shall be called to order by the ALJ. The ALJ shall explain briefly the purpose of the hearing and state the order of presentation of the evidence. The ALJ may allow the parties to present preliminary matters.

Witnesses shall be sworn or put under affirmation to tell the truth.

Subject to §B(2) of this regulation, and at the request of a party or on the ALJ’s initiative, all or part of a proceeding may be conducted by:

Exceptions.

Rights. All substantive and procedural rights apply to remote proceedings, subject only to the limitations of the physical and technological arrangements.

Evidence. Except for proceedings involving the Inmate Grievance Office, if the Office grants a request or issues a notice for a remote proceeding, at least 10 days before the proceeding, or as ordered by the ALJ, a party shall disclose all documentary, photographic, and other evidence the party plans to offer at the proceeding by:

When a party electronically files a video or audio file, the party shall also submit the file to the Office on electronic storage media.

Waiver of Right to Appear.

Waiver of Right to a Hearing.

In making that determination, the ALJ shall determine whether:

In the discretion of the ALJ:

On request by a party, or on an ALJ’s own initiative, an ALJ may exclude witnesses other than parties from the hearing room, except when testifying.

A party, representative, witness, or spectator may not disclose to a witness excluded under this section the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during that witness's absence.

A party that is not an individual may designate an employee or officer as its representative to remain in the hearing room, even though the employee or officer may be a witness.

An expert witness who is to render an opinion based on testimony given at the hearing may remain during the testimony.

An ALJ may exclude the testimony of a witness who receives information in violation of §E of this regulation, or take other appropriate action.

At the request of a party or on the ALJ’s initiative, direct testimony may be received in writing in either question and answer or narrative format.

The testimony shall be under oath or affirmation and be filed and served on all other parties as ordered by the ALJ or, in the absence of an order, not later than 10 days before the hearings.

Any party who submits prefiled testimony shall ensure that the witness is available, either remotely or in-person, for cross-examination at the hearing.

The filing of prefiled direct testimony does not preclude any party from presenting rebuttal testimony.

At the request of a party or on the ALJ’s own motion, an ALJ may take official notice of a fact that is:

Before taking official notice of a fact, the ALJ shall:

The parties may, in accordance with law, agree to any substantive or procedural matter.

A stipulation may be filed in writing or entered on the record at the hearing.

The ALJ may require additional development of stipulated matters.

At least 10 days prior to the hearing, the party seeking to offer it files a motion for leave to offer the evidence; and

The motion is granted in advance of the hearing.

The standard of proof is by a preponderance of the evidence;

A party asserting:

The proponent of a motion bears the burden of proof regarding the motion.

All pleadings, motions, responses, correspondence, memoranda, including proposed findings of fact and conclusions of law, and requests filed by the parties;

All hearing notices;

All documentary and other tangible evidence received or considered;

A statement of each fact officially noticed;

All stipulations;

All offers of proof and objections;

All rulings, orders, and decisions, proposed or final;

Matters placed on the record in connection with ex parte communication;

The recording of the hearing, and any prehearing proceeding, and any transcript of the recording prepared by a court reporting service; and

Any other item required by law.

Unless otherwise provided by law, a party may move to vacate a final order of default within 30 days after the date of the order. The motion shall state the reasons for the failure to attend or participate in the proceeding.

If an ALJ finds that there is good cause for a party’s failure to attend or participate in the proceeding, the ALJ shall vacate the order and set the case in for further proceedings as appropriate.

If a motion is not filed under §C(1) of this regulation, or is filed and denied, the final default order is effective.

If a timely motion is not filed under §D of this regulation, or if a motion is filed and denied, the ALJ shall issue an order or proposed order of dismissal within 30 days after the time for filing the motion has expired.

If a motion is filed and good cause is shown for deferral of the dismissal, the ALJ shall issue an order deferring dismissal and specifying the period and the terms of the deferral.

Decision on the merits;

Stipulation;

Settlement;

Consent order;

Default;

Withdrawal;

Summary disposition; or

Dismissal.

The ALJ shall submit a proposed decision to the final decision maker with a copy to each party; and

An adversely affected party may file exceptions to the proposed decision with the final decision maker in accordance with State Government Article, §§10-216 and 10-220, Annotated Code of Maryland, and the final decision maker’s regulations.

A final decision may be revised only by the ALJ who rendered the decision.

Except as set forth in §A(3) of this regulation:

Judicial Review.