- PRE-HEARING/PRE-TESTIMONY EXPLANATION
At the start of the hearing, the Hearing Officer should clearly explain
the procedures to be followed.
Good (6):
Before testimony was taken, the Hearing Officer explained the hearing procedures.
This explanation should include: (a) the order of testimony, (b) the right
to testify, (c) the right to call witnesses, (d) the right to question all
witnesses called during the hearing, (e) the right to present documentary
evidence, (f) the right to invoke the Rule and an explanation of what invoking
the Rule means, (g) a statement that no one should prompt the testimony
of any other witness, (h) a statement that no one should refer to documents
not previously disclosed, and (i) an opportunity for each of the parties
to ask questions about the hearing process or procedures before proceeding
with the hearing. SEE NOTES BELOW FOR CASES WHERE ONE PARTY APPEARS.
Fair (3):
The Hearing Officer did not provide one of the elements (a) through (i)
or failed to adequately respond to a party inquiry regarding material covered
by the Hearing Officer's opening remarks or written information included
with the notice of hearing.
Unsatisfactory (0):
The Hearing Officer failed to provide more than one of the elements (a)
through (i) or the Hearing Officer failed to provide only one aspect of
the enumerated items but also failed to adequately respond to a party inquiry
regarding material covered by the Hearing Officer's opening remarks or written
information included with the notice of hearing.
REFERENCE NOTES - Criterion #1
The intent of this criterion is to ensure that the parties understand how
the hearing will be conducted and the rights and opportunities they will
have to participate in the hearing. This information should be stated on
the record.
A "Good" score will be given if the Hearing Officer covers all
the elements set forth above.
A "Fair" score will be given if the Hearing Officer adequately
covers all but one of the enumerated items or fails to respond adequately
to a party inquiry.
An "Unsatisfactory" score will be given if the Hearing Officer
fails to cover more than one aspect of the enumerated items or fails to
cover one aspect of the enumerated items but also fails to adequately respond
to a party inquiry.
A rapid or "machine gun" opening statement should be scored down
to fair or unsatisfactory based on its understandability or the ability
of the parties to assimilate the information being provided.
A concurrence that the explanation was done off the record is insufficient
and should result in an unsatisfactory score.
TO ACHIEVE A "GOOD" SCORE IN CASES WHERE ONLY ONE PARTY APPEARS,
THE HEARING OFFICER MUST COVER ALL THE ENUMERATED ITEMS EXCEPT (a) AND (f).
- OPENING STATEMENT
The opening statement should include the identification of the hearing,
parties, and participants at the hearing; the date; the place of the hearing;
the Hearing Officer; the determination appealed; the issues to be covered
at the hearing; the applicable law if necessary; and the parties' appeal
rights.
Good (6):
Before taking testimony, the Hearing Officer identified/explained: (a)
himself or herself, (b) the persons present at the hearing, (c) the persons
who will be participating as witnesses, (d) the claimant's name and social
security number, (e) the employer's name and account number, (f) the place
and date of the hearing, (g) the time the hearing started, (h) the appeal
number, (i) the importance of having the parties' correct addresses and
their appeal rights, (j) the parties' correct addresses, (k) the appellant
and the date of the appeal, (l) the date and the ruling of the determination
on appeal, (m) the issues that would be covered and, if necessary, the applicable
law, and (n) had each witness provide his or her birthdate.
Fair (3)
The Hearing Officer omitted no more than two of the elements (a) through
(n).
Unsatisfactory (0)
The Hearing Officer omitted more than two of the elements (a) through (n).
REFERENCE NOTES - Criterion #2
The intent of this criterion is to ensure that the Hearing Officer clearly
identifies the proceeding and its participants and adequately explains the
issues and, if necessary, applicable law. This information must be stated
on the record. In describing the ruling of the determination on appeal,
the Hearing Officer need not recite the entire nonmonetary language. Rather,
the Hearing Officer should briefly recite the substance of the ruling. For
example "the claimant appealed a determination dated ______ which disqualified
him from receiving unemployment benefits beginning ______ based on a finding
that he had been discharged from his last work due to work-connected misconduct."
The Hearing Officer is not required to read to the parties the sections
of law that are applicable to the case if those sections were part of the
law mailed out to the parties with the notice of hearing. However, if the
law that applies to the hearing was not included with the notice of hearing,
the Hearing Officer must read the section(s) to the parties.
A "Good" score will be given if the Hearing Officer covers all
of the elements set forth above.
A "Fair" score will be given if the Hearing Officer fails to
adequately cover no more than two of the enumerated items.
An "Unsatisfactory" score will be given if the Hearing Officer
fails to cover more than two of the enumerated items.
A concurrence that this information was provided off the record is insufficient
and should result in an unsatisfactory score.
- EXHIBITS
The Hearing Officer should handle exhibits correctly.
Good (9):
The Hearing Officer correctly handled exhibits in that s/he:
- described and marked all exhibits;
- insured the parties either had copies of the exhibit or secured a knowing
waiver from them to having a copy of the exhibit. Allowed the parties
to offer objections to the documents being made part of the record;
- authenticated offered exhibits (to the extent possible);
- received all competent, relevant and reasonably available exhibits,
including taking the initiative to enter relevant documents in the Agency
"packet";
- gave an explanation if s/he denied admission of any of the proposed
exhibits;
- ruled on the admissibility of any documents offered as proposed exhibits.
Fair (3):
The Hearing Officer received all competent, relevant and reasonably available
exhibits and showed them to the parties, but did not fully describe them,
authenticate or correctly mark them. The Hearing Officer provided the parties
with an opportunity for objection to the introduction of them and for questions
and rebuttal as to their contents.
Unsatisfactory (0):
The Hearing Officer (a) denied the introduction of exhibits without giving
an appropriate reason(s) for such denial, (b) did not show exhibits received
to the other parties, (c) failed to enter agency exhibits which were referred
to in hearing or decision and which were competent, relevant and material,
or (d) failed to offer an opportunity to object to the admission of an offered
exhibit.
Did Not Occur (9):
There were no exhibits tendered, marked or introduced, or no documents
made reference to in statements or testimony that should have been marked
or introduced.
REFERENCE NOTES - Criterion #3
The intent of this criterion is to ensure that the Hearing Officer builds
as complete a record as possible including all competent, relevant, and
material exhibits that are available, that the exhibits are properly described,
authenticated, marked and entered into the record, and that the parties
are made aware of their contents and provided with the opportunity to object,
explain or rebut. The requirements are the same for in-person and telephone
hearings. Telephone hearing exhibits will be sent to each of the parties
prior to the hearing and if a party does not have all of the documents marked
as exhibits, the matter either should be continued to allow opportunity
to review and object, or waiver of the right to see the document obtained.
Waiving the right to have a copy of the exhibit is distinct from and should
be treated separately from being offered the opportunity to object to the
document. They should not be combined in one question.
In either an in-person or telephone hearing the parties should be offered
the opportunity to see and review the documents or to be mailed the documents
and offer objections.
The exhibit should be described sufficiently to identify it for the record.
It should be authenticated to the extent possible. It is not necessary to
authenticate agency documents created or obtained in the claim processing,
such as fact finding or separation reports. The hearings officer shall determine
the weight given challenged agency documents. A document should be entered
as contemporaneously as possible to the time it is discussed in the testimony.
It is permissible for a few questions to be asked to lay a foundation for
the document, but it should be entered as soon as possible. If the document
is eventually entered, but not concurrent in time, it would result in a
“Fair” score on this criterion.
The record should reflect that the parties had an opportunity to review
the exhibits prior to their being received into evidence. The Hearing Officer
may state "I have allowed the parties to read and review the documents
that I have marked as exhibits" or ask the question to the parties,
"Mr. Claimant, have you had the opportunity to read the letter I marked
as Exhibit 1?" The record must affirmatively show that the parties
were given the opportunity to examine the document.
The exhibit should be clearly and completely marked with the exhibit number
or identification. It should be received if competent and relevant if there
are no objections, or after the objections have been ruled on.
On multi-page douments, the first page should be labeled with an exhibit
label. The first page should reflect the total length in pages of the exhibit,
each subsequent page should be marked "2 of 6, 3 of 6," for example.
The Hearing Officer should assume responsibility to introduce his/her own
motion exhibits that are competent, relevant, and material to the issue
but are not introduced by the parties. Common among these would be documents
that are in agency files. The Hearing Officer should confront a witness
with any statement in the agency packet that appears to be in conflict with
the witness’s testimony. This is accomplished by entering the file
document and asking the witness about the apparent conflict. The failure
of the Hearing Officer to properly confront a witness with a conflicting
file document would result in a “Fair” score on this criterion.
It is important to realize that the Hearing Officer cannot consider in his/her
decision-making process any document that was not properly entered.
If jurisdictional documents are material to the disposition of the case
they must be entered as exhibits, such as the request for hearing when the
issue is whether the request for hearing is timely filed. Computer records
used in the hearing should be treated like any other documents and if used
should be printed and entered into evidence.
In telephone hearings, any exhibit that a party sends to the Hearing Officer
prior to the hearing is considered as being offered in evidence. The documents
received must be either properly entered or the Hearing Officer must rule
as to why they are not being entered.
If a participant refers to a specific document in the packet during the
course hearing, this should also considered as being offered as a proposed
exhibit. Such files documents should either be entered or ruled not admissible.
Previously undisclosed documents that come up during a hearing must also
be addressed. If it is determined they are both material and relevant, it
is the responsibility of the Hearing Officer to obtain copies of those documents
and properly enter them as evidence. If the Hearing Officer determines they
are not admissible, such ruling must be made on the record.
All documents must be properly addressed by the Hearing Officer during
the hearing. This includes documents sent by the parties, documents in the
packet mentioned by participants, and previously undisclosed documents referred
to during the hearing. A failure of the Hearing Officer to either enter
these documents or rule they are not admissible would result in an “Unsatisfactory”
score on this criterion.
- WITNESSES
Parties and witnesses should be called and sworn, and the evidence developed,
in logical order.
Good (6):
The order was reasonable and flexible depending on the circumstance of
each case. Unless a fixed order was necessary, generally the party with
the most knowledge regarding the issue proceeded first. For example, in
voluntary quit issues, the claimant should proceed first; in misconduct
issues, the employer should proceed first.
The Hearing Officer also should avoid jumping back and forth between witnesses
and issues. A brief question of the party not testifying to clarify a minor
matter to determine whether further foundation or explanation was necessary
will not result in deduction.
Fair (3):
The Hearing Officer permitted the introduction of some testimony in illogical
sequence, but did not substantially jeopardize the organization of the hearing
and the presentation of evidence.
Unsatisfactory (0):
The Hearing Officer did not call witnesses or did not swear in witnesses
or did not take evidence in any logical order.
Did Not Occur (6):
The evidence was submitted without witnesses or sworn testimony.
REFERENCE NOTES - Criterion #4
The intent of this criterion is to move the hearing to a conclusion in
a logical and orderly manner. Therefore, as a general rule, the party with
the most information should be called to testify first.
However, the Hearing Officer should be allowed to exercise reasonable discretion
in directing the order which must be flexible and dependent upon the particular
circumstances of each case.
Witnesses must testify under oath or affirmation. In distinguishing between
the "Good" and the "Fair" rating, the evaluator must
decide whether the Hearing Officer exercised reasonable discretion in determining
the order of proof. That decision generally should be based on who is most
knowledgeable about the case. The order should produce an easy flow of information
and fact finding without the Hearing Officer resorting to aimless jumping
back and forth between witnesses.
The "Fair" rating should be scored where the Hearing Officer
failed to meet the "Good" criteria in some instances, but in a
manner which did not seriously affect the fact-finding process. However,
for the most part the Hearing Officer adhered to a logical sequence of testimony.
For the "Unsatisfactory" rating, the Hearing Officer lacked sound
judgment in the order of proof, thereby prolonging the hearing unnecessarily,
failed to swear in or call a witness(es), or jumped back and forth between
witnesses and/or issues.
- ORDER OF TESTIMONY FROM EACH WITNESS.
The evidence from each witness should be developed in a logical order.
Good (3):
As each witness testified, the evidence was developed in a logical and
orderly manner, although the order was flexible as required by the circumstances.
Fair (1):
The Hearing Officer permitted the introduction of some evidence from a
witness in illogical sequence, but did not substantially jeopardize the
organization of the hearing and the presentation of evidence. The Hearing
Officer generally completed one line of inquiry before moving on.
Unsatisfactory (0):
The Hearing Officer did not take the evidence in logical order and sequence.
Did Not Occur (x):
Not applicable -- Do not use.
REFERENCE NOTES - Criterion #5
The intent of this criterion is to move the testimony of each witness to
a conclusion in a logical and orderly manner.
In distinguishing between the "Good" and the "Fair"
rating, the evaluator must decide whether the Hearing Officer exercised
reasonable discretion in determining the order and sequence of the testimony.
The order should produce an easy flow of information and fact finding without
the Hearing Officer or the witness resorting to aimless jumping back and
forth between areas of testimony.
The "Fair" rating should be scored where the Hearing Officer
failed to meet the "Good" criteria in some instances, but in a
manner which did not seriously affect the fact-finding process.
For the "Unsatisfactory" rating, the Hearing Officer lacked sound
judgment in allowing or directing the testimony, thereby prolonging the
hearing unnecessarily or jumped back and forth between elements of testimony
with the witness.
- OPPORTUNITY TO QUESTION OWN WITNESS(ES)
[CRITICAL FAIR HEARING AND DUE PROCESS ELEMENT]
The Hearing Officer must provide parties and representatives with a timely
opportunity to question their own witnesses.
Good (9):
Where multiple representatives and/or witnesses appear on behalf of a party,
the Hearing Officer explained the purpose of and had the party designate
a primary representative. Informed the parties that they or their representatives
could question witnesses in the party's own behalf. Where necessary s/he
assisted such party or representatives in framing questions and cautioned
them not to make statements or arguments.
Fair (3):
Although the Hearing Officer advised parties that they could question their
own witnesses, s/he failed to assist when appropriate, or they were not
allowed to question their own witnesses in a timely manner.
Unsatisfactory (0): F
The Hearing Officer failed to provide parties the opportunity to question
their own witnesses.
Did Not Occur (9):
The parties did not have witnesses to question.
REFERENCE NOTES - Criterion #6
The intent of this criterion is to ensure that the Hearing Officer has
provided the parties or their representatives the right to question their
own witnesses in a timely manner as some parties may be unaware of this
right.
It is also the responsibility of the Hearing Officer to provide the parties
with whatever assistance they need to question witnesses in a timely
and proper manner.
The parties should always be given a chance to question their own witnesses
even though the Hearing Officer might feel a witness’s testimony is
of no value. In such cases, the Hearing Officer may advise the party that
the Hearing Officer has no questions to ask the witness and then give the
Party an opportunity to question their own witness. The Hearing Officer
should limit the testimony to relevant matters. If the Hearing Officer refuses
to allow a witness presented by the party an opportunity to testify, it
would deny the party a opportunity to question their own witness and would
result in an “Unsatisfactory” score. However, no deduction should
be taken in cases where a party voluntarily withdraws the witness.
See Appeal No. MR-90-03459-10-031691 in PR
5.00.
- CLEAR LANGUAGE.
Throughout the hearing, the Hearing Officer should ensure that s/he and
the parties use language that is clear and understandable, avoiding unnecessary
legal phrases and technical language.
Good (6):
The Hearing Officer's and the parties' or witnesses' language was clear
and understandable in all but inconsequential instances. There was no unnecessary
use of legal phrases or technical language.
Fair (3):
There were minor instances when the Hearing Officer's or parties' and witnesses'
language was not clear and understandable or legal phrases or technical
language were used. "Minor instances" would be confined to those
that would not have a significant bearing on the outcome of the case.
Unsatisfactory (0):
The Hearing Officer's and/or the parties' or witnesses' language was not
clear and understandable in significant and critical areas or unnecessary
legal phrases and technical language were used.
Did Not Occur (X):
Not applicable -- Do not use.
REFERENCE NOTES - Criterion #7
The intent of this criterion is to ensure that all language by and to the
participants is clear and understandable and not misinterpreted and that
they are not confused by or not able to understand legal phrases or technical
language.
References to form numbers and agency jargon should be avoided.
- SINGLE POINT QUESTIONS.
Each question by the Hearing Officer should express only one point.
Good (6):
Questions by the Hearing Officer and parties expressed only one point
and, if more than one point was expressed, it was corrected.
Fair (3):
Occasionally, the Hearing Officer or a party asked a question with more
than one point, but it did not interfere with the development of the testimony
or did not result in the evidence being unclear on any dispositive element.
Unsatisfactory (0):
The Hearing Officer and/or the parties repeatedly asked questions containing
two or more points that confused the witnesses.
Did Not Occur (X):
Not applicable -- Do not use.
REFERENCE NOTES - Criterion #8
Questions should express one point only so that neither the question
nor the answer will be misunderstood. For example, a compound question
such as "Was John Doe your supervisor and did he discharge you?"
would be unlikely to produce a clear answer. Hearing Officers should avoid
compound questions and carefully tailor the questions to express one point
only. Likewise, the Hearing Officer should not permit parties or their
representatives to ask compound questions without making a reasonable
attempt to clarify the question and/or the response.
- CLARIFICATION OF STATEMENTS, WHICH INCLUDE CONCLUSIONS.
The Hearing Officer should attempt to clarify statements which include
conclusions, opinions and ambiguous or unclear testimony.
Good (6):
When the witness responded with an opinion or conclusion, the Hearing
Officer made a reasonable effort to develop the factual basis for the
opinion or conclusion. When the testimony was not entirely clear or was
ambiguous, the Hearing Officer questioned the witness(es) in a conscientious
attempt to get specific, clear responses.
Fair (3):
The Hearing Officer asked some questions of witnesses, but did not make
a reasonable effort to clear up all relevant opinions, conclusions, ambiguities
or unclear testimony.
Unsatisfactory (0):
The Hearing Officer's questioning of witnesses disregarded statements
which included conclusions, ambiguities or unclear testimony that was
relevant, or dealt with them in an obviously inadequate manner.
Did Not Occur (6):
There were no statements which included conclusions or opinions and the
testimony was clear and unambiguous and did not need clarification.
REFERENCE NOTES - Criterion #9
The intent of this criterion is to ensure that the Hearing Officer fulfills
his/her obligation to require lay witnesses to testify to evidentiary
facts, as distinguished from conclusions, and to present clear, unambiguous
testimony. For example, if the witness says that the claimant was discharged
for excessive absenteeism, this would be a statement, which included a
conclusion. The Hearing Officer would be responsible for getting the witness'
testimony reflecting the factual basis for this conclusion.
All lay witnesses expressing opinions should be subjected to thorough
questioning to establish the facts used as a basis for opinions whenever
the statements are germane to the decision. Testimony by expert witnesses
is admissible to meet the necessity of providing to the Hearing Officer
the aid of those especially qualified by education, background, experience,
training and study to express an opinion on questions of facts relating
to their particular skills. An example being a qualified employment service
representative who testifies on labor market conditions.
However, it is important that the Hearing Officer establish, on the record,
the expert witness' background and qualifications as an expert.
The difference between "Good" and "Fair is that the latter
score is applied when the Hearing Officer occasionally overlooks clearing
up statements including ambiguities, conclusions, etc. about evidence
that would not clearly affect the outcome of the case.
An "Unsatisfactory" mark is given if the Hearing Officer accepted
opinions or conclusions of the witnesses on crucial evidence without asking
for the factual basis.
- CONFRONTATION.
[CRITICAL FAIR HEARING & DUE PROCESS ELEMENT]
There must be an opportunity for confrontation to all opposing witnesses.
Good (9):
Each party had the opportunity to be present during the giving of all
testimony affecting him/her and to confront all opposing witnesses (use
of telephone hearings where all parties have the opportunity to participate
and hear the witness(es) satisfies the confrontation requirement).
Fair (X):
Not applicable -- Do not use.
Unsatisfactory (0): F
The Hearing Officer denied the opportunity for confrontation.
Did Not Occur (9):
There were no opposing witnesses.
REFERENCE NOTES - Criterion #10
The intent of this criterion is to ensure fulfillment of the due process
right to an opportunity to know all of the evidence presented by opposing
parties.
Excluding witnesses does not conflict with the requirements of this criterion
unless the witness happens to be an "interested party" (claimant
or employer).
- CROSS-EXAMINATION.
[CRITICAL FAIR HEARING AND DUE PROCESS ELEMENT]
The Hearing Officer must afford a timely (before testimony from another
witness) opportunity to cross-examine, properly control cross-examination,
and provide appropriate assistance where necessary.
Good (9):
The Hearing Officer provided the parties their right to an opportunity
to timely cross-examination of the opposing witnesses, limited to permissible
bounds, and provided assistance in framing questions as necessary. When
the parties made statements instead of asking questions, the Hearing Officer
assisted the party in forming the statement into a question. The Hearing
Officer renewed the opportunity for cross-examination after any later
relevant testimony.
Fair (3):
The Hearing Officer informed the parties of their right to cross-examination,
but either did not control it or did not provide assistance that was needed
in framing questions or s/he stated in one sentence, "Do you want
to ask questions or make a statement?" The Hearing Officer cut people
off who were clearly making a statement without helping them form the
statement into a question. The Hearing Officer afforded the parties the
opportunity for cross-examination, but not in a timely manner.
Unsatisfactory (0): F
The Hearing Officer failed to afford the parties their right to cross-examination.
Did Not Occur (9):
There were no opposing witnesses.
REFERENCE NOTES - Criterion #11
The intent of this criterion is to ensure that all parties are afforded
the right to cross-examine opposing witnesses.
Cross-examination is a fundamental right, and not a mere privilege.
It is not diminished by reason of the fact that the parties are unrepresented
by counsel. If unrepresented parties appear to be unable to comprehend
the term "cross-examination," it is necessary to provide them
with their "cross-examination" right, expressed in lay language,
such as, "Do you want to ask Mr. Jones any questions about any of
the testimony he just gave?" If an unrepresented party is incapable
of cross-examining property (for example, instead of asking questions,
s/he makes statements and seems unable to change), the Hearing Officer
must assist by framing questions for the party.
The right to cross-examine should be offered immediately after the witness
testifies, and it should not be delayed until all the witnesses for one
side have concluded their direct testimony.
However, the right to cross-examination may be restricted, as for example,
when it becomes unduly repetitious. Moreover, the cross-examiner should
not be permitted to unduly harass, argue with or badger the witness.
The distinction between "Good" and "Fair" is that
the latter score is given if the behavior of the cross-examiner approaches
"badgering" the witness without admonishment by the Hearing
Officer, or if the cross-examination is allowed to continue excessively,
or if the Hearing Officer fails to provide meaningful assistance to lay
persons.
A "Fair" score should be given if the Hearing Officer initially
offers the opportunity for cross-examination, but fails to offer it each
and every time if there are repeated occurrences of redirect and recross-examination.
A "Fair" score should be given if an opportunity was offered
but not at the proper time.
An "Unsatisfactory" score is given if the Hearing Officer fails
to provide cross-examination rights, or fails to keep the questioner
from badgering the witness, or lets a lay person flounder without
giving assistance that is clearly needed.
- REPETITIVE TESTIMONY AND/OR IRRELEVANT TESTIMONY.
The Hearing Officer should control the undue extension or repetition of
testimony so as to keep the hearing moving expeditiously.
Good (3):
The Hearing Officer diplomatically informed the witnesses that repetitious
and prolonged testimony was not necessary and added nothing to the hearing.
The Hearing Officer did not question witnesses extensively or permit undue
repetition or extension of testimony by witnesses or duplication of witnesses,
and testimony was limited to the issues.
Fair (1):
The Hearing Officer indulged in or allowed testimony that was repetitious,
prolonged or irrelevant, but it did not burden the record and did not affect
the final decision. The "Fair" score may be given on those occasions
when it is clear that the Hearing Officer permitted a party to "ramble
on" because that party would have undoubtedly have perceived that s/he
had been denied the opportunity to fully state his/her position.
Unsatisfactory (0):
The Hearing Officer permitted persistent repetition of testimony, prolonged
testimony, or permitted irrelevant testimony; the Hearing Officer repeatedly
asked repetitious questions of the witness.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #12
This criterion is intended to keep hearings moving expeditiously. The Hearing
Officer is bound not to belabor the witness with repetitious questions or
remarks and to keep the witnesses from indulging in irrelevant, immaterial,
and/or unduly repetitious testimony.
The score is based upon the extent that this type of testimony is permitted.
- LEADING QUESTIONS.
The Hearing Officer should not indulge in or permit improper leading questions
on the material issues on direct examination.
Good (6):
The Hearing Officer did not ask improper questions about important facts,
nor did the Hearing Officer allow the parties to do so.
Fair (3):
The Hearing Officer asked or allowed improper leading questions, but they
did not inhibit the fair presentation of the evidence.
Unsatisfactory (0):
The Hearing Officer and/or the parties asked, without admonishment, improper
leading questions which were material to the issues in the case.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #13
The intent of this criterion is to ensure that the Hearing Officer did
not ask or permit the asking of improper leading questions. A leading question
is one which suggests the answer. There are exceptions to this principle.
On direct examination, parties or their representatives should not ask leading
questions unless it relates to matters such as the party's or witness' name,
social security number, address, etc. This is all background information
and, in order to expedite the hearing, leading questions are permissible.
On direct examination, if leading questions are asked by others, the Hearing
Officer should curtail them and/or tell the questioner that answers to such
questions will be entitled to less weight in the consideration of the evidence.
Another exception is that leading questions are permissible where the witness
is hostile, biased, or unwilling to cooperate. In this situation, the Hearing
Officer must decide if any one of these conditions exists and proceed accordingly.
Further, if it occurs that a witness cannot recall dates, names, places,
times, etc., leading questions may be asked in order to jog his/her memory.
- CONTROL OF INTERRUPTIONS.
The Hearing Officer should, in as tactful a manner as possible, effectively
respond to interruption of testimony and/or disruptive individuals at the
hearing and refrain from inappropriate interruptions himself/herself.
Good (6):
The Hearing Officer, in as tactful a manner as possible, effectively handled
interruptions at the hearing and/or disruptive individuals and did not interrupt
unnecessarily.
Fair (3):
The Hearing Officer allowed some interruptions that did not disrupt the
hearing.
Unsatisfactory (0):
The Hearing Officer's interruptions were inappropriate or s/he did not
effectively control disruptions or interruptions by others.
Did Not Occur (6):
There were no interruptions or disruptive individuals.
REFERENCE NOTES - Criterion #14
This criterion is intended to ensure that the Hearing Officer fulfills
his/her obligation to prevent undue or improper interruptions in the testimony
of the witnesses and/or control of disruptive individuals.
If possible, the Hearing Officer should have first made tactful attempts
to prevent improper interruptions and to control disruptive individuals
before resorting to more forceful means.
The scoring is based upon the degree or the extent that this is permitted
to happen without correction by the Hearing Officer.
- "OFF THE RECORD."
The Hearing Officer should effectively control going "off the record"
and handle correctly "on the record" matters that occurred or
were discussed "off the record."
Good (6):
The Hearing Officer went "off the record" or granted an application
to do so for good and sufficient purposes. The Hearing Officer allowed no
one else to go "off the record" but himself/herself. On resuming
the record, the Hearing Officer summarized the essentials of what took place
and obtained the concurrence of the parties. On turning over the tape or
putting in a new tape, the Hearing Officer stated s/he was going "off
the record" to change the tape and when returning to the record, stated
that the tape had been replaced and that nothing relating to the hearing
had transpired in the process (concurrence is necessary). If the tape ran
out unexpectedly creating a gap in the record, the Hearing Officer repeated
or asked the last speaker to repeat the missing portion of the statement.
In these instances, concurrence of the witness and parties is required.
Fair (3):
The Hearing Officer allowed parties to go "off the record" without
establishing good and sufficient cause, but the Hearing Officer did summarize
for the record the "off the record" discussion.
Unsatisfactory (0):
The Hearing Officer went "off the record" and failed to summarize
and get concurrence from the parties "on the record" what happened
"off the record"; or failed to repeat questions or testimony when
the tape unexpectedly ran out or there was some other malfunction.
Did Not Occur (6):
The Hearing Officer did not go "off the record" for any reason.
REFERENCE NOTES - Criterion #15
The intent of this criterion is to build a record that is totally complete
and without unexplained interruptions. Any interruption or break in the
record must be covered by the Hearing Officer. The Hearing Officer may hear
and grant a motion to go "off the record" from either of the parties.
A "Good" score is warranted when the Hearing Officer: (a) goes
"off the record" or grants an application to do so only for good
and sufficient reasons; (b) allows no one to go "off the record"
without his/her permission except when beyond his control, such as with
machine failure; and (c) summarizes the "off the record" discussion
and events and obtains the concurrence of the parties to the summary upon
resuming the record.
A "Fair" score should be given if the Hearing Officer allows
parties to go "off the record" without establishing good and sufficient
reason to do so.
An "Unsatisfactory" score should be given if the Hearing Officer
went "off the record" and failed to summarize "on the record"
what happened while "off the record" or failed to get a concurrence
of the parties if the record was summarized.
- INTERPRETERS.
The Hearing Officer should utilize interpreters correctly.
Good (6):
When necessary, the Hearing Officer gave clear instructions to the interpreter
as to how to interpret and administered a special interpreter's oath. When
necessary, the Hearing Officer established "on the record" the
interpreter's credentials. The Hearing Officer must require that the interpretation
be word for word to the extent possible as it was spoken in the foreign
language.
Fair (3):
The Hearing Officer did not give clear instructions to the interpreter
as necessary, but corrected the interpreter on errors committed.
Unsatisfactory (0):
The Hearing Officer (a) did not give an interpreter's oath, or (b) failed
to take reasonable steps to ensure that the translation accurately reflected
the testimony.
Did Not Occur (6):
An interpreter was not used.
REFERENCE NOTES - Criterion #16
The intent of this criterion is to ensure that the testimony is accurately
interpreted. The interpretation should be word for word to the extent possible
as it was spoken in the foreign language.
For example, if the interpreter says, "He said that…,"
the interpreter is not translating word for word; the interpreter should
translate in the first person as the witness testifies.
A "Good" score is warranted if the Hearing Officer gave clear
instructions to the interpreter as to how to interpret. A "Good"
score should also be given for those hearings wherein a "qualified"
interpreter was used and no instructions were necessary. In addition to
giving clear instructions when necessary, a special interpreter's oath is
to be administered in order to receive a "Good" score.
A "Fair" score should be given if the Hearing Officer administered
the special interpreter's oath but failed to give instructions to the interpreter
when necessary; however, the Hearing Officer did correct the interpreter
on errors committed thereby ensuring an accurate translation.
An "Unsatisfactory" score should be given if the Hearing Officer
failed to administer the special interpreter's oath or failed to take reasonable
steps to ensure that the translation accurately reflected the testimony.
- CONTINUANCES.
After the hearing has begun the Hearing Officer should use good judgment
as to continuances.
Good (3)
The Hearing Officer granted a necessary continuance when requested by
either party or upon his/her own motion.
Fair (1)
The Hearing Officer granted a continuance where the need for such action
was doubtful and not fully supported by the record.
Unsatisfactory (0):
The Hearing Officer granted a continuance for insufficient reasons or
failed to order a continuance when necessary.
Did Not Occur (3):
A continuance was not requested or appropriate.
REFERENCE NOTES - Criterion #17
The intent of this criterion is to curtail unwarranted continuances that
unreasonably delay the disposition of cases and to ensure that those necessary
are granted. If new material matters develop in the course of the hearing,
which a party is unprepared to meet and the element of surprise is present,
it is necessary to order a continuance to afford an opportunity for preparation
(unless the right to a further hearing is waived). If parties to a telephone
hearing are not furnished copies of exhibits, a continuance may be necessary
to allow opportunity to review and object to the documents. (See Criterion
3)
A "Good" score is warranted when the Hearing Officer granted
a continuance only for good and sufficient reasons that were fully supported
by the record.
A "Fair" score should be given if the Hearing Officer granted
a continuance and the need for such action was doubtful.
An "Unsatisfactory" score should be given when the Hearing
Officer granted a continuance for reasons that were insufficient and not
supported by the record; or the Hearing Officer did not order a continuance
when one is needed.
- CLOSING THE HEARING.
The Hearing Officer should properly conclude the hearing by ascertaining
whether each party had anything to add.
Good (6):
The Hearing Officer asked each party prior to the end of the hearing
if they had anything further to say.
Fair (3):
The Hearing Officer made a statement that the hearing was closed unless
the parties stated that they had something further to say.
Unsatisfactory (0):
The Hearing Officer failed to ask this question at the conclusion of
the hearing.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #18
The intent of this criterion is to ensure that the parties have a full
and ample opportunity to present all of the information pertinent to their
case.
This criterion is especially important in those cases where the parties
are not represented by counsel. Affording the parties an opportunity to
state anything additional at the conclusion of the hearing aids all subsequent
reviewers of the case in their consideration of allegations contending
that a party to a case was not allowed to state everything they wanted
to present. Any wording which the Hearing Officer chooses to use to accomplish
this result is permissible. The criterion will not be scored down for
curtailing repetitive or irrelevant statements.
The difference between the "Good" rating and the "Fair"
rating is often based on the type of wording used. A "Fair"
score should be given when, the Hearing Officer appears to be adopting
a negative approach, which may possibly defeat the purpose and intent
of the criterion by inviting a "no" response. A "Good"
score should be given in those cases where the Hearing Officer concludes
the hearing somewhat abruptly after multiple attempts to conclude it properly
and one or both of the parties persists in offering repetitive or irrelevant
testimony, or the Hearing Officer combines the offer to add testimony
in one question to both.
An "Unsatisfactory" score should be given when the Hearing
Officer ends the hearing abruptly without affording the parties an opportunity
to make additional statements.
- HEARING WITHIN SCOPE OF NOTICE.
[CRITICAL FAIR HEARING & DUE PROCESS ELEMENT]
The Hearing Officer must conduct the hearing within the scope of the issues
raised by the notice of hearing, and within the issues as finally developed
at the hearing, giving proper notice of new issues.
Good (9):
The Hearing Officer conducted the hearing within the scope of the issues
specifically raised by the notice of hearing and explained other issues
that arose, as well as the right to a continuance to meet any new issues.
If the Hearing Officer took up new issues, a knowledgeable waiver of notice
was obtained before going to the merits. No deduction will be made for inquiry
intended to assist in issue identification, in determining relevance, for
impeachment or for credibility assessment.
Fair (X):
Not applicable – Do not use.
Unsatisfactory (0): F
The Hearing Officer did not conduct the hearing within the scope of the
issues raised. The Hearing Officer did not identify new issues which arose
and which were explained or, having identified and explored such issues,
failed to explain the right to a continuance to meet them, or the necessity
to waive notice in order to proceed to the new issue(s).
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #19
The intent of this criterion is to limit the hearing to the issue or issues
set forth in the hearing notice or to insure that an informed waiver of
notice is obtained before considering a new issue which is properly before
the Hearing Officer. (This may include issues that the appellant had appealed
but were inadvertently left off the Notice of Hearing, or jurisdictional
issues such as correct last work, or timeliness of protest/appeal/or petition
to reopen. This would not include issues on which the UI Support and Customer
Service Department has not issued an appealable ruling, which must be done
before the Hearing Officer has jurisdiction over the issue.) This criterion
will not be scored down if a party testifies or tries to testify about an
issue not before the Hearing Officer. If a new issue arises in the hearing
over which the Hearing Officer can assume jurisdiction, the Hearing Officer
must inform the parties that there is a new issue which could affect entitlement
to benefits and that it needs to be covered. The parties must be advised
of how resolving the issue would affect them, that they can proceed with
the case or request a continuance to prepare for the hearing on the new
issue. If they elect to proceed with no continuance, then their election
to waive notice of the issue must be on the record. With regard to newly
arising work separation issues upon which the UI Support and Customer Service
Department has issued an appealable ruling and the Hearing Officer could
otherwise assume jurisdiction, the settlement provisions of Narsciso
Guiterrez v. TWC prevent the Hearing Officer from obtaining waiver of
Notice of Hearing on that issue. In that circumstance, the Hearing Officer
should proceed to reset the case to allow the Appeals Department to comply
with the document distribution requirements of the Guiterrez settlement.
- GRATUITOUS COMMENTS.
The Hearing Officer should not interfere with the development of the case
by making gratuitous comments or observations.
Good (6):
The Hearing Officer made no uncalled for remarks.
Fair (3):
The Hearing Officer made one or two observations, not helpful or immediately
pertinent to the issues, but not to the point of being objectionable.
Unsatisfactory (0):
The Hearing Officer made unnecessary comments or observations that diminished
the quality of the hearing.
Did Not Occur (X)
Not applicable – Do not use.
REFERENCE NOTES - Criterion #20
This criterion is intended to ensure that the Hearing Officer conducts
a hearing that is both fair in appearance and in substance. It is intended
to prevent the Hearing Officer from making uncalled for comments in an attempt
to be "smart" or "funny," or remarks that do not meet
high standards of demeanor and decorum.
Scoring should be based upon the degree and extent of compliance or noncompliance
with this criterion. Do not "score down" for remarks which appear
to have been intended to make the parties at ease.
- ATTITUDE.
The Hearing Officer should display an attitude that allows the parties
and representatives to speak freely in an orderly manner about the issues
of the case.
Good (6):
The parties were made to feel at ease in offering testimony and in developing
their case.
Fair (3):
The Hearing Officer did not consistently make all parties feel at ease,
but not to the extent that it affected the outcome.
Unsatisfactory (0):
The Hearing Officer's attitude was antagonistic or indifferent.
Did Not Occur (X)
Not Applicable – Do not use.
REFERENCE NOTES - Criterion #21
The intent of this criterion is to ensure that the Hearing Officer makes
the necessary effort to put the parties and witnesses as "at ease"
as possible. It is important that the parties believe that the hearing was
fair as well as for a fair hearing to be provided. The Hearing Officer must
strive to leave the parties with the impression that a fair decision will
be provided.
The principal difference between a "Good" and a "Fair"
score is the consistency and care the Hearing Officer exhibits in trying
to make the parties feel at ease and in trying to provide necessary assistance.
If the Hearing Officer's attitude is consistently antagonistic or indifferent,
the criterion should be scored "Unsatisfactory."
- BIAS AND PREJUDICE.
The Hearing Officer must conduct the hearing in an impartial manner.
Good (9):
The Hearing Officer did not appear to demonstrate bias or prejudice toward
any participant in the hearing. The intensity of questioning, type of
questions asked, or the treatment of the participants, did not indicate
bias or prejudice.
Fair (X):
Not applicable – Do not use.
Unsatisfactory (0): F
The Hearing Officer appeared to demonstrate bias or prejudice toward
a participant, or the Hearing Officer's actions were reasonably perceived
as doing so.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - CRITERION #22
The intent of this criterion is to ensure that the Hearing Officer conducted
the hearing in a fair and impartial manner. When it appears that the Hearing
Officer treated a participant in a negative or demeaning manner because
of the participant's career field, status, beliefs, appearance, age, sex,
religious beliefs, or other protected civil rights, the criterion shall
be scored unsatisfactory.
The Hearing Officer must control the hearing and ask hard questions and
be persistent in clarifying or determining the truth of a statement. At
times one party may require more assistance than the other. Maintaining
control and asking questions does not excuse tyrannizing the party or
witness. By the same token, offering assistance in a way that clearly
is demeaning and disparaging would result in an unsatisfactory score.
- OBTAIN REASONABLY AVAILABLE EVIDENCE.
[CRITICAL FAIR HEARING AND DUE PROCESS ELEMENT]
The Hearing Officer must attempt to obtain the reasonably available, competent
evidence necessary to resolve the issues in the case.
Good (9):
The Hearing Officer obtained competent evidence, reasonably available and
necessary to resolve the issues in the case.
Fair (3):
The Hearing Officer obtained most of the evidence necessary to resolve
the issues of the case and the omissions were not prejudicial to the outcome
of the case.
Unsatisfactory (0): F
The Hearing Officer did not make a sufficient record to render a decision,
because s/he did not obtain sufficient, competent, available evidence to
resolve the issues in the case.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES – CRITERION #23
The intent of this criterion is to ensure that the Hearing Officer functions
as a fact-finder.
It is the responsibility of the Hearing Officer to develop all the evidence
that is reasonably available and to make a decision according to the dictates
of the State law. "Reasonably available" means that evidence or
testimony which is available at hearing and which is critical to the issues
to be decided.
In applying this criterion, consideration must be given to the adequacy
of the Hearing Officer's development of the evidence on each issue: Was
it sufficient to secure evidence that was necessary and reasonably available?
- ISSUES CLEARLY STATED.
The statutory issues involved should be clearly and simply stated in the
decision.
Good (3):
A full statement was made, in simple language, of all statutory issues
in the case.
Fair (x):
Not applicable - DO NOT USE
Unsatisfactory (0):
The decision either omitted some or all of the issues, or stated them in
an involved way, or in a manner making them incomprehensible.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #24
The intent of the criterion is to ensure that there is a clear understanding
of what issue(s) the decision addresses. It should communicate clearly and
effectively to the interested parties and other readers exactly what the
issue is. It should also establish the boundaries of the decision, beyond
which the hearing officer should not go without explanation and valid reason.
At the beginning of the decision, early in the description of the case
history, or at another appropriate spot, the issue or issues to be decided
should be stated in simple terms for clear understanding and should include
all the elements of the applicable statutory provision(s). This statement
need not be in the precise language of the statute. For example, the decision
may read, "The issue in this case is whether the claimant voluntarily
left his employment without good cause."
- FINDINGS OF FACT SUPPORTED BY SUBSTANTIAL EVIDENCE.
[CRITICAL FAIR HEARING & DUE PROCESS ELEMENT]
Accepting the Hearing Officer's judgment of credibility, unless it is manifestly
without basis, the findings of fact must be supported by substantial evidence
in the hearing record.
Good (9):
The findings of fact which were made were supported by substantial evidence.
Fair (X):
Not applicable – Do not use.
Unsatisfactory (0): F
The findings of fact which were made were not supported by substantial
evidence.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #25
The intent of this criterion is to ensure that the findings of fact are
supported by evidence in the record and this evidence is of sufficient quality
(substantial evidence) and quantity (more than a mere scintilla) to support
the findings.
In scoring this criterion, the evaluator does not decide whether all the
necessary findings of fact were made, but whether the findings of fact made
by the Hearing Officer are supported by substantial evidence in the hearing
record. See Criterion 26 for findings of fact.
Only evidence that is properly entered into the record and that which is
officially/administratively noticed can be considered as a basis for the
findings of fact.
The weight the Hearing Officer gives to the evidence, and, in the case
of contradictory evidence or testimony, the Hearing Officer's judgment of
credibility should be accepted unless it is entirely without basis or is
clearly unreasonable.
There is no "Fair" score. Either the findings of fact which were
made are supported by the evidence, or they are not. The distinction between
"Good" and "Unsatisfactory" is whether or not the findings
of fact are supported by substantial evidence. Substantial evidence has
been defined as "such evidence, or such relevant or competent evidence,
as a reasonable mind might accept as adequate to support a conclusion."
- FINDINGS OF FACT.
[CRITICAL FAIR HEARING & DUE PROCESS ELEMENT]
The Hearing Officer must make all of the findings of fact necessary to
resolve the issues and support the conclusions of law included in the decision.
Good (9):
The decision contained all the necessary findings of fact. The form
in which the findings were stated leaves no doubt that they were facts found
by the Hearing Officer. The decision does not merely recite testimony as
findings of fact.
Fair (3):
The decision contained all the necessary findings of fact. However, there
was excessive recitation of testimony, or irrelevant findings, or the findings
were not clearly or logically stated.
Unsatisfactory (0): F
The decision did not contain the necessary findings of fact.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #26
Findings of fact are sometimes referred to as evidentiary findings or primary
facts. The intent of this criterion is to ensure that the findings of fact
are complete and also expressed in the decision as such. They should cover
all facts at issue and provide the necessary support for the legal conclusions
of the Hearing Officer. They should be worded to show clearly that they
are the findings of the Hearing Officer.
Findings of fact are the basis for the conclusions of law which are required
by the applicable statute(s), and which are reached by a process of reasoning
from the findings of fact. For example, if "quit" is the issue,
the decision should contain findings of fact about whether the claimant
left or was discharged; the circumstances (to determine if the leaving was
voluntary or involuntary); and the reason(s) for leaving (to determine the
question of good cause).
From a study of all the evidence, the Hearing Officer must find the facts
about what happened. This story of what happened should be told in
logical (usually chronological) order and in unequivocal terms. There should
be no doubt in the reader's mind about what the Hearing Officer's findings
of fact are.
The findings of fact must be made on all the elements of the issue being
decided. The findings must be characterized as findings. Generally evidence
should not be summarized and the testimony should not be recited, except
when testimony may be a finding of fact.
The Hearing Officer's findings of fact must be relevant, accurate, and
complete since they are final (in most States) if supported by sufficient,
competent evidence in the record. Under the circumstances, the review court
must rely upon the decision for these findings. Therefore, they must be
clearly stated in the decision as findings of the Hearing Officer (as distinguished
from a summary of evidence).
A "Good" score is warranted if the decision contains all necessary
findings of fact and does not inappropriately recite testimony. A "Fair"
score is warranted if the decision inappropriately recites some testimony
in a way that could cause some uncertainty about what were the Hearing Officer's
findings of fact. An "Unsatisfactory" score should be given if
the decision fails to make all the necessary findings of fact needed to
resolve the issues.
- REQUIRED CONCLUSIONS
The decision should contain the conclusions of law required to resolve
the issue(s) in the case.
Good (6):
The decision did contain the necessary conclusions.
Fair (X):
Not applicable - DO NOT USE.
Unsatisfactory (0):
The decision did not contain the necessary conclusions.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #27
The intent of this criterion is to ensure that the Hearing Officer has
indicated his/her final conclusion on each and all issues involved.
The conclusions of law (ultimate findings) refer to the final legal result
of the case which grants or denies or modifies the relief requested by the
appeal. Following the language of the statute, it tells the parties what
will happen. The conclusion should be stated in clear, understandable terms,
which are, nonetheless indicative of a firm, unwavering decision.
For example, in a simple absence misconduct issue, the specific provision
in the law should be referred to by quoting it or by explaining it in simple
terms with, when necessary, an explanation of a term such as "misconduct."
The conclusion of law might be, "The claimant is disqualified since
absence without notice constitutes misconduct connected with the work."
This statement resolves the issue and should be supported by the Hearing
Officer's findings that the claimant had been absent and had not given notice
to this employer, with further appropriate details. The opinion would then
continue with the rationale for the conclusion.
- LOGICAL REASONING.
The decision should state reasons and rationale that were logical.
Good (6):
The reasons and rationale in the decision logically followed from the findings
of fact to the conclusions of law. Extensive rationale, not relevant to
the specific case, was not used. Deduction will not be made for addressing
specific legal or factual contentions raised by the parties and not given
credence or weight.
Fair (3):
The reasoning was either not fully stated or was excessive, or an applicable
precedent was not cited and applied or distinguished. A Fair score should
also be given where a Hearing Officer cited a clearly inapplicable precedent.
Unsatisfactory (0):
The reasoning and rationale used either were not stated or did not logically
follow from the findings of fact to the conclusions of law.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #28
The intent of this criterion is to ensure that the explanation of the decision
is reasonably drawn from the findings of fact, is understandable, and adequately
covers only the factors in the provision of law relating to the issue.
The reasoning serves to bridge the gap between the findings of fact and
the conclusions of law. It should explain why the facts led to the conclusions.
The facts should not be repeated as reasoning, nor should new facts be entered.
The reasoning should use concise, understandable terms without unnecessary
elaboration, and without including reasoning for immaterial considerations.
Even if the facts seem to show obviously, what the reasoning will be, the
reasoning must be stated. This is the place to explain why contentions were
either accepted or rejected. When conflicting testimony on material matters
is presented, the Hearing Officer should explain how s/he resolved the conflict
in credibility.
A "Fair" score requires that most of the reasoning be understandable,
even though the language used may be redundant, and/or the reasoning is
slightly incomplete.
"Unsatisfactory" is given if there is no attempt to provide reasons,
or illogical reasons are used are not connected or associated with the facts.
For example, "It is the opinion of the Hearing Officer that the claimant
is unavailable." "Fair" should also be given when a Hearing
Officer fails to explain, where conflicting testimony on material matters
was presented, how s/he resolved the credibility conflict between witnesses.
No deduction under this criterion should be based solely upon a disagreement
with the Hearing Officer’s result. If the Hearing Officer presents
a reasoned argument that logically follows from the findings of fact made
by the Hearing Officer, then there should be no deduction.
- FORM, STYLE AND ORGANIZATION
The decision should be well organized as to form and style.
Good (3):
The decision was so organized that the issues in the case, the findings
of fact, the rationale, the conclusions of law and the ruling were clearly
set forth, in distinct paragraphs.
Fair (1):
Although the various portions of the decision merged with one another,
it was clear which statements were findings of fact and which were conclusions
of law.
Unsatisfactory (0):
The decision was not organized and it was difficult to understand.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #29
The intent of this criterion is to ensure that each segment of the decision
is stated distinctly for the purposes of clarity, correct administrative
adjudication procedures, and compliance with legal requirements. This criterion
refers to the outline or form of the decision and not to its content, which
is covered in other criteria. The decision also serves as a source of information
both within the agency and for the public.
The written decision is of the utmost importance. It is the culmination
of the hearing process, and must be adequate for judicial review. The decision
should include the following elements: a statement of the issue(s) being
decided; the findings of fact; the rationale or reasoning – based
on the findings of fact and the applicable statute; the conclusions of law
– based upon the findings of fact and reasons, and showing the final
judgment of the Hearing Officer on the issue(s); and the decision –
the action to be taken by the agency in accord with the decision.
While there is no absolutely correct order for the above-listed elements
and some acceptable formats may merge some of them, each element should
be clearly identifiable.
- DECISION STATES LEGAL EFFECT.
The "decision" portion should contain a clear and correct statement
of the legal effect of each issue covered.
Good (3):
Each issue in the proceeding was covered, treated as affirmed, reversed,
or modified, and when there was a modification, the modification was stated.
The Hearing Officer indicated clearly the administrative action to be taken.
Fair (1):
Each issue in the proceeding was covered, treated as affirmed, reversed,
or modified and, when there was a modification, the modification was stated.
However, the decision did not clearly show the administrative action to
be taken.
Unsatisfactory (0):
The decision did not adequately cover the disposition of the issues. The
decision merely stated the determination was affirmed, reversed, or modified.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #30
The intent of this criterion is to ensure a decision style and format that
informs the reader in a clear and effective manner of the Hearing Officer's
ruling on all the issues involved in the appeal.
A "Good" score is warranted if the decision shows the Hearing
Officer's ruling on all the issues involved, i.e., "affirmed,"
"reversed," or "modified" (as appropriate). If modified,
it must clearly and specifically show the modification. Additionally, the
decision, taken as a whole, should show the administrative action to be
taken. For example, "Benefits are denied from the week of (date) and
the 7 weeks immediately following ending on (date)." (Or any wording
chosen by the Hearing Officer that would clearly show the administrative
action which should occur.)
A "Fair" rating should be given if the decision meets all of
the requirements for "good" except that it fails to show clearly
the administrative action to be taken if any.
A decision is "Unsatisfactory" if it fails to show the disposition
of issues involved in the appeal. Or it only states that the appealed determination
is affirmed, reversed, or modified.
- UNDERSTANDABLE DECISION.
The decision should be worded so that it is understandable to most claimants
and employers and it should have a professional appearance.
Good (6):
The sentences were grammatically correct, concise, and easily understood.
The Hearing Officer used only words in common usage. Legal and technical
verbiage was avoided. The Hearing Officer avoided objectionable or abrasive
words or phrases. The decision was neat and professional in appearance and
contained a minimal number of typographical or other errors.
Fair (3):
The Hearing Officer occasionally used an unfamiliar word. A sentence was
not entirely clear. But, on the whole, the decision was reasonably understandable
and typographical or other errors did not substantially detract from the
presentability of the decision.
Unsatisfactory (0):
At key points the decision contained many words not easily understood by
the average reader. Sentences were long and involved. The decision left
the reader without a clear understanding of its meaning. The decision contained
typing, spelling or other editing errors, that substantially detracted from
the presentability or clarity of the decision.
Did Not Occur (X):
Not applicable – Do not use.
REFERENCE NOTES - Criterion #31
A written decision should communicate clearly and this criterion is addressed
to that objective. It must be clear and concise and worded to the level
of understanding of most people. It should be written clearly and tactfully
and should appear neat and professional.
A "Good" is scored if the wording in the decision is grammatically
correct, clear and simple, without unnecessary legal or technical wordage
and without inflammatory language and there were a minimal number of typographical
or other errors.
A "Fair" score should be given if the decision meets the qualifications
above except that it contains an occasional word that may be difficult for
readers to understand and/or contains some errors which do not confuse the
reader as to the result of the decision.
An "Unsatisfactory" score is given if the decision is not easily
understandable to most people or contains numerous typographical or other
errors which significantly detract from the quality of the decision. For
example, the sentences may be too long, involved, and unclear, or may contain
technical or legal words or acronyms at critical points. If after reading
the decision, the reader does not know who prevailed and why, the decision
is "Unsatisfactory."
Please e-mail questions or comments to