GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
S 1
SENATE BILL 653
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Short Title: Eliminate Agency Final Decision Authority. |
(Public) |
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Sponsors: |
Senator Daniel. |
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Referred to: |
Judiciary I. |
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April 20, 2011
A BILL TO BE ENTITLED
AN ACT TO MODIFY THE PROCEDURES CONCERNING FINAL ADMINISTRATIVE DECISIONS IN CONTESTED CASES HEARD BY THE OFFICE OF ADMINISTRATIVE HEARINGS.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 150B‑2(5) reads as rewritten:
"(5) "Party" means any person or agency
named or admitted as a party or properly seeking as of right to be admitted as
a party and includes the agency as appropriate. This subdivision does not
permit an agency that makes a final decision, or an officer or employee of the
agency, to petition for initial judicial review of that decision."
SECTION 2. G.S. 150B‑23(a) reads as rewritten:
"(a) A contested case shall be commenced by paying a fee in an amount established in G.S. 150B‑23.2 and by filing a petition with the Office of Administrative Hearings and, except as provided in Article 3A of this Chapter, shall be conducted by that Office. The party who files the petition shall serve a copy of the petition on all other parties and, if the dispute concerns a license, the person who holds the license. A party who files a petition shall file a certificate of service together with the petition. A petition shall be signed by a party or a representative of the party and, if filed by a party other than an agency, shall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner's rights and that the agency:
(1) Exceeded its authority or jurisdiction;
(2) Acted erroneously;
(3) Failed to use proper procedure;
(4) Acted arbitrarily or capriciously; or
(5) Failed to act as required by law or rule.
The parties in a contested case shall be given an opportunity for a hearing without undue delay. Any person aggrieved may commence a contested case hereunder.
A local government employee, applicant for employment, or
former employee to whom Chapter 126 of the General Statutes applies may
commence a contested case under this Article in the same manner as any other
petitioner. The case shall be conducted in the same manner as other contested
cases under this Article.Article, except that the State Personnel
Commission shall enter final decisions only in cases in which it is found that
the employee, applicant, or former employee has been subjected to
discrimination prohibited by Article 6 of Chapter 126 of the General Statutes
or in any case where a binding decision is required by applicable federal
standards. In these cases, the State Personnel Commission's decision shall be
binding on the local appointing authority. In all other cases, the final
decision shall be made by the applicable appointing authority."
SECTION 3. G.S. 150B‑33(b)(12) is repealed.
SECTION 4. G.S. 150B‑34 reads as rewritten:
"§ 150B‑34.
Decision of administrative law judge.Final decision or order.
(a) Except as provided in G.S. 150B‑36(c),
and subsection (c) of this section, inIn each contested case the
administrative law judge shall make a final decision or order that
contains findings of fact and conclusions of law and return the decision to
the agency for a final decision in accordance with G.S. 150B‑36.law.
The administrative law judge shall decide the case based upon the preponderance
of the evidence, giving due regard to the demonstrated knowledge and expertise
of the agency with respect to facts and inferences within the specialized
knowledge of the agency. All references in this Chapter to the
administrative law judge's decision shall include orders entered pursuant to G.S. 150B‑36(c).
(b) Repealed by Session Laws 1991, c. 35, s. 6.
(c) Notwithstanding subsection (a) of this
section, in cases arising under Article 9 of Chapter 131E of the General
Statutes, the administrative law judge shall make a recommended decision or
order that contains findings of fact and conclusions of law. A final decision
shall be made by the agency in writing after review of the official record as
defined in G.S. 150B‑37(a) and shall include findings of fact and
conclusions of law. The final agency decision shall recite and address all of
the facts set forth in the recommended decision. For each finding of fact in
the recommended decision not adopted by the agency, the agency shall state the
specific reason, based on the evidence, for not adopting the findings of fact
and the agency's findings shall be supported by substantial evidence admissible
under G.S. 150B‑29(a), 150B‑30, or 150B‑31. The
provisions of G.S. 150B‑36(b), (b1), (b2), (b3), and (d), and G.S. 150B‑51
do not apply to cases decided under this subsection.
(d) Except for the exemptions contained in G.S. 150B‑1(c)
and (e), and subsection (c) of this section,G.S. 150B‑1,
the provisions of this section regarding the decision of the administrative law
judge shall apply only to all agencies subject to Article 3 of
this Chapter, notwithstanding any other provisions to the contrary relating to
recommended decisions by administrative law judges.
(e) An administrative law judge may grant judgment on the pleadings, pursuant to a motion made in accordance with G.S. 1A‑1, Rule 12(c), or summary judgment, pursuant to a motion made in accordance with G.S. 1A‑1, Rule 56, that disposes of all issues in the contested case. Notwithstanding subsection (a) of this section, a decision granting a motion for judgment on the pleadings or summary judgment need not include findings of fact or conclusions of law, except as determined by the administrative law judge to be required or allowed by G.S. 1A‑1, Rule 12(c) or Rule 56. A decision by the administrative law judge granting judgment on the pleadings or summary judgment that disposes of all issues in the contested case operates as a final decision."
SECTION 5. G.S. 150B‑35 reads as rewritten:
"§ 150B‑35. No ex parte communication; exceptions.
Unless required for disposition of an ex parte matter
authorized by law, neither the administrative law judge assigned to a
contested case nor a member or employee of the agency making a final
decision in the case may not communicate, directly or indirectly,
in connection with any issue of fact, or question of law, with any person or
party or his representative, except on notice and opportunity for all parties
to participate."
SECTION 6. G.S. 150B‑36 is repealed.
SECTION 7. G.S. 150B‑37 reads as rewritten:
"§ 150B‑37. Official record.
(a) In a contested case, the Office of Administrative Hearings shall prepare an official record of the case that includes:
(1) Notices, pleadings, motions, and intermediate rulings;
(2) Questions and offers of proof, objections, and rulings thereon;
(3) Evidence presented;
(4) Matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose; and
(5) Repealed by Session Laws 1987, c. 878, s. 25.
(6) The administrative law judge's decision, final
decision or order.
(b) Proceedings at which oral evidence is presented shall be recorded, but need not be transcribed unless requested by a party. Each party shall bear the cost of the transcript or part thereof or copy of said transcript or part thereof which said party requests, and said transcript or part thereof shall be added to the official record as an exhibit.
(c) The Office of Administrative Hearings shall
forward a copy of the official record to the agency making the final
decision and shall forward a copy of the administrative law judge's final
decision to each party."
SECTION 8. G.S. 150B‑40(e) reads as rewritten:
"(e) When a majority of an agency is unable or elects not to hear a contested case, the agency shall apply to the Director of the Office of Administrative Hearings for the designation of an administrative law judge to preside at the hearing of a contested case under this Article. Upon receipt of the application, the Director shall, without undue delay, assign an administrative law judge to hear the case.
The provisions of this Article, rather than the provisions
of Article 3,Article 3 of this Chapter shall govern a contested case
in which the agency requests an administrative law judge from the Office of
Administrative Hearings.
The administrative law judge assigned to hear a contested
case under this Article shall sit in place of the agency and shall have the
authority of the presiding officer in a contested case under this Article. The
administrative law judge shall make a proposal for decision, which shall
contain proposed findings of fact and proposed conclusions of law.
An administrative law judge shall stay any contested case under this Article on motion of an agency which is a party to the contested case, if the agency shows by supporting affidavits that it is engaged in other litigation or administrative proceedings, by whatever name called, with or before a federal agency, and this other litigation or administrative proceedings will determine the position, in whole or in part, of the agency in the contested case. At the conclusion of the other litigation or administrative proceedings, the contested case shall proceed and be determined as expeditiously as possible.
The agency may make its final decision only after the
administrative law judge's proposal for decision is served on the parties, and
an opportunity is given to each party to file exceptions and proposed findings
of fact and to present oral and written arguments to the agency."
SECTION 9. G.S. 150B‑43 reads as rewritten:
"§ 150B‑43. Right to judicial review.
Any person party who is aggrieved by the final
decision in a contested case, and who has exhausted all administrative remedies
made available to him the party by statute or agency rule, is
entitled to judicial review of the decision under this Article, unless adequate
procedure for judicial review is provided by another statute, in which case the
review shall be under such other statute. Nothing in this Chapter shall prevent
any person party from invoking any judicial remedy available to him
the party under the law to test the validity of any administrative
action not made reviewable under this Article."
SECTION 10. G.S. 150B‑44 reads as rewritten:
"§ 150B‑44. Right to judicial intervention when decision unreasonably delayed.
Unreasonable delay on the part of any agency or
administrative law judge in taking any required action shall be justification
for any person whose rights, duties, or privileges are adversely affected by
such delay to seek a court order compelling action by the agency or
administrative law judge. An agency that is subject to Article 3 of this
Chapter and is not a board or commission has 60 days from the day it receives
the official record in a contested case from the Office of Administrative
Hearings to make a final decision in the case. This time limit may be extended
by the parties or, for good cause shown, by the agency for an additional period
of up to 60 days. An agency that is subject to Article 3 of this Chapter and is
a board or commission has 60 days from the day it receives the official record
in a contested case from the Office of Administrative Hearings or 60 days after
its next regularly scheduled meeting, whichever is longer, to make a final
decision in the case. This time limit may be extended by the parties or, for
good cause shown, by the agency for an additional period of up to 60 days. If
an agency subject to Article 3 of this Chapter has not made a final decision
within these time limits, the agency is considered to have adopted the
administrative law judge's decision as the agency's final decision. Failure
of an administrative law judge subject to Article 3 of this Chapter or
failure of an agency subject to Article 3A of this Chapter to make a final
decision within 120 days of the close of the contested case hearing is
justification for a person whose rights, duties, or privileges are adversely
affected by the delay to seek a court order compelling action by the agency or,
if the case was heard by an administrative law judge,or by the
administrative law judge. The Board of Trustees of the North Carolina State
Health Plan for Teachers and State Employees is a "board" for
purposes of this section."
SECTION 11. G.S. 150B‑47 reads as rewritten:
"§ 150B‑47. Records filed with clerk of superior court; contents of records; costs.
Within 30 days after receipt of the copy of the petition for
review, or within such additional time as the court may allow, the agency
that made the final decision in the contested case Office of
Administrative Hearings shall transmit to the reviewing court the original
or a certified copy of the official record in the contested case under review
together with: (i) any exceptions, proposed findings of fact, or
written arguments submitted to the agency in accordance with G.S. 150B‑36(a);
and (ii) the agency's final decision or order. review. With the
permission of the court, the record may be shortened by stipulation of all
parties to the review proceedings. Any party unreasonably refusing to stipulate
to limit the record may be taxed by the court for such additional costs as may
be occasioned by the refusal. The court may require or permit subsequent
corrections or additions to the record when deemed desirable."
SECTION 12. G.S. 150B‑49 reads as rewritten:
"§ 150B‑49. New evidence.
An aggrieved person A party who files a
petition in the superior court may apply to the court to present additional
evidence. If the court is satisfied that the evidence is material to the
issues, is not merely cumulative, and could not reasonably have been presented
at the administrative hearing, the court may remand the case so that additional
evidence can be taken. If an administrative law judge did not make a final decision
in the case, the court shall remand the case to the agency that conducted the
administrative hearing.hearing under Article 3A of this Chapter and G.S. 150B‑34(c).
After hearing the evidence, the agency may affirm or modify its previous
findings of fact and final decision. If an administrative law judge made a final
decision in the case, the court shall remand the case to the administrative
law judge. After hearing the evidence, the administrative law judge may affirm
or modify his the previous findings of fact and final decision.
The administrative law judge shall forward a copy of his decision to the
agency that made the final decision, which in turn may affirm or modify its
previous findings of fact and final decision. The additional evidence and
any affirmation or modification of a final decision of the
administrative law judge or final decision shall be made part of the
official record."
SECTION 13. G.S. 150B‑50 reads as rewritten:
"§ 150B‑50. Review by superior court without jury.
The review by a superior court of agency administrative
decisions under this Chapter shall be conducted by the court without a
jury."
SECTION 14. G.S. 150B‑51 reads as rewritten:
"§ 150B‑51. Scope and standard of review.
(a) In reviewing a final decision in a
contested case in which an administrative law judge made a recommended decision
and the State Personnel Commission made an advisory decision in accordance with
G.S. 126‑37(b1), the court shall make two initial determinations.
First, the court shall determine whether the applicable appointing authority
heard new evidence after receiving the recommended decision. If the court
determines that the applicable appointing authority heard new evidence, the
court shall reverse the decision or remand the case to the applicable
appointing authority to enter a decision in accordance with the evidence in the
official record. Second, if the applicable appointing authority did not adopt
the recommended decision, the court shall determine whether the applicable
appointing authority's decision states the specific reasons why the applicable
appointing authority did not adopt the recommended decision. If the court
determines that the applicable appointing authority did not state specific
reasons why it did not adopt a recommended decision, the court shall reverse
the decision or remand the case to the applicable appointing authority to enter
the specific reasons.
(a1) In reviewing a final decision in a
contested case in which an administrative law judge made a decision, in
accordance with G.S. 150B‑34(a), and the agency adopted the
administrative law judge's decision, the court shall determine whether the
agency heard new evidence after receiving the decision. If the court determines
that the agency heard new evidence, the court shall reverse the decision or
remand the case to the agency to enter a decision in accordance with the
evidence in the official record. The court shall also determine whether the
agency specifically rejected findings of fact contained in the administrative
law judge's decision in the manner provided by G.S. 150B‑36(b1) and
made findings of fact in accordance with G.S. 150B‑36(b2). If the
court determines that the agency failed to follow the procedure set forth in G.S. 150B‑36,
the court may take appropriate action under subsection (b) of this section.
(b) Except as provided in subsection (c) of this
section, in reviewing a final decision, the The court reviewing a
final decision may affirm the decision of the agency or remand the
case to the agency or to the administrative law judge for further
proceedings. It may also reverse or modify the agency's decision, or adopt
the administrative law judge's decision if the substantial rights of the
petitioners may have been prejudiced because the agency's findings,
inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under G.S. 150B‑29(a), 150B‑30, or 150B‑31 in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
(c) In reviewing a final decision in a contested case
in which an administrative law judge made a decision, in accordance with G.S. 150B‑34(a),
and the agency does not adopt the administrative law judge's decision, case,
the court shall review the official record, de novo, and shall make
findings of fact and conclusions of law. In reviewing the case, the court shall
not give deference to any prior decision made in the case and shall not be
bound by the findings of fact or the conclusions of law contained in the agency's
final decision. The court shall determine whether the petitioner is
entitled to the relief sought in the petition, based upon its review of the
official record. The court reviewing a final decision under this subsection may
adopt the administrative law judge's decision; may adopt, reverse, or
modify the agency's decision; may remand the case to the agency for
further explanations under G.S. 150B‑36(b1), 150B‑36(b2),
or 150B‑36(b3),explanations or reverse or modify the final
decision for the agency's failure to provide the explanations; and may
take any other action allowed by law.
(d) In reviewing a final agency decision
allowing judgment on the pleadings or summary judgment, or in reviewing an
agency decision that does not adopt an administrative law judge's decision
allowing judgment on the pleadings or summary judgment pursuant to G.S. 150B‑36(d),
the court may enter any order allowed by G.S. 1A‑1, Rule 12(c)
or Rule 56. If the order of the court does not fully adjudicate the case, the
court shall remand the case to the administrative law judge for such further
proceedings as are just."
SECTION 15. This act becomes effective January 1, 2011, and applies to contested cases commenced on or after that date.