D
R A F T
FOR DISCUSSION ONLY
REVISED
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
________________________________________________
For March 27 – 29, 2009
Drafting Committee Meeting
Copyright
82007
By
NATIONAL
CONFERENCE OF COMMISSIONERS
ON
UNIFORM STATE LAWS
March
10, 2009
REVISED MODEL STATE
ADMINISTRATIVE PROCEDURE ACT
[ARTICLE]
1
SECTION 101. SHORT TITLE. This [act] may be cited as the [state] Administrative Procedure Act.
SECTION 102. DEFINITIONS. In this [act]:
SECTION 102(1) “Adjudication” means the process of
determining facts or applying law to facts in
order pursuant to which an agency formulates
and issues an order.
DRAFTING NOTES: The suggested revisions define adjudication
in terms of both determining facts and applying law to facts, which is at once
a more complete and concise definition.
The awkward phrase "pursuant to which" is replaced by the
phrase "in order to" to keep the closing phrase in the active voice.
SECTION 102(2) “Agency” means a state board, authority,
board,
bureau, cabinet, commission, institution,
department, division, institution, office,
officer, or other state entity that is authorized or required by law
to make rules or to adjudicate. The term does not include the Governor, the
Legislature, and or the
Judiciary.
DRAFTING
NOTES: The suggested revisions simply add
additional names used for agencies to the list and put the list in alphabetical
order. Under the law of
SECTION 102(4) “Agency head” means the individual in
whom, or one or more members of the
body a group of individuals in
which, the ultimate legal authority
of an agency is vested authorized
[by law] to issue a final rule or order.
DRAFTING NOTES:
The suggested revisions delete the awkward construction "in whom,
or one" and replaces it with a straightforward compound subject, using
"group" instead of "body" for reasons explained in the
comments to Section 402(a). The vague
phrase "the ultimate legal authority of an agency is vested" is
deleted and the proposed revision of the last sentence uses the defined terms
“issue” and “final order” to define "agency head" and to put the
sentence in the active voice.
SECTION 102(6) “Contested case” means an the entire agency adjudication
procedure, adjudication in which including an opportunity for an
evidentiary hearing, is as required by the federal or state
constitutions, or a
federal or state statutes, regulations, or a federal or state judicial decisions.
DRAFTING NOTES:
The suggested revisions are intended to give "contested case"
a broad reach and scope to set it at the top of the references to adjudicative
procedures. The first revision inserts a
broad definitional scope for the "contested case." The word "including" is inserted in
place of "adjudication in which" to set off the following descriptive
phrase. The word "regulation"
is inserted because in
POLICY NOTES: The Act should adopt a hierarchy of terms
to clarify the distinctions between the various components of an overall
"contested case." Thus, the
Act should consistently use "contested case" as the broadest
descriptor for an agency adjudication.
Below this the Act should use "proceedings" to denote all the
component "proceedings" that may make up a "contested
case." The Act should use
"hearing" or "adjudicative hearing" to describe one
particular type of "proceeding" within a "contested
case." Within this hierarchy a
presiding officer would "preside" over a "contested case,"
and "conduct" the component "proceedings," including any
"hearing" or "adjudicative hearing."
SECTION 102(10) “Evidentiary hearing” means an
hearing receipt of on on
which that a decision of the be made
DRAFTING NOTES:
The word "hearing" is deleted from the first phrase to avoid
defining an "evidentiary hearing" as a "hearing." This is not useful. The phrase "hearing for the receipt of
evidence" is replaced with "adjudicative proceeding conducted for the
purpose of admitting evidence" to comport with the hierarch of terms
discussed in the Policy Notes to §102(6).
The phrase "in the hearing record" is inserted to make the
purpose of the hearing clear. The
awkward phrase "on issues on which a decision of the presiding hearing
officer may be made" is replaced with the phrase "regarding issues a
presiding officer may decide" to simplify the language and put the phrase
in the active voice.
SECTION 102(10A) “File” or “filing” means the oral or written designation of material for inclusion in the hearing record by the presiding officer or the marking of the [time and] date by which material is included in the hearing record by the keeper of the hearing record.
POLICY NOTES:
For some reason, the Act does not define "file" or
"filing" for the purpose of Article 4, although the verb
"file" or "filed" is used in §403(c), 414(c), 414(d), 416(a), (b) and (c),
and the gerund "filing" is used in §405(b), 416(a) and (b). The benefit of defining how to
"file" something or what constitutes a "filing" is that it
creates a uniform procedure that marks documents with a date certain. This allows all parties to reliably and
easily calculate time limits from that date.
At present, the Act calculates time periods from the "effective
date" (§407(g) - emergency order), from "after the notice"
(§408(f)
- to respond to ex parte communication), "upon written notice" (§411(b) - discovery), from "after a
recommended, initial or final order is rendered" (§412(b) - motion to vacate), "after
issuance" (§413(a) - initial order to final order), "after the
initial order is issued" (§414(c) - motion for review or agency notice of intent to
review), "after notice of a final order is given" (§416(c) – motion for reconsideration),
"after the filing denying" a petition for reconsideration (§416(c) – motion for reconsideration),
and "after the parties are notified of the final order" (§417 - stay). The Act should uniformly use an easily
identifiable date from which to calculate effect, time periods, and
limitations: using the date a document is "filed" would do this. Thus, the various vague examples above could
all be redrafted to use the filing date as defined in this proposed section.
SECTION 102(11)
“Final order” means the order issued by the an agency
head sitting as the presiding officer in a contested case, or by an agency
head upon review of a recommended order, that resolves all or
part of a contested case [or
remands the case for further proceedings]. The phrase shall include an initial order that
has become a final order by operation of law under Section 413.
DRAFTING NOTES:
The definite article is replaced with the indefinite article to make
clear the definition includes orders issued by any agency head. The phrase "sitting as the presiding
officer in a contested case" is replaced with "presiding in a
contested case" to shorten the sentence without changing the meaning and
to eliminate "sitting" and retain "presiding" for reasons
explained above in the Policy Notes to §102(6).
The phrase following the disjunctive is meant to bring final orders that
result after review of a recommended order into the definition. The final sentence is inserted to make sure
that final orders that came from initial orders fall within the definition, as
they must, even though they are not issued by an agency head presiding over the
case.
POLICY NOTES:
The definition of “final order” must be broad enough to encompass the
various ways states treat these orders.
In complex cases, there can be a separate final order for some parties
in a case but not others. These are
styled “final orders” by agencies, because as to that party they are
final. Also, although it may not be
common, some agencies will allow an interlocutory-type review of certain
rulings from a presiding officer to the agency head. Since these reviews are by their nature
reviews of orders on parts or distinct issues of a case, the best policy is to
include them in the definition of final order.
See §414(d) (mentioning final order of remand). Ordinarily these are dispositive motions
ruled on by the presiding officer and then reviewed by the agency head. They too are styled “final orders” sometimes,
which can be useful for all parties if it allows appeal of a dispositive legal
issue before having to go through an entire hearing.
SECTION 102(12A)
“Hearing record” means the hearing record in an adjudication governed by
Section 406, and the agency record in emergency adjudication governed by
Section 407.
DRAFTING NOTES:
The Act uses “agency record,” “hearing record” and “record” as loose
synonyms when they are not. The phrase
“agency record” is defined in §201, and “hearing record” is defined in
§406. All instances of “record” in
Article 4 should be changed to “hearing record” so it is clear that the
“record” in §406 and the record of emergency adjudications in §407 is what is
meant. The phrase “hearing record”
appears for the first time in these proposed revisions in §406(g).
POLICY NOTES: Reading the expansive definition
of "agency record" in §102(5), it would appear the Committee intended the
phrase "agency record" to serve for all references to what is
commonly referred to as the "hearing record" in contested case under
Article 4 as well as the record in other Articles of the Act. This is unwise given the very different scope
and subject matter of the various Articles of the Act. The definition of "agency record"
is too broad for use in Article 4 and would only create confusion. Moreover, it is not clear why the Committee
would want to use "agency record" instead of "hearing record"
when there is a whole section defining "hearing record."
SECTION 102(15A) “Issue” means the act of
signing and dating an order by the agency head, presiding officer, or an
individual authorized by law, or if the
order is undated, then when the
order is filed in the hearing record.
DRAFTING NOTES:
Article 4 uses various terms such as “render,” “issue,” “dispose,”
“sign,” and “file” to mean the act of ruling on a motion or issue, or making an
order effective, or perhaps the process of making a ruling. The term “issue” is defined in §413(f) to
mean the act of “an agency head, presiding officer, or an individual authorized
by law” signing an “order.” However,
that definition applies to final, recommended or initial “order[s]” issued
under §413, and not other sections of Article 4.
“issue”
Several sections other than §413 use a form of the verb “issue” with
a form of the object “order” to convey the same meaning as in §413.
See §404(7) (protective
orders); 407(b), (c), (d), (f) and (g) (emergency order); §410(a) (subpoenas);
§411(c), (d), and (e) (protective, compelling, authorizing discovery); §412(a)
(default order and recommended, initial, or final order); §414(c) (initial
order); §416(c) (order on motion to reconsider); §606(a) (recommended or
initial orders). The widespread use of
“issue” to mean the same as in §413 indicates that term should be in this definitional
section for the entire Act or at least Article 4.
“render”
At other places Article 4 uses the verb
“render” to mean the same thing as “issue”:
§413(a) and (b), §415(b), and §606 all use the verb “render” with the
object “order” to mean the decision maker’s act of making or conveying an order
to affected persons. §415(c) uses the
past tense “rendered” to mean the same thing.
§412 uses the past participle “rendered” in a passive construction to
refer to the same thing.
“dispose”
§414(b) and (d) use a form of the verb
“dispose” regarding a petition (motion) for reconsideration to mean “rule” or
“decide” while (c) requires the “order” on a motion for reconsideration to be
“issued.”
§415(c) uses the adverbial “disposing”
referring to a final order. This use of
“disposing” appears intended to mean “ruling on” or perhaps “resolving.”
§416(b) uses “dispose” to mean “rule
on” a “petition” (motion) for reconsideration and fixes the time for judicial
review at “disposition” whenever that may be.
As used here, “dispose” could mean “issue,” or “file,” or “make.”
POLICY NOTES:
Article 4 should use "issue" where possible to mean the act of
ruling on a motion or issue, or making an order effective. "Issuance" should be used when
referring to the process of "issuing" or the point in time an order
is "issued."
SECTION 102(23) “Presiding officer” means an individual authorized
to conduct and govern who
presides over the evidentiary hearing all the
proceedings in a contested case and issue a
recommended, initial or final order.
DRAFTING NOTES: These revisions replace the phrase
"who presides over the evidentiary hearing in a contested case" with
the phrase “authorized to conduct and govern all the proceedings in a contested
case.” The purpose of these revisions is
to convey the characteristic act and function of a "presiding
officer." They are intended to make
clear that a "presiding officer" is the person authorized to govern,
conduct, put on, hold, or run all the "proceedings" within an entire
“contested case.” The phrase “and issue
a recommended, initial, or final order” is intended to make clear that the
presiding officer presides until the end of the proceedings.
POLICY NOTES: The Act does not always use terms that
clearly differentiate between the kinds of actions performed by presiding
officers. The Act uses the word
"conduct" in §§102(24), 403(e) and (f), 404(7), 412(b) and 415(b) with the
noun "hearing." §407(a) uses
"conduct" with the noun "(emergency) adjudication." §412(a) uses "conduct" with the
noun "proceedings." In all
these cases, the Act uses "conduct" to convey the idea of putting on,
holding, or running a proceeding within a contested case. §409(e) uses "hold" to mean the
same thing. §403 (l) uses
"conducts" with the noun "contested case" to mean something
like "governs." The Act should
clarify its terms to reflect the hierarchy discussed in the Policy Notes to §102(6).
SECTION 102(30A) Unless otherwise provided by law, "serve"
shall mean actual delivery of a document to the person
intended or the act of depositing a document with the United States postal
service for delivery to the person, properly addressed, postage prepaid. If a
document is deposited with the
POLICY NOTES: The word
“serve” is used in the current draft of the Article in Sections §405(c)(7),
410(b), and 413(c) to mean the delivery of a notice, or order, similar to the
definition offered above. This proposed definition comports with
the policy discussion concerning the proposed definition of "file" or
"filing" in proposed §201(10A) and is offered to allow the Act to place a date
certain upon certain acts keyed to delivery of orders, notices, etc. where the
filing date may not be appropriate. The
conditional introductory phrase is used because agencies may wish to specify
only certain methods of service for use in their adjudications or may wish to
incorporate the service provisions of the rules of civil procedure.
X.I.
ADJUDICATION IN A CONTESTED CASE
SECTION 401. WHEN ARTICLE APPLIES; CONTESTED CASES.
This [article] applies to an agency adjudications
made
by an agency in a all contested
cases.
DRAFTING NOTES: This Section is clearly intended to
apply to all agency adjudications, not just "a" contested case
or "an" adjudication. This
should be made clear in the text. Thus
the singular indefinite articles have been deleted, the nouns made plural and
the adjective "all" inserted before "contested cases." Similar changes are proposed below without
specifically being discussed in subsequent drafting notes. The
phrase “adjudications made by an agency” is wordy and can be replaced by the
more succinct and syntactically equivalent “agency adjudications.”
SECTION
402. PRESIDING OFFICERS.
SECTION 402(a) A presiding officer must shall be the individual who is
the agency head, a member of a multi-member body group of
individuals that is the agency head, or, an
individual designated by the agency head, unless prohibited by law, or an
administrative law judge assigned in accordance with according
to Section 602.
DRAFTING NOTES: For consistency's sake and to ensure the directives of the
Act are understood to be an obligation and a requirement, all instances of
"must" have been replaced with "shall" throughout Article
4. The unnecessary pronoun phrase
"who is the agency head" has been shortened to "agency
head" and "individual" is then positioned to modify "agency
head." The very odd phrase
"multi-member body" has been replaced with the more concise
"group" for the reasons discussed in the Policy Notes. The second disjunctive is deleted as
unnecessary for the list in which it appears.
The phrase "in accordance with" has been replaced by
"according to" because the sense being conveyed here is that the
assignment is to be one as indicated by Section 602.
The
auxiliary verb "must" is used in some places in the Act and
"shall" is used in others. In
American English "must" and "shall" are often used to mean
the same thing, with "must" being used more often, at least in my
part of the country. However, the idea
of an obligation to act is not the foremost meaning of "must" and can
sometimes be interpreted to mean a statement is directory, whereas "shall"
is more uniformly used to indicate requirement or obligation and to convey the
mandatory nature of these provisions.
The Act does not merely list the required parts of actions, it gives
certain directions to take certain acts and should be so written.
POLICY NOTES: The Act uses the
phrase “multi-member body” in §402(a) and §408(g) instead
of the more common legal term "collegial body." The phrase “multi-member body” conjures
certain Frankenstein-ish images to the reader.
The drafters should and have avoided legalese in most cases, but I
question this translation of “collegial body.”
Perhaps shortening this awkward phrase to just "body" or, as I
have, to "group" would serve the same purpose, be briefer, and more
concise. “Body” is the term already
appearing in the Act and its use would constitute the smallest change in
wording, and could be consistently used in the phrase “body of individuals”
throughout the Act. The word “group” has
been used in these proposed revisions only because it seems a better choice as
a “group” by definition is a kind of "multi-member body" and
therefore needs no modifier, whereas a "body" can be used to denote
various entities in the law, and sometimes is even used when the
"body" is just one person.
The
phrase “according to" has been substituted for the prepositional phrase
"in accordance with" wherever the latter phrase is found in the Act
as a shorter equivalent alternative and to be more accurate. “Accordance” means agreement or conformity
with and “according to” means done as indicated by.
SECTION 402(b) An individual who has served as investigator,
prosecutor, or advocate at any stage in a contested case may not serve as the
presiding officer or assist or advise the presiding officer in the that
contested case. An individual who is subject to the authority, direction,
or discretion of an individual who has served as [investigator,] prosecutor [,]
[or] advocate at any stage in a contested case, including investigation, may
not serve as the presiding officer or assist or advise the presiding officer in
the same proceedingcontested case.
DRAFTING NOTES: The phrase "in that contested case" is
inserted here in place of the phrase "in the case" at the end of the
first sentence to make clear that paragraph is talking about the same
case. The phrase "contested
case" is used to make clear the conflict of interest provision applies to
the entire contested case, according to the hierarchy of terms discussed in the
Policy Notes to §102(6). The phrase "contested
case" is substituted for "proceeding" at the end of the last sentence
for the same reason.
POLICY NOTES: Throughout
the Act, the word "case" is sometimes used in the phrase
"contested case" and sometimes used alone, as here. When used alone, as in this subsection, there
is no prior reference to a "contested case" as that term is defined
in §102. Because the
phrase "contested case" was defined in §102(6), and is used
throughout the Act in other places, unless it is introduced in a subsection
first and then followed by the word "case" as a referent, the whole
phrase "contested case" should be used. This is especially true because the word
"case" is also used in other Sections to mean other things. Instances of “case” used alone in Article 4
have been revised throughout to read “contested case.”
SECTION
402(c) Subsection (b) also governs separation of
functions as to the agency head or other person or body to which the power to
hear or decide the proceeding contested case is
delegated.
DRAFTING NOTES: The phrase “contested
case” is substituted for the word “proceeding” to follow the suggested
hierarchy of terms and to make clear that the prohibition from serving as a
presiding officer extends to the entire case, not just a component proceeding.
POLICY NOTES: I am not even sure
what this section addresses the way it is worded. If it means that categorical disqualification
by function under subsection (b) apply to disqualify an agency head from acting
as agency head to make a final order, it should be reworded. Or better yet, just add “, including an
agency head, ” after the word “individual” in the first sentence of subsection
(a). The second sentence of subsection
(a) would not appear to require any change since presumably the “agency head”
is not “subject to the authority” of others for the enumerated functions.
SECTION 402(d) A presiding officer is
subject to disqualification person may be
disqualified from serving as a presiding officer for
bias, prejudice, financial interest, ex parte communications as provided in
Section 408(h), or any other factor that provides reasonable doubt about the presiding
officer’s impartiality of the presiding officer. A presiding officer, after making a reasonable
inquiry, shall disclose to all parties any known facts related to grounds for
disqualification that would be are material
to the presiding officer’s impartiality of the
presiding officer in the contested case proceeding.
DRAFTING NOTES: The use of the passive construction
"is subject to" makes this subsection ambiguous in light of the rest
of the subsection. “Subject to” seems to
indicate that someone else will be doing the disqualifying, but the subsequent
provisions of this subsection make it clear that only the presiding officer
will decide whether to disqualify himself.
The revision retains the passive construction because of the ambiguity
of this subsection. In our state motions
to disqualify are ruled on first by the presiding officer, and if denied, they
are passed up the decision chain to the agency head to rule on. In practice this has worked well.
The main drafting problem with this subsection is the use of
“disqualify” as the operative verb.
“Disqualify” is a transitive verb and so needs an actor and an
object. However, this subsection hides
the actor by using “disqualify” in passive constructions. A better choice would be to use the non-transitive
verb “withdraw,” which is reflexive in nature and does not need an object such
as “self” to show that it is the actor doing something to himself as does
“disqualify.” For example, the phrase
could be expressed: “The presiding officer shall disqualify himself.” versus
“The presiding officer shall withdraw.”
The possessive prepositional phrase “of the [object]”
appears here for the first time in Article 4.
It is unfortunately repeated throughout the Article in various other
subsections. In these revisions, this
phrase, where possible, has been revised to use the grammatically equivalent
noun plus the possessive “s,” e.g., “presiding officer’s impartiality” in place
of “impartiality of the presiding officer.”
Subsequent replacements of this kind are not noted or discussed in
subsequent drafting notes after this one.
The indefinite article is deleted in front of “reasonable
inquiry” to avoid the idea of “a single” or “one” complete inquiry. This subsection should make the obligation to
conduct a “reasonable inquiry” ongoing.
What appears to be a use of the subjunctive “would” is
replaced above with the present tense “are.”
There appears to be no reason to use the subjunctive tense in this case,
particularly when the drafter is expressing a condition or characteristic, like
materiality.
The word “proceeding” is deleted because it seems to limit
the consideration of conflicts to discrete and component parts of an overall
“contested case.” The meaning of the
remainder of this Section appears to apply to disqualification from an entire
“contested case” and not just from a prehearing conference or hearing.
“proceedings” v. “contested cases” v.
“contested case proceedings.”
The phrase “contested case proceeding”
has been revised above to delete “proceeding” from the phrase. This raises an overall diction problem in the
Act. The Act sometimes uses “proceeding”
to mean “contested case” or vice versa, and in yet other sections uses the
concatenated “contested case proceeding” to mean “proceeding.” Thus, §402(b), (c) and (d) use “proceeding”
or “contested case proceeding” but appear to mean an entire “contested case” as
that phrase is defined in §101(6); §403(c) uses “contested case proceeding”
apparently to refer to an entire “contested case”; §403(e) uses “proceeding”
expressly to mean only an “evidentiary hearing or a prehearing conference”;
§403(f) uses “proceeding” expressly to mean “the hearing”; §403(g) uses
“proceeding” as equivalent to “hearing”; §404(a) uses “adjudicative proceeding”
to mean “contested case”; §405(b)(1) and (c)(4) use “proceeding” to mean the
“contested case” or perhaps the agency file or hearing file; §405(e) uses
“proceedings” to mean “contested case”; §405(g) uses “proceeding” to mean a
discrete portion of a “contested case” such as a hearing or prehearing
conference; §406(b)(1) uses “proceeding” to refer only to “hearing” and no
other portion of a case; §406(b)(2) uses “proceedings” in the plural apparently
to refer to discrete parts of a “contested case” such as a prehearing
conference or a hearing; §408(a) uses “proceeding” and may mean either
“contested case” or a subset thereof; §408(b) and (g) address a pending
“proceeding” but clearly mean a pending “contested case” since “pending”
generally modifies a larger “case” and not individual “proceedings” within a
case; §408(c) uses “proceeding” apparently to mean “contested case” because it
is used in the phrase “at any stage of the proceeding” indicating it is not
intended to mean a discrete “stage” but a larger “case”; §409(a)-(d) use
“proceeding” or “proceedings” regarding intervention. In those subsections “proceeding” could mean
either a “contested case” or a subset thereof.
“Contested case” would appear to be the prime sense of the word simply
because people generally intervene in an entire “case” and not in just one
discrete “proceeding” in an administrative case; §411(b)(3) uses the phrase
“parties to a contested case proceeding” referring to discovery responses. The sense of “proceeding” in this subsection
is “contested case” because parties generally are not parties only to
discovery, yet discovery is the only “proceeding” covered by this section;
§415(c) uses “proceeding” in the phrase “disposing of the proceeding” modifying
the noun “final order.” “Final orders”
generally resolve administrative (“contested”) cases in whole or in part as the final “agency
action.” Consequently, “proceeding” here
apparently means “contested case.”
§415(c) and (d) use the phrase “further proceedings” when addressing
what a final decision maker may order on remand, clearly differentiating
between a “contested case” and component “proceedings”; §416(c) uses
“proceedings” in the phrase “setting the matter for further proceedings.” The best sense of “proceedings” here is a
component part of “the matter” or the case.
§101(24) defines “proceeding” to mean
any type of formal or informal agency
process or procedure commenced or conducted by an agency. The term includes
adjudication, rulemaking, and investigation.
Contested case is defined in §101(6) to
mean,
an adjudication in which an opportunity
for an evidentiary hearing is required by the federal or state constitution, a
federal or state statute, or a federal or state judicial decision.
These definitions indicate “contested
case” means the overall adjudication and should connote the idea of an
“administrative adjudicative action,” starting with the initial filing and
including everything until the time has run for appeal of a “final order.” In contrast, “proceeding” appears to be used
to mean the various meetings, procedures, filings, etc., including conferences,
prehearing conferences, mediation, and oral argument, and specifically
including as a distinct “proceeding” the formal “adjudicative hearing” that
make . The use of the terms “proceeding”
and “contested case” should be regularized to conform to their definitions and
“contested case proceedings” should not be used at all. The only proceedings addressed Article 4 are
proceedings in contested cases.
The revisions throughout have changed
the various references to “proceedings” and “contested cases” to conform to
their definitions.
POLICY NOTES: This section contains no provision for anyone other than the
presiding officer to rule on a motion to withdraw. Because of the tripartite nature of
administrative agencies, litigants often enter and leave the administrative
adjudication process with the perception that the process is not and cannot be fair. In my experience this is so even when they
win! Therefore, creating a process for
the litigant to determine or be assured the hearing officer is impartial is a
must in this kind of an act. This
section addresses one of the ways in which basic fairness provisions both
ensure and demonstrate to the public that the administrative adjudicative
process is fair by weeding out clear bias and prejudice. Unfortunately, this section stops short of
the mark. Lawyers may understand and
believe that an adjudicative officer can rule "objectively" on a
motion that directly questions his own "objectivity" and so come to a
fair result. The public does not get
this circular logic: the average litigant cannot understand how the person he
claims is biased gets the final say on whether that person is biased. Consequently, some sort of quick, summary,
interlocutory review for a supervisory presiding official (if for instance
there is a Central Panel) or agency head (if there is not) should be included
in this section, allowing the litigant to challenge a denial of a motion to
withdraw.
SECTION
402(e) Any party may petition
for the disqualification of move to
disqualify a presiding officer promptly after notice that the
person officer will
preside or, if later, promptly upon discovering facts establishing a
ground for disqualification. The petitionmotion must shall state with particularity
the ground upon which it is claimed that the
party claims the presiding officer cannot give the
party a fair and impartial hearing cannot be accorded, or the or
consideration and shall identify any applicable rule
or canon of practice or ethics that requires disqualification. The petitionmotion
may be denied if the party fails to exercise due diligence in requesting
moving for disqualification after
discovering a ground for disqualification.
DRAFTING NOTES:
The phrase “petition for the disqualification of” has been revised to
the more succinct “move to disqualify” and the entire subsection has been
revised to be in the active voice. The
phrase “hearing or consideration” has been inserted so as to ensure this
subsection applies to those cases in which a presiding officer did not actually
conduct the adjudicative hearing but was assigned the case after the hearing to
write a recommended, initial, or final order.
“petition”
The verb “petition” is replaced with “move” to reflect a
more common usage. The use of “petition”
here also raises a larger diction question for Article 4.
Article 4 uses both “petition” and “motion” to mean a
request for relief from a party or intervener.
Where “petition” is used, the Article refers to the moving person as the
“petitioner” or where it is a “petition” to intervene as the “intervener.” Where “motion” is used, Article 4 refers to
the moving person as the “party.”
The word “petition” is used in its more
general sense as a cognate for the word “motion” in §§402(e), 409(a), (b), (e),
411(c), (d), (e), 412(b), 413(b), (d), 414(b), (c), (d), 416(a), (b) and
(c). In those sections “petition” is used
to refer to a request for some specific relief during the course of an
administrative case. The use of
“petition” in this way is particularly confusing because, as you know, in the
administrative arena the word “petition” is often used as a term of art for the
documents initiating an administrative adjudication before the agency. It is common for enabling statutes and
procedural regulations to use “petition” to denote those documents.
The Act does use the word “motion” in
other sections in a similar way, to refer to a request for some specific
relief: in §412(b) the word “motion” is used to refer to a request to vacate a
default. In §§413(b) and 414(a) and (c)
“motion” is used in the phrase “on its own motion,” to refer to the agency head
acting on its own initiative to review an initial order. The word also appears in §403(c), which
requires the presiding officer to give parties an opportunity to “file …
motions” and §406(b)(4) which requires the “hearing record” to include “any
motions.” Thus, use of the word “motion”
in place of “petition” in §§402(e), 409(a), (b), (e), 411(c), (d), (e), 412(b),
413(b), (d), 414(b), (c), (d), 416(a), (b) and (c) would be consistent with
other sections of the Act and regularize terms and usage across sections. “Motion” should therefore be substituted for
“petition” in those sections.
The related term “petitioner” is used
in §§409(a) and (b), 416(b), and 506(c) and (d). Use of “petitioner” in this way is also
problematic. It is common in
administrative cases for the person who files the “petition” at the beginning
of the administrative case to be denominated and listed as “the petitioner” in
the whole case. Parties responding to
the “petition” are called often called “respondent.” Yet, §409 calls a person who makes a motion
to intervene (who by definition is not “the petitioner”) a “petitioner” and
§416 calls a party making a motion to reconsider (whether or not he is a
“respondent”) a “petitioner” as to that motion.
Where the word “petitioner” is used but
really means the person making a motion to intervene under §409, “intervener”
is more precise. Indeed the term is used
in §409(c) and (d) to refer to the moving party, although perhaps it is
intended in those subsections only to refer to the moving party after
intervention has been granted. As to
motions for reconsideration under §416, the term “party” is more accurate since
§416(a) provides that only parties may make such a motion.
Not every use of “petition” or
“petitioner” is a problem. The person
who files an appeal of a final order with a court of law is often denominated
by state law as “the petitioner” who files a “petition” for review. Consequently, where the word “petition”
appears to refer to an initiating document on appeal in §§503(d), 504, 506(a),
(b) and perhaps 801, and the word “petitioner” refers to the party appealing an
administrative order in §506, those terms are accurate and should remain as
they are.
“or, if later,”
This phrase is very confusing. The phrase “if later” somehow seems to limit
the following phrase, “promptly upon discovering facts.” It is not clear why this second condition is
dependent upon the first condition, although it is equally unclear how the
second condition could come before the first.
The use of “notice” in this sentence does not help the sense of the
subsection. It would seem however, that
the deleted phrase is unnecessary. The
revision simply deletes the phrase and replaces it with the simple disjunctive
to give the maximum flexibility to the parties.
“it is claimed that”
At times statutes must use the passive
voice because of the subject matter or the nature of the directions given. However, it is better to avoid these
constructions, particularly in procedural acts like this one the purpose of which
is to convey to persons what each person can do in the process. This revision replaces the passive phrase
“upon which it is claimed” with a phrase making it clear that a “party” is
doing the “claiming.” The revision
conforms to the first sentence of this subsection which makes clear that “parties”
are the only persons who can make such motions.
“requesting”
The revision replaces most instances of
“request” in Article 4 with a form of “move” because that appears to be the
sense being conveyed and is more accurate in an adjudicative setting. To is also necessary to be consistent with
the change of “petition” to “motion” or “move.”
SECTION
402(f) A The presiding
officer whose disqualification is requested sought shall
determine
whether to grant consider the petitionmotion to
disqualify and state file in the hearing
record a written order granting or denying the
motion and stating the facts and reasons for the determination in
writingruling. A presiding officer’s decision
to deny disqualification is not subject to interlocutory judicial review.
DRAFTING
NOTES: The past participle “requested” is replaced
with “sought” the revision above to differentiate it from the other, and
proper, use of “request” in §§405, 406, 410, 411, and 416. The phrase “determine whether to grant” is
deleted to remove the implication that a grant of the motion is the default
action, and for similar reasons, the phrase “granting or denying” is inserted
later in the subsection. This revision
uses the verb “file” rather than “state” for reasons explained in subsequent
drafting notes. The use of “written
order” rather than the phrase “determination in writing,” however, raises
another overall diction problem in the Act.
“determine”
The use of “determine” in this subsection raises some
questions about the word to use to convey the act of ruling on a motion or
request. Some form of the verb
“determine” appears in §402(f) (“determine whether to grant”) where it connotes
deciding or ruling on. In §§404(7) (“in determining the case”),
407(f) (“to determine the issues”), 412(a) (“shall determine all issues”) all
use “determine” to refer to making an overall decision on the contested case or
considering or resolving the issues within the case. §§411(d) (“determines that action on”)
and 415(b) (“to determine credibility”) both use “determine” to convey the idea
of making a finding on. §418(c) (“determines it is possible”)
uses “determine” to convey the idea of reaching a conclusion.
“dispose”
§414(b) and (d) use a form of the verb “dispose” regarding a
petition (motion) for reconsideration to mean “rule” or “decide” while (c)
requires the “order” on a motion for reconsideration to be “issued.”
§415(c) uses the adverbial “disposing” referring to a final
order. This use of “disposing” appears
intended to mean “ruling on” or perhaps “resolving.”
§416(b) uses “dispose” to mean “rule on” a “petition”
(motion) for reconsideration and fixes the time for judicial review at
“disposition” whenever that may be. As
used here, “dispose” could mean “issue,” or “file,” or “make.”
Some form of “disposition” appears in §408(b)("the disposition of ex
parte matters") and 414(d)("upon disposition of the
motion"). In both cases,
“disposition of” appears to convey the idea ‘on the resolution of’ or a similar
idea.
“determination,” “decision,” “ruling,”
“order.”
Although it defines “order” in §102(20), the Act is inconsistently
refers to orders a presiding officer makes to resolve a request for relief,
whether it involves making a finding, reaching a conclusion, resolving issues,
or issuing a decision. In this
subsection, the phrase “the determination in writing” refers to the substance
of the ruling by the presiding officer ruling on a motion to disqualify. While “order” could be used here, it is the
substance of the “order” or the “ruling” of the presiding officer that is being
referred to here, and so “ruling” is inserted.
“Determination” is also used in §508(a)(3)(D) in the phrase, “an agency
determination of fact” but there it clearly refers to an individual finding
rather than an entire “order” or “ruling” as referred to in this
subsection.
Article 4 also uses the word “decision”
to mean a judgment, order or ruling. §102(6), (16) uses use
"decision" to mean a written court judgment or order. §§102(10), 402(f), 403(k), 404(4) all use
"decision" to mean a ruling on an issue, which could be an
“order.” §§404(8), 406(b)(10), 407(d), 408(b),
412(b) and 418(b) all use "decision" to expressly refer to some kind
of order provided for in Article 4.
The revisions proposed here use the verb
“rule” to mean resolving an intermediate request for relief without resolving
an entire case, the gerund “ruling” to mean the substance of such a resolution,
and the noun “order” to mean the order embodying the resolution.
“hearing record”
The phrase “hearing record” is used in
this subsection’s revisions for the first time.
The Act uses “agency record,” “hearing record” and “record” as loose
synonyms when they are not. “agency
record” is defined in §201, and “hearing record” is defined in §406. All instances of “record” in Article 4 should
be changed to “hearing record” so it is clear that the “record” in §406 and the
record of emergency adjudications in §407 is what is meant. A proposed definition of “hearing record”
appears above in proposed §201(15A).
POLICY
NOTES: Although it is not good policy to allow a
motion to disqualify to become a second litigation and lead to a delaying
judicial review, to preserve the actuality and perception of fairness,
interlocutory review by the agency head of a refusal to withdraw should be
allowed.
SECTION 402(g) If a substitute presiding officer is
required, the substitute must shall be appointed [as required
by law, or if no law governs,] by:
(1) the Governor, if the original presiding officer is an elected official; or
(2) the appointing authority, if the original
presiding officer is an appointed official; or
(3) by the final decision maker; or
(4) the chief hearing officer under §6___.
DRAFTING
NOTES: Because
state presiding officers often are merit employees and generally are neither
“elected” nor “appointed” as those terms are defined in state laws, this
provision does not appear to allow them to be appointed as "substitute
presiding officers." Moreover, the
word “official” is often used as a term of art in other state statutes, such as
ethics laws, to mean only certain high ranking government officials, which
presiding officers may or may not be.
The revision above simply puts in a default method of appointing a
substitute presiding officer in all other cases.
POLICY
NOTES: The policy reasons for the hole in this
provision is not clear. As presently
drafted, the provision would only allow substitute presiding officers to be
appointed for “elected” or “appointed” “officials” and not merit employee
presiding officers. Yet, it would seem
that if a substitute hearing officer is required that a protected merit
employee or other similar type of presiding officer would be exactly the kind
of person you would want to be the substitute presiding officer, not a
political appointee as permitted in paragraphs (a) and (b), when there is a
Central Panel structure in place specifically made to handle this type of
problem.
SECTION 402(h) If participation
of the agency head is the only person
authorized by law necessary to enable the agency to take
action in a contested case, then the
agency head may continue to participate preside
in the case, notwithstanding a ground
for disqualification or exclusion.
DRAFTING
NOTES: The phrase “participation of” has been deleted
here as being too vague and because it does not seem to follow the Rule of
Necessity as I understand it. The Rule
of Necessity provides that a decision maker otherwise disqualified may decide a
case and
must do so if the case cannot be heard otherwise. See, e.g.,
The phrase “in a contested case” is
inserted in this provision as a precedent to the phrase “preside in the case”
because it is “presiding” in a “contested case” that the agency head is
disqualified from.
“If …, then”
Throughout the Act the sentence
construct, “if … ,” is used to express conditionals and consequences rather
than the more explicit “if …, then”
construct. While it may not be as
colloquial as it once was, “if … then” is a more precise construction. The Act should avoid implication of terms,
even “then,” particularly if they convey precondition, position, meaning, or
sequence, such as here. These revisions
therefore replace all “if … ,” constructs throughout Article 4 with “if …,
then.”
SECTION 403. CONTESTED CASE PROCEDURE.
POLICY
NOTES: One area not covered anywhere in this Act is
the division of authority between a presiding officer conducting a hearing
heard an agency head, whether the agency head is an individual, a collegial
body or a hearing panel of a collegial body.
Hearings before a hearing panel are not unusual in Kentucky and the
division between the authority of the presiding officer and the panel is not
always clear. Generally, the presiding
officer should have the authority to rule on matters of law outside the
presence of the hearing panel, to conduct all proceedings prior to the
evidentiary hearing alone and make prehearing rulings on order of proof,
evidence, and procedure. The presiding
officer should also be able to conduct settlement conferences, or refer the
matter to mediation. Likewise, he should
be authorized with the discretion to dispose of a matter on a settlement by the
parties. Prehearing dispositive motions
could be handled in three ways: 1) allow the presiding officer to rule on such
motions, or 2) let the presiding officer make a recommended or initial order to
the panel (sometimes difficult to do because of the way and when a panel may be
created), or 3) only allow the panel to make these decisions. Procedural authority of the presiding officer
during the hearing would have to address such things as the authority to make
evidentiary rulings and exclude evidence, to limit panel members participation
or questions, to allow voir dire of the panel for bias or prejudice, to rule on
directed recommendations, to give the panel legal advice by way of
“instructions” on the record or otherwise, to attend deliberations of the
panel, and to draft recommended or final orders for the panel.
SECTION
403(b) An agency shall make
available to the person subject to which an agency
action is directed a copy of the agency
procedures governing the proceedings in a contested case.
DRAFTING
NOTES: The Act uses the very awkward phrase “the
person to which the agency action is directed” in §403(b), (l) and §407(c),
(e), (f). In each instance, the phrase
appears to mean the person subject to, or who is directly or indirectly
affected by an agency order or action.
The phrase currently used is very wordy and has been replaced throughout
these revisions to Article 4 with the shorter but equivalent phrase “subject to
the order/action” or some similar phrase.
This phrase “proceedings in a contested
case” is inserted partly because “case” is used alone here without “contested
case” or any other proceeding referent.
Moreover, the provision appears to mean the procedural rules for the
various stages of contested cases. The
proposed revision was the least intrusive change to make this point. The entire last phrase “a copy of the agency
procedures governing the case” could be made even more concise using a phrase
such as, “a copy of all applicable agency procedural rules” or something
similar.
SECTION 403(c) In a contested case, the presiding officer
shall give all parties a timely opportunity to file
pleadings, motions, and objections. The presiding officer may give all parties
the opportunity to file briefs, proposed findings of fact and conclusions of
law, and recommended, interim, or final orders.
The presiding officer, with the consent of all parties, may refer the
parties in a contested case proceeding to mediation or to other
dispute resolution procedures.
DRAFTING
NOTES: The word “proceeding” was deleted because as
currently drafted, this subsection implies the referral to mediation will only
cover the discrete “proceeding” rather than the entire contested case or any
part thereof.
POLICY
NOTES: It is not clear what “timely” means in this
subsection. It might be deleted
altogether without doing any damage to the meaning or effect of this subsection
since without any definition or reference to determine timeliness, the
adjective has little meaning. As an
alternative, the listed actions (file pleadings, motions, and objections) all
appear to be actions that are generally taken before an evidentiary hearing,
whereas the later list of actions (file briefs, proposed findings and
conclusions and draft order) appear to be actions generally taken after an
evidentiary hearing. Timeliness could be
defined in terms of before and after an evidentiary hearing.
SECTION 403(d) In a contested case, to the extent necessary
for full disclosure of all relevant facts and issues, the presiding officer
shall afford to give all
parties the opportunity to respond, present evidence and argument, conduct
cross-examination, and submit rebuttal evidence.
DRAFTING
NOTES: The single word “give” was substituted here
for the phrase “afford to” to shorten and simplify without changing the
meaning. It is also used to keep the
wording of this subsection consistent with the wording of §403(c), which uses
“give.”
SECTION 403(e) Except as otherwise provided by law other
than this [act], the presiding officer may conduct all or part of an
evidentiary hearing or a prehearing conference proceedings in a
contested case by telephone, television, video conference, or
other electronic means. The presiding officer shall give each Each party
to the proceeding must be
given an opportunity to hear, speak, and be heard at the
proceeding as it occurs.
DRAFTING
NOTES: There is obviously a policy reason for
repeating the phrase “other than this [act]” in Article 4. The same sentiment seems to be conveyed by
the phrase “otherwise provided by law” immediately before this phrase. However, if it must be made clear that the
law referred to in this phrase is not the current Act, the word “other” could
be inserted before “law.” The phrase
“other law” is sometimes substituted below in other revisions for similar
phrases. This change is proposed in part
because the deleted phrase implies that something in this Act provides
otherwise than the provisions in the subsection, but that does not appear to be
the case.
The specific named proceedings have
been deleted and replaced with a more generic reference using the word
“proceeding” as it is expansively defined in §102 so as to cover “proceedings”
other than just hearing or prehearing conferences, such as oral arguments,
settlement conferences, other proceedings that an agency does not call a
prehearing conference or a hearing, but which are in fact proceedings in a
“contested case.”
The final sentence is rewritten in the
active voice and in so doing makes clear that this is the presiding officer’s
responsibility and authority, something that should always be explicit when it
can be.
SECTION 403(f) Except as otherwise provided in subsection
(g), an evidentiary hearing in a contested
case must shall be open to the public. An evidentiary
hearing conducted by telephone, television, video conference, or other
electronic means is open to the public if members of the public have an
opportunity, at reasonable times, to hear or inspect the hearing record, and to
inspect any transcript obtained by the agency.
DRAFTING
NOTES: The word “evidentiary” is inserted in this
subsection to make use of the definition in §102, and because it is clear that
this provision is intended to be limited to the actual evidentiary hearing
itself and not other proceedings in a contested case.
SECTION 403(g) A
presiding officer may close a hearing contested case
proceedings to the public on a ground on which a court
of this state may close a judicial proceeding or pursuant to other a
statute other than this [act]law.
DRAFTING
NOTES: Here the word “hearing” has been revised to
“proceeding” because there are other “proceedings” that may not be “hearings”
that a presiding officer may want to or have to close to the public. The phrase “to the public” is used to make this
provision consistent with the phrasing elsewhere in this Section.
The insertion of “a court of” limits
the authority of the presiding officer to close a proceeding to the same
authority exercised by a court of the
state. The use of just “state” here is
ambiguous and broad and implies that the presiding officer can close a hearing
on any legal theory by any part of government.
This would seem no limitation at all; executive agencies often have very
broad legal theories by which they justify keeping all manner of things secret.
SECTION 403(h) Unless prohibited by law other
than this [act], aA party, at
the party’s expense, may be represented in a contested case by
legal
counsel or, if permitted by other law, may be
advised, accompanied, or represented assisted by
another individual.
DRAFTING
NOTES: It is not clear why the meaning of this
subsection is not stated as “a right to counsel,” as is generally done. The modifying phrase “unless permitted by
law” has been changed appropriately and moved to modify the last phrase
regarding “another individual” because presumably there is no law that prohibits representation by counsel and
“other law” would presumably only apply to representation by “another
individual.” The changed beginning of
this subsection parallels the construction of subsection (i) below. The inserted phrase “in a contested case” is
intended to make clear that this right may be exercised at any stage in the
entire contested case. The word “legal”
counsel parallels the changes in subsection (i) below.
Without the revisions proposed here, or
something similar, the phrase “represented by another individual” would cross
the line between executive and judicial functions, at least in our state, by
allowing “another individual”—presumably meaning not an attorney—represent a
party. Agencies and the public will read
“any other individual” to permit non-attorney representation in agency
adjudications. In
POLICY
NOTES: If the final disjunctive were changed from
“represented” to “assisted” this subsection would not run afoul of unauthorized
practice provisions or constitutional questions. Even with this change it would be advisable
to put some caveat in the subsection indicating that the presiding officer has
discretion to limit any “assistance” so as not let it become “representation.”
SECTION 403(i) A
party may exercise the right to self representation participate
in a contested case without legal counsel,
and in such circumstances the presiding
officer may explain contested case procedures to that the self
represented party.
DRAFTING
NOTES: The phrase “exercise the right to self
representation” is replaced with the word “participate” as a shorter statement
of the meaning of this phrase, and to make the construction more closely track
the construction of subsection (h) above.
This subsection and subsection (h) are oddly worded for
SECTION 403(j) A
presiding officer must shall record the hearing to contested
case proceedings by stenographic reporter, video
recording, audio recording, or other electronic
means and may provide
a written
transcript of the hearingthose recordings. The transcript
of the hearing may be recorded by stenographic reporter,
video recording, audio recording, or other means.
DRAFTING
NOTES: This whole subsection is revised to put it in
the active voice. It also replaces “the
hearing” with “contested case proceedings” to make clear that a presiding
officer must record all proceedings that should be “on the record,” such as
prehearing conferences, not just “hearings.”
The word “written” is inserted before “transcripts” because the word
“transcripts” generally refers to a writing, although that is not clear from
the present draft. The second sentence
has been reduced to a phrase describing the methods by which a recording may be
made, keeping the listing as it appears in the draft second sentence. It could easily be shortened to “stenographic
or other electronic means” to build upon the definition of “electronic” in §102(7).
POLICY
NOTES: The
movement to all electronic files is unstoppable. The gains in storage, handling,
administration, mailing, and archiving make this a foregone conclusion. There is no need to include a provision on
archiving because these records are generally already covered by a state’s records
retention policy.
SECTION 403(k) The decision recommended,
initial, and final order in a
contested case must shall be
written, based exclusively on the hearing record, and
shall
include a statement of the factual and legal bases of the decisionorder.
DRAFTING
NOTES: The word “order” is substituted for
“decision” here for reasons detailed in other drafting notes. Presumably the phrase “in a contested case”
means ‘resolving a contested case’ or something similar. Thus, because an order resolving a contested
case may be recommended, initial, or final, those types of orders are all
listed before the first instance of “order.”
The word “exclusively” has been inserted to mirror the parallel
provision of §413(e). One of these
provisions is unnecessary.
POLICY
NOTES: It is not clear why subsection (k) is in this
Section. The content of recommended,
initial, and final orders is covered in §413.
Subsections (d) and (e) of §413 already cover this subject. The only difference between the two is that
this subsection requires the orders to be “written.” This requirement could easily be included in
§413(d), making this subsection redundant.
SECTION 403(l) Subject to Section 204, the agency rules
by
which an agency conducts for a
contested case may include provisions more protective of the rights of the
person subject to which the agency
action is directed than the requirements
provisions of this section.
DRAFTING NOTES:
The phrase “agency rules for” is substituted here for the equivalent
very wordy phrase “rules by which an agency conducts.” The word “provisions” is substituted for the
word “requirements” to make the sentence construction parallel with the prior
reference to “provisions.”
SECTION
404. EVIDENCE IN CONTESTED CASE. The
following rules apply in contested cases:
DRAFTING NOTES:
This section uses numbers to set its
subsections apart. Other sections use
letters, there appears to be no reason why this to this section should be
numbered rather than lettered. All
sections and subsections should be denoted in the same way unless there is some
overriding reason not to do this.
Consistency in numbering will help those administering the Act and those
having to litigate cases under the Act.
SECTION 404(1a) Except as otherwise provided by law, when the party
seeking a benefit not previously given or to uphold agency
action agency initiates the adjudicative
proceeding, the agency has the burden of proof. When a A party
other
than the agency initiates the adjudicative proceeding, that party seeking
to impose a penalty or remove a benefit previously given has the
burden of proof. .
DRAFTING
NOTES: The deletions and additions are to set
forth the burden of proof as explained in the Policy Notes.
POLICY
NOTES: It is not clear why this subsection is
written as two separate sentences that address the same issue. The meaning seems to be that whoever starts
the case bears the burden of proof. This
is not the law in
It would be better to also expressly
provide that parties interposing an affirmative defense have the burden of
establishing that defense. It might be
wise to address what the standard of proof for administrative hearings is, that
is, does the party have to establish his case by a preponderance of the
evidence? Agencies, litigants, and
lawyers often get bollixed up on the standard of proof during the hearing and
the standard of proof on review (substantial evidence).
SECTION 404(2b) Upon proper objection, tThe
presiding officer shall exclude from the hearing record evidence
that is irrelevant, immaterial, unduly repetitious, excludable on
constitutional or statutory grounds, or excludable on the basis of an
evidentiary privilege recognized in the courts of this state. Any other relevant evidence may be received
admitted if it is of a type commonly
relied upon by reasonably prudent individuals in the conduct of their affairs. The
presiding officer may exclude evidence that is objectionable under the applicable
rules of evidence applicable in a civil action in this state,
but evidence may not be excluded solely because it is hearsay.
DRAFTING
NOTES: The phrase “upon proper objection” has been
deleted for the reasons set forth in the Policy Notes. The phrase “from the hearing record” has been
inserted to make clear what the presiding officer is excluding evidence
from. The word “received” has been
replaced by “admitted” to parallel “exclude” earlier in the sentence, and to
avoid the vague reference to “receiving evidence.” The phrase “applicable rules of evidence” has
been changed to “rules of evidence applicable in a civil action in this state”
for the reasons stated in the Policy Notes.
POLICY
NOTES: This revision is proposed to make clear
what “exclude” means; that is, what the evidence is being excluded from. It is not clear why this authority must be
triggered by “proper objection.” There
will often be times when an unrepresented party does not know enough to object
to evidence, but it clearly is objectionable.
This provision appears to prevent the presiding officer from excluding
such evidence from the record, except that in the next subsection that
authority is granted the presiding officer.
Thus, this phrase has been deleted.
The final change is intended to clarify the phrase “the applicable rules
of evidence” since generally no rules of evidence are to contested
administrative hearings.
SECTION 404(3c)
ALTERNATIVE A
Hearsay evidence may be used to supplement or explain other evidence, but on timely objection, is not sufficient by itself to support a finding unless it would be admissible over objection in a civil action.
ALTERNATIVE B
Hearsay evidence is sufficient to support fact findings if it constitutes reliable, probative, and substantial evidence.
END OF ALTERNATIVES
SECTION
404(4d) Parties shall make any An objection
must
be made at the time the to evidence when it
is offered for the hearing record.
In the absence of an objection, the presiding officer may exclude evidence at
the time it is offered. A party may make
an
a proffer of proof when evidence is
objected to or before or after the presiding officer’s decision
ruling to exclude evidence.
DRAFTING
NOTES: The proposed revisions to the first phrase
convert it to the active voice from the passive voice, thereby making clear who
is required to do what. The phrase “for
the hearing record” is inserted to make clear what the evidence is being
offered for. The noun “proffer” is used
here to make it consistent with §406(b)(7), which requires “proffers of
proof” to be to made part of the hearing record. In
SECTION 404(5e)
The
presiding officer may admit evidence in the
hearing record Evidence may be received in
written form if doing so will expedite the hearing proceedings
without substantial prejudice to a party. . Documentary The presiding officer and may
allow evidence may be
received in the record in the form of copies or
excerpts or by incorporation by reference.
DRAFTING
NOTES: This revision converts the entire subsection
into one sentence in the active voice.
Converting this subsection to active voice is particularly important
because ruling on evidence and compiling a record is part of the core authority
of the presiding officer and that authority should be made explicit. “Proceedings” is substituted for “hearing”
because a presiding officer may take evidence at other proceedings that are not
or may not be called “hearings.” The
verb “receive” has been deleted to avoid its use, and “allow” has been
substituted. The phrase “in the record”
has been inserted to make clear what the presiding officer is to do with the
evidence allowed. The word “admit” could
also be used here.
SECTION 404(6f)
Testimony must shall be made under oath or
affirmation.
SECTION 404(7g)
Evidence must The
presiding officer shall make all evidence
admitted, received, or
considered be made part of the hearing record of the
case. Information or evidence may not be considered in determining
the resolving a contested
case unless it is part of the hearing record. If a party
claims the hearing record contains confidential information that
is confidential, the presiding officer may conduct a proceeding
closed to the public hearing
to discuss the information, may issue
necessary protective orders, and may seal all
or part of the hearing record.
DRAFTING
NOTES: The proposed changes to the first sentence
convert it from the passive voice to the active voice. The phrase “admitted, received, or
considered” is inserted to cover evidence admitted in the record during a
proceeding, received during a proceeding but not admitted in the record, and
“officially noticed” evidence or evidence “incorporated by reference” that may
not actually be in the record, but the presiding officer may consider. The phrase “determining the case” has been
replaced with “resolving a contested case” to keep the hierarchy of terms
consistent. The phrase “of the case” is
deleted because it is redundant after the words “hearing record.” The first proposed change to the third
sentence converts it to a phrase in the active voice making clear who may make
a claim of confidentiality. The phrase
“confidential information” is substituted for the longer “information that is
confidential.”
The word “proceeding” is substituted
for “hearing” because the actual process used to determine confidentiality may
not be a hearing but a conference or an oral argument at which evidence may or
may not be offered for the record. There
is no reason to require or limit this provision to only apply at a
“hearing.”
The phrase “closed to the public” is
inserted to make this parallel the provision in §403 which requires hearings to be “open
to the public.”
POLICY
NOTES: The subsection as currently drafted is
non-sequitur. If the hearing record
actually contains confidential information no proceeding is necessary and the
information must be protected. It is a claim of confidentiality that triggers
the authority of the presiding officer to conduct a proceeding to determine if
the material is really confidential.
SECTION 404(8h) The presiding officer may take official
notice of all any facts of
which a court may take judicial notice may be
taken and of as well as other
scientific and technical facts within the specialized knowledge of the
agency. The presiding officer
shall notify the parties Parties must be
notified at the earliest practicable time of the facts
proposed to be noticed and their source, including any staff memoranda or data, and
shall give the. The
parties must be afforded
an opportunity to contest any officially noticed facts before the decision
is announced presiding officer issues an order based
upon those facts.
DRAFTING
NOTES: Overall the revisions to this subsection
convert it from the passive to the active voice, to make clear what authority
the presiding officer has. In the first
sentence, the phrase “any facts a court may take judicial notice of” is
inserted to make clear that the presiding officer may take notice of facts
generally authorized by the rules of civil procedure in court. The phrase “as well as” is added to make
clear that the presiding officer may also take notice of “specialized” facts,
something a court cannot do.
The changes to the second sentence
convert it from passive to active voice.
The changes in the third sentence
revise the phrase “must be afforded” to “shall be given.” The word “afforded” as used here means to
provide. A simpler term than “afforded”
with the same meaning is “give.” The
sentence is left in the passive voice simply for variation of sentence
structure in this subsection. The phrase
“decision is announced” because “decision” is used here to mean an “order” (or
perhaps a “final order’) based upon noticed facts. Thus “order” is used instead. The word “announced” is deleted and “issue”
is used instead, according to the proposed definition in §102 and currently appearing elsewhere
in the Article.
SECTION 404(9i) The presiding officer may use
his experience, technical competence, and specialized knowledge
understanding of the presiding officer
may be used in the evaluation of the evidence in evaluating
the hearing record.
DRAFTING NOTES: This provision may have been at the center of
a dispute on the Committee and shows the signs of some compromise. Most of the changes proposed here are
intended to convert this subsection from the passive to the active voice. The changes suggested therefore do not
attempt to alter the meaning of the provision except for one word.
POLIKCY NOTES: That one substantive change proposed is the
deletion of the word “knowledge” and substitution of “understanding.” The problem with using “knowledge” here is
that it implies that the presiding officer is free to use facts that only he
knows and that are outside the hearing record to decide the case. That does not appear to be the intent of this
provision, however. With the addition of
the phrase “understanding of the evidence” it is made clear that the presiding
officer may apply his own abilities but only to the evidence that is “in the
hearing record.”
SECTION 405. NOTICE IN CONTESTED CASE.
POLICY NOTES:
There is no good reason for there to be a separate section for notice in
cases that are filed by an agency as opposed to cases filed by an
individual. §405(b) and (c) should be combined.
SECTION 405(a) Except as otherwise provided for an emergency adjudication under Section 408, an agency shall give notice as provided in this section.
SECTION 405(b) In an action initiated by a person other
than an agency, within a reasonable time after filing, the agency shall give
notice to all parties that an action has been commenced. The notice must shall include:
(1) the official file or other reference number, the name of the proceeding, and a general description of the subject matter;
(2) contact information for communicating with the
agency, including the agency mailing address and telephone number;
DRAFTING NOTES:
The phrase “communicating with” is deleted here because it is not
necessary. “Contact information” is by
definition information that you use to contact (communicate) with the
agency. Presumably a party would not use
“contact information” for other purposes.
(4) the name, official title, mailing address,
and telephone number of any attorney or employee who has been designated
to represent the agency; and
DRAFTING NOTES:
The pronoun phrase “who has been” is unnecessary here and has been
deleted.
(5) the presiding officer’s name,
official title, mailing address, [e-mail address,] [facsimile number,] and telephone
number of the presiding officer or, if no officer has been
appointed at the time the notice is given, the name, official title, mailing
address, [e-mail address,] [facsimile address,] and telephone number of the
agency’s representative;
DRAFTING NOTES:
The phrase “presiding officer” has been moved to the front of this
phrase to avoid the “of the” possessive construction. Reference to the presiding officer’s
telephone number has been deleted.
POLICY NOTES: It is not a good idea to require the presiding officer’s
telephone number be included in the notice.
It only invites ex parte communication by individual litigants.
(6) a
statement that a party that who fails to
attend or participate in any subsequent proceeding in a contested case may be held
in default;
(7) a statement that the party served may request
a hearing and , giving instructions
in plain language about how to request a hearing; and
(8) the names and last known addresses of all
parties and other persons to which notice is being given by the agency.
SECTION 405(c) In an action initiated by the agency, the
agency must shall give an initial notice to
the party against which whom the
action is brought. The notice shall
include:
DRAFTING
NOTES: The object pronoun “whom” is substituted here
for “which.” “Which” is improper here
because “party” is presumably an individual of unknown gender. Thus, “whom” is the correct word. “Which” implies that the “party” is an
artificial person like a corporation.
This is an oddity throughout Article 4, which uses both “which” and
“that” as pronouns for “party.” Using
these (neuter) pronouns implies that “party” is not an individual person but an
artificial person like a corporation.
(1) notification
a warning that
an action has been commenced against the party that
may
could result in an order has
been commenced against the partycontrary to the party’s
interest;
DRAFTING
NOTES: This proposed revision is more accurate and
is inserted to avoid using the confusing and redundant construction of a
“notice” that must have a “notification.”
The phrase “has been commenced against the party” has been moved to be
closer to its verb. The word “could” is
inserted here for “may” to indicate the possible. The closing phrase has been added to make it
clear what kind of an order could be issued.
Otherwise the notice is just that “an order” may be issued.
(2) a short and plain statement of the matters asserted, including the issues involved;
(3) a statement of the legal authority under which the hearing is held, citing the statutes involved;
(4) the official file or other reference number and the name of the proceeding;
(5) the presiding officer’s name,
official title, mailing address, [e-mail address,] [facsimile number,] and
telephone number of the presiding officer or, if no
officer has been appointed at the time the notice is given, the name, official
title, mailing address, [e-mail address,] [facsimile address,] and telephone
number of the agency’s representative;
(6) a statement that a party that who fails
to attend or participate in any subsequent proceeding in a contested case may
be held in default;
DRAFTING NOTES:
See the notes regarding the use of pronouns in subsection (c) above.
(7) a
statement that the party served may request a hearing and together
with instructions in plain language about how to request a
hearing; and
(8) the names and last known addresses of all
parties and other persons to which notice is being given by the
agency is notifying.
DRAFTING NOTES:
The awkward phrase “to which notice is being given by the agency” has
been replaced with “the agency is notifying.”
Although it is still in passive voice, this is a shorter construction
and therefore more readable and understandable.
SECTION 405(d) When If a
prehearing conference is scheduled in the notice,
then
the agency shall give parties notice that contains the information
required by subsection (b) or (c) at least 14 days before the
hearingconference.
DRAFTING NOTES:
The use of “when” here implies that a prehearing conference will always
be scheduled at some point in time, when that is often not the case with agency
adjudications. The word “when” is used
here to indicate the conditional and therefore the “if … then” is used instead. Finally, the word “hearing” has
been replaced by “conference” for reasons discussed in the Policy Notes below.
POLICY NOTES:
It is not clear whether the word “hearing” at the end of this sentence
is a mistake. The sentence discusses a
prehearing conference, not a hearing.
The word “conference” has been substituted here for “hearing” as making
more sense. This would require the
agency to give the party notice of what the hearing is about at least 14 days
before the prehearing conference. The
phrase “in the notice” is inserted to clarify this subsection and tie it back
to the subject of the section.
SECTION 405(e)
Notice may include other matters that the presiding officer
considers desirable to may expedite
the proceedings.
DRAFTING NOTES: The phrase “the presiding officer considers
desirable to” has been replaced with “may,” indicating it is within the
presiding officer’s discretion, which is what “the presiding officer considers
desirable” means.
SECTION 406. HEARING RECORD IN CONTESTED CASE.
SECTION 406(b) The hearing record must shall contain:
(1) a recording of the proceeding;
(2) notices of all proceedings;
(3) any pre-hearing or post-hearing order;
DRAFTING
NOTES: The phrase “or post-hearing” has been
inserted to refer to orders ruling on motions to reconsider, for review of an
initial order, for stay, or to remand the case.
This addition would get all post-hearing orders, regardless of kind.
(4) any
motions, responses, replies, pleadings,
initiating documents and
responses, briefs, petitions, requests, and intermediate
rulings;
DRAFTING
NOTES: The additions to paragraph (4) are intended
to make clear that associated documents are also part of the hearing
record. Under Rule 7 of the civil rules
the “pleadings” are the complaint, answer, a reply to a counter-claim, an
answer to a cross-claim, a third party complaint, or a third party answer. Each of these types of pleadings have a
corresponding set of rules applicable to them.
Here, the word “pleading” has been deleted because few agencies have
designated documents filed in the hearing record as “pleadings” like Rule 7
does, and fewer still have any kind of regulations governing what constitutes
those “pleadings.”
POLICY
NOTES: It is not clear why separate kinds of
documents are listed in this section rather than a catch-all phrase such as
“all documents filed in the hearing record.”
Using the proposed definition of “file” and “filing” this would comport
with the reality that the hearing record consists of everything that is marked
as filed in the case file.
(5) evidence admitted, received, or considered;
(6) a statement of matters officially noticed;
(7) proffers of proof and objections and rulings thereon;
(8) proposed findings , and requested
orders, and exceptions;
DRAFTING
NOTES: The phrase “and exceptions” has been deleted
because the Act does not provide for “exceptions” per se. Presumably the motion for reconsideration
under §416 or the motion for review of an initial order under §414 have taken
the place of what are commonly known as “exceptions”. Since these are both post-hearing orders,
they fall under the revisions in paragraph (3).
(9) any transcript of all or part of the hearing;
(10) any final, recommended, or initial
order, recommended decision, or order
on reconsideration;
DRAFTING
NOTES: The phrase “recommended decision” is deleted
here and “recommended” added to the list of modifiers for “order.” It is not clear why “recommended decision” is
used here instead of “recommended order.”
Presumably this is not meant to insert something new in the Article and
so “decision” has been deleted. Clearly,
all of these types of orders must be included in the hearing record for a
proper review by a final decision maker or the courts. See the discussion of using “order” rather
than “decision” in other drafting notes.
The phrase “or order on reconsideration” has been deleted because it is
a post-hearing order covered in paragraph (3).
(11) all memoranda, data, or testimony prepared under Section 407; and
(12) matters placed on in the
hearing
record after an ex parte communication.
DRAFTING
NOTES: The phrase “placed on the record” is not
always the easiest provision to administer.
It is often interpreted to refer to an audio, video, shorthand, or
stenographic recording of statements at a proceeding that is intended to be the
hearing record, such as referred to in (b)(1).
The proposed changes in §408 provide for the filing of matters in the hearing record after an ex parte communication. Thus, “in” is substituted for “on” here.
SECTION
407. EMERGENCY ADJUDICATION PROCEDURE.
SECTION 407(a) Unless prohibited by law other than this [act],
an agency shall conduct an emergency adjudication in a contested case under
this section.
SECTION 407(b) An agency may issue an emergency order
under this section only to deal with an imminent danger
to the public health, safety, or welfare.
The agency may only take only action in the
emergency order that is necessary to deal with the
imminent danger to the public health, safety, or welfare. [The action must emergency
order shall be temporary.]
DRAFTING
NOTES: Every other “order” in Article 4 is specially
denominated and distinguished except for the order covered by this
section. There is no reason for this. The use of “emergency order” here instead of
just “order” is intended to tie the Section to its heading and distinguish such
orders as different from the other types of orders addressed elsewhere in the
Act. Thus, every instance of “order” by
itself has been revised to “emergency order” in this section without
specifically being discussed in drafting notes.
The word “only” in the first sentence of this subsection has been
deleted as unnecessary in light of the meaning of the second sentence and its
use of “only.” The second “only” has been
moved to between “take” and its helping verb.
While this may not be strictly the most grammatical under older styles,
it makes more sense to the modern reader than “may take only action.”
SECTION 407(c) Before issuing an emergency order
under this section, an agency, if practicable, shall give the persons subject to agency
action notice and an opportunity to be heard to the person to which
the agency action is directed.
The notice and hearing may be oral or written and
may be communicated by telephone, facsimile, or other electronic means. The emergency
hearing under this section may be conducted by any
means allowed under Section 403(e).
DRAFTING
NOTES: The direct object phrase “to the person …”
has been converted to the shorter “person subject to agency action” and put
next to its verb and before the indirect object. The word "person" is changed to the
plural here to make clear that all persons, whether one or more, shall be
given. The word "all" is not
used here as it is elsewhere in these revisions in place of the definite
article because there is an identifiable, though perhaps not completely known,
group of persons the emergency order affects.
The phrase “and hearing” has been deleted for the reasons discussed
below in the Policy Notes.
POLICY
NOTES: It is not clear how a hearing could be
“communicated” by “facsimile.” I am not
aware of any facsimile hearings. The
phrase “and hearings” in the second sentence of this section is clearly either
a hold over or an afterthought that does not fit. The last sentence has been added to include
the idea that I believe was trying to be expressed.
SECTION 407(d) An emergency order
issued under this section must shall briefly explain the factual
and legal reasons for making the decision order using
emergency adjudication procedures.
DRAFTING
NOTES: The word “order” is substituted here for
“decision” because that is the meaning conveyed and “order” is more
accurate. The use of “order” as opposed
to “decision” and other similar terms is discussed in other drafting notes.
SECTION 407(e) To the extent practicable, an agency shall
give the persons subject to the
emergency order notice of an the order to the
person to which the agency action is
directed. The emergency
order is effective shall take effect when
signed
by an agency officialit is issued.
DRAFTING
NOTES: The direct object phrase “to the person …”
has been converted to the shorter “person subject to the emergency order” and
put next to its verb and before the indirect object to parallel §407(c). The word "person" is again changed
to the plural to make clear that all persons, one or more, affected by an
emergency order will be given notice.
The revisions proposed for the first sentence of this subsection convert
it to the active voice and implement other changes as discussed above. The current draft uses the phrase “is
effective” in the second sentence without explaining what that means. The Act uses the word “effective” elsewhere: in §407(e) which makes an order “issued”
under (b) “effective when signed,” presumably meaning ‘takes effect.’ The word “effective” is used in §407(e) ("effective when
served"), to mean the same thing.
Similarly, in §§407(g)("effective date"), and 417 ("effective
date"), the word “effective” is used to modify the noun “date” to convey
the date an order ‘takes effect’. In §407(g) ("effective for 180
days"), the term “effective” is used to mean ‘in effect.’ Because of its use elsewhere, “effect” is
retained in the proposed revision to the second sentence, which is converted to
the mandatory. The use of “effective”
here raises diction problems, some of which are discussed in other drafting
notes, related to the use of “issue.” The
phrase “signed by an agency official” has been replaced by “it is issued”
because the original phrase is the definition of “issued.” See proposed §102(15A), above.
POLICY
NOTES: As presently drafted, this section would
allow “an” agency official to issue an emergency order. It is dangerous to draft a provision
authorizing any “agency official” to sign an emergency order. These kinds of orders are often used by
agencies to put litigants out of business before they can even get a full
hearing, or to at least soften them up before the hearing. Admittedly, this section requires the ability
of the agency to act expediently, but allowing “an agency official” to sign an
emergency order is going too far. The
authority should at least be restricted to an “authorized agency official.” It would be better policy to restrict this
authority to the agency head. In the revisions the use of “issued” builds on
the definition of that term in proposed §102(15A), above, which incorporates the
idea of proper authorization.
SECTION 407(f) After issuing an emergency order
pursuant to this section, an agency shall proceed as soon as
practicable to provide notice and an opportunity for a hearing following
the procedure under Section 403 start [commence or
initiate] a contested case to determine the issues underlying the temporary
emergency order.
DRAFTING
NOTES: With the addition of “emergency” before the
word "order," this phrase is redundant. Therefore, the phrase “pursuant to this
section” is deleted as unnecessary because there is no other kind of order
issued “pursuant to this section” than an emergency order.
The inserted phrase “persons subject …”
uses the noun “persons” because with emergency orders the agency may not know
exactly who to name and may be required to give broad orders that affect many
people. Those persons may or may not technically
be a “party” to the later formal adjudicative hearing. Thus “party” is not used here.
The phrase “start [commence or
initiate] a contested case” is substituted for the word phrase “provide notice
and an opportunity for a hearing following the procedure under Section
403.” Providing notice and an
opportunity to be heard following the procedure in Section 403 means starting a
contested case.
The phrase “temporary order” is revised
here to “emergency order.” The revision
keeps references to the order called for in this section consistent throughout
this sections. Moreover, even if an
emergency order is temporary in duration, it is not advisable to use the word
“temporary” as part of the order’s name.
State administrative regulations often contain provisions for orders of
“temporary relief.” Use of the word
“temporary” here for an “emergency order” will confuse this kind of order with
a “temporary relief order” and will add nothing to this Section.
SECTION 407(g) The An emergency
order is effective shall
be in effect for 180 days, or until the effective
date issuance of an order issued under
the contested case procedures of Section 403, whichever is shorter.
DRAFTING
NOTES: The noun “issuance” is used here to be
consistent with the original wording of this subsection. Other words such as “filing,” “signing,” or
“service” could be used here. “Issue”
and “issuance” are the subject of other drafting notes. Similarly, the substitution of “shall be in
effect” for “is effective” is discussed in drafting notes above.
SECTION
408. EX PARTE COMMUNICATIONS.
SECTION 408(a) For purposes of this section, the final decision maker means the agency
head or another person or body to which the power authorized
by law to resolve a contested casedecide
the proceeding is delegated.
DRAFTING
NOTES: The phrase “to which the power” is replaced
by “authorized by law” to make clear that it is the legal authority that
distinguishes the final decision maker, not his power. Agencies and agency heads have all kinds of
power to act but can and do act beyond the legal authority to exercise that
power. The meaning of the phrase “is
delegated” is subsumed within “authorized by law” and so has been deleted. However, the phrase “resolve a
contested case” has been inserted at the end of the sentence to comport with
the proposed hierarchy of terms.
POLICY NOTES: It is not clear why this provision is
here. How is this different from the
common understanding of the term? This
is definitional. Should it be in the
definitions?
SECTION 408(b)
Except as otherwise provided in subsections (c) and (d), or unless required for
the disposition of ex parte matters authorized by statute, while a contested
case is pending, the presiding officer and the final decision maker may not make
to
or receive from any person any communication
regarding any issue in the proceeding contested case without
notice and opportunity for all parties to participate in the communication. For
the purpose of this section, a proceeding contested case is
pending from the date issuance of the
agency’s
pleadinginitiating document is
filed in the hearing record, or
from an application for an agency decision, whichever is earlier.
DRAFTING
NOTES: The phrase “from any person” because a
communication by definition is conveying information from one person to
another. The phrase is therefore
redundant. The word “proceeding” is
replaced with the phrase “contested case” to make clear that the ex parte
provisions apply to entire contested cases, and not just subparts of
cases. The phrase “from the issuance of
the agency’s pleading, or from an application for an agency decision, whichever
is earlier” is replaced with “from the date the initiating document is filed in
the hearing record” because “issuance,” “agency’s pleading,” and “application”
are all undefined or ill defined terms.
Although the phrase "initiating document" is not defined
either, it is at least descriptive of the kind of document referred to.
“issuance”
This subsection uses “issuance” to
refer to a point in time when “the agency’s pleading” is filed in the record or
made known to the charged party. The
sense of “issuance” in subsection (b) therefore could be “served,”
“communicated,” “mailed,” or perhaps even “made.” The sense of “issuance” in is not helped by
the definition of “issue” in §413(f) because that subsection expressly only
covers “order[s]” not “pleadings” as mentioned here. Further discussion of the use of “issue”
appears below.
“the agency’s pleading”
§408(b) refers to the “issuance of the
agency’s pleading” in defining when a proceeding first becomes “pending.” §403(c) refers to an opportunity to file
“pleadings.” §406(b)(4) requires the
“hearing record” to include “pleadings.”
In the rules of civil procedure the
“pleadings” are generally defined as the complaint, the answer, a counterclaim
and any answer required to be filed to a counterclaim or cross‑claim. See e.g., FRCP 7(a). In an administrative hearing the pleadings
would by analogy be the petition or request for hearing, the notice, any answer
and other paper required to be filed by the hearing officer or the governing
law to respond to a claim or answer.
Unfortunately, the term “pleading” is not defined in the Act.
Its use in these various sections,
particularly §408(b), is therefore highly problematic. The use of the multiple undefined terms in
§408(b), “issuance,” “pleading,” makes fixing when a proceeding becomes a
“pending proceeding” for ex parte purposes particularly difficult. The alternative in that subsection—“from an
application for an agency decision”—is equally unhelpful for the same reason.
To be more accurate the term “pleading”
either should not be used at all in §§403, 406, or 408, or should be defined to
mean those documents required to be filed with the agency by rule. In the revisions for this subsection, it has
been edited out.
“an application for agency action”
The term “application” appears in
§408(b) and (g) (Ex Parte Communications).
In those subsections, it appears to refer to the act of filing a
petition or initiating document seeking relief, or perhaps to the document
itself, or perhaps to a “contested case” as that phrase is defined in
§102(6). The term “application” also
appears in §410(b) (Subpoenas) in which it appears to refer to a motion in
court for enforcement of a subpoena. It
also appears in §402A (Licensing) in which it refers to a request for a
license.
The term “application” here has been
replaced with a descriptive phrase, “initiating document.” Alternately “application” could be replaced
with a term that is added to the definitions in the Act, e.g., “petition” or
“complaint” or “initiating document.”
The use of “application” in §410(b) regarding enforcement of subpoenas
should be changed to “motion” to reflect the manner in which it is being
used. The use of “application” in §402A
is accurate and should remain.
SECTION 408(c) A
presiding officer or and the final
decision maker may communicate with an individual authorized by law to provide
legal advice to the presiding officer or to the final
decision maker and may communicate on ministerial matters with an individual
who serves on the presiding officer’s or the
final decision maker’s [administrative] [personal] staff of the
presiding officer or the staff of the final decision maker if:
(1)
the communication if the
individual does not furnish, augment, diminish, or modify the
evidence in the hearing record.
(2)
the person providing legal advice or ministerial
information legal advisor or staff member has
not
served as investigator, prosecutor, or advocate at any stage of
the proceedingcontested case,
and
DRAFTING
NOTES: The phrase “presiding officer’s or final
decision maker’s” is substituted here for the deleted phrase to avoid the
possessive construction “of the” discussed in other drafting notes. The phrase “contested case” is substituted
for “proceeding” to make clear that the ex parte provisions in this subsection
apply to entire cases, not just to discrete proceedings within contested cases. This subsection has been split into
paragraphs to mirror the structure of Section 408(d). The “of the” possessive construction has been
revised out of the first sentence of this subsection. The second sentence has substituted “legal
advisor” for “person providing legal advice” and staff member for “person
providing … ministerial information” to shorten the sentence without changing
the meaning. The last phrase after the
conjunctive has been added to clarify the prohibition. Subsequent changes are grammatical.
POLICY
NOTES: This subsection as drafted would be very
difficult to police. The parties cannot
police it, at least the non-agency parties.
How would parties ever know that the presiding officer has engaged in
communication with a person in violation of this subsection? Whose obligation is it to ensure the
requirements of this subsection are not violated? The presiding officer? The staff member? It would be better to make it the express
obligation of the presiding officer to make sure the requirements of this
subsection are met rather than state the requirements in the abstract. The structure of this subsection has been
intentionally altered to mirror the structure of Section 408(d) because the two
subsections deal with permitted ex parte communication. If §408(d) stays in the Act, the Committee
should consider revising the two subsections down to one, rather than repeating
similar provisions.
SECTION 408(d) The agency head
serving as presiding officer may communicate with an An employee
or representative of the agency may make communications
to or receive communications concerning a pending contested case from an
agency head sitting as presiding officer or decision maker if:
(1) the communication does not furnish, augment, diminish, or modify the evidence in the hearing record;
(2) the employee or representative has not served as investigator, prosecutor, or advocate at any stage of the proceeding; and
(3) the employee or representative does not receive communications that the agency head is prohibited from receiving.
DRAFTING
NOTES: The changes to this subsection convert it
from passive to active voice, and makes the subject the “agency head.” The phrase “of the agency” has been inserted
to make clear who the individual is employed by or represents.
POLICY
NOTES: The limitation here applies primarily
to the “agency head” and not the “employee or representative” and it is the
agency head, and not the employee or representative who will be expected to
know and obey that limitation.
Therefore, directing the restrictions of this subsection to “an employee
or representative” who would have no way of knowing these restrictions rather
than the agency head will only water down the effect of provision and make it
impossible to administer.
I do not doubt that ex parte
communications occur between agency heads and various other employees of an
agency in important cases. However, I do
not believe such ex parte is rampant, even in the worst agencies for most
cases. Thus, I question the policy of
codifying a way for agency heads to do this in every case. Codification of ex parte contact will make it
easier and more acceptable in cases that are not so “important” and thereby
expand, rather than control the practice.
In short, I believe this subsection will only invite mischief from
agency heads and staff, who will take advantage of this to try even the less
“important” cases outside the hearing of the parties.
I believe the policy behind this
subsection is misguided. If this
subsection this is intended to address cases in which an agency head needs
“help” understanding or handling a case, then he should remand it to the
presiding officer with instructions to get that help in the record, however, it
should be done. It is the Hearing
Officer’s job to put the evidence together in a digestible and understandable
way. If he cannot do this, it should be
remanded so he can do it. If the agency
head is going to go behind everyone’s back for hard cases it will only
encourage presiding officers to spend less time on writing decisions in hard
cases. What, after all, would be the
point. Thus perhaps a better place to
address this problem would be in the section on final orders and remands of
matters to hearing officers. Second, if
the case is not understandable because the record is not complete, then the
matter should be remanded or the burden of proof rules applied to resolve the
case. It is the burden of the party to
make its case and put in the record everything necessary to support their case,
which includes everything that is necessary for the final decision-maker to
understand the issues. A provision like
this will only encourage agency counsel to be lazy in their presentation
because they can get another (secret) bite at the apple.
If the purpose of this subsection is to
let the agency head have someone explain something technical to him, or to get
more “independent” technical or expert advice, this is not the right way to go
about it. My suggestion would be to let
the agency head, by order filed in the record, appoint his own expert or
Special Master (or whatever you want to call it) to report orally to the Agency
head in front of the parties or (more probably) to file a written report on
specifically identified technical, financial, scientific, etc. issues. This would be somewhat similar to court
appointed experts or Special Masters.
The benefits of this procedure is all the parties know what is being
done, what is being reported, who is doing the reporting, and the entire
communication is not ex parte. Requirements
could be set for who could be appointed, whether the parties could/must agree,
whether they want the matter remanded, and how they would be compensated if
outside the agency. The timing of such
an appointment could be restricted to a period before exceptions must be filed
to any recommended order, so that any objections to the Report could be
included in the exceptions. If the
appointment is allowed to fall after exceptions are filed, there would be no
chance for the parties to object prior to appealing the matter to court,
although this may not be objectionable as a policy matter. In any case, such a procedure would probably
require an extension of the time the agency head has to resolve the case, to
allow the appointed expert review the file and submit a report.
SECTION 408(e) If a presiding officer or the final
decision maker makes or receives a communication communicates
in violation of this section, the presiding officer or the final
decision maker, if the communication isshall:
DRAFTING
NOTES: The phrase “makes or receives a
communication” is replaced with “communicates with others” because unless the
communication is made or received by someone it is not a communication. The phrase “makes or receives” is
redundant. The final conditional phrase
is unnecessary in light of the revisions proposed for paragraphs (1) to (4) and
is replaced with “shall.”
(1) written,
shall make the communication a part of the hearing record and prepare
and make part of the record file a
memorandum and notice that contains contains
the substance of any oral communication,
attaches a copy of any written communication, sets forth the
response of the presiding officer and or the
final decision maker to the communication, and the
identity of identifies the party or person that
communicated; or and;
DRAFTING
NOTES: Paragraph (1) has been revised to combine the
provisions of paragraphs (1) and (2) into one paragraph that covers both
written and oral ex parte communications.
The first phrase is deleted to make the paragraph match the grammar of
the body of subsection (e). The word
“file” has been inserted for the phrase “make part of the record” because that
is what “file” means. The phrase “and
notice” is inserted after “memorandum” to match this up with the “notice”
mentioned at the end of the new paragraph (2).
The phrase “contains the substance …” is inserted from the old paragraph
(2). The phrase “attaches a copy of any
written communication” conveys the substance of the initial deleted
phrase. The verbs “sets forth “ and
“identifies” are inserted to keep the structure of various phrases of the
sentence parallel.
(2) oral, shall prepare a memorandum that
contains the substance of the verbal communication, the response of the
presiding officer and the final decision maker, and the identity of the party
or person that communicated.
DRAFTING NOTES:
This paragraph is deleted in its entirety and is revised into paragraph
(1) above.
(2) 408(f) If a communication prohibited
by this section is made, the
presiding officer shall notify serve the
memorandum required by paragraph (1) upon all
parties of the prohibited communication and permit give
the parties the opportunity to respond in writing
within 15 days after servicethe notice.
DRAFTING
NOTES: Subsection (f) has been moved to paragraph
(2) of subsection (e) because it covers the same condition covered in
subsection (e), and concerns the memorandum required in subsection (e)
paragraph (1). Because it covers the
same condition, the conditional phrase “If a communication prohibited by this
section is made” has been deleted. The
following phrase has been deleted to make the paragraph agree grammatically
with the body of subsection (e). The
word “notify” has been replaced with the phrase “serve upon” so that a date can
be fixed to determine the running of the 15 day response period set in this
paragraph. See the drafting notes to
proposed §102(30A). The definition of “notify” in §102(19) does not allow a date to be
fixed to figure this time period. The
phrase “copies of the memorandum required by this subsection” has been
substituted for “of the prohibited communication” because paragraph (2) defines
the memorandum as containing the prohibited communication. The single word “service” has been
substituted for “the notice” to parallel the use of “serve” earlier in the
sentence.
SECTION 408(4f) Upon good cause shown, the
presiding officer may permit conduct additional
proceedings
testimony in response to the a prohibited
communication.
DRAFTING
NOTES: The word “permit” has been replaced by
“conduct” to match with “proceedings.”
The word “testimony” has been replaced with “proceedings” because
testimony may not be the form of the evidence required to address the effect of
the ex parte communication, and something more than just taking additional
testimony may be required.
SECTION 408(g) If a presiding officer is a member of a multi-member
body of individuals group that
is the agency head with final decision-making authority,
the presiding officer may communicate with the other members of the multi
member bodythat group.
Otherwise, while a proceeding contested case is
pending, the presiding officer may not communicatethere
may be no communication, directly or
indirectly, regarding any issue in the proceeding
contested case with between
the presiding officer and the group agency
head or other person or body to which delegated the
power to hear or decide the proceedingcontested case is
delegated.
DRAFTING
NOTES: The word “group” replaces the phrase
“multi-member body of individuals” and “multi-member body” in these proposed
revisions for the reasons set forth in other drafting notes. The word “proceeding” is replaced with
“contested case” to make clear that the ex parte provisions of this section
apply to an entire case, and not just select proceedings within the case. Moreover, the phrase in this subsection,
“while a proceeding is pending,” appears to have the same meaning as the phrase
“a pending contested case” that appears in §408(b) and (d). Thus, “contested case” should be used here as
well. The remaining changes to this
subsection are required to put it in the active voice.
POLICY NOTES:
The one substantive change made here is the insertion of the phrase
“with final decision-making authority” in the first sentence. This is intended to make it clear that the
section applies in cases in which the presiding officer is a member of the
group that will decide the case.
SECTION 408(h) If necessary to eliminate address
the effect of an ex parte communication received
in violation of violating this
section, a presiding officer and or final
decision maker may be disqualified disqualify himself under
the
provisions of this Sections 402 (d) and(e) and
withdraw from the case, or may seal the
parts of the hearing record pertaining to the ex
parte communication may be sealed by
protective order, or may grant other appropriate relief may be
granted, including an adverse ruling on the merits of the
case or dismissal of all or part of the
contested
caseapplication.
DRAFTING
NOTES: The word “address” is substituted for
“eliminate” because that is too high a requirement for this kind of
problem. The best a presiding officer
can do is address ex parte on the record and make it known. The complete effect of the ex parte may never
be completely “eliminated.” The word
“violating” is substituted for the wordier phrase “received in violation
of.” The disjunctive is substituted for
the conjunctive to make clear this provision applies to both a presiding
officer and a final decision maker. The
phrase “disqualify himself” is inserted to put the sentence in the active voice
and the subsequent addition “and withdraw from the case” is inserted to make
clear the consequences of being disqualified, i.e., that the presiding officer
must withdraw. The phrases “or may seal”
and “may grant” put the phrases in which they appear in the active voice. The phrase “of the case” is not necessary and
a little vaugarity here is appropriate because “the merits” may be of the case
or of a pending motion or claim, but not the whole case. This idea is reflected in the insertions
following the disjunctive. The word
“application” is deleted and replaced with “contested case” for reasons
explained in other drafting notes.
POLICY
NOTES: It is not clear why §409(a) and (b) are separate
subsections. They should be combined
into one section with a paragraph addressing intervention as of right, and a
paragraph addressing permissive intervention.
The vague reference to a “timely” motion must be quantified to be
meaningful. The deadline to make a
motion to intervene timely could be pegged to various points in a contested
case, however, my experience is that intervention causes the most trouble when
it comes very close to the evidentiary hearing.
Thus, the five day deadline suggested here is pegged to an evidentiary
hearing.
SECTION 409(a)
A motion to intervene in a contested case must be
filed at least five (5) days before an evidentiary hearing on the
merits of the case is scheduled to commence.
A
presiding officer shall grant a timely petition for intervention
in a contested case if:
DRAFTING
NOTES: This sentence is inserted here to give
meaning to the word “timely” used in this section, and to remove the direction
from the presiding officer, who only administers the deadline but does not file
motions. The language used parallels
that used in §409(f). The deleted
portion of this subsection has been moved to 409(b).
(1) the petitioner
has a statutory right to initiate or to intervene in the proceeding
in which intervention is sought; or
(2) the petitioner
has an interest that may be adversely affected by the outcome of
the proceeding and that interest is not
adequately represented by existing parties.
SECTION 409(b) A presiding officer considering a timely
filed motion to intervene,
(1) shall grant the motion
if the moving person has a statutory right to initiate or to intervene in the
contested case or has an interest that
may be adversely affected by the outcome of the contested case and that
interest is not adequately represented by existing parties; or
(2) may grant a timely petition for
intervention the motion to intervene if
the petitioner moving person has
a conditional statutory right to intervene or if the petitioner’s
moving person’s claim
or defense is based on the same transaction or occurrence as the contested
case.
DRAFTING
NOTES: This subsection is comprised of the end of
the current subsection (a) and current subsection (b) to group all the
standards for intervention together. The
phrase “petition for intervention” is replaced in this subsection and
throughout this section with the “motion to intervene” for reasons explained in
other drafting notes discussing the use of “motion” instead of “petition.” The word "petitioner" is replaced
with "moving person" in this subsection and throughout this section
to parallel the use of "motion" in subsection (a) above. The word "petitioner" has been
replaced throughout this section with "moving person" or "intervener." The last prepositional phrase "in the
proceeding in which intervention is sought" is deleted and replaced with
“contested case.” This section does not
discuss any other "proceeding" and it is difficult to believe a
moving party would seriously move to intervene in one proceeding when
ordinarily the right is to intervene in a “case.”
SECTION 409(c) A presiding officer may impose conditions at
any time upon the an intervener’s
participation in the proceedingscontested case.
DRAFTING NOTES:
The phrase "contested case" replaces "proceedings"
here because the authority of the presiding officer should extend throughout
the entire "contested case" and not be limited just to "the
proceedings" which implies a limitation to a subset of a "contested
case."
SECTION 409(d) A presiding officer may permit grant a provisional intervention provisionally and, at any time later in the
proceedings or at the end of the proceedings, may revoke the
provisional intervention.
DRAFTING
NOTES: The word "permit" is replaced with
"grant" to parallel the language in subsection (a) above and (f)
below. The adverb
"provisionally" which is separated from the verb it modifies is
changed to the adjective "provisional" which is inserted before and
modifies "intervention." This
construction parallels the language and syntax at the end of the sentence.
POLICY
NOTES: It is not clear why this subsection does not
simply provide that a presiding officer shall have the discretion to grant,
limit, or revoke provisional intervention.
In any case, the phrase “later in the proceedings” in context is
redundant. We are only talking about “in
the proceedings” so any reference to a point in time is in the context of the
ongoing proceedings. It is not entirely
clear why the parenthetical phrase has been used here. Its entire meaning is subsumed within “may”
and is unnecessary. If it is within the
presiding officer’s discretion, then he can do it “at any time later in the
proceedings or at the end of the proceedings.”
It is not clear why it is necessary to add the phrase “or at the end of
the proceedings.” There seems little
point in revoking intervention at the end
of the proceedings. By definition, the
intervention would seem to be over already.
SECTION 409(e) Upon
request
motion by the interveners or existing
other parties, the presiding officer
may hold conduct a
separate proceeding hearing on
the intervention petitionmotion
to intervene.
DRAFTING
NOTES: The word "request" is replaced with
"motion" here for the reasons discussed in other drafting notes
above. The word "existing" is
replaced with "other" because all parties "exist;" what is
meant is other parties. The word
"hold" is changed to "conduct" to match
"proceeding."
"Proceeding" is modified by "separate" to make clear
that the proceeding on the motion to intervene is something in addition to the
ordinary procedure.
SECTION 409(f) A
presiding officer shall promptly give the interveners and other parties notice
of an order granting, denying, or revoking intervention to the petitioner
for intervention and to all parties. The notice must shall be given at least 24 hours
before an evidentiary hearing on the merits of
the contested case.
DRAFTING NOTES:
The phrase "the interveners and other parties" replaces the
prepositional phrase "to the petitioner for intervention and to all
parties" to place a compound direct object next to the verb. Its form is intended to parallel the language
in subsection (g). The adjective
“evidentiary” is inserted to make clear what kind of hearing it must be and
“contested” is inserted in front of case to make clear it is the merits of the
entire “case.”
SECTION 410(a) Upon a request in a
record by of a party in a contested case and a
showing of general relevance and reasonable scope of the discovery
sought, the presiding officer or any
other officer person to
whom the power authority is
delegated shall issue a subpoena for the attendance of a witness and the
production of books, records, and or other
evidence upon a showing of general relevance and reasonable
scope of the evidence sought for use at the hearing.
DRAFTING
NOTES: The word "request" is left in this
subsection because it appears to be appropriate. The common practice is for subpoenas to be
issued upon informal request by the parties or counsel, not by a formal motion
filed in the record. The word “power” is
replaced with “authority” to make it clear the section addresses when the law
allows delegation of this power (but see the Policy Notes below.) The final conditional phrase "upon a
showing … " has been moved to the beginning of the sentence to make a
compound conditional phrase. This makes
it clear that both conditions must be met before the authorized person will
issue a subpoena. The phrase "any
other officer" has been revised to "any other person" to avoid
confusion with the preceding "presiding officer" and because no other
kind of "officer" is mentioned in Article 4.
POLICY
NOTES: It is
not clear who the phrase “or any other officer to whom the power is delegated”
refers to. Ordinarily, judicial or
quasi-judicial officers cannot delegate the exercise of this authority. It does not appear that this subsection is
granting the authority to delegate this power.
On the other hand, it is common for smaller agencies, particularly those
headed by collegial bodies to have been given the authority to issue subpoenas
as part of their enabling act. Sometimes
this is for investigative purposes, sometimes for hearing purposes, sometimes
for both. Given that this authority is
granted by other statute and not as a consequence of this Act, it would seem
unnecessary to mention it here. More
beneficial would be a provision governing what happens when the presiding
officer has this independent authority to issue subpoenas and the agency issues
its own or acts to quash the presiding officer’s subpoena. In such cases, the
agency generally triumphs as the final decision-maker, however, it would be
better policy for the agency to be prohibited from quashing a presiding
officer’s subpoena during the course of the hearing, or at least until the
agency head took the matter away from the presiding officer in some regular
manner.
SECTION 410(b) Unless Except as otherwise
provided by law or agency rule, a subpoenas issued under subsection (a) shall be served
and,
upon application to the court by a party or the agency, may be enforced by a
court in the manner provided by law for the service and
enforcement of subpoenas in a civil action.
DRAFTING NOTES:
The phrase “Except as otherwise provided by law” used in this subsection
is used as an introductory phrase in §403(e) and (f), §404(1), 413(b), 417, and
as a concluding phrase in §414(b). The
shorter phrase “Except as provided by law” appears in §508(a)(1). A similar phrase, “Unless otherwise provided
by law or agency rule” is used as an introductory phrase in §410(b), and the
shorter “Unless otherwise provided by law” is used as an introductory phrase in
§§410(a),
412(a), and 502(a). There appears to be
no difference between the meanings intended for the synonyms “except” and
“unless” in any of the sections in which they appear. Consequently, they should be regularized and
either “except” or “unless” should be used in a standard phrase such as “Except
as otherwise provided by law.” The
phrase “Except as otherwise provided by law” is therefore substituted here and
throughout Article 4 for the phrase “Unless otherwise provided by law.”
The phrase "upon application to
the court by a party or the agency" is wordy and redundant. A court will not sua sponte enforce a
subpoena and so parties per force must "apply" or “move” for
enforcement. The last part of the
deleted phrase is not necessary because only parties, including agencies, may
get a subpoena under subsection (a).
POLICY
NOTES: Mandating Rule 26-type discovery, even at the
behest of the parties, is not the most useful discovery provision for
administrative actions. For certainly, providing
a structure on which a party can issue discovery demands as of right is not a
good idea in many administrative proceedings.
Such a provision will only encourage difficult parties to issue canned
discovery requests right away in cases, and then quibble about the responses. Agencies will wield this as a hammer. Attorneys will grind this provision to make
their bread. Unrepresented parties will
be lost in what exactly is required.
Hearing Officers will have more delightful discovery conferences that
slow the case down. Generally, discovery
provisions are better left up to the individual agency and hearing officer to
tailor to the type of case, the individual case, and the parties and counsel
involved. Much more useful would be
provisions giving some uniform guidance on how discovery that may be ordered
should be structured on a presiding officer’s order, even if the provision just
directs the presiding officer to use the civil rules by analogy on ordering
discovery.
SECTION 411(a) In this section, “statement” includes a
record of a person’s signed written
statement signed by a person and a record that
summarizes an oral statement made by a person.
DRAFTING
NOTES: It is not clear why the phrase "record
of a person's written statement" is used rather than simply "a
person's written statement." A
written statement is a "record."
The phrase implies there is some other indicia of the written record
that could be admitted in the administrative record. The word "person's" is deleted here
as not necessary. Non-persons generally
do not make "statements" at all, nor statements that will be used in
administrative proceedings. The phrase
"signed by a person" is replaced with the word "signed"
used as an adjective for statement. The
phrase "made by a person" is also deleted as not necessary. Non-persons generally do not make "oral
statements," nor oral statements that will be proof in a case.
POLICY
NOTES:
Rather than change “person” to “individual,” it is better to eliminate the
adjective altogether so as to give this subsection the greatest reach. Thus references to “person” should be
deleted.
SECTION 411(b) Except in an emergency hearing under Section 408, a party, upon written notice to another party at least [ ] days before an evidentiary hearing, may:
(1) obtain
the names and addresses of witnesses the disclosing other party
will
may present at the hearing, to the
extent known to the other party; and
DRAFTING
NOTES: The phrase "disclosing party" is
replaced with "other party" to parallel the phrase "another
party" in the body of subsection (b) and "other party" used in
subsequent paragraphs. This change is
implemented throughout this section.
(2) inspect and copy any of the following material in the possession, custody, or control of the other party:
(A) statements of parties and witnesses then proposed to be
called the other party
may call to testify;
DRAFTING
NOTES: The phrase "the other party may call to
testify" is used here in place of "then proposed to be called"
as a better statement in the active voice of what should be revealed. The phrase "proposed to be called"
is too close to "will call" and will only invite the parties to hide
witnesses because a party has not "proposed" to call that witness. The use of "may" expands this
provision appropriately to stop such nonsense.
Similar changes are made below where "propose" or similar
terms are used, without being specifically discussed in drafting notes.
(B) all
records, including reports of mental, physical, and blood examinations, and
other evidence the other party proposes to may offer as
evidence;
(C)
investigative reports made by or on behalf of the agency or other party
pertaining to the subject matter of the adjudicationcontested
case;
DRAFTING
NOTES: The phrase "contested case" is
substituted for "adjudication" here because "adjudication"
is defined in terms of a process, and "contested case" is defined to
include "adjudication" and because such reports often may
"pertain" to various stages in a "contested case," such as
discovery, but may or may not "pertain" to the
"adjudication."
(D)
statements of expert witnesses proposed to be calledthe
party may call to testify;
(E) any exculpatory material in the agency’s
or the other party’s possession of the agency;
or
DRAFTING
NOTES: This is an important provision and may
(still) constitute a change in the law of many states. The possessive phrase "of the
agency" is revised here to the "agency's possession" and
"or the other party's" is added because there are many administrative
hearings where no "agency" participates as a party but only resolves
a dispute between two other parties.
There is some danger in using "exculpatory" because that term
is often used in criminal proceedings and importing the criminal law into
administrative proceedings, even if by analogy, is fraught with problems.
(F) other materials for good cause shown.
(3) Parties to a contested case proceeding
have a duty to supplement responses provided under subsection (b)
to include information thereafter acquired later to
the extent they will rely on that information will be
relied upon in the hearingcontested case.
DRAFTING
NOTES: The word "proceeding" is deleted
here to keep the reference to "contested case" consistent with other
references throughout Article 4, and to make clear that the duty to supplement
extends to an entire "contested case." The legalese "thereafter acquired"
is revised to "acquired later."
The last changes the phrase "will be relied upon" is replaced
with "they will rely on" to put the phrase in the active voice, and
"hearing" is replaced with "contested case" to parallel the
reference to "contested case" in the first phrase of the sentence.
SECTION
411(c) Upon petition, aA
presiding officer may issue a protective order for covering any material for
which information sought in discovery is sought under this section that is
exempt, privileged, or otherwise made confidential,
or is
protected from disclosure by law, including material subject to
the attorney-client privilege, attorney work product, and [executive]
[deliberative process] privilege, and material the disclosure of which would result in undue annoyance,
embarrassment, oppression, or undue burden or expense to any person
or party.
DRAFTING
NOTES: The initial phrase “Upon petition” has been
deleted as discussed in the Policy Notes.
The phrase "for any material for" is revised to "covering
any information" to revise out the embedded prepositional phrases in the
original draft. The word
"material" is changed to "information" as it is generally
the information that is confidential or privileged and not the
"material"—often meaning documents but apparently undefined here. The word “undue” has been moved from just
before “burden” to just before annoyance to make it a modifier of all the
following nouns. The reasons for this
are set forth in the Policy Notes.
POLICY
NOTES: The initial “upon motion” has been eliminated
from this subsection so as not to limit the presiding officer’s authority to
craft protective orders. In some cases
there is no agency attorney present and no attorney for the individual litigant
and so the only person likely to know that the law makes something confidential
is the presiding officer, who often is a lawyer. Thus, to comply with the law, compose a
proper hearing record, and avoid problems on appeal for everyone, the presiding
officer should have the authority to make a protective order on his own.
“Undue” should modify all of the nouns
in the final prepositional phrase of this subsection. As presently written, undue only applies to
“burden or expense.” As the open records
laws make clear, however, it generally is not the policy of government to seal
records because they are annoying, embarrassing, or oppressive, but only if
they are unduly so.
SECTION
411(d) Upon petitionmotion,
the presiding officer may issue an order compelling discovery for refusal to
comply with a discovery request unless good cause exists is
shown for refusal. The presiding officer may take any action
authorized by the discovery rules of civil
procedure if a person fails Failure to
comply with the an order
compelling discovery order may be
enforced according to the rules of civil procedure.
DRAFTING
NOTES: The word "exists" is changed to
"is shown" because the existence of "good cause" must first
be established. The second sentence does
not make sense and is in the passive voice to boot. It appears to say that a presiding officer
may enforce a failure to comply.
However, the rules of civil procedure do not enforce failures to comply
but rather set forth what action a judge may take action on a party's failure
to comply with a discovery request. The
sentence has been rewritten in the active voice according to what must be its
intended meaning.
POLICY
NOTES: One particular problem that many presiding
officers have in administrative hearings is that they are perceived as having
no teeth in structuring and controlling the proceedings. Ordinarily they have no contempt power,
rarely can they impose costs on a party, and it is not even clear they can
exclude difficult counsel from practicing before the presiding officer in that
hearing or the agency in general, One of
the most common problems a presiding officer faces is what can he do when one
party simply refuses to abide by discovery.
It would be extremely useful to set out, even if in general, what a
presiding officer has the authority to do in such a situation. The sentence regarding possible action
according to the rules of civil procedure is not the best drafting, but does a
minimal job.
SECTION
411(e) Upon petitionmotion and
for good cause shown, the presiding officer may issue an order authorizing
discovery by any other methods provided
allowed by law other than this [act].
DRAFTING
NOTES: The word "any" is added here in an
attempt to make clear that the presiding officer may order methods other than
as provided in this section, i.e., those provided for in subsection (d)
above. The word "provided" is
replaced with "allowed" because this is a permissive provision and
"allowed" parallels the permissive meaning of the sentence.
POLICY
NOTES: It would be of great benefit to set out
somewhere what kinds of discovery a presiding officer has the discretion to
order, even if that consists of a general reference to the types of discover
allowed under the rules of civil procedure, or simple listing of the types of
discovery. If such a provision is
considered, there should be a caveat that the presiding officer cannot order
discovery that is not permitted by agency regulation or statute. Thus, something like “the presiding officer
may issue an order authorizing any discovery method permitted by agency law, or
if there is no agency law governing discovery, then by any method allowed by
law.”
SECTION
412(a) Unless Except
as otherwise provided by law other than this [act],
if a party without good cause fails to attend or participate in a
prehearing conference or hearing in a any contested
case proceeding, the presiding officer may
issue
a rule the party is in default
order. If a default order is
issued, In case of default, the presiding
officer may conduct any further proceedings necessary to determine all the issues
in complete the adjudication contested
case without the defaulting party and
shall determine all issues in the adjudication,
including those affecting the defaulting party. A The
presiding officer may base a recommended, initial, or final default
order issued against a defaulting party
may
be based on the defaulting party’s admissions or other evidence in the hearing
record, that
may be used without notice to the defaulting party. If the burden
of proof is on the defaulting party has the burden to
establish that the party is entitled entitlement
to the agency action sought, then the
presiding officer may issue a recommended, initial, or final order without taking evidenceconducting
further proceedings.
DRAFTING
NOTES: The two changes to the beginning dependent
clause of the first sentence of this subsection are made for the reasons stated
above in other drafting notes. The
phrase "in a prehearing conference or hearing in a contested case"
has been changed to "in a contested case proceeding" to make clear
that this provision applies to other and all proceedings within a contested
case, whatever they may be called, not just those two listed in the original
version.
The first and second sentences are
combined in this subsection to avoid the timing problem created by the current
wording. The reality is that defaults
are generally determined at the time of the proceeding and declared orally by
the presiding officer, who may then conduct the proceeding without the
defaulting party and then issue a
default order. The default order does
not generally issue first, then the presiding officer schedules and has a separate
hearing.
The phrase "to complete the
adjudication" is changed to "in the contested case" because
"completing" the case may not necessarily be the next logical, legal,
or procedural step in the process, and to allow the presiding officer the
maximum flexibility to deal with the situation.
The subsequent substitution of "case" for
"adjudication" later in the same sentence conforms to the use of
"contested case" before.
The changes to the first phrase of the
third sentence put the sentence in the active voice. It is not clear anyone other than a
"presiding officer" could issue a recommended, initial, or final
order under this subsection and so "presiding officer" is the subject
of the revised sentence. The addition of
the phrase "in the hearing record" is inserted to ensure that the
basis of the presiding officer's order is included in the record and available
for review. Sometimes in these
situations the individual does not comply with orders, but could have, and only
later when he realizes the consequences of his failure or refusal and coughs up
whatever "cause" he may have for not participating, an agency head
will relent and remand the matter for a hearing. In any case, this revision dispels the implication
in this sentence that "other evidence" that is not in the
record could be the basis for a default decision. The proposed revision brings this subsection
in line with the exclusivity restrictions of §406(c)/§413(e),
The syntax of the third sentence is
revised to follow the "if …then" construct as discussed in other
notes. The phrase "the burden of
proof is on the defaulting party" is changed to "the defaulting party
has the burden of proof" to make the sentence shorter and more direct
without losing any meaning. The phrase
"that the party is entitled to" is replaced with "entitlement
to" for the same reason.
The final change to this sentence
replaces the phrase "without taking evidence" with the phrase
"without conducting further proceedings." The deletion of "taking evidence"
is to remove a conflict with the various uses of "receiving evidence"
found elsewhere in the Act to apparently mean the same thing. The use of "without further
proceedings" parallels the construction of the first sentence of this
subsection so as to make clear this is another in a list of conditional
provisions. The use of
"proceedings" as the object of the final revised prepositional phrase
parallels the use of "proceedings" in the first sentence and leaves the
presiding officer the ability to conduct whatever proceeding may be
appropriate, which may or may not under state law including a proceeding at
which parties offer proof for admission in the record. See the policy notes below.
POLICY NOTES: It is not clear why no provision is made here for the
presiding officer to issue what is commonly referred to as a "show
cause" order at this stage in the proceedings. Instead, the idea of the defaulting party
asking for another shot was placed in subsection (b) below. The problem is that it is a descriptive
provision of a permissive motion.
Unfortunately, as a practical matter many, if not most, litigants who
default do so because service on them was constructive not actual. In other words, they do not know they are
defaulting. Thus, giving them a set time
period to file a motion to vacate an order they never knew about often has
little meaning in the day to day conduct of administrative cases. The presiding officer is in a much better
position to determine whether the defaulting party has gotten actual notice, is
avoiding notice, or can even be given notice.
Indeed, the presiding officer is in the best position to decide whether
additional measures could be or should be taken to get the word to the
defaulting party or the constructive service provisions should be allowed to
run. Although I certainly do not advocate the
presiding officer engaging in research to save one party or the other from
default, often service information is readily available to the presiding
officer from the agency file, or from knowledge of parallel proceedings and
case files, or past actions, or even from service information available to the
presiding officer through the agency's systems, and takes negligible effort to
obtain.
SECTION 412(b) Not later than [ ] days after the presiding officer serves a recommended, initial, or final default
order is , rendered
against a party subject to a that default
order, that party may petitionmove
the presiding officer to vacate the recommended, initial, or
final order. If the
defaulting party shows good cause is shown for
the party’s failure to appearattend or participate,
then
the presiding officer shall vacate the decision order and,
after proper service of notice, conduct another evidentiary
hearingfurther proceedings in the case. If the
defaulting party does not show good cause is not shown for
the party's failure to appear, then the presiding officer shall deny
the motion to vacate.
DRAFTING
NOTES: The phrase "is rendered against a
party" is replaced with “the presiding officer serves” to put the sentence
in the active voice and to parallel the subject and grammar of the first
sentence of subsection (a) above. The second
reference in the first sentence to “recommended, initial, or final order” has
been changed to simply “order.”
Repetition of the adjectives before the noun “order” is not necessary
following the definite article. These
are the only kinds of orders addressed in this subsection. The phrase “that party” is deleted as
redundant. The verb “petition” is
replaced with “move” for the reasons stated in the drafting notes to §402(e).
The proposed changes to the second
sentence covert it to the active voice, and insert “then” to complete the “if …
then” grammatical construct. Similar
changes are made to the last sentence of this subsection. The word “appear” in the second sentence has
been changed to “attend or participate” in order to parallel the bases for
default set out in subsection (a). The
phrase “another evidentiary hearing” has been changed to “further proceedings
in the case” because a default may occur before a hearing is convened.
The noun “decision” is replaced with
“order” in the second sentence of this subsection for the reasons set forth in
the drafting notes to §402(f).
POLICY
NOTES: The phrase “not later than [ ] days” is
used throughout the Act to set time limits for various actions. The phrase could be replaced with the more
concise “within [ ] days.” This shorter
formulation could be used, particularly in later sections, in a uniform manner
that will shorten the text of the sections without changing the meaning, and
simultaneously make them more readable.
For the sake of consistency, however, the longer phrase has been left in
place, and other equivalent phrases have been changed to match.
SECTION 413. ORDERS: FINAL, RECOMMENDED, INITIAL.
SECTION 413(a)
If the A presiding
officer who is the agency head,
the
presiding officer shall render issue a
final order to resolve a
contested case. Except as
otherwise provided by law other than this [act], if the a presiding
officer who is not the agency head and who has
not been delegated final decisional authority, the
presiding officer shall render issue a
recommended order. If the A presiding
officer who is not the agency head and but who has
been delegated final decisional authority, the
presiding officer shall render shall
issue an initial order that becomes a final
order [30] days after issuance, unless
reviewed by the agency head on its own motion or on petition of a party.
DRAFTING
NOTES: The three sentences comprising this
subsection have been rewritten from conditional statements to simple
declarative statements. Most of the
changes to the three sentences are grammatical changes to alter the form of the
statement. The pronouns “who” is used
repeatedly in each sentence to have parallel structure within each sentence and
between sentences. The word “issues” has
been used in place of “render” for reasons discussed elsewhere. The disjunctive is used in the third sentence
to distinguish it from the second sentence and draw attention to that
distinction. The phrase “to resolve a
contested case” or similar has been used in each sentence to make clear that
the presiding officers referred to have the authority to issue these orders in
order to conclude an entire case and resolve a controversy. The phrase "shall take effect as"
is inserted in place of "become" for the reasons stated in the policy
notes to §416. The last phrase
"on its own motion or on petition of a party" is deleted and
"pursuant to §414" is inserted because the phrase is merely a
description of the procedure in §414 and therefore is unnecessary.
POLICY NOTES: It is not clear why the subject of the
dependent clause in the first sentence is “presiding officer” and not “agency
head.” It would appear the emphasis here
is that the agency head as such shall make the decision, not the agency acting
merely as “presiding officer.” It is not
clear why the first condition set forth in subsection (a) is in a separate
subsection with the next two conditions are together in one subsection. It is not clear whether the caveat,
"except as otherwise provided by law" in the first condition of
subsection (b) is intended to apply to the second sentence of subsection
(b). If it is intended to apply to both
sentences and there are two sentences in subsection only (b) because of the
sub-condition "delegated final decisional authority" then the two
sentences could easily be combined and the sub-conditions written as paragraphs
or dependent phrases or even independent phrases separated by a semi-colon
rather than different sentences. If the
caveat in the first sentence of subsection (b) does not apply to both the sub-conditions,
which grammatically it could not, then it is not clear why the second sentence
of subsection (b) is not itself a subsection as shown in this revision.
SECTION 413(b) Except as otherwise
provided by law, a presiding officer who is not the agency head and who has not
been delegated final decisional authority shall issue a recommended order to
resolve a contested case. A presiding
officer who is not the agency head but who has been delegated final decisional
authority shall issue an An initial
order that shall take effect as a final
order resolving a contested case [30] days after issuance, unless the agency
head reviews the initial order pursuant to §414.
DRAFTING
NOTES: The first part of this subsection has been
added to subsection (a), leaving only the provision relating to initial orders.
POLICY
NOTES: All the provisions relating to the various
orders and who issues them should be grouped together. Thus, the provisions in this subsection
relating to recommended and initial orders has been moved to subsection (a).
SECTION 413(c) A recommended, initial, or final order must shall be filed and served
in
a record upon each party and the agency head within 90 days after the evidentiary hearing
ends, the hearing record
closes, or all memos, briefs, or proposed
findings are submittedfiled,
whichever is later. The time for
closing the hearing record or making post-hearing filings may
be extended by stipulation, waiver, or upon a showing of good cause.
DRAFTING
NOTES: The phrase "served in a record"
makes no sense and has been revised to "filed and served," which was
presumably what was meant. The word
"evidentiary" is inserted before "hearing" to build upon
the definition in §102(10) and to make clear it is at the end of that
particular "proceeding" that the time limit set in this subsection
begins to run. The adjective
"all" is inserted before the listing of post-hearing filings because
there sometimes are several sets of such filings before all post-hearing
briefing is complete. The word
"submitted" is revised to "filed" to build upon the
proposed definition of "file" or "filing" set out in
proposed §201(10A). The passive
voice is appropriate here because the emphasis is on the filing of the
documents, not who in particular files those documents.
SECTION 413(d) A recommended, initial, or final order must include separately stated
findings of fact and conclusions of law on shall address all
material issues of fact, law, or discretion, the remedy prescribed, and, if
applicable, the action taken on a petitionmotion
for stay, and . A party may submit
proposed findings of fact and conclusions of law. The order must shall also include
separately
stated findings of fact based exclusively on the
evidence in the hearing record; conclusions
of law; a statement of the available
procedures and time limits for seeking reconsideration or other administrative
relief, and a statement of the time limits
for seeking judicial review of the agency a final order; and
a statement of any circumstances under which the order, without further notice, if it
is an initial or recommended order, may become a final order
without further notice.
DRAFTING
NOTES: The word "available" is deleted
here because presumably "the procedures" for seeking reconsideration
will be the ones "available" and not the procedures not available. The entire second sentence has been deleted
because it is already covered by §403 which leaves it up the presiding officer
whether the parties may submit proposed findings and conclusions. The phrase "the agency order" in
the third sentence is revised to "a final order" because
"judicial review" may only be had of a "final order" under §501.
The demonstrative "that" is inserted in place of the definite
article because it refers to a compound subject.
SECTION 413(e) Findings of fact must be
based exclusively on the evidence in the hearing record in the
contested case and on matters officially
noticed.
DRAFTING
NOTES: The substance of this subsection has been
moved to subsection (d). The phrase “in
the contested case” has been deleted here because a “hearing record” is defined
in a proposed addition to §102 above, to mean the record in a contested case. Consequently it is redundant. The concluding phrase “and on matters
officially noticed” has been deleted because §408 makes matters officially
noticed part of the hearing record.
POLICY
NOTES: This entire section appears to be
largely duplicative of §406(c) except that it specifically addresses findings of
fact. Including similar but not
identical provisions addressing the same issue is probably not good
policy. The Drafters should consider
combining §406(c) with subsection (a) and deleting this
subsection.
SECTION 413(f) An
order is issued under this Section when it is signed by the agency head,
presiding officer, or an individual authorized by law other
than this [act] to sign the order.
POLICY NOTES: This subsection defines “issue” to mean when an order is
“signed.” This, definition would be
difficult to apply in the real world.
The point in time when a document is “signed” is not always clear if the
document is not also dated, and even if the document is dated, the date is put
on by the signer and still subject to question if the signer had a motive to
backdate or fore date a document. The
preferable solution to this problem is to make an order (except perhaps
emergency orders) take effect when the order is “filed” or “served” or some
other term which has a more accepted meaning and that can be defined in the act
as coinciding with certain acts and times, e.g., stamping with date/time. Since “filing” is often a ministerial act
performed not by the signer but by a clerk or an autonomous or independent
entity, this point in time is less likely to be questioned by litigants and
much easier to determine. See the
proposed definition of “file” or “filing” in §102(10A).
Because “issue” and “issuance” are used
throughout Article 4, this subsection should be converted to a definition to be
added to §102 so that “issue” may have a consistent meaning throughout
the Article. A proposed definition is
found in the in proposed §102(15A).
SECTION
414. AGENCY REVIEW OF INITIAL ORDER.
SECTION 414(a) An agency head may review an initial order on
its own motioninitiative in the
same manner as a recommended order, except as otherwise
provided by law.
DRAFTING NOTES:
The inserted second sentence is a re-worded version of the last sentence
of the original §414(c). It was moved to
subsection (a) because it applies to instances in which an agency head reviews
an initial order on its own motion. The
like provisions have been grouped to make them more understandable and easier
to apply.
POLICY NOTES:
No standard is given for the agency head review of an initial like there
is for review of a recommended order.
Consequently, the phrase “in the same manner as a recommended order” has
been inserted to provide some guidance to the agency in reviewing an initial
order. More particular reference could
be made to the review set forth in §415.
SECTION 414(b) Not later than [10] days
after an initial order is filed, or
the parties are served with a copy of the order, whichever is later,
(1)
the agency head shall serve notice on the parties
that it intends to review the initial order; or
(2)
a A party may
petition shall file a motion an
agency head to for review of an
initial order with the agency head or with any person designated
for this purpose by agency rule. Upon petition by a
party, the agency head may review an initial order, except as otherwise
provided by law other than this [act].
DRAFTING NOTES:
The first sentence has been re-worded to use the “Not later than … “
sentence structure used elsewhere in these proposed revisions, and to parallel
the same construction in §414(b). The
word "serve" is used instead of "give" so as to build upon
the definition in proposed §102(30A), and the noun “notice” is used instead of the verb
“notify” to put the sentence in the active voice and avoid using the vague
reference to when “the parties are notified.”
The substance of the first numbered
paragraph has been moved from paragraph (c) for the reasons explained
below. The word "serve" is
used instead of "give" so as to build upon the definition in proposed
§102(30A),
and the noun “notice” is used instead of the verb “notify” to put the sentence
in the active voice and avoid using the vague reference to when “the parties
are notified.” The last sentence in the
new paragraph (2) has been deleted as its substance has been split between
subsection (a) and subsection (b).
POLICY NOTES: The Act should be regularized to make
clear when time periods run and some decision should be made as to why a some
events are pegged to "giving" as opposed to "service" or
"signing" or "notice" or "filing" or
"submission." The better
practice is to require all documents to be dated in some certain method and
according to a regular and independent procedure, such as by
"service" or "filing" requirements. Vague references to actions that cannot be
dated for certain will only encourage meaningless argument about the timing or
effect of documents or actions.
SECTION 414(c) A petition for
review of an initial order must be
filed with the agency head, or with any person designated
for this purpose by agency rule not
later than [10] days after the initial
order is issued, or the parties are notified of the order, whichever is later. If the
agency head decides to review an initial order on its own motion, the agency
head shall give notice in a record of its
intention to review the order within [10] days after it is issued, or the
parties are notified of the order, whichever is later.
DRAFTING
NOTES: Everything but part of the first sentence of
§414(c) has been deleted here to group like provisions together. The last sentence applies to instances in
which the agency head reviews an initial order on its own motion and so was
moved to paragraph (a) which deals with the same thing. To parallel the new construction of paragraph
(a), most of the first sentence of the original (c) has been moved to the end
of §414(b) because both provisions deal with instances in which a party moves
the agency head to review an initial order.
Since these moves gutted §414(c), it was deleted.
SECTION 414(dc) The [10]-day period in subsection (cb)
for
a party to file a petition or for the agency head
to notify the parties of its intention to review an initial order, is
tolled by the submission of a timely petitionmotion
under Section 416 for reconsideration of the order. A new [10]-day period
begins upon disposition the filing of
an
order ruling on the petitionmotion
for reconsideration. If an order is subject
both to a timely petitionmotion for
reconsideration and to a petitionmotion for
review by the agency head, then the agency head shall
rule on the petitionmotion for
reconsideration must be disposed
of first,
unless the agency head determines that action on the petitionmotion
for reconsideration has been unreasonably delayed.
DRAFTING NOTES: The use of “disposition” in this subsection
could mean something like “issuance” or perhaps “final issuance” but could also
mean “signing” or “the ruling upon.” The
term refers to a point in time that is almost impossible to fix, the moment
when the decision maker “disposed” of a “petition for reconsideration.” From this point in time, whenever that is,
the 10 day period for review of an initial order starts. Accordingly, the word “disposition” is
replaced here with “the filing” so that a date certain can be fixed by the
process of “filing” the order called for in this subsection. See the definition for “file” or “filing” proposed
in §102(10A).
SECTION 415. AGENCY REVIEW OF RECOMMENDED ORDER.
SECTION 415(a) An
agency head shall review a recommended orders pursuant
to this section.
DRAFTING
NOTES: The changes to this subsection are intended
to make clear that this section applies to the review of “all” recommended
orders, not just “a” recommended order.
Similar changes are made in subsequent subsections.
SECTION 415(b) When
reviewing a recommended orders, the
agency head shall exercise all the decision-making power that the agency head
would have had if the agency head had conducted the hearing that produced the recommended
order, except to the extent that the issues subject to review are limited by a
provision of law other than this [act] or by order of
the agency head upon notice to all the parties.
In reviewing findings of fact in a recommended order by the presiding officer,
the agency head shall consider the presiding officer's opportunity to observe
the witnesses and to determine the credibility of witnesses. The agency head shall consider the whole hearing
record or those parts that are designated
by the parties.
DRAFTING
NOTES: The phrase “by the presiding officer” has
been deleted as unnecessary and redundant.
An agency head or final decision maker will not make a recommended
order; only a presiding officer may make a recommended order. The word “whole” is inserted before the
phrase “hearing record” to reflect the state of the law which requires the
final decision maker to consider the whole record in making findings. The word “those” is inserted with the
deletions to put the final sentence in the active voice.
SECTION 415(c) An agency head may render issue a
final order disposing of the proceeding
resolving a contested case or
may remand the matter case for
further proceedings with instructions to the presiding officer who
rendered the recommended order.
Upon remanding a matter, the agency head may order such temporary relief
as is authorized and appropriate.
DRAFTING
NOTES: The phrase “disposition of the proceeding” is
replaced with “resolving a contested case” because under the proposed changes
to the definition of “final order” a final order is an order resolving all or
part of a contested case.
SECTION 415(d) A final order or an order remanding the a matter
for further proceedings must shall identify any difference
between the final order and the recommended order and
identify the facts of evidence
in the hearing record that supports
any difference in findings of fact, the
source of law that supports any difference in legal conclusions, and the policy reasons that support any
difference in the exercise of discretion.
A final order under this section must shall include, or incorporate by
express reference to the recommended order, all the matters required by Section
413(d). The agency head shall deliver
file the final order in the hearing record and serve the
order to on the
presiding officer and all
parties.
DRAFTING
NOTES: The definite article is replaced with the
indefinite article here because “matter” has not previously been introduced in
the sentence. The modifier “final” is
inserted before “order” to parallel the language at the beginning of the
sentence. The word “facts” is replaced
with “evidence” because “evidence” is in the word “state” is replaced with
“identify” as a better choice. The word
“state” is often used to mean “speak” in the context of an adjudicatory
proceeding. The word “deliver” is
deleted and replaced with the explicit requirement that the agency head both
“file” and “serve” the final order.
POLICY NOTES: The use of the word "given" in subsection (a)
brings the scope of this entire section into question. If this section applies when "notice of
a final order is given" as stated in subsection (a), then presumably it
does not cover cases under §413(a) in which an initial order "becomes" a final
order. The use of the passive voice
throughout this section masks who is making the final order in question and who
is ruling on the motion to reconsider, thereby compounding the problem. Subsection (b) refers to "the
agency" as "disposing" of a motion to reconsider and subsection
(c) refers to a "presiding officer" "issuing" a written
order. Use of "the agency" in
subsection (b) could be read to mean "agency head," implying this
section is limited only to those final orders issued by agency heads acting as
presiding officers. The use of
"presiding officer" in subsection (c) could mean that initial orders
that "become" final orders do fall within the scope of this
section. The scope of this section
should be made explicit.
For the
purposes of the proposed changes in this section, I have assumed that this
section is not intended to be limited to those final orders issued by
agency heads acting as presiding officers, because as a general matter agency
heads do not personally serve as presiding officers. They have subordinate presiding officers do
this work. Rather than limit this
section to a tiny minority of cases, I have offered revisions give this section
its proper scope. I have used the
passive voice throughout because the actor may be either the agency head who
has issued a final order or a non-agency head presiding officer who has issued
an initial order that has turned into a final order.
SECTION 416. RECONSIDERATION.
SECTION 416(a) Any party, nNot
later than [ ] days after notice
of a final order is given is
served or takes effect, any party may
file a petitionmotion for
reconsideration that states the specific grounds upon which relief is
requested. The agency procedural rules, as stated
in the final order, shall specify where a
motion under this Section must be filed place of filing and other
procedures, if any, must be specified by agency rule and must be stated in the
final order.
DRAFTING
NOTES: The phrase “not later than … “ has been made
the introductory phrase of this subsection so as to parallel the sentence
construction in §412(b) and to be similar to the sentence construction in §417.
This construction is paralleled in the revisions to §414(c) and §416(c).
The phrase "notice of" has been deleted because there is no
separate "notice" of a final order in Article 4. The passive construction "notice … is
given" has been deleted and the subject has been converted to "a
final order" rather than "notice of a final order." It is not clear what "given" is
meant to indicate here, and for the reasons set forth in the policy notes to
this section, it has been changed to "served or takes effect" to
bring initial orders that turn into final orders within the scope of this
section. The subject “any party” has
been moved next to the predicate. The
second sentence has been completely rewritten to put it in the active voice, to
remove the use of “must,” and to refer to only “the agency procedural rules”
rather than list certain procedural rules as examples. The passive voice is used in the last
sentence to emphasize the filing and the place of filing.
POLICY
NOTES: Letting the agency specify by rule who
must resolve a motion for reconsideration makes this entire Section vague. It would be better to specify this in the
Act. If it is an initial order that has
become a final order, the motion would more properly be directed to the
presiding officer because the agency head has not participated in the
decision. If it is a final order from
the beginning, the motion should be directed to the agency head.
SECTION 416(b) If a petitionmotion
for reconsideration is timely filed, and if the
petitioner moving party has
complied with any agency's
procedural rules for reconsideration, if any, then the
time for filing a petition for judicial review does not begin until the agency disposes
of an order resolving the petitionmotion
for reconsideration is filed as provided in Section
503(d).
DRAFTING NOTES:
The word "petition" is replaced throughout this section for
reasons discussed in the drafting notes to other sections. The second “if” in the first phrase has been
deleted here as the conjunctive makes clear that the conditional phrase is
compound. The parenthetical phrase “if
any” has been deleted and replaced with the prior phrase “any agency procedural
rules.” The general reference to “the
agency” has been replaced with “presiding officer” for the reasons stated in
the policy notes to this section. The
verb “dispose,” used here to mean "rule on," is deleted and replaced
with “issues” for reasons explained in other drafting notes and to parallel the
use of "issue" in subsections (a) and (c).
SECTION 416(c) Not later than [20] days
after a motion for reconsideration If a petition is
filed under subsection (a), the presiding
officer shall issue a
written order not later than [20] days after the filing denying
the petitionmotion,
granting the petitionmotion and
dissolving or modifying the final order,
or granting the petitionmotion and
setting the matter for further proceedings shall be issued. The order petition may be
granted only if the presiding
officer states shall include
findings of facts, conclusions of law, and the reasons
for granting or denying the petitionmotion.
DRAFTING
NOTES: The phrase beginning "not later
than …" has been inserted as the introductory phrase to keep the sentence
structure in this subsection consistent with other the sentence structure of
subsection (a). The sentence is
converted from active to passive voice to hide the multiple possible actors, as
discussed above in the policy notes to this section and the drafting notes to
other subsections. The last sentence is
also converted to the passive voice, and the focus of both of the last two
sentences is changed to the contents of the order.
SECTION
417. STAY. Except as otherwise provided by law other
than this [act], a party, not later than [seven7]
days after the parties are notified of the a final order is
filed, a party may request move the
agency head to stay a final order pending
judicial review. At any time before a petition for judicial review
is filed or the time for filing in Section 503 expires, The the agency
head may grant the request motion for
a stay pending judicial review if an the agency
head finds that justice so requires. The
agency may grant or deny the request for stay of the order before, on, or after
the effective date of the order.
DRAFTING
NOTES: The first sentence is revised above to
convert it to the active voice so as to make clear who may do what. The word "filed" is used to key the
start of the limitations period to a specific procedural act that sets a
date. The indefinite article is
substituted before the first instance of "final order" and the
definite article is substituted before the second instance of "final
order" to comport with proper usage.
The word “request” is replaced with “move” for reasons set forth in
other drafting notes. The phrase
containing “after the effective date” is deleted entirely and not replaced with
another similar phrase because as currently drafted, the agency could issue an
order staying a final order even after a court takes jurisdiction on
appeal. That occurs at the time a
petition for review is filed under §503.
POLICY NOTES: The use of the word "agency" alone in this section
is vague. It is not clear why the
particular person holding this authority is not explicitly identified here, and
not specifically identifying that person will only encourage agency officials
to assume this authority when it suits them, whether or not they are the
appropriate person to exercise the authority.
A stay of effect is a particularly sensitive matter, largely grounded in
policy, and should be left to the agency head alone, who may have very good
policy reasons not to stop an order from immediately going into effect. If the agency head arbitrarily refuses to
stay a matter, courts are given parallel authority to stay a final order.
SECTION 418. AVAILABILITY OF ORDERS; INDEX.
SECTION 418(b) Final orders or decisions that are exempt,
privileged, or otherwise made confidential or protected from disclosure by [the
public records law of this state] are not
public records and may not be indexed.
DRAFTING
NOTES: The phrase "are not public records
and" has been deleted here because every Open Records act I am aware of
contains specific definitional exclusions or particular exclusions making
confidential records not subject to the Act.
SECTION 418(c) The presiding
officer or agency head may exclude a A final
order may be excluded from an index and
disclosure only by written order
of the presiding officer with a written statement
of reasons attached to the orderstating the
reasons for exclusion. If
the presiding officer or agency head finds determines it is possible to redact a
final order that is exempt, privileged, or otherwise made confidential or
protected from disclosure by [the public records law of this state] so that it
complies with the requirements of that law, he may order the
redacted order may be placed in the index and
published.
POLICY
NOTES: Agencies are
often touchy about what final orders are revealed to the public. While it is an excellent idea to require
compiling and indexing decisions, I believe agency heads would only adopt such
a practice if they, not just the "presiding officer", are given a
final say over what gets compiled and indexed (or excluded). This could be accomplished, as in the
proposed revisions here, by giving the presiding officer and the agency head
concurrent authority to exclude items.
DRAFTING NOTES:
The first sentence has been revised to put it in the active voice, and
to name the agency head. The second
sentence has been revised to name the agency head and to replace the word
"determines" with the more accurate word "find" since this
would appear to be an adjudicative finding.
The final phrase is revised from passive to active voice.
SECTION 418(d) An agency may not rely on a final order adverse to a party other than the agency as precedent in future adjudications unless the agency head designates the order as a precedent, and the order has been published, placed in an index, and made available for public inspection.
POLICY
NOTES: The single word "agency" is
replaced with "agency head" to parallel the sentiments in the policy
notes to subsection (c). The agency head
should be the one person to decide what will be "precedent" because
this is a policy determination.