CHAPTER Emab 200 APPELLATE BOARD RULES OF PRACTICE AND
PROCEDURE
PART Emab 201 ADJUDICATIVE PROCEEDINGS.
Emab 201.01 Rules
for Adjudicative Proceedings.
The appellate board’s review is confined to the
record. The appellate board does not
receive or consider evidence and therefore rules relative to adjudicative
hearings are inapplicable. The
proceedings before the appellate board are not those intended to be included
under RSA 541-A:30-a.
Source. #10394,
eff 8-9-13
PART Emab 202 RULES GOVERNING APPEALS TO THE APPELLATE
BOARD
Emab 202.01 Scope
of Rules. These rules shall govern
procedure in appeals to the unemployment compensation appellate board.
Source. #10394,
eff 8-9-13
Emab 202.02 Waiver
or Suspension of Rules. The
unemployment compensation appellate board, upon its own initiative or upon the
motion of any party, shall waive any requirement or limitation imposed by Emab
202 upon reasonable notice to affected persons when the proposed waiver would
be more likely to promote the fair, accurate and efficient resolution of issues
pending before the appellate board than would adherence to a particular rule or
procedure.
Source. #10394,
eff 8-9-13
Emab 202.03 Definitions.
(a) “Appeal
tribunal”' means the appeal tribunal of the department of employment security
constituted under RSA 282-A:53.
(b) “Board” means the
unemployment compensation appellate board as provided by RSA 282-A:62.
(c) “Chair” means
the chair of the unemployment compensation appellate board as provided in RSA
282-A:62.
(d) “Close personal
or family relationship” means a relationship by blood, marriage or other
significant long-term relationship.
(e)
“Commissioner" means the commissioner of the department of
employment security as provided by RSA 282-A:108.
(f) “Department”
means the department of employment security as provided by RSA 282-A:107.
(g) “Hearing” means
the formal and official proceeding of the board in which the board receives
legal argument from the parties based on the record below and applies the
criteria at RSA 282-A:65.
(h) “Members” means
the members of the unemployment compensation appellate board as provided in RSA
282-A:62.
(i) “Offer of proof”
means an oral or written description of potential evidence.
(j) “Parties” means
all interested parties as defined in RSA 282-A:42, III, as well as the commissioner
as provided in RSA 282-A:66, I.
(k) “Vice-chair”
means the vice-chair of the unemployment compensation appellate board as
provided in RSA 282-A:62.
Source. #10394,
eff 8-9-13
Emab 202.04 Appeals
from the Commissioner's Decision or the Appeal Tribunal's Decision After
Remand; Appeal to the Board; General Provisions.
(a) An appeal to the
board shall be pursuant to the provisions of RSA 282-A:64, I.
(b) An appeal shall be
in writing and be directed to the board.
The basis for such appeal shall be any one or a combination of the
established grounds, as provided in RSA 282-A:65, I-V.
(c) All appeals
shall be physically received or, if filed by mail, postmarked within 14 days of
the date of mailing of either the commissioner's decision on a request for
reopening, the final decision of the commissioner under RSA 282-A:95, or the
appeal tribunal's decision on an appeal that has already been remanded by the
board.
(d) Failure to file
a timely appeal within the 14 calendar day period shall result in a dismissal
of the appeal unless good cause is shown.
(e) For purposes of
this section good cause means that:
(1) Meeting the prescribed time limit would
unduly burden the party or;
(2) An extension is otherwise necessary to
conduct a more effective hearing.
(f) The board shall
issue notification of the appeal to all parties.
(g) The board shall
provide a copy of any correspondence or motions received from a party in a
particular matter to all other parties in the matter. If said filing is deemed to be a motion, the
board shall issue a deadline for objection(s) to the motion.
Source. #10394,
eff 8-9-13
Emab 202.05 The
Record on Appeal. Pursuant to RSA
282-A:64, III, the commissioner shall provide the appellate board with a copy
of all records related to the claim. If
technologically and administratively feasible, records shall be transmitted in
electronic format upon request.
Source. #10394,
eff 8-9-13
Emab 202.06 Hearings;
General Provisions.
(a) The board shall
decline to review any appeal if it finds the appeal presents no substantial
question within the board's jurisdiction as set forth in RSA 282-A:65. In such case the board shall issue an order
of summary disposition.
(b) Unless summarily
disposed of under Emab 202.06(a), a hearing shall be held after the receipt by
the parties of the notice, the record on appeal including the recording of the
hearing, and if required, the transcript of the proceedings.
(c) A continuance or postponement requested by any party or
by another individual appearing pursuant to Emab 202.06(e), shall be made in
writing not less than 10 calendar days prior to the scheduled hearing date,
except for good cause shown.
(d) For purposes of
this section, good cause means that:
(1) Meeting the prescribed time limit would
unduly burden the party or;
(2) A continuance or postponement is otherwise
necessary to conduct a more effective hearing.
(e) A party may
appear personally, through legal counsel, or by a duly authorized agent acting
on a party’s behalf. Pursuant to RSA
282-A:117-123, hearings shall be confidential in nature and attendance shall be
limited to the parties and their authorized representatives, except upon
agreement of the parties.
(f) Parties may
submit argument in person or in writing, or both. Any written argument or memorandum of law
submitted 3 calendar days prior to the hearing shall be considered timely.
(g) Late submissions
shall not be accepted, except upon a determination by the chair or vice chair
that:
(1) Meeting the prescribed time limit would
unduly burden the party; or
(2) A late submission is otherwise necessary to
conduct a more effective hearing.
(h) If the appealing
party fails to either attend a hearing or to advise the board that the party
wishes to be heard solely by written submission, the board shall either:
(1) Dismiss the case; or
(2) Hear the case if it determines that there may
have been error or the rights of any party would be violated by failure to
proceed.
(i) If a party other
than the appealing party chooses not to be present, the board shall proceed
with the hearing.
(j) Oral argument
shall be limited to 10 minutes on behalf of each party including questions from
the board unless the board determines that failure to grant additional time
would violate the rights of any party.
Unless otherwise directed by the presiding member, the appealing party
shall be heard first. The chair or vice
chair shall allow a party to offer brief rebuttal argument if he or she
determines that it will further clarify the issues.
(k) No evidence
shall be received by the board in any hearing.
Any alleged newly discovered evidence shall be introduced by an offer of
proof by the moving party to the board and the other parties.
Source. #10394,
eff 8-9-13
Emab 202.07 Motions
and Objections. Any request for
action by the board shall be by motion. All motions and objections thereto,
other than those made during a hearing, shall be made in writing. They shall state with particularity the
grounds upon which they are made and shall set forth the relief or order
sought.
Source. #10394,
eff 8-9-13
Emab 202.08 Consolidation
of Cases. The board shall make an order
for consolidation as justice and convenience requires when the parties agree
and the cases:
(a) Have common
issues of fact arising out of the same transaction or event; or
(b) Involve common
issues of law.
Source. #10394,
eff 8-9-13
Emab 202.09 Entry
of Decision.
(a) Copies of all
decisions and orders shall be provided to all parties. The board shall retain a record of its
decisions.
(b) All written
decisions of the board shall include a notice of appeal rights which shall
state that a party may file a motion for reconsideration or motion for a new
hearing with the board within 20 calendar days of the date of mailing of the
decision.
Source. #10394,
eff 8-9-13
Emab 202.10 Requests
for Reconsideration of Decision; Procedures for Filing Request; Form.
(a) Any party may
submit a written request for reconsideration or a motion for a new hearing within
20 calendar days after the date of mailing of any decision by the board.
(b) A request for
reconsideration or a motion for a new hearing shall:
(1) Identify each alleged
error of fact, error of reasoning, or error of law which the moving party seeks
to have reconsidered;
(2) Describe how each error causes the board's
decision to be unlawful, unjust or unreasonable, or illegal in respect to
jurisdiction, authority or observance of the law, an abuse of discretion or
arbitrary, unreasonable or capricious;
(3) Concisely state the reasoning or legal
conclusion proposed by the moving party; and
(4) Include any argument or memorandum of law the
moving party wishes to file.
Source. #10394,
eff 8-9-13
Emab 202.11 Action
on Request for Reconsideration; Rehearing; Exhaustion of Administrative
Remedies.
(a) The board shall,
within 30 calendar days rule on a motion for reconsideration or order a new
hearing. Reconsideration shall be
granted only in those instances where the board believes it may have erred in
its application of the criteria in RSA 282-A:65 to the record. Rehearing shall be granted only in those
instances where the board believes that further clarification of the law or
further argument from one or more of the parties is needed to make a correct
ruling.
(b) If the board
does not deny or grant a motion for reconsideration or order a new hearing
within 30 calendar days then, the board's original decision shall be considered
adopted and the request for reconsideration or motion for a new hearing
shall be deemed denied. The board
shall provide all parties with written notice that the board’s original
decision has been considered adopted and the request for reconsideration or
motion for a new hearing is deemed denied.
(c) In the event an
interested party or the commissioner files an appeal with the New Hampshire
Supreme Court, the department shall send a copy of the appeal to the board.
Source. #10394,
eff 8-9-13
Emab 202.12 Transfer
of Records. After 60 days has
elapsed from the date of the mailing of the final decision by the board, the
records, transcript, and all other papers, except for the decision in the case,
shall be transferred to the department.
Source. #10394,
eff 8-9-13
Emab 202.13 Withdrawal
of Appeal. A party may withdraw its
appeal at any time upon written request to the board.
Source. #10394,
eff 8-9-13
Emab 202.14 Recusal
of Board Member.
(a) Upon his or her
own initiative, or upon the motion of any party, a board member shall for good cause
recuse himself or herself from participation in any hearing.
(b) “Good cause”
shall exist if a board member:
(1) Has a direct interest in the outcome of a
proceeding including situations where the appeal involves something in which
the board member has a financial interest, or someone with whom the board
member has a close personal or family relationship;
(2) Personally believes that he or she cannot
fairly judge the facts of a case; or
(3) Would create the appearance of impropriety if
the board member participates.
(c) Mere knowledge
of the issues, the parties, or any witness shall not constitute good cause for
recusal.
(d) In the event of
a dispute as to whether good cause exists to require a recusal, the question
shall be decided by 2 board members not subject to the recusal action.
Source. #10394,
eff 8-9-13
Emab 202.15 Confidentiality
of Hearings. At the hearing, the presiding member shall deny
access to any person not a party nor a proper representative to the specific
proceeding before the board, except upon agreement of the parties.
Source. #10394,
eff 8-9-13
Emab 202.16 Conduct. Persons
who are determined to be disorderly or are disruptive to the proceedings
at any hearing shall be removed.
Source. #10394,
eff 8-9-13
Emab 202.17 Written Transcript of Appeal Tribunal or
Administrative Hearing Committee Hearing.
(a)
The board, after making a determination that a written transcript of the
appeal tribunal or administrative hearing committee hearing is needed, shall
order the production of such transcript, in whole or in part, upon request of
any party to an appeal or the board’s own initiative.
(b)
In determining whether to order production of such transcript, the board
shall consider the following factors, on a totality of circumstances basis:
(1) The party requesting the transcript has a hearing
impairment;
(2) The recording is difficult to hear in parts;
(3) The case is particularly lengthy or involves
complex issues; and
(4) Any other good cause shown.
(c)
A request for a written transcript shall include the reason(s) for the necessity
of the transcript and whether the transcript should be in whole or in part.
(d)
The board shall allow the use of a transcript prepared by an interested
party, or agent of an interested party, from the department’s official
recording of an appeal tribunal or an administrative hearing committee hearing
if it finds the transcript to be accurate.
Source. #10394,
eff 8-9-13
Emab 202.18 Ex
Parte Communication.
(a)
For purposes of this section, “ex
parte communication” shall mean any communication prohibited by RSA
541-A:36.
(b)
Parties shall be prohibited from all forms of ex parte communication
with members of the board while an appeal is pending,
including, but not limited to, written, telephonic, voice-mail, facsimile,
e-mail, and face-to-face communications.
Source. #10394,
eff 8-9-13
PART Emab 203 DECLARATORY RULINGS
Emab 203.01 Petition
for Declaratory Ruling. Since the
appellate board does not have jurisdiction to issue declaratory rulings,
petitions requesting declaratory rulings shall not be accepted by the board.
Source. #10622,
eff 6-10-14
PART Emab 204 RULEMAKING PETITIONS
Emab 204.01 Petition
for Adoption, Amendment or Repeal of Rules.
(a) Under the
provisions of RSA 541-A:4, submission of a petition to adopt a rule, or to
amend or repeal an existing rule, shall be made in writing to the appellate
board, and contain the following information:
(1) The full name and address of the petitioner;
(2) The purpose of the petition such as adoption,
amendment or repeal of a rule together with a detailed statement outlining the
petitioner's request;
(3) Reference to the statute or statutes upon
which the petition for adoption, amendment or repeal of a rule is requested;
and
(4) A statement whether, to the best of the petitioner's
knowledge, the issue which is the subject of the petition is:
a. The subject of an administrative appeal or
pending litigation; or
b. The subject of a decision which has become
final.
(b) The appellate
board shall, within 30 days after receipt of a petition under this rule, either
deny the petition in writing, stating therein the reason for denial, or shall
initiate rulemaking proceedings.
(c) Reasons for
denial shall include:
(1) The adoption, amendment or repeal of the rule
would conflict with a statute or existing rule;
(2) The adoption, amendment or repeal of the rule
would change a long-term effect on the regulated public more appropriately
changed by the legislature; or
(3) The adoption, amendment or repeal of the rule
is deemed inappropriate for similar reasons.
Source. #10622,
eff 6-10-14
Emab 205.01 Purpose. The purpose of this part is to provide a uniform
procedure for the conduct of public hearings at which comment from the general
public will be solicited for evaluation and consideration by the appellate board relative to rulemaking.
Source. #10622,
eff 6-10-14
Emab 205.02 Scope. These rules shall apply to all hearings
required by state law to be conducted by the appellate board at which
public comment shall be solicited, except that they shall not apply to
appellate board hearings pursuant to Emab 202.
Source. #10622,
eff 6-10-14
Emab 205.03 Notice.
(a) A public comment
hearing concerning rulemaking shall be commenced by placing notice of the
hearing in the "Rulemaking Register" so that it shall appear at least
20 days prior to the hearing date.
(b) Notice for
rulemaking public comment hearings shall comply with RSA 541-A:6, I.
(c) Nothing in these
rules shall prohibit the appellate board from giving greater notice than the
minimum set out in this part.
Source. #10622,
eff 6-10-14
Emab 205.04 Media
Access.
(a) Public comment
hearings shall be open to the print and electronic media.
(b) The presiding
member shall place limits on the activities of the media to avoid disruption in
the following ways:
(1) Limiting the placement of television cameras
to certain locations in the hearing room; and
(2) Prohibiting interviews from being conducted
within the hearing room during the hearing.
Source. #10622,
eff 6-10-14
Emab 205.05 Moderator.
(a) The hearing
shall be presided over by a moderator, who shall be the chair or vice chair.
(b) The moderator
shall:
(1) Call the hearing to order;
(2) Cause a recording of the hearing to be made;
(3) Place limits on the media to avoid disruption
as set out in Emab 205.04(b);
(4) Recognize those who wish to be heard and
establish the order thereof;
(5) Limit the time for each speaker, as set out
in Emab 205.06(b);
(6) Remove or have removed any person who
disrupts the hearing;
(7) Adjourn the hearing; and
(8) Provide opportunity for the submission of
written comments.
Source. #10622,
eff 6-10-14
Emab 205.06 Public
Participation.
(a) Any person who
wishes to speak on the issue or issues that are the subject of the hearing
shall place his or her name and address on a speakers' list before the last speaker
on the list has finished speaking. All
whose names appear on the speakers' list, as provided, shall be afforded
reasonable time to speak at the hearing.
Reasonable time shall be determined considering the number of people who
wish to be heard, and the time and the availability of the facility.
(b) The appellate
board, through the moderator, shall:
(1) Refuse to recognize a person who refuses to
give his or her full name and address;
(2) When a group or organization wishes to
comment, limit the group to no more than 3 spokespersons, provided that the
members who are present shall be allowed to enter their names and addresses
into the record as supporting the position by the group or organization;
(3) Revoke recognition of a speaker who speaks or
acts in an abusive or disruptive manner; and
(4) Revoke recognition of a speaker who refuses
to keep his or her comments relevant to the issue or issues which are the
subject of the hearing.
(c) Written comments
may be submitted any time from the time notice has been published until the
record has been closed by the moderator, which shall not be less than 5
business days after the hearing.
(d) In the event
that the number of speakers who wish to give oral testimony relevant to the
issue or issues involved exceeds that number which can be heard within a
reasonable period of time subject to facility availability and length of the
hearing, the hearing shall be reconvened pursuant to RSA 541-A:11, III to
afford such persons the opportunity to be heard. Speakers may elect to submit written
testimony in lieu of additional oral hearing.
Source. #10622,
eff 6-10-14
PART Emab 206 EXPLANATION OF ADOPTED RULES
Emab 206.01 Requests
for Explanation of Adopted Rules.
Any interested person may, within 30 days of the final adoption of a
rule, request a written explanation of that rule by making a written request to
the appellate board including:
(a) The name and
address of the person making the request; or
(b) If the request
is that of an organization or other entity, the name and address of such
organization or entity and the name and address of the representative authorized by the organization or entity to
make the request.
Source. #10622,
eff 6-10-14
Emab 206.02 Contents
of Explanation. The appellate board
shall, within 90 days of receiving a request in accordance with Emp 206.01,
provide a written response which:
(a) Concisely states
the meaning of the rule adopted;
(b) Concisely states
the principal reasons for and against the adoption of the rule in its final
form; and
(c)
States, if applicable, why the appellate board overruled any arguments
and considerations presented against the rule.
Source. #10622,
eff 6-10-14
Appendix
Rule |
|
Emab 202.01 |
RSA 282-A:62 |
Emab 202.02 |
RSA 541-A:22, IV |
Emab 202.03 |
RSA 282-A:53; 62; 66;
107; 108 |
Emab 202.04 |
RSA 282-A:64; 65 |
Emab 202.05
|
RSA 282-A:64 |
Emab 202.06 |
RSA 282-A:65; 117-123 |
Emab 202.07 |
RSA 282-A:64 |
Emab 202.08 |
RSA 282-A:64 |
Emab 202.09 |
RSA 282-A:65; 66; 67 |
Emab 202.10 |
RSA 282-A:67 |
Emab 202.11 |
RSA 282-A:67 |
Emab 202.12 |
RSA 282-A:67 |
Emab 202.13-202.14 |
RSA 282-A:62; 64; RSA
541-A:38 |
Emab 202.15 |
RSA 282-A:117-123; RSA 91-A:6; 20 CFR 603.3-12 |
Emab 202.16 |
RSA 282-A:66 |
Emab 202.17 |
RSA 282-A:64 |
Emab 202.18 |
RSA 541-A:36 |
Emab 203 |
RSA 541-A:16, I(d) |
Emab 204 |
RSA 541-A:16, I(c) |
Emab 205.01 - 205.02 |
RSA 541-A:11 |
Emab 205.03 |
RSA 541-A:6, I; RSA 541-A:11 |
Emab 205.04 |
RSA 541-A:11 |
Emab 205.05 |
RSA 541-A:11, II |
Emab 205.06 |
RSA 541-A:11, I, II, IV |
Emab 206 |
RSA 541-A:11, VII |