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Attached Document:
hanks__04-13-05_memo__meachem_v_wing_.pdf
Documents : Mailing Affidavits
April 13, 2005 Memo to ALJs from Russell J. Hanks (Fair Hearing Training; Meachem v Wing)
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This memorandum was issued by Deputy General Counsel for Administrative Hearings Russell J. Hanks as part of the Stipulation and Order of Settlement in Meachem v Wing, 99 Civ. 4630 (S.D.N.Y. April 20, 2005).
Under the heading, "Mailing affidavits," at p. 2, Deputy General Counsel for Administrative Hearings Russell J. Hanks states that
"In cases where affidavits are offered to establish the local agency’s procedures with respect to mailing a document, the hearing officer should evaluate whether the affidavit is appropriate for the type of document mailed, and determine whether the presumption of mailing the document was established in the appellant’s case. To that end, the evidence presented should correspond with the process described in the affidavit. The hearing officer should also evaluate whether the agenc y has the appellant’s correct address in its records, and , if not, whether the appellant ever properly and timely notified the agency of the his/her correct address.
"In sum, the hearing officer should examine and consider all the documents and other evidence in the record in order to determine whether or not the mailing procedure alleged in the affidavit(s) was used for the mailing in question."
Under the heading, "Developing the hearing record," at p. 2, Deputy General
Counsel Hanks instructs that
"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."
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Created: 5/31/2008
Updated: 5/31/2008
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