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Attached Document:
hanks__04-13-05_memo__meachem_v_wing_.pdf
Documents : Development of the Record - ALJ Duties
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, "Developing the record," at p. 2, Deputy General Counsel for Administrative Hearings Russell J. Hanks states 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."
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Created: 5/30/2008
Updated: 5/31/2008
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