HB 232: "An Act establishing the independent division of administrative hearings in the Department of Administration in order to provide a source of independent administrative hearing officers to preside in contested cases; relating to administrative hearing officers; relating to contested case proceedings; and providing for an effective date."
00HOUSE BILL NO. 232 01 "An Act establishing the independent division of administrative hearings in the 02 Department of Administration in order to provide a source of independent 03 administrative hearing officers to preside in contested cases; relating to 04 administrative hearing officers; relating to contested case proceedings; and 05 providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. PURPOSE AND INTENT. The purpose of this Act is to increase the 08 separation between the adjudicatory functions of executive branch agencies and the agencies' 09 investigatory, prosecutory, and policy-making functions. The legislature intends by this Act 10 to provide for the delivery of high quality adjudication services in a timely, efficient, and cost- 11 effective manner that will ensure respect for the dignity of the individuals whose cases are 12 being adjudicated and guarantee protection of their due process rights. 13 * Sec. 2. AS 44.21.020 is amended to read: 14 Sec. 44.21.020. Duties of department. The Department of Administration
01 shall 02 (1) make surveys and studies to improve administrative procedures, 03 methods, and organization; 04 (2) keep general accounts; 05 (3) approve vouchers and disburse funds for all purposes; 06 (4) operate centralized purchasing and supply services, and necessary 07 storerooms and warehouses; 08 (5) allot space in state buildings to the various departments according 09 to need and available space; 10 (6) supervise telephone, mailing, messenger, duplicating, and similar 11 services adaptable to centralized management; 12 (7) administer the public employees' retirement system and teachers' 13 retirement system; 14 (8) administer a statewide personnel program, including central 15 personnel services such as recruitment, examination, position classification, and pay 16 administration; 17 (9) administer the Alaska Pioneers' Homes; 18 (10) administer and supervise a statewide automatic data processing 19 program; 20 (11) study, design, implement, and manage the telecommunications 21 systems and services of the state under AS 44.21.305 - 44.21.330; 22 (12) [REPEALED 23 (13)] administer state veterans' home facilities; in carrying out its duties 24 under this paragraph, the department shall consult with the Department of Military and 25 Veterans' Affairs; 26 (13) perform, through the chief administrative hearing officer, the 27 duties of the independent division of administrative hearings under AS 44.21.510 - 28 44.21.590 and AS 44.62.330 - 44.62.630. 29 * Sec. 3. AS 44.21 is amended by adding new sections to read: 30 Article 9. Independent Division of Administrative Hearings. 31 Sec. 44.21.510. Division created. (a) There is created in the Department of
01 Administration an independent division of administrative hearings headed by the chief 02 administrative hearing officer. 03 (b) The chief administrative hearing officer 04 (1) shall be appointed by the commissioner of administration; 05 (2) must be licensed to practice law in this state and have been 06 admitted to practice law for at least five years; 07 (3) shall devote full time to the duties set out in AS 44.21.520 and may 08 not engage in the private practice of law for compensation while holding the office of 09 chief administrative hearing officer; 10 (4) is subject to the code of conduct adopted under AS 44.21.520(a)(8). 11 Sec. 44.21.520. Powers and duties of chief administrative hearing officer. 12 (a) The chief administrative hearing officer shall 13 (1) supervise the independent division of administrative hearings; 14 (2) employ staff, including hearing officers, who shall be in the 15 classified service; 16 (3) assign a hearing officer employed by the division to a contested 17 case that is governed by AS 44.62.330 - 44.62.630; if there is no qualified employee 18 of the division available to be assigned to a particular contested case, the chief 19 administrative hearing officer shall designate in writing an individual to serve on a 20 temporary contract basis as an administrative hearing officer in that proceeding; a 21 temporary administrative hearing officer must meet the professional qualifications and 22 standards applicable to permanent employees of the division who are hearing officers 23 but need not be on a register maintained under AS 39.25; 24 (4) protect and ensure the decisional independence of each hearing 25 officer; 26 (5) provide materials and establish and implement standards and 27 specialized training programs for hearing officers; 28 (6) provide and coordinate continuing education programs and services 29 for hearing officers, including research, technical assistance, and technical and 30 professional publications; compile and disseminate information to hearing officers; and 31 advise hearing officers of changes in the law relative to their duties;
01 (7) monitor the quality of state administrative hearings, including 02 contested case proceedings, whether governed by AS 44.62 (Administrative Procedure 03 Act) or not, and submit an annual report to the governor that includes a description of 04 the activities of the division and recommendations for statutory changes, if any, that 05 may be needed in relation to administrative hearings held by the division or other 06 agencies; 07 (8) adopt a code of conduct, based on the applicable canons of the code 08 of judicial conduct, to ensure the integrity and independence of the chief administrative 09 hearing officer and other hearing officers who are employees or contractors with the 10 division; 11 (9) adopt regulations under AS 44.62 (Administrative Procedure Act) 12 to implement AS 44.21.510 - 44.21.590 and the duties of the chief administrative 13 hearing officer and hearing officers assigned by the chief administrative hearing officer 14 under AS 44.62.330 - 44.62.630. 15 (b) The chief administrative hearing officer may 16 (1) serve as a hearing officer in a contested case; 17 (2) set the requirements to be used under AS 39.25 to establish a 18 register of persons qualified to be hearing officers for contested cases governed by 19 AS 44.62.330 - 44.62.630; the requirements must include admission to the practice of 20 law in this state and the practice of law in this state for at least five years preceding 21 employment by the division; 22 (3) on request of a governmental agency, assign a hearing officer to a 23 contested case that is not governed by AS 44.62.330 - 44.62.630 or to another type of 24 hearing through a contract with the requesting agency; 25 (4) accept money, grants, bequests, and services that are consistent with 26 the purpose of the division from any public or private source. 27 Sec. 44.21.530. Hearing officers. (a) In addition to the powers and duties 28 specified in AS 44.62.330 - 44.62.630, a hearing officer who is an employee or 29 contractor with the division 30 (1) may engage in or encourage the use of alternative dispute resolution 31 methodologies, as appropriate, in a case to which the hearing officer is assigned;
01 (2) may order a party, a party's attorney, or another authorized 02 representative of a party to pay reasonable expenses, including attorney fees, incurred 03 by another party as a result of actions done in bad faith or as a result of tactics used 04 frivolously or solely intended to cause unnecessary delay; 05 (3) may perform other necessary and appropriate acts in the 06 performance of official duties; and 07 (4) is subject to the code of conduct established under 08 AS 44.21.520(a)(8). 09 (b) A hearing officer employed by the division 10 (1) may not perform duties inconsistent with the duties and 11 responsibilities of a hearing officer; 12 (2) shall, unless appointed to a position that is less than full-time, 13 devote full-time to the duties of the division; 14 (3) may not engage in the private practice of law for compensation 15 while holding a full-time position with the division. 16 (c) A hearing officer may not be made responsible to, nor be subject to the 17 supervision, direction, or direct or indirect influence of, an officer, employee, or agent 18 engaged in the performance of investigatory, prosecutory, or advisory functions for a 19 state agency. 20 Sec. 44.21.540. Cooperation of other state agencies. (a) State agencies shall 21 cooperate with the chief administrative hearing officer and with other hearing officers 22 assigned by the chief administrative hearing officer in the discharge of their duties of 23 office. 24 (b) Except as otherwise provided by law for an arbitration or similar 25 proceeding or in special circumstances recognized in regulations adopted under this 26 chapter, an agency may not select or reject a particular administrative hearing officer 27 who was assigned by the chief administrative hearing officer. 28 (c) After a matter is referred to the division by an agency, the referring agency 29 may not take further adjudicatory action with respect to the proceeding, except as a 30 party litigant or to render the final decision in the case under AS 44.62.500, as long 31 as the division has jurisdiction over the proceeding.
01 Sec. 44.21.590. Definition. In AS 44.21.510 - 44.21.590, "division" means 02 the independent division of administrative hearings. 03 * Sec. 4. AS 44.62.350(a) is amended to read: 04 (a) The governor shall assign a qualified, unbiased, and impartial hearing 05 officer, with experience in the general practice of law, to conduct hearings under this 06 chapter unless the hearings are for contested cases that are governed by 07 AS 44.62.330 - 44.62.630 or are for cases for which an agency has voluntarily 08 requested that a hearing officer be assigned by the chief administrative hearing 09 officer. For a hearing that is a contested case governed by AS 44.62.330 - 10 44.62.630 or that is a case for which an agency has voluntarily requested that a 11 hearing officer be assigned by the chief administrative hearing officer, the chief 12 administrative hearing officer shall assign a hearing officer under regulations 13 adopted by the chief administrative hearing officer to implement AS 44.21.510 - 14 44.21.590 and this section. The hearing officer may perform other duties in 15 connection with the administration of this chapter and other laws. 16 * Sec. 5. AS 44.62.350(b) is amended to read: 17 (b) An agency with hearing officers may continue their employment as hearing 18 officers on an unbiased and impartial basis within the particular agency and may hire 19 additional officers and prescribe additional qualifications. However, a hearing officer 20 within an agency other than the independent division of administrative hearings 21 may not be assigned to a contested case that is governed by AS 44.62.330 - 22 44.62.630. 23 * Sec. 6. AS 44.62.450(a) is amended to read: 24 (a) A hearing in a contested case shall be presided over by a hearing officer. 25 [THE AGENCY ITSELF SHALL DETERMINE WHETHER THE HEARING 26 OFFICER HEARS THE CASE ALONE OR WHETHER THE AGENCY HEARS 27 THE CASE WITH THE HEARING OFFICER.] 28 * Sec. 7. AS 44.62.450(b) is amended to read: 29 (b) The [IF THE AGENCY HEARS THE CASE THE HEARING OFFICER 30 SHALL PRESIDE AT THE HEARING, RULE ON THE ADMISSION AND 31 EXCLUSION OF EVIDENCE, AND ADVISE THE AGENCY ON MATTERS OF
01 LAW. THE AGENCY SHALL EXERCISE ALL OTHER POWERS RELATING TO 02 THE CONDUCT OF THE HEARING, BUT MAY DELEGATE ANY OR ALL OF 03 THESE OTHER POWERS TO THE HEARING OFFICER. IF THE HEARING 04 OFFICER HEARS A CASE ALONE, THE] hearing officer shall exercise all powers 05 relating to the conduct of the hearing. 06 * Sec. 8. AS 44.62.450(c) is amended to read: 07 (c) A hearing officer [OR AGENCY MEMBER] shall voluntarily seek 08 disqualification and withdraw from a case in which the hearing officer [OR AGENCY 09 MEMBER] cannot accord a fair and impartial hearing or consideration. A party may 10 request the disqualification of a hearing officer [OR AGENCY MEMBER] by filing 11 an affidavit, before the taking of evidence at a hearing, stating with particularity the 12 grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. 13 The [IF THE REQUEST CONCERNS AN AGENCY MEMBER THE ISSUE SHALL 14 BE DETERMINED BY THE OTHER MEMBERS OF THE AGENCY. IF THE 15 REQUEST CONCERNS THE HEARING OFFICER, THE] issue shall be determined 16 [BY THE AGENCY WHEN THE AGENCY HEARS THE CASE WITH THE 17 HEARING OFFICER, AND] by the hearing officer [WHEN THE OFFICER HEARS 18 THE CASE ALONE. AN AGENCY MEMBER MAY NOT WITHDRAW 19 VOLUNTARILY OR BE DISQUALIFIED IF THE DISQUALIFICATION WOULD 20 PREVENT THE EXISTENCE OF A QUORUM QUALIFIED TO ACT IN THE 21 PARTICULAR CASE]. 22 * Sec. 9. AS 44.62.500(b) is amended to read: 23 (b) Except as provided in (e) of this section [IF A CONTESTED CASE IS 24 HEARD BY A HEARING OFFICER ALONE], the hearing officer shall prepare a 25 proposed decision in a form that may be adopted as the decision in the case. A copy 26 of the proposed decision shall be filed by the agency as a public record with the 27 lieutenant governor, and a copy of the proposed decision shall be served by the agency 28 on each party in the case and the party's attorney. Except as provided in (e) of this 29 section, the [THE] agency itself may adopt the proposed decision in its entirety, or 30 may reduce the proposed penalty and adopt the balance of the proposed decision. 31 * Sec. 10. AS 44.62.500(c) is amended to read:
01 (c) If the proposed decision is not adopted as provided in (b) of this section, 02 the agency may decide the case upon the record, including the transcript, with or 03 without taking additional evidence, or may refer the case to the chief administrative 04 [SAME OR ANOTHER] hearing officer with a request to assign the same or 05 another hearing officer to take additional evidence. If the case is so assigned, the 06 hearing officer shall prepare a proposed decision as provided in (b) of this section 07 upon the additional evidence and the transcript and other papers that are part of the 08 record of the earlier hearing. A copy of the proposed decision shall be furnished to 09 each party and the party's attorney as prescribed by (b) of this section. The agency 10 may not decide a case provided for in this subsection without giving the parties the 11 opportunity to present either oral or written argument before the agency. If additional 12 oral evidence is introduced before the agency, an agency member may not vote unless 13 that member has heard the additional oral evidence. 14 * Sec. 11. AS 44.62.500 is amended by adding new subsections to read: 15 (d) An agency may not 16 (1) modify, reverse, or remand the proposed decision of a hearing 17 officer unless it specifies on the record the reasons for the modification, reversal, or 18 remand; this paragraph does not apply to a modification to reduce a proposed penalty; 19 or 20 (2) modify, reverse, remand, or order reconsideration of the final 21 decision of a hearing officer in a case governed by (e) of this section. 22 (e) Notwithstanding AS 44.62.340 or any other law, the decision of a hearing 23 officer in a case that, by law, is governed by the contested case procedures of 24 AS 44.62.330 - 44.62.630 is the final administrative decision, not subject to agency 25 review. In addition, an agency that voluntarily uses a hearing officer assigned to a 26 case by the chief administrative hearing officer may authorize the hearing officer to 27 make the final administrative decision in the case. A copy of the final administrative 28 decision in a case governed by this subsection shall be served by the chief 29 administrative hearing officer on each party in the case and the party's attorney. The 30 chief administrative hearing officer shall file the decision as a public record with the 31 lieutenant governor. The appeal of a final decision under this subsection is governed
01 by AS 44.62.560 - 44.62.570. Reconsideration of the final decision is governed by 02 AS 44.62.540. 03 * Sec. 12. AS 44.62.520(a) is amended to read: 04 (a) A decision becomes effective 30 days after it is delivered or mailed to the 05 respondent unless 06 (1) a reconsideration is ordered within that time; 07 (2) the agency itself, or the hearing officer in a case where the final 08 decision is made by a hearing officer, orders that the decision become effective 09 sooner; or 10 (3) a stay of execution is granted for a particular purpose and not to 11 postpone judicial review. 12 * Sec. 13. AS 44.62.540 is amended to read: 13 Sec. 44.62.540. Reconsideration. (a) Except as provided in 14 AS 44.62.500(d), the [THE] agency or the hearing officer who heard the case may 15 order a reconsideration of all or part of the case on its own motion or on petition of 16 a party. To be considered by the agency or the hearing officer, a petition for 17 reconsideration must be filed with the agency or the independent division of 18 administrative hearings within 15 days after delivery or mailing of the decision. The 19 power to order a reconsideration expires 30 days after the delivery or mailing of a 20 decision to the respondent. If no action is taken on a petition within the time allowed 21 for ordering reconsideration, the petition is considered denied. 22 (b) In a case where the final decision was rendered by the agency, the 23 [THE] case may be reconsidered by the agency on all the pertinent parts of the record 24 and the additional evidence and argument that are permitted, or the agency may 25 request the chief administrative hearing officer to assign the reconsideration [BE 26 ASSIGNED] to a hearing officer. A reconsideration assigned to a hearing officer is 27 subject to the procedure provided in AS 44.62.500. If oral evidence is introduced 28 before the agency, an agency member may not vote unless that member has heard the 29 evidence. In a case where the final decision was rendered by a hearing officer, the 30 case may be reconsidered by the hearing officer on all the pertinent parts of the 31 record and the additional evidence and argument that are permitted.
01 * Sec. 14. AS 44.62.590(a) is amended to read: 02 (a) In a proceeding before an agency or hearing officer, the agency or 03 hearing officer shall certify the facts to the superior court in the judicial district where 04 the proceeding is held if a person in the proceeding 05 (1) disobeys or resists a lawful order; 06 (2) refuses to respond to a subpoena; 07 (3) refuses to take oath or affirmation as a witness; 08 (4) refuses to be examined; or 09 (5) is guilty of misconduct at a hearing or so near the hearing as to 10 obstruct the proceeding. 11 * Sec. 15. AS 44.62.640(b) is amended by adding a new paragraph to read: 12 (6) "chief administrative hearing officer" means the person appointed 13 under AS 44.21.510 to supervise the independent division of administrative hearings, 14 Department of Administration. 15 * Sec. 16. AS 44.62.500(a) is repealed. 16 * Sec. 17. TRANSITIONAL PROVISION. A hearing officer who is employed by an 17 agency on July 1, 1997, may be hired as an employee of the independent division of 18 administrative hearings established under AS 44.21.510, enacted by sec. 3 of this Act, if the 19 person applies for a position with the division and meets the qualifications established for the 20 position. 21 * Sec. 18. This Act takes effect July 1, 1997.