Mo. Code Regs. tit. 8 § 10-5.015

Current through Register Vol. 49, No. 9, May 1, 2024

Section 8 CSR 10-5.015 - Appeal Hearings and Procedures

PURPOSE: Consistent with Executive Order 17-03, the amendment rescinds subsection (6)(B) of the rule regarding postponement requests by representatives and attorneys due to existing conflicts and renumbers the remaining subsections of section (6) of the rule.

(1) Copy of Appeal. Upon the division's receipt of an appeal, the appeal shall be acknowledged and the parties shall be provided with a copy of the division's informational pamphlet concerning hearings and copies of the documents from the appeals file upon which the determination was based.

(2) A hearing officer upon his/her own motion, or at the request of a party, in the hearing officer's discretion may direct the parties to appear at a specified time and place for a conference to consider-

(A) The simplification of the issues;

(B) The possibility of obtaining stipulations, admission of facts or of documents;

(C) The limitation of witnesses; and

(D) Other matters as may aid the disposition of the proceedings.

(3) In any proceeding pending before a hearing officer, claimants, employing units, or their representatives, shall, upon written request, be supplied with information from division records to the extent division records are available to the hearing officer, as necessary for the proper preparation and presentation of any claim for unemployment benefits or appeal of employer liability.

(4) Hearings may be conducted in-person, by telephone, or by a combination of telephone and in-person attendance referred to as a split hearing in this regulation.

(A) Hearings shall be conducted by telephone unless:

1. A party requests an in-person hearing; or

2. A hearing officer, on his/her own motion, schedules an in-person hearing.

(B) Any party shall have an absolute right to an in-person hearing.

1. A request for an in-person hearing shall be delivered to the hearing officer as soon as possible in the appeals process but, in any event, no later than two (2) days prior to the date of the hearing.

2. Requests may be made via fax, telephone, or delivered to the appeals section in written form.

3. Requests for in-person hearings made later than two (2) days prior to the date of the hearing shall be referred to the chief appeals referee or his/her designee(s) for disposition.

4. A request for an in-person hearing may only be withdrawn upon a showing of extreme circumstances precluding the requesting party's in-person attendance.

(C) The hearing officer may, on the hearing officer's own motion or the motion of a party, schedule a matter for an in-person hearing or adjourn any split or telephone hearing in progress for an in-person hearing, if, in the hearing officer's opinion, conducting any part of the hearing by telephone is unsatisfactory.

(D) A split hearing, with the parties present at different locations at the same time, may be scheduled only if an in-person or telephone hearing is not possible or the parties agree to or request a split hearing.

(5) Notices of Hearing.

(A) Notice of Hearing shall be mailed, by regular United States mail, to the address of record in the appeal file of each party, attorney who has entered an appearance, and others appearing in a representative capacity who have filed notice of intent to represent. Notices shall be mailed at least seven (7) days prior to the date of the hearing. These notices shall specify the date, time and place or method of hearing and shall set forth the address of the office to which all requests or other correspondence concerning the hearing should be directed.

(B) The hearing officer or the designated appeals' clerk shall complete a certification that the Notice of Hearing was mailed to each of the parties and representatives of record at the addresses listed in the official file.

(6) Postponements.

(A) The hearing officer, upon request of a party or upon his/her own motion, may postpone a hearing. Postponements may be granted if-

1. The request is promptly made after the party receives the Notice of Hearing or after the circumstance requiring postponement arises; and

2. The party has good cause for not attending the hearing at the time and date set. Good cause exists when the circumstances causing the request are beyond the reasonable control of the requesting party and failure to grant the postponement would result in undue hardship for the requesting party.

(B) No party may presume that a postponement is granted unless duly notified of the granting by the appeals tribunal.

(C) Any further requests for a postponement by a party will be denied except in extraordinary circumstances.

(7) Continuances and Additional Evidence.

(A) Any hearing may be continued from time-to-time or place-to-place at the discretion of the hearing officer.

(B) All parties shall be prepared to introduce all of their evidence when the case is set for hearing as continuances for additional evidence will be granted only when the hearing officer is satisfied that the additional evidence is necessary to a full and complete hearing and was unavailable at the original setting because of surprise or because the party was unable to obtain the evidence after diligent and good faith efforts to obtain such evidence.

(C) Hearings rescheduled as a result of insufficient time to complete the hearing at the first setting will not include, at the second or subsequent setting, any witnesses or evidence not available at the original setting subject to subsection (B) of this section.

(D) If subsequent to hearing, but prior to mailing of the decision, the hearing officer decides that an additional hearing is necessary, the parties shall be advised in writing.

(8) Subpoenas.

(A) Subpoenas to compel the attendance of witnesses or the production of books, papers, correspondence, memoranda and other records or items either in-person or by telephone may be issued by a hearing officer-

1. Upon his/her own motion; or

2. At his/her discretion, upon the request of a party who has-

A. Demonstrated that the evidence sought to be procured is relevant and necessary; and

B. Made a good faith effort to obtain the attendance of the witness or the production of the documents but has been unable to do so.

(B) The subpoena request shall be submitted to the hearing officer in sufficient time before the hearing to permit preparation and service of the subpoena before the hearing.

(C) Service of a subpoena may be by certified mail or personal service. If service is to be by certified mail, the request shall include a current address of the person to be served and specify that service is being requested to be by certified mail.

(D) A subpoena shall be served by delivering a copy of the subpoena to the person named therein no later than forty-eight (48) hours before the time for the appearance set forth in said subpoena.

(E) Witnesses subpoenaed for any hearing before a hearing officer shall be paid witness and mileage fees in the same amounts as paid in civil actions before the circuit courts of this state, provided the witness and mileage fees are claimed within five (5) days of the date of the hearing and certified to by the witness and approved by the hearing officer Approved payment shall be made out of the Unemployment Compensation Administration Fund. Under no circumstances shall parties to the case be granted witness or mileage fees.

(F) A person served with a subpoena or a subpoena duces tecum may object to its terms by making a motion to quash as soon as possible after service. The hearing officer shall resolve the objection and may make an order appropriate to protect the parties or the witnesses from unreasonable or oppressive demands. If a party, or any person or organization within the control of a party, fails to obey a subpoena of a hearing officer, the hearing officer shall treat the evidence requested but not produced as establishing an inference favorable to the position of the party who subpoenaed the item subject to the opposing party's right to seek an order quashing or limiting the scope of the subpoena.

(9) Participation and Representation at Hearings.

(A) A claimant may represent him/herself or be represented by a duly authorized agent, who may not charge a fee for the representation.

(B) A party, which is a corporation, partnership or other business entity authorized by law may be represented by an officer or a person employed full-time in a managerial capacity. For purposes of this regulation, managerial capacity includes any person who has managerial or supervisory duties as defined by the party.

(C) An employee of a corporation, partnership, or other business entity authorized by law who is not an officer or full-time managerial employee may appear, testify and offer exhibits in hearings in which the business entity is a party. The employee's participation at the hearing is limited to testifying and offering exhibits.

(D) Any party may be represented by a licensed Missouri attorney, a nonresident attorney appearing in compliance with Supreme Court Rule 9, or an eligible law student complying with Supreme Court Rule 13.

(E) All persons who will be acting in a representative capacity on behalf of a party before the hearing officer shall file notice of their intent to represent the party as soon as possible after being retained or chosen. Attorneys shall file an entry of appearance, agents shall file an authorization signed by the claimant, and representatives shall file a statement of intent to act on behalf of the entity.

(F) No subsequent entry of appearance or notice of intent to represent shall be honored absent written withdrawal by the previous representative.

(G) In order to protect the integrity and fairness of the appeals process, the hearing officer requires all parties and persons acting in a representational capacity to comply with the following rules of conduct:

1. All participants shall appear for the hearing and be ready to proceed no later than the starting time listed on the notice of hearing;

2. All participants shall comply with all directions given by a hearing officer during a hearing;

3. Participants may not use dilatory tactics prior to or during a hearing;

4. Participants may not engage in abusive conduct, harass, intimidate, threaten or cause physical harm to any hearing officer, party, witness or member of the public in attendance;

5. Participants may not act in a manner disruptive or disrespectful to the operations of the appeals' process;

6. All participants shall act in good faith and with integrity during the representation of a party and shall adhere to reasonable standards of orderly and ethical conduct;

7. The representative shall, to the extent reasonably possible, restrain the party represented by that individual from improprieties in connection with the hearing; and

8. Any individual who fails to follow these rules will be excluded from the hearing.

(10) Conduct of Hearings.

(A) All hearings shall be open public hearings and shall be conducted in an orderly manner. The hearing officer shall review the issues presented and set forth the procedures to be followed during the hearing. Persons whose presence would be detrimental to the proper conduct of the hearing may be excluded from the hearing by the hearing officer. The hearing officer may examine all parties and witnesses and shall determine the order of testimony and procedure for each hearing. Upon the motion of any party or the hearing officer, witnesses may be sequestered.

(B) In any hearing before a hearing officer, the following shall be the applicable rules of evidence and procedure:

1. Oral evidence shall only be taken by oath or affirmation;

2. Subject to this chapter's restrictions regarding representation, each party has the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not a subject of the direct examination, to impeach any witness, regardless of which party first called the witness to testify, and to rebut the evidence against him/her;

3. A party who does not testify in his/her own behalf may be called and examined as if under cross-examination;

4. The hearing need not be conducted according to the common law or statutory rules of evidence or the technical rules of procedure. Hearsay evidence is generally admissible. Evidence is admissible if it is not irrelevant, immaterial, privileged or unduly repetitious. Hearsay which is timely objected to shall not constitute competent evidence which, by itself, will support a finding of fact. A party or his/her attorney may advise the hearing officer of a defect in the character of any evidence introduced by voicing an objection. The hearing officer shall rule on the admissibility of all evidence. Any evidence received without objection which has probative value shall be considered by the hearing officer along with other evidence in the case;

5. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of an act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if it was made in the regular course of any business and that it was the regular course of the business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, may be shown to affect the weight of the evidence, but the showing shall not affect its admissibility. The term business shall include business, profession, occupation and calling of every kind; and

6. All documents introduced as evidence shall be marked as exhibits. A photocopy may be substituted for an original document. Whenever practicable, demonstrative and physical evidence also shall be marked and placed in the record; otherwise, it shall be described in detail on the record.

(C) If the hearing officer believes that the deputy's determination did not apply the correct provision(s) of law to the factual situation presented, the hearing officer, after informing the parties, may expand or otherwise alter the hearing to include the correct issues involved. If one (1) or more parties object to the change in the hearing, the hearing officer shall continue the hearing to allow the parties time to prepare for the proper issues.

(11) Reassignment of Hearing Officer. A hearing officer may be reassigned under the following conditions:

(A) If for any reason, a hearing officer cannot complete disposition of an appeal, the case shall be assigned to another hearing officer;

(B) A hearing officer shall not conduct a hearing in which he/she may have a personal interest or conflict of interest or in which he/she would have a personal bias towards or against any of the parties;

(C) Any party to a proceeding before a hearing officer may request the disqualification of the hearing officer assigned to the proceeding by filing with the chief referee a signed, written statement detailing the reasons why the disqualification is necessary. This request must be filed no later than five (5) days prior to the scheduled hearing date. The chief referee, or designee, shall issue a written ruling on the request. The written ruling shall be interlocutory but may be specified as a grounds for appeal following the issuance of the decision of the hearing officer; and

(D) If the chief referee, or designee, rules that a hearing officer shall not conduct a scheduled hearing, another hearing officer shall be assigned to hear the case.

8 CSR 10-5.015

AUTHORITY: sections 288.190 and 288.220.5, RSMo 2000.* Original rule filed Dec. 14, 1982, effective March 13, 1983. Amended: Filed July 17, 1985, effective Nov. 11 , 1985. Amended: Filed Oct. 17, 1988, effective March 26, 1989. Emergency amendment filed July 31, 1990, effective Aug. 10 , 1990, expired Dec. 8, 1990. Emergency amendment filed Nov. 13, 1990, effective Dec. 6, 1990, expired April 4, 1991. Amended: Filed Aug. 31, 1990, effective Dec. 31, 1990. Amended: Filed Nov. 1, 1995, effective April 30, 1996. Emergency amendment filed Dec. 11 , 1996, effective Jan. 2, 1997, expired June 30, 1997. Amended: Filed Dec. 11 , 1996, effective July 30, 1997. Emergency amendment filed Jan. 22, 1997, effective Feb. 1, 1997, expired July 30, 1997. Amended: Filed Jan. 22, 1997, effective July 30, 1997. Amended: Filed Sept. 9, 1998, effective March 30, 1999. Amended: Filed April 5, 2002, effective Oct. 30, 2002.

Amended by Missouri Register May 1, 2018/Volume 43, Number 9, effective 7/2/2018

*Original authority: 288.190, RSMo 1951, amended 1972, 1979, 1984, 1996 and 288.220.5, RSMo 1951, amended 1955, 1961, 1963, 1967, 1971, 1995.