In order to understand how to participate in Board cases and how public comments are considered by the Board in reaching its final decision, it is helpful to have a basic understanding of how Board processes work.
Board proceedings fall into two general categories, with differences in the formality of the proceedings and in the required procedural steps:
Contested Case Proceedings
Contested case proceedings are conducted like trials, with formal parties who are required to follow legal rules for developing their cases by conducting discovery and presenting evidence through witnesses and cross-examination in hearings. You can ask to be made a party to a contested case proceeding if you can show that you have an interest in the proceeding that will not be addressed by other parties in the case. If you want to ask to become a party in a contested case proceeding (also called "intervention"), you must follow standard procedures for filing a Motion to Intervene.
There are responsibilities and benefits that go with being a party to a case. You must file a motion to intervene in the required time-frame (established in a scheduling order in each case). Your motion must show that you meet the requirements for intervention by addressing the statutory criteria for being admitted as a party. You must comply with each of the procedural steps involved in the case in the required manner. This means that you must follow prescribed rules for filing testimony, conducting discovery, participating in the hearing, presenting and cross-examining witnesses, and filing legal briefs, if necessary.
Some people hire an attorney to represent them in Board proceedings. Others represent themselves, which is referred to as “appearing pro se.” Pro se participants are required to follow the same rules and requirements as the other parties in a case. If you have questions about the requirements for a filing or the process in an individual proceeding, we encourage you to contact the Clerk of the Board for assistance.
You do not need to become a party to provide input in a contested case proceeding. A member of the public is welcome to submit comments to the Board in writing, by e-mail, through ePSB, or by speaking at a public hearing. Public comments are very helpful to the Board because they identify issues that the Board can ask the parties to address. Because public comments are not submitted to the Board under oath and are not subject to cross-examination, they are not “evidence” in the proceeding; only information presented by parties under oath and subject to cross-examination is evidence that can be used as the basis for the Board’s decision. Public comments received prior to an evidentiary hearing can be used by the Board to bring new issues to light and have them addressed by the parties in the evidentiary record.
In addition, if you are interested in a Board proceeding, you may find it useful to contact the Department of Public Service, which is charged with representing the public interest before the Board. The Department of Public Service frequently presents issues to the Board that are of concern to large numbers of the public.
Uncontested Case Proceedings
Uncontested case proceedings are a less formal process the Board uses to gather information that is needed to develop policies. The Board obtains such information using workshops, written comments, and other informal stakeholder processes that are generally open to anyone who is interested in participating. "Parties" are not designated in an uncontested case proceeding. Members of the public can participate in uncontested case proceedings by attending workshops, submitting written comments, (whether by e-mail or through ePSB), and speaking at public hearings.
As a general rule, the public can participate in Board cases in two ways:
Submitting Public Comments
Public comments can be provided to the Board at anytime. In cases with required time-frames for comments, you may submit comments in writing, by e-mail, through ePSB, or by speaking at a public hearing. Public comments often raise issues that the Board can ask the parties to the case to address. While public comments themselves cannot be treated as “evidence” in the case, they serve a valuable function in bringing up important issues for the Board to pursue through the formal case proceedings.
Being a Formal Party to a Case
Being a party to a case allows you to formally present a case for the Board to decide. As a party you can chose to be represented by an attorney or to represent yourself (pro se appearance). Parties are required to follow legal rules for submitting evidence, conducting discovery, and presenting and cross-examining witnesses in an evidentiary hearing. The benefits of being a party to a case include having a direct say before the Board to be sure that your issues are considered based on the evidence developed during the case. Significantly, a party has a legal right to appeal a Board decision to the Vermont Supreme Court.