R25-3-9. Informal Adjudicative Proceedings -- Witnesses

  (1) Availability of employees to testify. A governmental entity shall be responsible for making available any of its employees who are subpoenaed to testify in a review hearing.

  (a) Off-duty employees. Agencies are not responsible for making available an employee who is: off duty; on sick, annual or other approved leave; or who, for any other reason, is not at work during the time the hearing is in progress.

  (b) Non-disruption. The Parties and their representatives and the Appeal Authority shall make every effort to avoid disruption to the operation of state government or other governmental entities in the calling of employees to testify in hearings under these Appeal procedures.

  (c) Witness failure. If a requested witness does not appear at the scheduled hearing, the witness' failure to appear may not necessitate the postponement of any proceedings.

  (d) Excessive witnesses. If the number of witnesses requested by a Party is excessive, the Appeal Authority may require the Party to justify the request or face denial of part or all of the request.

  (2) Hostile witnesses. When the presiding Appeal Authority hearing officer determines that a witness is uncooperative or even hostile, the witness may be examined by the Party calling that witness as if under cross-examination. The Party calling the witness may, upon showing that the witness was called in good faith but that the testimony is a surprise, proceed to impeach the witness by proof of prior inconsistent statements.

  (3) Exclusion/sequestering of witnesses.

  (a) The Appeal Authority presiding hearing officer may sequester witnesses from the hearing until they are called to testify.

  (b) Witnesses not presently testifying may be sequestered on motion by one or both Parties or in the presiding hearing officer's discretion.

  (c) The presiding Appeal Authority hearing officer will counsel the witnesses not to discuss the case with those witnesses who have not yet testified.

  (4) Management representative. Prior to a hearing, the Responsible Governmental Entity may designate one person to serve as the agency's management representative. The agency's management representative is entitled to remain throughout the hearing to represent the agency at any proceeding even if called to testify, unless the presiding Appeal Authority hearing officer determines it is reasonable to expel the management representative for any or part of the hearing.