8 AAC 85.153. Hearing procedures

(a) Hearings will be conducted informally and in a manner which protects the rights of the parties. The referee will open the hearing by summarizing the law and the issues involved. In addition to the issues raised by the determination under appeal, the referee may hear and decide additional issues which arise during the hearing, if the parties are prepared to present these issues. Hearings are open to the public. However, upon a showing of potential damage to the property or reputation of a party or witness, the appeal referee may close portions of the hearing to the public.

(b) A party to the appeal may be represented by his counsel, representative, or other agent. If an agent charges a claimant a fee in any proceeding before an appeal referee and an issue as to the amount of the fee is raised by the claimant, the agent, or the appeal referee, the agent may receive for his services no more than an amount approved by the appeal referee in a written ruling. The ruling will be given or mailed to the claimant and the agent along with a clear statement of the right to review the commissioner according to 8 AAC 85.155. If the fee is for any proceeding before the commissioner and an issue is raised, the commissioner shall set the amount. In setting the amount of the fee, the appeal referee or the commissioner will consider the customary fee for similar services, the difficulty of the proceeding, and the amount of benefits involved in the proceeding.

(c) A witness who testifies at an appeal hearing must be sworn. A party or witness may present pertinent evidence even if the evidence is not admissible in a court. The referee will include in the record and consider as evidence all records of the division that are pertinent to the issue. Evidence presented or considered which is pertinent to the appeal is subject to examination and cross-examination by the referee and by an opposing party.

(d) The parties to an appeal, with the consent of the appeal referee, may agree in writing to the facts involved. A hearing to take additional evidence may be ordered by the appeal referee, after the notice required by 8 AAC 85.152 is given, if the facts agreed to are inadequate to determine the appeal.

(e) When the same or substantially similar evidence is material to more than one appeal, the appeal referee may consolidate the appeals in one hearing.

(1) A notice of the consolidation will be included in the notice of hearing required by 8 AAC 85.152. However, an interested party may waive his right to notice of consolidation.

(2) An interested party may demand a separate hearing by filing a demand for a separate hearing at either a local office or the central office of the division at least three days before the date set for hearing the consolidated appeal. The party will be granted a separate hearing only if the party's right to a fair hearing would be prejudiced in a consolidated hearing.

(f) A hearing may be postponed, continued or reopened on the appeal referee's own motion or at the request of an interested party. All requests must explain in detail the reasons for the request. If a party fails to appear in person or by authorized agent at a hearing, the appeal referee may reopen the hearing only if the party failed to appear because of circumstances beyond the party's control. All other requests may be granted only if there is good cause. The following rules apply to requests:

(1) A request for postponement may be either written or oral but must be received by the appeal referee before the hearing starts.

(2) A request for continuance must be made orally to the appeal referee during the hearing.

(3) A request for reopening must be made in writing to the appeal referee and must be delivered or mailed within 10 days after the scheduled date of the hearing. The 10-day period may be extended for a reasonable period on a showing that the request was delayed as a result of circumstances beyond the party's control.

(4) If a request for reopening is not allowed, the appeal referee will mail a written ruling and a statement of the right of appeal from that ruling to each party.

(5) The appeal referee will rule upon requests for continuance or postponement either orally or in writing. The rulings may be contested before the appeal referee at the hearing. If a postponement or continuance is denied, the appeal referee will make a decision on the issue under appeal, and the denial of postponement or continuance may be appealed in an appeal from the referee's decision.

(g) The appeal referee may adjourn a hearing for a reasonable period of time.

(h) If an interested party, his authorized representative, or his witness fails to make telephone contact through no fault of his own at the time of the scheduled telephone hearing, or if contact is made and one or more of the telephone contacts is broken and it is not possible to re-establish contact, then the telephone hearing will be continued and rescheduled for a later date.

(i) An appeal referee may not hear an appeal in which he has an interest. Challenges to the bias of an appeal referee will be heard and decided by the referee. A special appeal referee will be appointed to hear an appeal if a regular appeal referee is not qualified.

(j) The appeal referee or the commissioner may issue subpoenas to compel the attendance of witnesses and the production of records at any hearing on an appeal. Subpoenas requested by parties to the appeal will be issued only upon a showing of necessity. Witness, mileage, and per diem fees will be paid in accordance with AS 44.62.430 .

(k) A verbatim record will be made of the testimony in each appeal hearing and will be kept by the director for at least two years after the final decision of the appeal. This is a public record and will be made available to the public in accordance with 2 AAC 96. If the commissioner reviews an appeal from an appeal referee's decision, the record of the hearing before the appeal referee will be sent to the commissioner.

( l ) AS 44.62.590 , relating to contempt during proceedings before an agency, applies to hearings under this chapter.

History: Eff. 11/7/80, Register 76; am 3/27/82, Register 81; am 3/24/85, Register 93

Authority: AS 23.20.045

Editor's note: As of Register 176 (January 2006), and acting under AS 44.62.125 (b)(6), the regulations attorney made a technical change to 8 AAC 85.153(k) , to reflect Executive Order 113 (2005). Executive Order 113 eliminated the Telecommunications Information Council and transferred its functions related to public information and records to the governor and to the Department of Administration.

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