Board of Governors of the National Association of Administrative Law Judges

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Journal of the National Association of Administrative LawJudiciaryVolume 16 | Issue 1 Article 83-15-1996Proposed Model Act Creating A State CentralHearing Agency (Office of AdministrativeHearings)Board of Governors of the National Association of Administrative Law JudgesFollow this and additional works at: http://digitalcommons.pepperdine.edu/naaljPart of the Administrative Law Commons, Organizations Commons, and the President/Executive Department CommonsThis Model Code is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion inJournal of the National Association of Administrative Law Judiciary by an authorized administrator of Pepperdine Digital Commons. For moreinformation, please contact Kevin.Miller3@pepperdine.edu.Recommended CitationBoard of Governors of the National Association of Administrative Law Judges, Proposed Model Act Creating A State Central HearingAgency (Office of Administrative Hearings), 16 J. Nat’l Ass’n Admin. L. Judges. (1996)available at http://digitalcommons.pepperdine.edu/naalj/vol16/iss1/8PROPOSED MODEL ACTCREATING ASTATE CENTRAL HEARING AGENCY(OFFICE OFADMINISTRATIVE HEARINGS)AN ACT concerningOffice of Administrative HearingsFOR the purpose of establishing an Office of Administrative Hearings as anindependent agency in the Executive Branch in order to provide a sourceof independent administrative law judges to preside in contested cases;providing for the appointment of a chief administrative law judge;establishing the chief administrative law judge's qualifications,compensation, powers, and duties... [other purposes]Section 1. BE IT ENACTED BY THE [NAME OF LEGISLATIVEBODY], That the Laws of [STATE] read as follows:Article - State GovernmentSubtitle [ ]. Office of Administrative HearingsPart I. Office of Administrative HearingsSection 1-1 Scope of Subtitle.(a) Exceptions - - This subtitle does not apply to:(1) an agency of the Legislative Branch of the Stategovernment;(2) an agency of the Judicial Branch of the Stategovernment; or(3) the following agencies of the Executive Branch of theState government:(i) the Governor;(ii) [exception]; andSpring 1996 Proposed Model Act State Central Hearing AgencyXVI Journal of the National Association of Administrative Law Judges 121(iii) [exception](b) except as provided in paragraphs (1), (2), and (3) of subsection(a) of this section, this subtitle shall apply to each agency that employs or engagesone or more hearing officers or administrative law judges, either full or part-time,to adjudicate contested cases unless the agency has been exempted by theGovernor under subsection (c) of this section. The hearing officers andadministrative law judges of the agencies to which this subtitle applies shallbecome employees of the Office of Administrative Hearings.(c) until [ ] years from the effective date of this statute theGovernor temporarily may exempt an agency from this subtitle.Section 1-2 Establishment and Appointment of Administrative LawJudgesThe Office of Administrative Hearings is created as an independentagency in the Executive Branch of State Government for the purpose of separatingthe adjudicatory function from the investigatory, prosecutory and policy-makingfunctions of agencies in the Executive Branch. Administrative law judges shall beselected and appointed [by the Governor upon screening and recommendation ofa judicial nominating commission] [through competitive examination in theclassified service of state employment] [by the chief administrative law judge].Section 1-3 Responsibility.Except as provided herein, the Office shall handle all matters referred bythe agencies [unless the agency head or governing body of any agency hears thecase without delegation or assignment to a hearing officer].Section 1-4 Chief Administrative Law Judge - In generaL(a) The Office is headed by a chief administrative law judge[appointed by the Governor with advice and consent of the Senate for a term of () years], who may be removed only for good cause following notice, anopportunity to be heard in an A.P.A. or other statutory type hearing and a findingof good cause by an impartial hearing officer [through competitive examination inthe classified service of state employment] and shall continue in office until asuccessor is appointed.(b) The chief administrative law judge shall:(1) take an oath of office as required by law prior to thecommencement of duties;(2) devote full time to the duties of the Office and shallnot engage in the practice of law;(3) be eligible for reappointment;(4) receivedhe salary provided in the state budget [receivea salary in the same amount as that provided by lawfor a { } court judge];(5) be licensed to practice law in the State and admittedto practice for a minimum of five years;(6) have the powers and duties specified in this subtitle;andProposed Model Act State Central Hearing AgencySnrin2y 1996XVI Journal of the National Association of Administrative Law Judges 121(7) be subject to the code of conduct for administrativelaw judges.(c) The chief administrative law judge may employ a staff inaccordance with the State budget.Section 1-5 Chief Administrative Law Judge - Powers and Duties.(a) The chief administrative law judge shall:(1) supervise the Office of Administrative Hearings;(2) [appoint and remove administrative law judges inaccordance with this subtitle (the other option is forthe Governor to appoint through a judicial nominatingcommission as provided by Section 1-2)];(3) assign administrative law judges in any case referredto the Office;(4) protect and ensure the decisional independence ofeach administrative law judge;(5) establish and implement standards and specializedtraining programs and provide materials foradministrative law judges;(6) provide and coordinate continuing educationprograms and services for administrative law judges,including research, technical assistance, technical andprofessional publications, compiling anddisseminating information, and advise of changes inthe law relative to their duties;(7) adopt rules of procedure for administrative hearingsand other regulations to implement this subtitlethrough an A.P.A. or other statutory-type hearingwith notice and an opportunity to comment;(8) adopt a code of conduct for administrative lawjudges;(9) monitor the quality of state administrative hearings;(10) submit an annual report on the activities of the Officeto the Governor and to the [Legislature].(11) [cooperate and assist the State Advisory Council inthe discharge of its duties pursuant to Sections 1-12through 1-14 of this Act.](b) The chief administrative law judge may:(1) serve as an administrative law judge in a contestedcase;(2) [establish qualifications for the selection ofadministrative law judges];(3) furnish administrative law judges on a contractualbasis to other governmental entities;(4) accept and expend funds, grants, bequests andservices, which are related to the purpose of theOffice, from any public or private source;(5) enter into agreements and contracts with any publicor private agencies or educational institutions;(6) create specialized subject matter divisions within theOffice.Spring 1996 Proposed Model Act State Central Hearine AgencXVI Journal of the National Association of Administrative Law Judges 121Section 1-6 Administrative Law Judges.(a) An administrative law judge shall:(1) take an oath of office as required by law prior to thecommencement of duties;(2) [be admitted to practice law (in the State) (for aminimurn of five years)];(3) be subject to the requirements and protections of[e.g., classified service of State employment and theState ethics code];(4) be removed, suspended, demoted, or subject todisciplinary sanctions only for good cause, afternotice and an opportunity to be heard in an A.P.A. orother statutory-type hearing and a finding of goodcause by an impartial hearing officer.(5) receive compensation provided in the State budget[receive a salary in the same amount as that providedby law for a ( 9 court judge];(6) not perform duties inconsistent with the duties andresponsibilities of an administrative law judge;(7) devote full time to the duties of the position and [shallnot engage in the practice of law unless serving as apart-time administrative law judge];(8) be subject to administraive supervision by the chiefadministrative law judge; and(9) be subject to the code of conduct for administrativelaw judges.S rin 1996 o StC rl a Al c(b) An administrative law judge shall not be responsible to orsubject to the supervision or direction of an officer, employee, or agent engagedin the performance of investigatory, prosecutory, or advisory functions for anagency. An administrative law judge shall not initiate, or engage in ex partecommunications concerning a proceeding.Section 1-7 Cooperation of State Government Agencies; Audits;Selection of Judges.(a) All agencies of State government shall cooperate with the chiefadministrative law judge in the discharge of the duties of the Office.(b) The Office shall be subject to audit by [the legislative auditoffice under the same rules and rotation by which other State agencies are audited].(c) Except as provided in this subtitle or in regulations adoptedunder this subtitle, an agency may not select or reject a particular administrativelaw judge for a particular proceeding.Section 1-8 Designation of Administrative Law Judges.If the Office is unable to assign an administrative law judge in responseto an agency referral, the chief administrative law judge shall designate in writingan individual to serve as an administrative law judge in a particular proceedingbefore the agency [if the individual meets the qualifications for an administrativelaw judge established by the Office and is subject to the Code of Judicial Conduct].Prooosed Model Act State Central Heariniz AaencvSnrln* ! 996XVI Journal of the National Association of Administrative Law Judges 121Section 1-9 Powers of Administrative Law Judges.An administrative law judge shall have the power to: (1) issuesubpoenas; (2) administer oaths; (3) control the course of the proceedings; (4)engage in or encourage the use of alternative dispute resolution methodologies asappropriate; and (5) perform other necessary and appropriate acts in theperformance of duties.Section 1-10 Decision-making Authority.(a) The assigned administrative law judge shall render the finaldecision of the agency not subject to agency review, in all hearings for thefollowing agencies:(1) [Name of Agency];(2) [Name of Agency]; and(3) [Name of Agency].(b) Except as provided by law, the administrative law judge shallissue a proposed decision unless the agency authorizes the issuance of a finaldecision.(c) Where a matter is referred to the Office by an agency, thereferring agency shall take no further adjudicatory action with respect to theproceeding, except as a party litigant, as long as the Office has jurisdiction overthe proceeding. No ex parte communication shall occur between the agency andthe Office once a proceeding has been referred to the Office. Nothing in thissubsection shall be construed to prevent an interlocutory review by the agency nora termination or modification of the proceeding by the agency.Sorin~ 1996 ProDosed Model Act State Central Hearing AgencySection 1-11 Proposed Decisions and Orders.In reviewing a proposed decision or order received from theadministrative law judge, the agency head or governing body of the agency shallnot modify, reverse or remand the proposed decision of the administrative lawjudge except for specified reasons in accordance with law. Review of agencydecisions shall occur in accordance with the Administrative Procedure Act [orother specific statutory provision].Section 1-12OPTIONALState Advisory Council on Administrative Hearings -Establishment; Composition; Appointment.(a) There is a State advisory council on administrative hearings.(b) The council consists of nine members.(c) Of the nine council members:(1) One shall be a member of the Senate of [ ];(2) One shall be a member of the House of[ ]I;(3) One shall be the Attorney General or the AttorneyGeneral's designee;(4) Two shall be directors, secretaries, chief executives,or their designees from agencies involved in theadjudication of contested cases before the Office.(5) Two shall be from the general public; and(6) Two shall represent the state bar association.(d) The Governor shall appoint the members specified insubsection (c)(4) through (6) of this section.Proaosed Model Act State Central Hearing AgencySnrin y 1996XVI Journal of the National Association of Administrative Law Judges 121Section 1-13 Terms; Compensation; Chair.(a) (1) The term of a member of the council is four years.(2) The terms of the members are staggered as requiredby the terms provided for members of the council on[DATE].(3) A member is eligible to serve more than one term.(4) A member shall not be disqualified by virtue of beingengaged in the practice of law or appearing regularlyas an attorney before the Office.(b) A member of the council may not receive compensation, but isentitled to reimbursement for expenses under the standard state travel regulations.(c) The council shall designate a chair from among its members.Section 1-14 Powers and Duties; Meetings.(a) The council shall:(1) advise the chief administrative law judge in carryingout the duties of the Office;(2) identify issues of importance to administrative lawjudges that should be addressed by the chiefadministrative law judge;(3) review issues and procedures relating toadministrative hearings and the administrativeprocess;(4) review and comment upon rules of procedure andother regulations and policies proposed by the chiefadministrative law judge;(5) review and comment on the annual report submittedby the chief administrative law judge; andProposed Model Act State Central Hearing Agency(6) conduct a study of agencies which employ hearingofficers to adjudicate contested case hearings whichhave been exempted by the Governor pursuant toSection 1-1(3) and recommend to the Governor thoseagencies for which such exemption should becontinued by [DATE].(c) The council shall meet at a regular time and place to bedetermined by the council.Section 1-15 Effective Date.That Sections 1-1 through 1-14 shall take effect on [DATE].PROPOSED MODEL ACT: Adopted by the Board of Governors of the NationalAssociation of Administrative Law Judges at the mid-year meeting on June 8,1996n. 1 qq6LOYOLA> . UNIVERSITYCHICAGOJournal of theNational Association of Administrative Law JudgesVol. XVI Spring 1996 No.1Nina S. Appel - DeanEditorProfessor Allen E. ShoenbergerSupervising EditorEliott B. OppenheinArticles EditorsEileen Berner MaryKay FoyMatthew Bove David Worth

Proposed Model Act Creating A State Central Hearing Agency (Office of Administrative Hearings)

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Proposed Model Act Creating A State Central Hearing Agency (Office of Administrative Hearings)

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