MEMORANDUM ON VALIDITY OF UC HEARING NOTICE DEMAND TO SUBMIT MISSING DOCUMENTS 24 HOURS IN ADVANCE By Mariel Graeber (Tulane University Law School) and Val Greenfield ISSUE Whether documents previously submitted to the unemployment compensation adjudicator must be resubmitted to the unemployment compensation appeals referree 24 hours before the appeals hearing in order to be considered as evidence FACTS The following written information was sent to a client in the NOTICE OF TELEPHONE HEARING: Copies of confidential documents related to the case are enclosed keep these documents confidential and use them only for this hearing TO HAVE ANY DOCUMENTS CONSIDERED, YOU MUST SEND A COPY TO THE APPEALS REFEREE AND ANY PARTY WHOSE ADDRESS IS SHOWN ABOVE, TWENTY FOUR HOURS PRIOR TO THE HEARING Documents not included with this notice (even if previously sent to the department or provided to the referee and parties prior to the hearing cannot be considered at the hearing) A potential problem arises when the client has previously submitted documentary evidence to the claims adjudicator and that evidence is not enclosed with the Notice of Telephone Hearing INTRODUCTION After a claim for Unemployment Compensation (UC) benefits is filed, an adjudicator investigates the facts In conducting this investigation, the adjudicator may receive and review documents from either party See FL UC Advocates Updated Claims Adjudicator Manual § 6905 (post July 2011 edition) [hereafter Claims Adjudicator Manual] The Adjudicator then makes an initial determination of the claimant’s eligibility for UC benefits See Fla Stat § 433.151(3) (2011) Once the adjudicator had made the initial determination the adjudicator is directed to place documents in a 30-day “suspense file” pending appeal or request for reconsideration See Claims Adjudicator Manual, Appendex A (11), Adjudicator’s checklist These documents are placed on hold until an appeal is filed If an appeal is filed, the “suspense file” is released and sent to the appeals office It is from this file that the appeals referee pulls relevant documents in preparation for the hearing See FL UC Appeals Referee Manual, Chapter 4(E) Case Batching and Distribution On appeal, a notice of hearing1 must be sent to all parties and attorneys, by the appeals referee, at least 10 days before the date of hearing Fla Stat § 433.151(4)(b)2 (2011) While the text of Fla Admin Code Rule 73B-20.015(2), which interprets this statute, fails to specify that the referee must enclose documents for the parties with the hearing notice, the appeals brochure does so specify See DEO Form UCA Bulletin 6E (Rev 4/12) at http://www.floridajobs.org/unemployment/download/uc/bulletin6-English.pdf.2 In addition, Fla Admin Code Rule 73B-20.014(2) compels the agency to provide the parties with significant documents from the official file in advance of the hearing Reading these four authorities together, it is clear that the duty to select and provide the significant documents falls on the referee and the documents must be enclosed with the hearing notice The distinction between what constitutes the agency’s official file versus what constitutes the official record of the hearing bears mention While a document sent only to the adjudicator could be part of the agency’s official file, the document will not be part of the official “hearing” record under the Administrative Procedure Act (APA) unless and until either the hearing referee includes it with the notice of hearing or a party submits it into evidence at the hearing See, Most hearings are conducted by phone, so the “notice of hearing” is usually titled “Notice of Telephone Hearing.” For the purposes of this memo, any distinction between these two titles is irrelevant DEO Form UCA Bulletin 6E (Rev 4/12) has been proposed for incorporation by reference into Fla Admin Code at Rule 73B-20.015(2)(g), but has not yet been officially adopted as a rule e.g., Fla Stat 120.57(1)(f)2., 7.3 So, while a party can submit documents into evidence during the hearing, the adjudicator’s documents could become part of the official hearing record at the time the hearing referee includes these documents with the notice of hearing Indeed, Fla Admin Code Rule 73B-20.014, states: “Where the appeals referee schedules a hearing to be conducted by telephone conference, copies of the significant documents from the official file shall be provided to each party prior to the date of hearing.” See also Fla Admin Code R 73B-22.003 (2011) (referee has authority to include the adjudicator’s documents with the notice of hearing if the referee anticipates that s/he will consider said document) WHAT HAPPENS IN PRACTICE The rules governing submission of documents in advance of hearings are found at Fla Admin Code R 73B-20.014 This rule was amended after the 2011 Legislature added a statutory provision that made it possible to base a hearing finding upon hearsay so long as the parties were given reasonable advance notice of the hearsay evidence to be considered Fla Stat 443.151(4) states: (b)5.c.Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, or to support a finding if it would be admissible over objection in civil actions Notwithstanding s 120.57(1)(c), hearsay evidence may support a finding of fact if: (I)The party against whom it is offered has a reasonable opportunity to review such evidence prior to the hearing;… Fla Admin Code Rule 73B-20.014 interprets the above statute by providing: (2) Where the appeals referee schedules a hearing to be conducted by telephone conference, copies of the significant documents from the official file shall be provided to each party prior to the date of hearing If any party wishes to submit written or other physical evidence, that party must arrange for delivery of copies to the appeals referee and other parties prior to the scheduled date of hearing Documents which Alternatively, pursuant to the APA documents in the agency’s official file (sent by the adjudicator to the hearing referee) can also become part of the official record if the parties are provided with notice that these documents are being included as part of the hearing record But this method is not used by DEO hearing referees are not available to all parties or their representatives and the public at the time of hearing may not be considered by the appeals referee, absent waiver (Amended 3-11-12, Formerly 60BB-5.014.) (3) If any party wishes to submit evidence to be considered…the party must arrange for delivery of the evidence to all parties and the appeals referee at least 24 hours prior to the scheduled hearing time…The 24 hour period will provide the party against whom the evidence is offered a reasonable opportunity to review such evidence prior to the hearing (Amended 3-11-12, Formerly 60BB-5.014.) Note that this rule, amended in 2011, clearly indicates it is the appeal referee’s duty to enclose all significant documents and evidence in the Notice of Telephone Hearing This rule simply clarifies that if provided reasonably in advance, significant documents consisting of hearsay would be admissible and could form the basis of a finding The Rule then goes on to define the reasonable advance time as no later than 24 hours in advance of the hearing Obviously, if the referee accomplishes this ten days in advance, that would fulfill both the statute and rule The Rule additionally gives the parties an opportunity to submit additional items beyond those the referee has enclosed with the hearing notice Again, the rule clarifies that if said additional documents are provided at least 24 hours in advance, these additional documents could form the basis of a finding even if they consisted of hearsay In practice, we know that, when referees send out notices of hearing, referees often neglect to include all the “significant” documents that were given to the adjudicator by the parties at the outset of the claim Often, the only document included is the notice of determination (UCB-45) being appealed and a copy of the appellant’s appeal request (and translation of the appeal request if it was in a language other than English) If the notice of determination results in an overpayment, the referee will also include a payment worksheet indicating the weeks and amount the claimant was paid.4 To cover the referee’s omissions, the Notices of Hearing may also include a copy of other relevant documents such as an envelope or fax confirmation when timeliness of an appeal is at issue or copies of Internet applications when reporting weeks or skills test requirements are at issue Some referees will include employer documents (warnings, policy memos, etc.) provided to the claims adjudicator, but this is less Notice of Telephone Hearing puts the burden on the parties to observe the omission and resubmit a document they may have previously provided to the adjudicator Copies of confidential documents related to the case are enclosed keep these documents confidential and use them only for this hearing TO HAVE ANY DOCUMENTS CONSIDERED, YOU MUST SEND A COPY TO THE APPEALS REFEREE AND ANY PARTY WHOSE ADDRESS IS SHOWN ABOVE, TWENTY FOUR HOURS PRIOR TO THE HEARING Documents not included with this notice (even if previously sent to the department or provided to the referee and parties prior to the hearing cannot be considered at the hearing) Yet a careful reading of Fla Admin Code Rule 73B-20.014 places a duty upon parties to submit evidence only if they have additional information, including hearsay evidence, beyond the significant documents the referee should have provided 10 days in advance (2) Where the appeals referee schedules a hearing to be conducted by telephone conference, copies of the significant documents from the official file shall be provided to each party prior to the date of hearing If any party wishes to submit written or other physical evidence, that party must arrange for delivery of copies to the appeals referee and other parties prior to the scheduled date of hearing Fla Admin Code Rule Rule 73B-20.014 By virtue of the order of the first two sentences in subparagraph (2), the codified rule distinguishes between “written or other physical evidence” in the parties’ possession and the “significant” documents from the official file already within the referee’s control Thus, the codified rules not relieve the referee of the referee’s obligation to enclose with the notice of hearing the significant documents originally presented to the adjudicator The rules merely set forth the procedure the parties should follow for submitting additional documents In contrast, the text5 of the Notice of Telephone Hearing purports to puts the burden on the parties to re-submit documents the referee failed to enclose with the notice common Information provided by attorney Jose Fons, Legal Services of Greater Miami, Inc The Notice of Telephone Hearing narrows the time frame for re-submission of these documents to exactly 24 hours in advance, no more and no less Such a “pinpoint” reading of the time frame, even if it could be imposed upon a claimant, is not likely to be enforced quite so precisely even if those documents have already been presented to the agency It is error for the Notice of Telephone Hearing to impose this burden on the parties and threaten exclusion of these documents when the hearing referee fails to enclose all significant documents with the notice of hearing The burden of enclosing significant documents with the hearing notice is on the hearing referee If the referee fails to perform his duty, the burden should not switch to the parties to correct the referee’s mistake PRACTICE TIP WHEN IT IS TOO LATE TO RE-SUBMIT Tthere are sound legal arguments to force the referee to includee all significant documents in the hearing record Of course, the less risky practice is for advocates to go ahead and timely re-submit any significant documents the referee failed to include with the notice of hearing Such a strategy works fine when the advocate has ample time to prepare before the hearing date and access to all the documentary evidence But, clients often shows up to legal services offices at the last minute, giving advocates insufficient time to meticulously prepare The client might not be in possession of all relevant documents and/or the client could be mistaken about what documents the referee sent with the notice of hearing Surprises can occur during the hearing That’s when the advocate can rely on arguments about the referee’s duties.6 An advocate should request a continuance if s/he should find him/herself participating in a hearing for which previously submitted significant documentary evidence has not been provided to the parties in advance The advocate should not permit the referee to go forward with the hearing without inclusion of those documents when it was the referee’s error not to have In addition, clients often don’t come to legal services until after the hearing By then, the chance to submit documents is long passed In such a situation, the advocate assisting with an appeal to the Unemployment Appeals Commission (now known as the Reemployment Assistance Appeals Commission or RAAC) should cite to legal authorities that impose document inclusion duties on the referee and attach the missing evidence to the brief See Fla Admin Code Rule 73B-22.005 enclosed them with the hearing notice Rather than penalizing a party by excluding said evidence, a postponement will give the referee an opportunity to find and retrieve the document from the adjudicator’s file and provide it to all parties prior to a rescheduled hearing as was the referee’s duty in the first place Parties can request a continuance from the hearing referee or the referee may move on his/her own for a continuance for good cause either prior to the hearing or during the course of the hearing See Rule 73B-20.016, Fla Admin Code (2011) Once the continuance is granted and the hearing referee supplies the missing evidence to the parties, all parties will have an opportunity to review the evidence prior to the rescheduled hearing Because the Notice of Telephone Hearing has never been incorporated by reference into the Florida Administrative Code, it is currently an unpromulgated rule.7 If the referee fails to continue the hearing, and a party is prejudiced by the referee’s own failure to have included a significant document previously submitted to the adjudicator with the hearing notice, the party should argue that the boiler-plate standardized terms of the Notice of Telephone Hearing can not be the basis of an adverse agency action because those terms meet the definition of a rule (See Fla Stat § 120.52(16)) and yet have not been formally adopted into rule as required under the APA See Fla Stat § 120.57(1)(e)1 (2011) (“An agency…may not base agency action that determines the substantial interest of a party on an unadopted rule.”)8 According to the agency, the Notice of Telephone Hearing cannot be incorporated into the Fla Admin Code because it is not a form but rather is a document that can be edited/changed for each individual case Information provided by Dorothy Johnson, Deputy General Counsel, Reemployment Assistance Appeals Commission (formerly UAC) But compare UCB-45, Notice of Determination, a form document which is edited/changed based on the individual case, but which is nevertheless incorporated into Fla Admin Code at Rule 73B-11.029(1)(p) Thus, the authors disagree with Ms Johnson and suggest this issue could be favorably resolved through an APA challenge to the unpromulgated form before an Administrative Law Judge of the Division of Administrative Hearings See Fla Stat § 120.56(4) Only an administrative law judge, and not a hearing referee, can determine whether a form violates the APA on the basis that it amounts to an unpromulgated rule Nevertheless, an argument can and should be made before the UC referee that the agency can not penalize a claimant for non-compliance with adverse terms in the Notice of Telephone Hearing which If the referee fails to continue the hearing and your client is prejudiced, you should make a proffer9 of the document in order to preserve it for the record on appeal A proffer is made by simply asking the hearing referee to accept the exhibit as a proffer You should additionally argue that the language in the Notice of Telephone Hearing is not a correct statement of the law and thus should not be controlling Fla Admin Code R 73B-20.014 (2011) states that parties must submit the missing evidence at least 24 hours prior to the hearing In contrast, the Notice of Telephone Hearing states that this evidence must be submitted 24 hours prior to the hearing, even if it was submitted before The Notice of Telephone Hearing erroneously suggests that unless the documents are re-submitted, the evidence will not be considered at the hearing even though it was in the possession of the agency and should have been included in the Notice of Telephone Hearing by the referee Fla Admin Code Rule 73B-20.014 The terms of the Notice of Telephone Hearing are invalid because they conflict with codified law which does not obviate the referee from an official obligation to provide significant documents, previously submitted to the adjudicator, to the parties 10 days prior to the hearing For the foregoing reasons, the 24 hour requirement listed on the Notice of Telephone Hearing should not bar any party from his/her right to a fair hearing including the consideration of documentary evidence previously provided to the adjudicator Should a claimant be prejudiced by the referee’s or Unemployment Appeals Commission’s10 failure to make previously submitted documents part of the record, Florida Legal Services encourages you to consider filing an administrative petition before the Division of Administrative Hearings challenging the should have been adopted by rule-making See Fla Stat 120.54(1)(a) Proffer refers to the submission of the document into evidence notwithstanding objections Fla R Civ P 1.450 See also Black’s Law Dictionary (6th ed 1991) (“To offer or tender, as, the production of a document and offer of the same in evidence.”) 10 The former Unemployment Appeals Commission, or UAC, is now known as the Reemployment Assistance Appeals Commission or RAAC agency’s practice and invalidating the agency’s refusal to enforce the referee’s duties to prepare a proper record.11 Feel free to contact Valory Greenfield valory@floridalegal.org and/or Cindy Huddleston cindy@floridalegal.org for help with any Administrative Procedure Act strategies 11 ... exclusion of these documents when the hearing referee fails to enclose all significant documents with the notice of hearing The burden of enclosing significant documents with the hearing notice. .. evidence during the hearing, the adjudicator’s documents could become part of the official hearing record at the time the hearing referee includes these documents with the notice of hearing Indeed,... a hearing to be conducted by telephone conference, copies of the significant documents from the official file shall be provided to each party prior to the date of hearing If any party wishes to