DEPARTMENT OF ENERGY, LABOR, AND ECONOMIC GROWTH

              STATE OFFICE OF ADMINISTRATIVE HEARINGS AND RULES

             PUBLIC SCHOOL RETIREMENT BOARD - GENERAL HEARING RULES


(By authority conferred on the State Office of  Administrative  Hearings  and 
Rules by Executive Order 2005-1, MCL 445.2021.)

 
                           PART I.  PROCEDURAL RULES


R 38.1371  Applicability and definitions.
  Rule 71.  (1) These rules apply to hearings held under the jurisdiction  of 
the public school employees' retirement board.
  (2) As used in these rules:
  (a)  "Act" means the school employees retirement act of 1980, 1980 PA  300, 
MCL 38.1301.
  (b)  "Administrative record" means the application  and  related  documents 
considered  by  the  staff  of  the  retirement  system   in   reaching   its 
determination.
  (c)  "Application" means a request for a benefit  provided  by  the  act.   
"Application" also includes a request to reopen a closed  application  and  a 
reapplication.
  (d)  "Board" means the retirement board as defined in MCL 38.1322.
  (e)  "Closed application" means a request by an individual  for  a  benefit 
provided by the act that was withdrawn by the individual or  otherwise  never 
decided by the retirement system or the board.
  (f)  "Good cause," as used  in  R  38.1374  and  R  38.1382(2),  means  the 
legitimate failure to file a document or a witness list in  a  timely  manner 
and does not include a person's own careless neglect or  inattention  to  the 
requirements of R 38.1374 and R 38.1382(2).
  (g)  "Presiding officer" means presiding officer as defined in  MCL  24.279 
and 24.280.
  (h)  "Reapplication" means  a  request  by  an  individual  for  a  benefit 
provided by the  act  that  was  previously  decided  by  the  staff  of  the 
retirement system or the board.
  (3) The terms defined in 1980 PA 300, MCL 38.1301 et seq; and 1969 PA  306, 
MCL 24.201 et seq; have the same meaning when used in these rules.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1372   Notice of hearing.
  Rule 72.  Notification of any hearing shall state the  date,  time,  place, 
and issues involved.  Notice shall be mailed by first-class mail at least  35 
days before the hearing. 

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1373   Appearance.
  Rule 73.  (1)  If a party is represented by an attorney, the attorney shall 
file a written appearance.
  (2)  An appearance made at a hearing shall be made in person either by  the 
individual who requested the hearing or by legal counsel.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1374   Filing of documents. 
  Rule 74.  If a document is not filed and  served  within  the  time  limits 
established by these rules, the presiding officer or the board  shall  strike 
the document unless the individual  serving  the  document  establishes  good 
cause as to why the document was not filed and served timely. 

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1375   Service.
  Rule 75.  (1)  A party shall serve all documents filed in a contested  case 
on all other parties and the presiding officer.  Service  shall  be  made  in 
person or by first-class mail with postage fully paid and  addressed  to  the 
individual to be served at the individual's last known address.
  (2)  The date of service shall be the date of personal service or the  date 
that the document is placed in first-class mail.
  (3)  A party who files a document in a contested case hearing shall file  a 
proof of  service  that  establishes  the  document  was  simultaneously  and 
properly served on all other parties. 

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1376   Pre-hearing conference; scope.
  Rule 76.  (1)   If  a  presiding  officer  determines  that  a  pre-hearing 
conference will aid in the efficient resolution of the  contested  case,  the 
presiding officer may direct the parties or their attorneys to participate in 
a pre-hearing conference, either in person or by telephone, to do any of  the 
following:
  (a)  State and simplify the factual and legal issues involved.
  (b)   Consider  motions  to  be  disposed  of  before  hearing  and   other 
preliminary matters.
  (c)  Identify proposed documentary evidence and determine its authenticity, 
if possible.
  (d)  Estimate the time for hearing. 
  (e)  Consider other matters that may aid in the resolution of the contested 
case.
  (2)  The presiding officer may provide  a  written  summary  of  the  items 
discussed to each party after the pre-hearing conference.  
  (3)  At a pre-hearing conference, the  presiding  officer  may  direct  the 
parties to file a hearing brief as to any  of  the  issues  involved  in  the 
action. If the parties are  directed  to  submit  hearing  briefs,  then  the 
parties shall submit briefs to the presiding officer not less  than  10  days 
before the hearing, unless a different date is set by the presiding officer.  

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1377   Presiding officer.
  Rule 77.  (1)  The state office of administrative hearings and rules  shall 
designate presiding officers in contested case proceedings.  
  (2)  A presiding officer shall issue orders that are necessary for the fair 
and efficient determination of the issues presented.  These include, but  are 
not limited to, an order in response to a motion to do any of the following:
  (a)  Extend the time to file a closing argument.
  (b)  Extend the time to file exceptions and/or replies.
  (c)  Adjourn a hearing.
  (3)  A party shall comply with an order of a presiding officer.
  (4)  Neither the presiding officer nor any attorney in a contested case may 
issue a subpoena.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1378   Adjournment or continuance of hearing.
  Rule 78.  A hearing shall not be adjourned  or  continued  except  upon  an 
order of the presiding officer.  Unless made during a  hearing,  all  motions 
and requests for an adjournment, or a continuance, shall be filed in  writing 
and state  concisely  the  reasons  why  an  adjournment  or  continuance  is 
necessary.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1379  Hearing record.
  Rule 79.  A verbatim record shall be  made  of  each  hearing  held.   Upon 
request, a party may order a transcript.  The requestor shall pay the cost of 
the transcript.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1380   Form; time for filing motion.
  Rule 80.  (1)  A request to the presiding officer for an order in a pending 
action shall be by motion, in writing, unless  made  during  a  hearing.  The 
request shall state the relief or order sought, the grounds and authority  on 
which the request is based, and  be  signed  by  the  party  or  the  party's 
attorney. 
  (2)  A copy of the written motion and brief, if any,  shall  be  served  in 
accordance with R 38.1375(1).  If  a  motion  or  response  is  supported  by 
affidavit, then the affidavit shall be filed and served with  the  motion  or 
response.
  (3)  A party opposing a motion shall serve a response  and  any  brief  and 
supporting affidavit or affidavits within 14 days after service of the motion 
unless otherwise ordered by the presiding officer.  
  (4)  The presiding officer may limit or dispense  with  oral  arguments  on 
motions. 

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1381   Motion for summary disposition.
  Rule 81.  (1)  A party may move for summary disposition on all or any  part 
of the claim at any time. The motion shall state that  the  moving  party  is 
entitled to summary disposition on 1 or more of  the  following  grounds  and 
shall specify the grounds on which the motion is based: 
  (a)  The petitioner has failed to state a claim upon which  relief  can  be 
granted.
  (b)  There is no genuine issue as to a material  fact,  except  as  to  the 
relief to be granted.
  (c)  The board lacks jurisdiction of the subject matter.
  (d)  The claim or defense is barred because it is untimely.
  (e)  The claim or defense is barred because of some other legal  impediment 
or other disposition of the claim. 
  (2)  If the motion for summary disposition is based on  subrule  (1)(a)  of 
this rule, then only pleadings may be considered. A motion based  on  subrule 
(1)(b), (c), (d) or (e) of this rule shall  be  supported  by  affidavits  or 
other documentary evidence and shall  specifically  identify  the  issues  on 
which the moving party believes there is no genuine issue of  material  fact. 
The affidavits, together with the pleadings  and  documentary  evidence  then 
filed in the action, or submitted by the parties, shall be considered.  If  a 
motion is made under subrule (1)(b) of this rule and supported as provided in 
this rule, then an adverse party shall, by affidavits or  otherwise  provided 
in this rule, set forth specific facts showing that there is a genuine  issue 
for hearing. 
  (3)  A presiding officer shall rule on a motion for summary disposition  in 
a proposal for decision.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1382   Discovery.
  Rule 82.  (1)  Discovery shall not be allowed in any contested case hearing 
conducted under the act or these rules except depositions may be  taken  upon 
written approval of the board where it is established that it is  impractical 
or impossible to otherwise obtain the evidence.  If the  board  approves  the 
taking of a deposition, it shall be taken in  conformity  with  the  Michigan 
court rules.
  (2)  The petitioner shall serve a list of  witnesses  20  days  before  the 
scheduled hearing date.  If the petitioner wishes to testify, he or she shall 
be included in the witness list.   The  respondent  shall  serve  a  list  of 
witnesses 10 days before the scheduled hearing date.  A party shall not  call 
as a witness a person who was not included  on  a  witness  list  unless  the 
presiding officer finds that the party has established good cause as  to  why 
the person was not included on the party's witness list.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1383   Closing arguments.
  Rule 83.  The presiding officer shall notify the parties whether written or 
oral closing arguments shall be scheduled and the  time  deadlines  for  such 
arguments.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1384   Proposal for decision.
  Rule 84.  The presiding officer  shall  prepare  a  proposal  for  decision 
within a reasonable time after the closing of the record.  It  shall  include 
findings of fact, conclusions  of  law,  and  a  recommended  decision.   The 
proposal for decision shall be served on each of the parties and the  hearing 
coordinator of the retirement system.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1385   Considerations of documents.
  Rule 85.  (1)  Any documents submitted by or on  behalf  of  the  applicant 
more than 30 days after the date of the notification set forth in  R  38.1372 
shall not be considered except upon a showing of good cause.
  (2)  The presiding officer shall admit the administrative record if offered 
into evidence at the hearing.

  History: 2009 MR 10, Eff. May 28, 2009.


R 38.1386   Testimony; telephone and other electronic means.
  Rule 86.  A presiding officer shall not take the testimony of a witness  by 
way of a telephone conference call or other electronic means  unless  all  of 
the following occur:
  (a)  The party who wants to take such testimony serves a motion at least 10 
days before the date of the hearing.
  (b)  The presiding officer concludes that it is impractical  or  impossible 
to otherwise obtain the testimony.
  (c)  The presiding officer concludes that the  witness  is  not  needed  to 
appear in person so  that  the  witness's  appearance  and  demeanor  may  be 
observed for credibility purposes.

  History: 2009 MR 10, Eff. May 28, 2009.