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INTERNAL PROTOTYPE — NOT LEGAL ADVICE — DO NOT SEND

Rothman v. Rent Control Board, 37 Mass. App. Ct. 217 (1994)

Citation
Rothman v. Rent Control Board, 37 Mass. App. Ct. 217 (1994)
Parent Document
Rothman v. Rent Control Board, 37 Mass. App. Ct. 217 (1994)
Jurisdiction
Massachusetts (state)
Effective Date
1994-08-26

Other Sections in This Document (27)

Full Text

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On review of the record we detect no error or evidence of bias in the hearing examiner’s actions and decision. After a one-day hearing in which documentary evidence comprising, as here, approximately twenty-eight exhibits, some with multiple parts, and covering the history of a contentious tenant-landlord relationship over a four and one half year period, it is not surprising that a hearing examiner, upon review, should conclude there may be missing elements in the evidence. Faced with the regulatory imperative that “[tjhere *223shall be a full and fair open proceeding to determine whether . . . a certificate of eviction [shall be] issued” (under the board’s regulation 35-01), it was not an abuse of discretion for the hearing examiner to provide a complete and comprehensive record. Analogous regulatory systems promote hearing officer amplification of the record in the interests of completeness and fairness. See 801 Code Mass. Regs. § 1.02( 10)(g)(5)(1993)10; 20 C.F.R. § 404.944 (1993).11 The dictates of fairness were well preserved by the hearing examiner’s offer, after supplementing the record, to receive further documentation, argument, or requests for a further hearing. He did not rely on secret evidence. There was no violation of the general principle that “[w]hatever actually plays a part in the decision should be known to the parties and subject to being controverted.” Schwartz, Administrative Law § 7.13, at 369 (2d ed. 1984). To the extent the hearing examiner’s activities constituted outside consultation, he acted within the spirit of the board’s regulation 36-04,12 which permits such consultation outside the hearing provided the parties are given an opportunity to participate. Here, the hearing examiner issued a clear invitation to participate. Cf. New York Central R.R. v. Department of Pub. Works, 354 Mass. 332, 336 (1968). Norway Cafe, Inc. v. Alcoholic Bevs. Control Commn., 7 Mass. App. Ct. 37 (1979).