by Gene Doyle, LMSW
In a December 11, 1996 memorandum to ALJs, Deputy General Counsel for Administrative Hearings Russell J. Hanks set forth OAH policy with respect to the development of an adequate Fair Hearing record and related matters. Under the heading, "Developing the record" (at p. 2), Mr. Hanks stated that:
"While it can be difficult to focus on its importance in light of heavy calendar assignments, the development of a completed record is an essential element of the hearing officer's responsibilities. In addition to the formal entry of documents discussed above, the hearing officer must ask questions, if necessary, to complete the record, particularly where the appellant demonstrates difficulty or inability to question a witness (See 18 NYCRR §358-5.6). This may involve the questioning of either party to elicit information that may not have been volunteered due to a lack of understanding of its relevance.
"The hearing officer must also consider adjourning or recessing a hearing where, in the judgment of the hearing officer, it would be prejudicial to the due process rights of the parties to go forward with the hearing on the scheduled hearing date. For example, an adjournment may be granted for an appellant to obtain additional relevant supporting documentation, where the hearing officer determines that there was a good reason for the appellant's failure to produce it at the hearing on the first scheduled date. This may include stipulations where it is found that an appellant did not know that a particular type document would have an effect on the outcome of the hearing. When such an adjournment is granted and it appears that the appellant is uncertain as to exactly what documents are needed, the hearing officer should make clear to the appellant what type of documents would be preferred forms of evidence in a particular case."
As part of the Stipulation and Order of Settlement in Meachem v Wing, 99 Civ. 4630 (S.D.N.Y. April 20, 2005), Mr. Hanks issued an April 13, 2005 memorandum on "Fair Hearing Training; Meachem v Wing." Under the heading, "Developing the record" (at p. 2), Mr. Hanks repeated that:
"The hearing officer’s duties include the responsibility to elicit evidence, if necessary, particularly where the appellant demonstrates difficulty or inability to question a witness (See 18 NYCRR §358-5.6(b)(3), but not to the extent of acting as an appellant’s representative.
"The recording equipment should be on during the entire hearing. If there is any conversation between the hearing officer and the parties, or between the parties before the recording equipment is turned on, the hearing officer should summarize the conversations on the record. If the hearing officer turns off the recording equipment during the hearing, he or she should state on the record the reason. When the recording equipment is turned back on, the hearing officer should ask the parties if there was any conversation while the equipment was off and, if so, what was said.
"If the appellant alleges non-receipt of a mailed document, the hearing officer should explain to both parties that the agency will first be asked to provide evidence that establishes the document was properly mailed and, if mailing is established, the appellant will have a full and fair opportunity to explain why the document at issue was not received. The hearing officer may find an appellant’s uncorroborated testimony as sufficient to rebut the agency’s claim that the appellant was mailed a notice. If the appellant identifies a document which appears to the hearing officer can corroborate the appellant’s testimony on a material issue, the hearing officer should ask the appellant whether he or she would like an adjournment for that purpose and, if so, an adjournment should be granted. The hearing officer may issue subpoenas or take other action, pursuant to 18 NYCRR 358-5.6(b)(8), to compel production of either witnesses or documents."
Please read the Disclaimer.