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, "Introduction of Documents" (at p. 2), Mr. Hanks stated that:
"When documents are introduced at a hearing, by the agency or by the appellant, it is important that they be identified, marked, and verbally noted as they are entered into the record. Each page of the agency's packet should be marked in case the pages should become separated. (The exhibit number or letter should be the only mark made on a submitted document, any other notations made by the hearing officer serve only to compromise the integrity of the document). The hearing officer should ensure that all parties have had an opportunity to see the documents introduced before proceeding. Where the documents have not been seen previously, a brief recess or an adjournment may be necessary, as the hearing officer deems appropriate. This approach is limited in New York City by the decision in Rivera, which requires that if documents or evidentiary packages are not sent out timely where requested, the notice of intent must be withdrawn.
"The hearing officer also should ensure that the appellant is given a reasonable opportunity to question the agency representative concerning any documents that the social services district seeks to introduce, and to state any objections to the introduction of such evidence. The agency also should be given the opportunity to question the appellant concerning any documents introduced by the appellant at the hearing."
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, "Introduction of documents at the hearing" (at p. 13), Mr. Hanks repeated that:
"As documents are being offered as evidence at a hearing, the hearing officer should clearly identify them for the record and indicate on the record that each party has a copy or is being shown a copy of the documents presented.
"A collection of documents, such as an evidence packet, should be separately identified to the extent practicable. Each document in a collection should be described by the hearing officer and then marked separately for identification. After a document has been offered as evidence, the hearing officer should indicate on the 'green sheet,' as well as on the record whether a document is or is not being accepted into evidence. If the hearing officer does not accept a document into evidence, he/she should explain the reason on the record. If the hearing officer chooses not to accept into evidence a document marked for identification, the hearing officer should explain the reason on the record but the document will nonetheless be made part of the fair hearing record. In what is anticipated to be rare instances, if a party offers into evidence voluminous documents that are clearly completely irrelevant to the issue or issues of the hearing, the hearing officer has the discretion not to mark the documents into evidence nor place them in the fair hearing file but should describe the documents and explain why they are irrelevant.
"In addition to checking that both sides either have the document, or have been shown it, the hearing officer should give the party being presented with the document an opportunity to review it and ask any questions with regard to the document."
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