PART 2605 ADMINISTRATIVE HEARING RULES : Sections Listing

TITLE 56: LABOR AND EMPLOYMENT
CHAPTER III: DEPARTMENT OF COMMERCE AND ECONOMIC OPPORTUNITY
PART 2605 ADMINISTRATIVE HEARING RULES


AUTHORITY: Implementing Section 5-10(a)(i) and Article 10 of the Illinois Administrative Procedure Act [5 ILCS 100/5-10(a)(i) and Art. 10].

SOURCE: Adopted at 24 Ill. Reg. 8853, effective June 13, 2000; amended at 43 Ill. Reg. 4056, effective March 19, 2019.

 

Section 2605.10  Authority

 

This Part is issued pursuant to Section 5-10(a)(i) and Article 10 of the Illinois Administrative Procedure Act  [5 ILCS 100/5-10].

 

Section 2605.20  Applicability

 

a)         This Part shall apply to all Administrative Hearings conducted by the Illinois Department of Commerce and Economic Opportunity that are not specifically provided for under any other Section of the Civil Administrative Code of Illinois or other Program Rules.

 

b)         In the event of any conflict between the provisions of this Part and any rules promulgated under the authority of the Grant Accountability and Transparency Act (GATA) [30 ILCS 708], the GATA rules will apply.

 

c)         Nothing in this Part shall limit the ability of the Department to enter into an intergovernmental agreement with another State agency providing for the services of a Hearing Officer.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.40  Definitions

 

"IAPA" means the Illinois Administrative Procedure Act [5 ILCS 100].

 

"Administrative Hearing" or "Hearing" means the adjudicatory proceeding used to resolve a contested case.

 

"Agency" shall have the meaning ascribed to it in Section 1-20 of the IAPA.

 

"Agency Head" shall have the meaning ascribed to it in Section 1-25 of the IAPA.

 

"Business Day" means all days except Saturday and Sunday, and all weekdays that are not national and/or State legal holidays.

 

"Complainant" means the party who initiates the Administrative Hearing.

 

"Contested Case" shall have the meaning ascribed to it in Section 1-30 of the IAPA.

 

"Department" means the Illinois Department of Commerce and Economic Opportunity.

 

"Development Assistance Agreement" shall have the meaning ascribed to it in Section 715-5 of the Corporate Accountability for Tax Expenditures Act [20 ILCS 715].

 

"Director" means the Director of the Department or duly appointed Acting Director, or in the Director's or Acting Director's absence from the State, or in any event of the Director's or Acting Director's incapacity to act, the next immediate subordinate officer within the Department.

 

"Hearing Number" means the case number assigned to the Petition for Hearing or the Notice of Charges by the Department for the Administrative Hearing proceedings.

 

"Hearing Officer" means the Administrative Law Judge as defined in Section 1-15 of the IAPA, and is the person appointed or retained by the Department to preside over the Administrative Hearing proceedings.

 

"Municipality" shall have the meaning ascribed to it in Section 1-45 of the IAPA.

 

"Notice of Charges" means a complaint filed by the Department initiating an Administrative Hearing proceeding against a Recipient under this Part.

 

"Order" shall have the meaning ascribed to it in Section 1-50 of the IAPA.

 

"Party" shall have the meaning ascribed to it in Section 1-55 of the IAPA.

 

"Person" shall have the meaning ascribed to it in Section 1-60 of the IAPA.

 

"Petition for Hearing" means a request for an Administrative Hearing.

 

"Program Rule" means any of the rules adopted by the Department and codified within the Illinois Administrative Code or any programmatic requirement established by a federal agency that is a source of funding for the program.

 

"Proof of Service" means evidence submitted specifying the date, method, and person who served a document on another party.  All Proofs of Service must be signed by the server.

 

"Proposal for Decision" means the report issued by the Hearing Officer pursuant to Section 2605.400.

 

"Recipient" means anyone that has received direct financial assistance from the Department pursuant to a Statute or Program Rule or who is a party to a Development Assistance Agreement with the Department.

 

"Respondent" means any party who answers/responds to a Notice of Charges, Petition for Hearing, or Motion.

 

"State Agency" means any State office, officer, division, or part thereof, and any other office, nonelective officer, department, division, bureau, board, or commission in the executive branch of State government, under the authority of the Governor of Illinois.

 

"Statute" means a formal written enactment of a legislative body, whether federal or State.

 

"Statutory Authority" means the authority given to the Department by a Statute either directly or as delegated by agreement with another unit of government.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.50  Modifications

 

The Hearing Officer may modify this Part upon the written stipulation of the parties.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.60  What May Be Reviewed in an Administrative Hearing

 

Subject to Section 2605.70, any finding or decision of the Department may be reviewed in an Administrative Hearing when a Statute or Program Rule provides for it.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.70  What May Not Be Reviewed in an Administrative Hearing

 

The following may not be reviewed in an Administrative Hearing, unless otherwise permitted by a Statute or Program Rule:

 

a)         Rulemaking as set forth in Sections 5-35, 5-40, 5-45, and 5-50 of the IAPA;

 

b)         Instances in which a party has waived its right to an Administrative Hearing;

 

c)         Issues involving unfair labor practices or discrimination in employment;

 

d)         The Department's decision to deny an application for financial assistance, or to fund at a lower level than requested; or

 

e)         A declaratory ruling as provided for in Section 5-150 of the IAPA [5 ILCS 100].

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.80  Procedure for Initiating an Administrative Hearing

 

a)         An Administrative Hearing is initiated by an individual or entity with standing to seek such an Administrative Hearing serving a Petition for Hearing on the Department, or by the Department serving a Notice of Charges on a party. In either case, the service must be made within the required period of time specifically set forth by a Statute or Program Rule.

 

b)         The Petition for Hearing and the Notice of  Charges must be in clear and legible writing and signed by the person initiating the Administrative Hearing.

 

c)         The Petition for Hearing and the Notice of Charges must contain the following information:

 

1)         The name and contact information of the parties involved;

 

2)         The subject matter of the Administrative Hearing;

 

3)         The date;

 

4)         A list of the Department findings or decisions that are being challenged, the specific reasons why the Petitioner asserts that the Department's findings or decisions are incorrect, and the specific relief sought (in the case of a Petition for Hearing); and

 

5)         A list of the Department's charges against the party (in the case of a Notice of Charges).

 

d)         The Petition for Hearing must be personally delivered, or mailed via certified mail, return receipt requested, with Proof of Service attached, to:

 

Office of the General Counsel

Illinois Department of Commerce and Economic Opportunity

100 West Randolph Street, Suite 3-400

Chicago, Illinois 60601.

 

e)         The Notice of Charges must be personally delivered, or mailed via certified mail, return receipt requested, with Proof of Service attached, to the party's last known address or to the party's registered agent for service of process at the address registered with the Illinois Secretary of State.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.90  Department Hours

 

The Department's hours are from 8:30 a.m. to 5:00 p.m., Monday through Friday, except for national and/or State legal holidays.

 

Section 2605.100  Computing Time Limits

 

a)         Computation of any period of time prescribed by this Part shall begin with the first business day following the day on which the act, event, or development initiating that period of time occurs, and shall run until the end of the last day or the next following business day, if the last day is a Saturday, Sunday, or legal holiday.  When the period of time is 10 days or less, Saturdays, Sundays, and legal holidays shall be excluded in the computation of time.

 

b)         Notice requirements shall be construed to mean notice received. However, proof that notice was dispatched by means reasonably calculated to be received by the prescribed date shall be prima facie proof that notice was timely filed. Petitions, evidence, motions, notices, and all other correspondence sent by U.S. mail will be considered as filed with the Department on the date postmarked. When the parties have agreed in writing to notice by electronic mail or through an electronic filing system, notice will be considered having been received on the date of transmission of the filing or other communication.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.110  Form of Documents

 

a)         All documents submitted pursuant to an Administrative Hearing shall be typewritten, on 8˝ by 11 inch white paper. The first page of each document shall set forth the names of the parties and the Hearing Number assigned to the case by the Department.  A Petition for Hearing that is filed before a Hearing Number is assigned shall contain a space for entry of the assigned Hearing Number.

 

b)         All documents submitted to the Department that require verification shall be signed by the party filing them.  All other documents submitted by the party shall be signed by the party or its representative.  That signature constitutes a representation by the party or its representative that the party or representative has read the documents and that, to the best of the party's or representative's knowledge, information, and belief, the statements made in the documents are true, and are not made for purposes of delay or harassment.

 

c)         All documents submitted to the Department after the Petition for Hearing shall be submitted in duplicate, together with a Proof of Service, unless submitted electronically or other arrangements are agreed to among the parties.

 

d)         Any party submitting or filing a document in the administrative proceedings must also simultaneously send a copy to the opposing party and the Hearing Officer at their designated addresses.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.120  Service

 

a)         Service of all documents after a Petition for Hearing or Notice of Charges has been initiated shall be made by personal delivery upon all parties, or U.S. mail, properly addressed, with postage prepaid, unless otherwise required in this Part. Proof of Service must be attached to the original of any document served.  The parties may agree to service by facsimile or electronic mail. To the extent the parties agree to service by electronic mail, a party has the option of designating up to two secondary electronic mail addresses at which that party consents to accept service.  If any secondary electronic mail address is designated, the Department must serve the documents on both the designated and all secondary addresses.

 

b)         Service on the Department is made by serving the Office of the General Counsel, at the Chicago office address, unless otherwise designated by the Department.

 

c)         Service on a party shall be at its last known address, unless otherwise designated by the party.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.130  Amendment, Voluntary Dismissal or Withdrawal of a Petition for Hearing or Notice of Charges

 

a)           A Notice of Charges may be amended at any time. An amended Notice of Charges may be filed in the same manner as a Notice of Charges, or it may be presented to the Hearing Officer during the course of a Hearing. A continuance shall be granted whenever the amendment materially alters the Notice of Charges, and when the Respondent demonstrates that additional time is necessary to properly prepare an answer or otherwise prepare the Respondent's case.

 

b)         Prior to Hearing, an unopposed motion to voluntarily dismiss or withdraw a Petition for Hearing or Notice of Charges shall be granted, and the Hearing Officer shall issue an order dismissing the Petition for Hearing or Notice of Charges, and its underlying cause with or without prejudice.  However, the Hearing Officer, within the Hearing Officer's discretion, may hear and decide a motion that has been filed prior to a motion to voluntarily dismiss or withdraw when that prior filed motion could result in a final disposition of the cause.  After a Hearing begins or when a motion to voluntarily dismiss or withdraw is challenged, the Hearing Officer shall exercise discretion in allowing the motion when the voluntary dismissal or withdrawal would serve the interests of justice.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.140  Failure to Properly Initiate an Administrative Hearing

 

The Department may move to dismiss any Petition for Hearing that does not comply with this Part. The Hearing Officer shall state the basis upon which any Petition for Hearing is rejected and shall grant the party 28 days to amend the Petition.  Upon the second failure to properly initiate an Administrative Hearing, the Hearing Officer shall state the basis upon which the Petition for Hearing is rejected and the Petition shall be dismissed with prejudice.  The dismissal is a Final Decision pursuant to Section 2605.410 for purposes of appeal.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.150  Waiver of Issues

 

Any issues that are not specifically, directly or implicitly addressed in the Petition for Hearing will be irrevocably waived in any Administrative Hearing conducted by the Department.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.160  Sanctions

 

Upon motion, any document that is submitted and subsequently determined by the Hearing Officer to be without basis, untrue, or made for the purpose of delay or harassment shall subject the party submitting it to sanctions, including, but not limited to, the following:

 

a)         Dismissal of the Petition for Hearing or Notice of Charges with prejudice; and

 

b)         Denial of the party's motion.

 

Section 2605.170  Notice of Hearing

 

a)         After receipt by the Department of a properly submitted Petition for Hearing, or in conjunction with a Notice of Charges, a Notice of Hearing shall be served, personally or by certified or registered mail, return receipt requested, by the Department upon the parties or their agents appointed to receive service of process, and shall include the following:

 

1)         A statement of the date, time, place, and nature of the Administrative Hearing;

 

2)         A statement of the legal authority and jurisdiction under which the Administrative Hearing is to be held;

 

3)         A reference to the particular Sections of the substantive and procedural Statute and Program Rules involved;

 

4)         A short and plain statement of the matters asserted, the consequences of a failure to respond, and the assigned Hearing Number; and

 

5)         The names and mailing addresses of the Hearing Officer, all parties involved, and all other persons to whom the Department gives Notice of Hearing, unless otherwise confidential by law. [5 ILCS 100/10-25]

 

b)         Any contention that an improper Notice of Hearing was given will be deemed waived unless it is raised by a party prior to argument on any other motion, or, if no other motions are presented, prior to the commencement of opening statements.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.180  Requirement of an Answer

 

a)         In all contested cases initiated by a Notice of Charges, the Respondent shall file an answer within 28 days after the date on which the Notice of Charges was served.  The answer shall be in writing, signed by the Respondent and shall contain a specific response to each allegation. The answer shall either admit or deny the allegation, or shall state that the Respondent has insufficient information to either admit or deny the allegation.

 

b)         Any answer that states that the Respondent has insufficient information to admit or deny the allegation shall be accompanied by an affidavit of the Respondent attesting to the truth of this assertion.

 

c)         On motion by any party, the Hearing Officer will issue a notice to plead or be held in default to the Respondent who has failed to submit an answer that conforms to this Section.  If, within 15 days after issuance of the notice, the Respondent does not answer or otherwise file a responsive pleading, the Respondent will be held in default and a default Order may be entered.

 

d)         In cases initiated by a Petition for Hearing, the Hearing Officer may order the Department to submit an answer stating the Department's position on any facts or issues raised in the Petition for Hearing.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.190  Consolidation and Severance of Parties and Cases

 

In the interest of efficient disposition of the Administrative Hearing and upon motion of any party or sua sponte, the Hearing Officer may consolidate or sever any parties or cases. A party may contest the Hearing Officer's decision by filing a motion, as provided in this Part, setting forth specific reasons why the party will be unduly prejudiced by the consolidation or severance.

 

Section 2605.200  Hearing Officer

 

In any Administrative Hearing, the Department Director or Director's designee shall appoint or retain an impartial or independent person as a Hearing Officer to conduct the Administrative Hearing. The Hearing Officer shall meet the following standards and qualifications:

 

a)         be licensed to practice law in the State of Illinois;

 

b)         be impartial. It shall not be a bar to acting as Hearing Officer that the attorney is also an employee of another State agency or a Department employee, so long as the Department employee has not had any direct involvement with the case. Mere familiarity with the facts shall not disqualify an otherwise qualified person from acting as the Hearing Officer; and

 

c)         be familiar with the rules of evidence applied in the circuit courts of Illinois and with the IAPA and rules promulgated under the IAPA.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.210  Hearing Officer Duties

 

a)         The Hearing Officer shall:

 

1)         Conduct a fair and impartial Administrative Hearing; and

 

2)         Take all necessary action to avoid delay, maintain order, and insure development of a clear and complete record.

 

b)         The Hearing Officer shall have all powers necessary to conduct the Administrative Hearing as provided in this Part, including but not limited to the power to:

 

1)         Administer oaths and affirmations;

 

2)         Regulate the course of the Administrative Hearing; set the time and place for continued Hearings; fix the time for submitting documents; provide for the taking of testimony by deposition, if necessary and agreed to by the parties; and generally conduct the proceedings according to generally recognized principles of administrative law and this Part;

 

3)         Dispose of procedural requests or similar matters;

 

4)         Examine witnesses and direct witnesses to testify; limit the number of times any witness may testify; limit repetitious or cumulative testimony; and set reasonable limits on the amount of time each witness may testify;

 

5)         Rule upon offers of proof; receive relevant evidence; and determine what evidence is admissible;

 

6)         Direct parties to appear and confer for the settlement or simplification of issues and to otherwise conduct prehearing conferences;

 

7)         Make rulings on motions and objections;

 

8)         Consider all relevant facts and circumstances;

 

9)         Enter any order that further carries out the purpose of this Part;

 

10)         Compile a record of the proceedings in compliance with IAPA Section 10-35; and

 

11)         Submit a Proposal for Decision, containing Findings of Fact, Conclusions of Law, and a proposed Final Decision of the Director, to the parties at the conclusion of the Administrative Hearing.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.220  Recusal of Hearing Officer

 

a)         Any party may file a timely and sufficient motion, supported by affidavit, requesting that the Hearing Officer recuse himself or herself from hearing the case. The affidavit shall set forth allegations of personal bias or prejudice of the Hearing Officer.  If a new Hearing Officer is necessary, the Director or Director's designee shall appoint and/or retain another Hearing Officer.

 

b)         An adverse ruling in and of itself shall not constitute a bias or conflict of interest. [5 ILCS 100/10-30]

 

c)         The Hearing Officer may, at any time, voluntarily disqualify himself or herself upon written notice to the Department.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.230  Ex Parte Communication

 

a)         Once appointed or retained, the Hearing Officer shall not communicate directly or indirectly with any party or any person interested in the outcome of the proceeding, with respect to the merits of any case not concluded, except upon notice and opportunity for all parties to participate. [5 ILCS 100/10-60]

 

b)         The Hearing Officer may impose and enforce sanctions, including those sanctions set forth in Section 2605.160, against a party who violates this Section.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.240  Representation and Appearance

 

a)         Only attorneys licensed to practice law in Illinois may represent any other individuals or entities in an Administrative Hearing proceeding before the Department.  Any party may be represented by an attorney, provided that the attorney is licensed to practice law in Illinois or by an attorney who is permitted to practice law in Illinois under Article VII of the Illinois Supreme Court Rules.  Attorneys who appear in a representative capacity must file a written Notice of Appearance setting forth the following:

 

1)         The name, address, telephone number, and Attorney Registration and Disciplinary Commission (ARDC) number of the attorney upon whom service of papers may be made;

 

2)         The name and address of the party represented; and

 

3)         An affirmative statement indicating that the attorney is licensed to practice law in Illinois.

 

b)         A natural person, who is a party, may appear and be heard on that person's own behalf.  A party may use an interpreter if necessary.

 

c)         A corporation or association may be represented by a corporate officer provided that officer is qualified to practice law in Illinois, as set forth in subsection (a), and upon presentation to the Department of a duly executed resolution of the board of directors authorizing the officer to act in a representative capacity and setting forth the powers the officer is authorized to exercise.

 

d)         A partnership may be represented by a general partner provided that general partner is qualified to practice law in Illinois, as set forth in subsection (a), upon presentation to the Department of written authorization from all the partners authorizing the general partner to act in a representative capacity.

 

e)         All attorneys appearing in Administrative Hearing proceedings before the Hearing Officer shall conform their conduct to the Illinois Rules of Professional Conduct (Article VIII of the Illinois Supreme Court Rules).  In the event that an attorney's behavior substantially impairs the administration of the  Administrative Hearing, the Hearing Officer may take the following actions in a progressive manner:

 

1)         Limitation of evidence;

 

2)         Substitution of written argument for oral argument;

 

3)         Exclusion of the attorney from the proceeding;

 

4)         Suspension or revocation of the attorney's right to appear before the Hearing Officer in that contested case.

 

f)         If the Hearing Officer takes any of the actions listed in subsection (e), it shall be done as a matter of record, and the Hearing Officer shall state for the record the specific reasons for the action.

 

g)         Non-attorneys appearing in proceedings before the Department shall be courteous and dignified and shall maintain the decorum of the tribunal.

 

h)         An attorney may withdraw an appearance or representation only upon motion and appropriate ruling by the Hearing Officer.  However, substitution of attorneys is permitted without motion, provided notice is given to all parties and to the Hearing Officer, as long as the substitution will not delay the proceedings, and a statement to that effect is contained in the notice.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.250  Intervenors (Repealed)

 

(Source:  Repealed at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.260  Motions

 

a)         Motions, unless made during a Hearing, shall be in writing, shall specify the relief and/or order sought, and shall be served on all parties and filed with the Department. Motions are limited to the following:

 

1)         To request dismissal of a Petition for Hearing or a Notice of Charges for failure to comply with Section 2605.80 or failure to state a claim upon which relief can be granted.

 

2)         To request sanctions in accordance with Section 2605.240 or 2605.270.

 

3)         To request dismissal of a Petition for Hearing when the Petitioner's case has been concluded without sufficient evidence having been presented to form the basis for a recommendation that the Department reverse its findings, determinations, or conclusions.

 

4)         To request dismissal of a Notice of Charges when the Department's case has been concluded without sufficient evidence having been presented to form a basis for the relief requested by the Department.

 

5)         To request a continuance, or extension of time to comply with any provision of this Part.

 

6)         To request an order granting a rehearing or additional Hearings.

 

7)         To request an order that the Hearing Officer reconsider the Proposal for Decision.

 

8)         To request that the Director or Hearing Officer deem a failure to file an answer conforming to Section 2605.180 to be an admission of the truth of the allegations contained in the Petition for Hearing or Notice of Charges.

 

9)         To request recusal of the Hearing Officer in accordance with Section 2605.220.

 

10)        To request that the Hearing Officer issue an order requiring a party to appear at any case management Hearing, prehearing conference, or formal Hearing, or to be held in default.

 

11)        To request that an order be vacated or modified.

 

12)        To request a case management or prehearing conference.

 

13)        To request consolidation or severance of cases in accordance with Section 2605.190.

 

14)        To request summary judgment if the pleadings and any evidence on file, together with any supporting affidavits, shows that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law.

 

15)        To request that certain evidence or witnesses be excluded from a Hearing.

 

16)        To request that certain evidence be stricken from the record.

 

b)         When any motion is filed, the opposing party has 28 days, or such other period as the Hearing Officer may prescribe, to file a written response setting forth the arguments, authorities relied upon, and affidavits or other supporting evidence. The moving party shall have 14 days, or such other period as the Hearing Officer may prescribe, to file a written reply.  When any oral motion is presented during a Hearing, the opposing party may respond at that Hearing or request leave to file a written response within the same time periods as set forth in this Section.  If no response is filed or orally presented, the opposing party's right to object will be deemed waived.  Any dispositive motion that disposes of all claims or all parties in the action that is granted shall be part of the Administrative Record and shall be treated as a Final Decision pursuant to Section 2605.410 for purposes of appeal.

 

c)         The Hearing Officer may allow oral argument, if it is deemed necessary for a fuller understanding of the issues presented, and is authorized to question either party. When facts are alleged in support of a motion that are not a part of the record in the case, an affidavit shall be attached to the motion setting forth those facts. A written motion shall be disposed of by written order and notice to all parties.

 

d)         The Hearing Officer shall rule upon all  motions properly presented within a reasonable time.  All motions and corresponding orders shall be part of the Administrative Record.

 

e)         Unless otherwise ordered, the filing of a motion or response shall not stay the proceeding or extend the time for the performance of any act.

 

f)         Before granting any dispositive motion, the Hearing Officer may first afford the party an opportunity to cure defects in pleading or proof, and the ruling shall be made part of the Administrative Record in accordance with Section 10-35 of the IAPA.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.270  Discovery

 

a)         Discovery shall only commence after a preliminary Hearing.  Discovery shall not be the subject of motions presented to the Hearing Officer, except when a motion is made alleging failure to comply with this Section and requesting relief in the form of limitation of evidence, dismissal of the case, or a recommendation to the Director based on the pleadings without a Hearing. The Hearing Officer, upon finding that a party has not complied with this Section, may issue an order providing for the foregoing remedies.

 

b)         Upon written request served on the opposing party, a party is entitled to:

 

1)         The name and business address of any witness who may be called to testify at the Administrative Hearing and a description of the expected subject matter of the potential witness' testimony;

 

2)         Copies of any document that may be offered as evidence at the Administrative Hearing; and

 

3)         A description of any other evidence that may be offered at the Administrative Hearing.

 

c)         A Recipient, at any time after a preliminary Hearing and upon written request, will be required to produce documents, books, records or other evidence that relates to the financial assistance provided by the Department, including any records required to be maintained or produced pursuant to an agreement with the Department.

 

d)         The items set forth in subsections (b) and (c) shall be provided within 28 days after service of a request, unless a longer or shorter period is agreed upon by the parties or ordered by the Hearing Officer.

 

e)         The Hearing Officer may restrict discovery when necessary to prevent undue delay or harassment.

 

f)         When a party obtains or is in possession of exculpatory evidence, that party must turn over that evidence to the opposing party within 28 days following the preliminary Hearing or, if discovered after the preliminary Hearing, within 15 days after its discovery and prior to a formal Hearing. Exculpatory evidence is any evidence that tends to support the party's position or to call into question the credibility of a witness.

 

g)         A party shall respond to any written discovery requests that were properly served.  Nothing in this Section shall prevent the parties in a contested case from agreeing to a mutual exchange of information that is more extensive than what is provided for in this Section. When the parties agree to the use of an evidence deposition, that agreement shall be in writing and shall operate as a waiver of any objection not made during the deposition, except for an objection that the testimony of the witness is not relevant to the case.

 

h)         The parties have a continuing obligation to tender new information as it becomes available, as well as a continuing obligation to supplement any disclosures or responses to discovery requests to include information acquired after original submission.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.280  Case Management and Prehearing Conferences

 

a)         Upon motion by the Hearing Officer or any party, the Hearing Officer may direct the parties to attend a case management conference or prehearing conference at a mutually convenient time and place prior to the Administrative Hearing date for the purpose of:

 

1)         Simplifying the issues;

 

2)         Limiting the issues;

 

3)         Amending the Petition for Hearing or Notice of Charges, if necessary;

 

4)         Stipulating to facts and/or admissions;

 

5)         Limiting the number of witnesses or evidence;

 

6)         Mutually exchanging prepared testimony and exhibits; and

 

7)         Any other matters that aid in the timely resolution or simplification of the Administrative Hearing.

 

b)         Any agreements, understandings, or conclusions made at a case management conference or prehearing conference shall be in the form of a prehearing order signed by the Hearing Officer and all parties or representatives involved in the Administrative Hearing, and shall become a part of the Administrative Record.

 

c)         Unless otherwise precluded by law, any case may be disposed of by stipulation, agreed settlement, consent order, or default.  Any settlement must be signed by all parties involved. The settlement agreement shall be memorialized by an Order dismissing the case with prejudice. To the extent a settlement agreement requires approval by a federal agency or the Illinois Attorney General, as determined by the Department, the Hearing Officer may enter an Order dismissing the case with prejudice conditioned on receipt of all necessary external approvals.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.290  Hearings

 

a)         All Hearings shall be conducted by the Department at one of its locations as determined by the Department, unless otherwise agreed to by the parties and the Hearing Officer. The parties may stipulate to conducting case management Hearings, prehearings, or formal Hearings by telephone, video conference, or other means acceptable to the parties and Hearing Officer.

 

b)         The sequence to be followed for all Administrative Hearings is as follows:

 

1)         Preliminary Hearing – The purpose is to set a date on which all parties expect to be prepared and to rule on any preliminary motions that are presented. This may be eliminated by agreement of the parties and/or ordered by the Hearing Officer.

 

2)         Case Management and Prehearing Conferences – The purposes of the conferences are set out in Section 2605.280.

 

3)         Hearings –

 

A)        Preliminary Matters – Motions; attempts to narrow issues or limit evidence.

 

B)        Opening Statements – The party bearing the burden of proof proceeds first.

 

C)        Case in Chief – Evidence and witnesses are presented by the party bearing the burden of proof.  After a witness' testimony is completed, the witness is subject to cross-examination.

 

D)        Defense – Evidence and witnesses may be presented by the opposing party.

 

E)        Closing Statements – The party bearing the burden of proof proceeds first, then the opposing party, then a final reply by the party bearing the burden of proof. The Hearing Officer may request the parties to submit closing statements in writing.

 

F)         Final Decision – Described in Section 2605.410.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.300  Postponement or Continuance of Hearing

 

Upon motion by a party or the Hearing Officer, a hearing may be postponed or continued for just cause.  Written notice of any postponement or continuance shall be given to all parties within a reasonable time in advance of the previously scheduled hearing date.  All parties shall attempt to avoid unnecessary and repetitive postponements or continuances so that the administrative proceedings may be resolved expeditiously.

 

Section 2605.310  Failure to Appear

 

Any party failing to appear at a Hearing shall waive its right to present evidence.  If the Hearing Officer determines that proper notice was given, the Hearing Officer shall grant affirmative relief to the party appearing or enter an order dismissing the Petition for Hearing or Notice of Charges, with prejudice. A party fails to appear if the party does not appear at the time, date, and place designated for the Hearing; a party fails or refuses to proceed with the Hearing; or a party failed to notify the Department of a change of address, and a notice of the Hearing, sent to the party's last known address, was returned as "undeliverable", "unclaimed", "refused", "moved", or "no forwarding address" or any other type of returned mail, via postal or electronic method.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.320  Burden of Proof

 

The burden of proof, which includes both the burden of production and the burden of persuasion, rests with the Petitioner in all cases initiated by the filing of a Petition for Hearing, and with the Department in all cases initiated by the filing of a Notice of Charges.

 

Section 2605.330  Standard of Proof

 

Unless otherwise provided by law, the standard of proof for an Administrative Hearing under this Part shall be the preponderance of the evidence. [5 ILCS 100/10-15]

 

Section 2605.340  Evidence

 

a)         Except as otherwise provided in this Section, the rules of evidence and privilege applicable to all contested cases will be the rules of evidence that are applied in civil cases in the circuit courts of the State of Illinois.  In addition, the Hearing Officer may receive material, relevant evidence that would be relied upon by a reasonably prudent person in the conduct of serious affairs [5 ILCS 100/10-40] that is reasonably reliable and reasonably necessary to a resolution of the issue for which it is offered.

 

b)         The Hearing Officer shall exclude immaterial, irrelevant, and repetitious evidence.

 

c)         The Hearing Officer shall use his or her discretion in admitting or denying the admission of evidence.

 

d)         Hearsay is not admissible except when:

 

1)         exceptions to the hearsay rule that exist in Illinois are applicable or a statement has circumstantial guarantees of trustworthiness; and

 

2)         if the probative value of the statement outweighs any prejudice resulting from an inability to cross-examine the declarant.

 

e)         Statements that are Not Hearsay:

 

1)         Prior Statement by Witness. The declarant testifies at the Hearing and is subject to cross-examination concerning the statement, and the statement is:

 

A)        Inconsistent with his or her testimony that was given under oath subject to the penalty of perjury at a trial, Hearing, deposition, or other proceeding; or

 

B)        Consistent with his or her testimony and is offered to rebut an express or implied charge against him or her of recent fabrication or improper influence or motive; or

 

C)        One of identification of a person made after perceiving him or her.

 

2)         Admission by Opposing Party. The statement is offered against a party and is:

 

A)        The party's own statement in either his or her individual or a representative capacity; 

 

B)        A statement of which the party has manifested his or her adoption or belief in its truth; 

 

C)        A statement by a person authorized by the party to make a statement concerning the subject; 

 

D)        A statement by the party's agent or servant concerning a matter within the scope of the party's agency or employment, made during the existence of the relationship; or

 

E)        A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

 

f)         Official notice may be taken of all facts of which judicial notice may be taken and of other facts, of a technical nature, within the specialized knowledge and experience of the Department.

 

g)         A party may object to evidentiary offers. Objections shall be noted in the record.

 

h)         The parties may, by stipulation, agree upon any facts involved in the proceeding. The facts stipulated must be considered evidence in the proceeding.

 

i)          The Hearing Officer may direct the parties to protect the disclosure of trade secret or other confidential information protected by Statute prior to its admission. The Hearing Officer may require the information to be revealed or redacted in a specific way.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.350  Business Records

 

a)         The rules admitting business records will be the same as those contained in Rule 236 of the Illinois Supreme Court Rules.

 

b)         Any party seeking to admit documents other than the originals may do so, provided the party certifies that the copy is a true and correct copy of the original.  The party need not show that the original is unavailable.

 

Section 2605.360  Witness Testimony

 

a)         The Hearing Officer may exercise reasonable control over the form of examination and order of witnesses so as to make the examination effective for gathering the facts, avoiding delay, and protecting witnesses from harassment or undue embarrassment. The Hearing Officer may limit the examination of witnesses to prevent cumulative or irrelevant evidence. The Hearing Officer may examine any witness.

 

b)         A party may object to specific questions asked by the Hearing Officer, but it shall not be objectionable that a question violates a technical rule of evidence. For purposes of this Section, the rule against hearsay is a substantive, rather than a technical, rule of evidence.

 

c)         Before testifying, a witness shall declare, by oath or affirmation and under penalty of perjury, that he or she will testify truthfully.

 

d)         In the interests of justice, at the request of a party, or on the Hearing Officer's own motion, the Hearing Officer may order witnesses excluded so that they cannot hear the testimony of other witnesses. The Hearing Officer may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the Hearing is ended.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.370  Adverse Witness

 

a)         Any party or witness may be called as an adverse witness. Examination of the adverse witness shall be allowed as if under cross-examination.

 

b)         A witness called in good faith whose testimony surprises the party who called the witness may examine that party as if under cross-examination, and the testimony of the witness may be impeached by prior statements.

 

Section 2605.380  Record of Hearing

 

A record of the Hearing may be made by audio recording or by a transcription by an official court reporter engaged by the Department. The Department will not provide copies of a transcript to the parties, but the parties may obtain copies from the official reporter upon payment of the appropriate costs.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.390  Administrative Record

 

a)         A full and complete record shall be kept of all proceedings.  The record shall consist of the following:

 

1)         All pleadings (including, but not limited to, the Petition for Hearing or Notice of Charges and any answers);

 

2)         Motions, briefs, arguments, affidavits, exhibits, documents, and records;

 

3)         All evidence received;

 

4)         All discovery responses;

 

5)         A recording or transcript of the Hearing, as well as any transcript of any proceeding applicable for appeal or for administrative review;

 

6)         A statement of matters officially noticed;

 

7)         Offers of proof, objections, and rulings;

 

8)         Any proposed findings and exceptions;

 

9)         Any order, decision, opinion, or report by the Hearing Officer;

 

10)         All staff memoranda or data submitted to the Hearing Officer of the case;

 

11)         Any communication prohibited by Section 10-60 of the IAPA or Section 2605.230 of this Part.

 

b)         Oral proceedings or any part thereof shall be recorded stenographically or by other means that will adequately insure the preservation of the testimony or oral proceedings and shall be transcribed at the request of any party. Case management conferences that do not involve oral argument may be memorialized by written order of the Hearing Officer.

 

c)         Findings of Fact shall be based exclusively on the evidence and on matters officially noticed. [5 ILCS 100/10-35]

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.400  Proposal for Decision

 

Except where otherwise expressly provided by law, when in a contested case a majority of the officials of the Department who are to render the Final Decision has not heard the case or read the record, the Final Decision, if adverse to a party to the proceeding other than the Department, shall not be made until a Proposal for Decision is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and to present a brief, and if the Department so permits, oral argument to the Department officials who are to render the Final Decision.  The Proposal for Decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision and shall be prepared by the persons who conducted the Hearing or one who has read the record. [5 ILCS 100/10-45]

 

Section 2605.410  Final Decision

 

a)         The Final Decision in a contested case shall be in writing and shall become a part of the Administrative Record.  A Final Decision shall include Findings of Fact and Conclusions of Law, separately stated.  Findings of Fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.  If, in accordance with this Part, a party submitted a post-hearing motion for reconsideration, the Final Decision shall include a ruling upon the motion for reconsideration.  Parties or their agents appointed to receive service of process shall be notified either personally or by certified or registered mail, return receipt requested, of any decision.  Upon request, a copy of the decision shall be delivered or mailed forthwith to each party and to his or her attorney of record.

 

b)         All Department orders shall specify whether they are final and subject to the Administrative Review Law. [5 ILCS 100/10-50]

 

c)         The Final Decision shall be issued in writing as soon as practicable after the Hearing is concluded, unless otherwise provided for by Statute and/or Program Rule.

 

d)         A Final Decision in a matter initiated by a Recipient is a "final recovery order" for the purposes of Section 8 of the Grant Funds Recovery Act.

 

e)         To the extent permitted by Statute or agreement between the parties, the Final Decision may require any party to the proceeding to pay part or all of the costs of the Hearing, including but not limited to: witness fees, court reporter fees, Hearing Officer fees, and the cost of the transcript.

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.420  Administrative Review

 

Final administrative decisions of the Department are subject to review under the provisions of the Administrative Review Law [735 ILCS 5/Art. III].

 

(Source:  Amended at 43 Ill. Reg. 4056, effective March 19, 2019)

 

Section 2605.430  Severability

 

If any Section, subdivision, sentence, or clause of this Part is held by a court of competent jurisdiction to be invalid, that holding shall not affect the remaining provisions of this Part.

 

(Source:  Added at 43 Ill. Reg. 4056, effective March 19, 2019)