800 Appeals Performance Criteria - Hearing

  1. 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).

  2. 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 mm-dd-yy which disqualified him from receiving unemployment benefits beginning mm-dd-yy 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.

  3. Exhibits

    The Hearing Officer should handle exhibits correctly.

    Good (9): The Hearing Officer correctly handled exhibits in that s/he:

    1. described and marked all exhibits;
    2. 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;
    3. authenticated offered exhibits (to the extent possible);
    4. received all competent, relevant and reasonably available exhibits, including taking the initiative to enter relevant documents in the Agency "packet";
    5. gave an explanation if s/he denied admission of any of the proposed exhibits;
    6. 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. If the document is a copy, the hearing officer should ask the offering party if it is a true and correct copy of the original. It is not necessary to authenticate agency documents created or obtained in the claim processing, such as fact finding or separation reports. The hearing 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 documents, 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. If consecutive pages from the hearing packet are entered, it is acceptable to label the first page of the exhibit and note the pages numbers of the exhibit (For example: "pages 9-A through 12-A").

    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 file 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.

  4. 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.

  5. 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.

  6. 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 5.00PDF.

  7. 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.

  8. 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.

  9. 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.

  10. 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).

  11. 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.

  12. Repetitive Testimony and/or Irrelevent 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.

  13. 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.

  14. 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.

  15. "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.

  16. 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.

  17. 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.

  18. 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.

  19. 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.

  20. 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.

  21. 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."

  22. 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.

  23. 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?

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801 Appeals Performance Criteria - Decision

  1. 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."

  2. 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."

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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."

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Guidelines for Efficient Work Flow

  1. Prehearing
    1. Prep cases thoroughly and ASAP
      • Stamp cases with mail distribution stamp and fill out information
      • Highlight issues
      • Write down questions to be asked
      • Review precedent cases
      • Check timeliness issues
      • Check chargeability issues, account numbers, LEU, addresses
      • Mail documents to parties, contact local office if you do not have them
      • Arrange for local office witnesses
      • Paper clip or set apart documents
    2. Organize files by days
    3. Check the Benefits System screens on the mainframe, particularly with eligibility issues, wage credit issues
    4. Arrange the file documents
    5. Tag determinations for issues
    6. Record relevant voice mail
    7. Associate documents with folders
    8. Carefully verify Notice of Hearing has correct issues
    9. Proper advisements to parties of consequences of no show - "Beyond control v. inconvenient"
  2. Hearing
    1. Start hearing as soon as possible
    2. Tailor opening statements to the particular hearing situation
    3. Limit testimony to facts relevant to the hearing and date of separation
    4. Keep focused on issues and avoid repetition
    5. Restrict admission of evidence to relevant documents
    6. Label exhibits (documents) as presented
    7. Hearing efficiency
      • Obtain names and designate primary representatives
      • Ask for personal knowledge from witnesses
      • Control questioning
      • Clarify objections and use different wording if necessary
    8. Exhibits
      • Make entry as easy as possible
      • Group together if same subject
      • Exclude post separation documents
      • Exclude written statements from testifying witnesses
    9. Control of parties
      • Silence from parties when others are testifying
      • Ask for specifics
      • All testimony on the record
      • If referred to by first name, indicate that such familiarity is improper
    10. Be Cool
  3. Post Hearing
    1. Record tape length on inside cover of file
    2. Fill out summary sheet immediately
    3. Dictate decisions as soon as possible
    4. Proof decisions carefully
  4. General Tips
    1. Be Aware of time lapse
    2. File sample decisions for easy access
    3. Have frequently used precedents organized under own topics
    4. Organize work and office
      • Manuals within reach (Rules, Act)
      • Files, schedules, stickers, forms, sample decisions
      • Calendar
      • Pads, pencils (for in-person)
    5. Mass tasks for efficiency
    6. Allocate time efficiently
    7. Clean up office periodically
    8. Stay caught up with work
    9. Reset continuances by telephone (if possible, and if of short duration)
    10. Try to have only 2-3 decisions left over at end of each day
    11. Keep folder to organize by issue
    12. Have drawers or trays for frequently used forms

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