00 SENATE BILL NO. 88 01 "An Act relating to the office of administrative hearings; relating to the types of 02 proceedings handled by the office of administrative hearings; relating to the entities that 03 may use the services of the office of administrative hearings; relating to the duties of the 04 chief administrative law judge, including the power to hire professional staff; relating to 05 the qualifications and powers of administrative law judges, including subpoena power; 06 relating to the compensation of the chief administrative law judge; relating to 07 complaints against administrative law judges and hearing officers; relating to 08 reimbursement for costs incurred by the office of administrative hearings; relating to 09 procedures for requesting and conducting proceedings of the office of administrative 10 hearings; and providing for an effective date." 11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 12 * Section 1. AS 18.80.120(b) is amended to read: 01 (b) The commission shall request the chief administrative law judge to 02 appoint, under AS 44.64.020, an administrative law judge employed or retained by the 03 office of administrative hearings to preside over a hearing conducted under this 04 section. AS 44.64.040 and 44.64.050 [AS 44.64.040 - 44.64.055], 44.64.070 - 05 44.64.200, and the procedures in AS 44.62.330 - 44.62.630 (Administrative Procedure 06 Act) apply to the hearing except as otherwise provided in this chapter. 07 * Sec. 2. AS 39.25.120(c)(20) is amended to read: 08 (20) the chief administrative law judge, [AND] administrative law 09 judges, and professional staff of the office of administrative hearings; 10 * Sec. 3. AS 44.64.010(d) is amended to read: 11 (d) The chief administrative law judge shall receive a monthly salary that is 12 equal to a step in [NOT LESS THAN STEP A NOR MORE THAN STEP F,] Range 13 27 [,] of the salary schedule in AS 39.27.011(a) [FOR JUNEAU, ALASKA]. The 14 chief administrative law judge is in the partially exempt service. 15 * Sec. 4. AS 44.64.020 is amended to read: 16 Sec. 44.64.020. Powers and duties of chief administrative law judge. (a) 17 The chief administrative law judge shall 18 (1) supervise the office; 19 (2) employ administrative staff, who shall be in the classified service; 20 (3) employ administrative law judges and professional staff, who 21 shall be in the partially exempt service; 22 (4) preside over administrative hearings and other proceedings 23 handled by the office or, based on [UPON] the qualifications and expertise of the 24 administrative law judges, assign administrative law judges to preside over hearings 25 or other proceedings handled by the office, and protect, support, and enhance the 26 decisional independence of the administrative law judges; 27 (5) establish and implement performance standards, including 28 provision for timeliness, and peer review programs for administrative law judges 29 employed or retained by the office; 30 (6) make available and facilitate training and continuing education 31 programs and services in administrative procedure, administrative adjudication, 01 substantive law, alternative [ALTERNATE] dispute resolution, and technical matters 02 for administrative law judges and other administrative adjudicators; 03 (7) survey administrative hearing participants and use other methods to 04 monitor the quality of administrative hearings held by the office and other [STATE] 05 agencies, and submit to the governor and the legislature on January 31 of each year the 06 results of the survey along with a report that includes a description of the activities of 07 the office and recommendations for statutory changes that may be needed in relation 08 to the administrative hearings held by the office or other [STATE] agencies; 09 (8) review and comment on regulations proposed by [STATE] 10 agencies to govern procedures in administrative hearings; 11 (9) enter into contracts as necessary to carry out the functions of the 12 office; 13 (10) annually prepare and submit to the commissioner of 14 administration a budget for the office for the next fiscal year that must [SHALL] 15 include and separately identify funding for training and continuing education; a copy 16 of the budget submitted to the commissioner under this paragraph shall also be 17 submitted to the finance committee [FINANCE COMMITTEE] of each house of the 18 legislature; 19 (11) after consulting with affected agencies, adopt regulations under 20 AS 44.62 (Administrative Procedure Act) to carry out the duties of the office and 21 implement this chapter; 22 (12) receive and review applications from individuals seeking 23 appointments to the Workers' Compensation Appeals Commission and submit the 24 names of individuals to the governor for appointment as provided in AS 23.30.007(d); 25 and 26 (13) appoint a chair pro tempore for the Workers' Compensation 27 Appeals Commission as provided in AS 23.30.007(m). 28 (b) In carrying out the responsibilities of the office, the chief administrative 29 law judge shall seek to accomplish the following goals: 30 (1) provide for the delivery of high quality adjudication and 31 alternative dispute resolution services in a timely, efficient, and cost-effective 01 manner; 02 (2) ensure respect for the privacy and dignity of the individuals whose 03 cases are being adjudicated and protect them from threats, intimidation, and 04 harassment; 05 (3) foster open and clearly explained agency decisions and improve 06 public access to the process of administrative adjudication; 07 (4) guarantee protection of all parties' due process rights, increase the 08 public parties' perception of fairness in administrative adjudication, and foster 09 acceptance of final administrative decisions by the public and affected parties; 10 (5) protect the integrity of the process of administrative adjudication 11 and decisional independence of administrative adjudicators; and 12 (6) increase consistency in administrative procedures and decisions. 13 * Sec. 5. AS 44.64.030(b) is amended to read: 14 (b) An agency or entity may request the office to conduct an administrative 15 hearing, arbitration, or alternative dispute resolution [OTHER PROCEEDING] of 16 the requesting [THAT] agency or entity or to conduct several administrative 17 hearings, arbitrations, or alternative dispute resolutions [OTHER 18 PROCEEDINGS] under statutes or ordinances not listed in (a) of this section. The 19 office may provide the service after entering into a written agreement with the 20 requesting agency or entity describing the services to be provided and procedures, 21 which must be consistent with applicable law, to be applied and providing for 22 reimbursement by the requesting agency or entity to the office of the costs incurred 23 by the office in providing the services. 24 * Sec. 6. AS 44.64.030(c) is amended to read: 25 (c) To the extent otherwise permitted by law, the agency or entity may 26 delegate to the administrative law judge assigned to conduct the hearing on behalf of 27 the agency or entity the authority to make a final agency or entity decision in the 28 matter. The final decision may be appealed to the superior court by any party. 29 * Sec. 7. AS 44.64.040(a) is amended to read: 30 (a) An administrative law judge must be admitted to practice law in this state 31 and must have been admitted to practice in this state for at least four [TWO] years 01 before being employed or retained with the office, except that, if the duties of an 02 administrative law judge who is employed or retained by the office will include 03 conducting a proceeding under AS 43.05.405 - 43.05.499, the administrative law 04 judge must be admitted to practice law in this state and must have been admitted 05 to practice in this state or another state for four years before being employed or 06 retained with the office. The chief administrative law judge shall establish additional 07 qualifications for administrative law judges employed or retained by the office and for 08 those administrative law judges that may be assigned to particular types of cases. An 09 administrative law judge is in the partially exempt service. Notwithstanding 10 AS 39.25.120(b), full-time administrative law judges employed by the office are 11 subject to the personnel rules adopted under AS 39.25.150(7), (15), and (16). 12 * Sec. 8. AS 44.64.040(b) is amended to read: 13 (b) An administrative law judge employed or retained by the office may, in 14 conducting an administrative hearing or other proceeding for an agency or entity, 15 exercise the powers authorized by law for exercise by that agency or entity in the 16 performance of its duties in connection with the hearing or other proceeding. An 17 administrative law judge may 18 (1) engage in alternative dispute resolution under regulations adopted 19 by the chief administrative law judge that is in addition to any alternative 20 [ALTERNATE] dispute resolution procedure used by an agency or entity before the 21 case is referred to the office; 22 (2) order a party, a party's attorney, or another authorized 23 representative of a party to pay reasonable expenses, including attorney fees, incurred 24 by another party as a result of actions done in bad faith or as a result of tactics used 25 frivolously or solely intended to cause unnecessary delay; 26 (3) perform other necessary and appropriate acts in the performance of 27 official duties. 28 * Sec. 9. AS 44.64.040(c) is amended to read: 29 (c) An administrative law judge employed by the office must devote full time 30 to the duties of the office unless serving [APPOINTED TO A POSITION THAT IS] 31 less than full time [FULL-TIME]. An administrative law judge employed by the 01 office may not perform duties inconsistent with the duties and responsibilities of an 02 administrative law judge. 03 * Sec. 10. AS 44.64.050(c) is amended to read: 04 (c) Except as provided in (e) of this section, the chief administrative law judge 05 shall receive and consider all complaints against administrative law judges or hearing 06 officers employed or retained by the office or another agency alleging violations of (a) 07 of this section or of the code of hearing officer conduct. The chief administrative law 08 judge shall deliver the complaint to the attorney general when the chief administrative 09 law judge determines that 10 (1) the complaint alleges a violation that occurred 11 (A) not more than three years before the complaint was 12 filed; or 13 (B) in connection with an adjudication or other proceeding, 14 and the complaint was filed not more than two years after conclusion of 15 the adjudication or other proceeding, including resolution of all appeals; 16 and 17 (2) the conduct alleged, if true, would constitute a violation of 18 (A) [(1) SUBSECTION] (a) of this section; or 19 (B) [(2)] the code and would warrant disciplinary action under 20 the regulations adopted under (b) of this section. 21 * Sec. 11. AS 44.64.060(a) is amended to read: 22 (a) The chief administrative law judge shall, by regulation, establish 23 procedures for administrative hearings conducted by the office. Each administrative 24 hearing under the jurisdiction of the office or that has been transferred to the office by 25 an agency or entity shall be conducted in accordance with statutes or ordinances that 26 apply to that hearing, including, if applicable, AS 44.62 (Administrative Procedure 27 Act). In case of conflict between this section and another applicable statute or 28 ordinance establishing procedures for administrative hearings, the other statute or 29 ordinance prevails. However, except as otherwise provided in AS 44.64.030(b), to 30 the extent regulations adopted by an agency for the conduct of an administrative 31 hearing conflict with regulations adopted by the chief administrative law judge under 01 this subsection, the regulations adopted by the chief administrative law judge control 02 to the maximum extent possible without conflicting with applicable statutes. 03 * Sec. 12. AS 44.64.060(b) is amended to read: 04 (b) When an agency receives a request for a hearing that is subject to 05 AS 44.64.030, the agency shall, within 10 days and in writing, deny the request for 06 reasons provided by law or grant the request and refer the case to the office with a 07 copy of the request for a hearing, the names, addresses, electronic mail addresses, 08 and telephone numbers of all parties and their representatives, and the document 09 containing the decision or other matter under review. The agency shall 10 immediately give notice of the denial or referral to the requesters and the office. If the 11 request is denied, the denial may be appealed to the office or [SUPERIOR COURT] 12 as provided by other law. If the request is granted, the agency shall, within 20 [15] 13 days after receiving the request, compile and transmit to the office a copy of the 14 [REQUEST FOR A HEARING, THE NAMES, ADDRESSES, AND TELEPHONE 15 NUMBERS OF ALL PARTIES AND THEIR REPRESENTATIVES, AND THE 16 AGENCY'S DECISION, IF ANY, TOGETHER WITH THE] record relied on to 17 support the decision or other matter. Any information provided to the office that is 18 confidential by law shall be identified by the agency as confidential and shall be kept 19 confidential by the office. 20 * Sec. 13. AS 44.64.060(d) is amended to read: 21 (d) An administrative law judge employed or retained by the office shall, 22 within 120 days after the date the agency received the request for a hearing, prepare a 23 proposed decision, unless another [TIME] period is provided by law or agreed to by 24 the parties and the chief administrative law judge. With the approval of the chief 25 administrative law judge, an administrative law judge may stay a proceeding to 26 allow related criminal prosecutions or civil litigation to proceed first. The 27 running of the 120-day deadline under this subsection is suspended during a stay 28 [THE ADMINISTRATIVE LAW JUDGE SHALL IMMEDIATELY SUBMIT THE 29 PROPOSED DECISION TO THE AGENCY]. 30 * Sec. 14. AS 44.64.060(e) is amended to read: 31 (e) A proposed decision in an administrative hearing must [SHALL] be in a 01 form that may be adopted as the final decision by the agency with authority to make 02 the final decision. The proposed decision is a public record, except as otherwise 03 provided by statute. A copy of the proposed decision shall be served by the office on 04 each party in the case or on the attorneys representing those parties in the hearing. 05 Unless the office has established a shorter [TIME] period or, for good cause and with 06 the consent of all parties to the hearing, a longer period, or unless another statute 07 has established a different [TIME] period, within 30 days after the proposed decision 08 is served, a party may file with the office [AGENCY] a proposal for action under (1) - 09 (5) of this subsection. The administrative law judge may permit a party to reply to 10 a proposal for action and shall, within 15 days after the final date for submission 11 of proposals for action, transmit the proposed decision and any proposals for 12 action and replies to the final decision maker or return the matter to the 13 administrative law judge to prepare a revised proposed decision under (d) of this 14 section. The agency with authority to make a final decision in the case retains the 15 [AGENCY] discretion in the final disposition of the case and shall, within 45 days 16 after the date the office transmits to the agency the proposed decision or revised 17 proposed decision [IS SERVED] or at the next regularly scheduled meeting that 18 occurs at least 45 days after the office transmits to the agency the proposed decision 19 or the revised proposed decision [PROPOSED DECISION IS SERVED], do one or 20 more of the following: 21 (1) adopt the proposed decision as the final agency decision; 22 (2) return the case to the administrative law judge to take additional 23 evidence or make additional findings or for other specific proceedings, in which case 24 the administrative law judge shall complete the additional work and return the revised 25 proposed decision to the agency within 45 days after the original decision was 26 returned under this paragraph or within another period prescribed in the order 27 returning the case to the administrative law judge; 28 (3) exercise its discretion by revising the proposed enforcement action, 29 determination of best interests, order, award, remedy, sanction, penalty, or other 30 disposition of the case, and adopt the proposed decision as revised; 31 (4) in writing, reject, modify, or amend a factual finding in the 01 proposed decision by specifying the affected finding and identifying the testimony and 02 other evidence relied on by the agency for the rejection, modification, or amendment 03 of the finding, and issue a final agency decision; 04 (5) in writing, reject, modify, or amend an interpretation or application 05 in the proposed decision of a statute or regulation directly governing the agency's 06 actions by specifying the reasons for the rejection, modification, or amendment, and 07 issue a final agency decision. 08 * Sec. 15. AS 44.64.060(f) is amended to read: 09 (f) If a final decision is not issued timely in accordance with (e) of this section, 10 the administrative law judge's proposed decision or, if the proposed decision has 11 been revised under (e) of this section, the administrative law judge's revised 12 proposed decision, is the final agency decision. 13 * Sec. 16. AS 44.64.060 is amended by adding new subsections to read: 14 (g) Except as otherwise provided by statute, agency regulation, or an 15 ordinance in an administrative hearing subject to AS 44.64.060(a), an administrative 16 law judge may, for good cause shown, issue a subpoena to compel the attendance and 17 testimony of witnesses and the production of documents and records. 18 (h) After a final agency decision has been issued under (e) of this section, the 19 maker of the final decision may reopen a proceeding for a reason provided in Rule 20 60(b), Alaska Rules of Civil Procedure. This subsection does not supersede or modify 21 authority to reopen a proceeding as otherwise provided by law. 22 * Sec. 17. AS 44.64.080(c) is amended to read: 23 (c) After an administrative hearing is referred by an agency to the office for 24 hearing, the agency may not take further adjudicatory action in the case, except for 25 agency staff acting as a party litigant and the official or body with authority to 26 render a final decision taking action under AS 44.64.060(e) [OR TO RENDER A 27 FINAL DECISION AS PROVIDED BY LAW]. This subsection does not otherwise 28 limit the agency's authority to take action affecting a party to the case. 29 * Sec. 18. AS 44.64.200(1) is amended to read: 30 (1) "administrative hearing" means a quasi-judicial hearing before an 31 agency or entity; it does not include an informal conference or review held by an 01 agency or entity before a [FINAL] decision is issued or a rate-making proceeding or 02 other nonadjudicative public hearing; 03 * Sec. 19. AS 44.64.200 is amended by adding new paragraphs to read: 04 (6) "entity" means a municipality, school district, or other 05 governmental entity; 06 (7) "other proceeding" means an arbitration or alternative dispute 07 resolution conducted under AS 44.64.030(b); 08 (8) "school district" means a borough school district, a city school 09 district, or a regional educational attendance area under AS 14. 10 * Sec. 20. AS 44.64.055 is repealed. 11 * Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 APPLICABILITY. (a) The change in compensation made by AS 44.64.010(d), as 14 amended by sec. 3 of this Act, applies only to an individual who is appointed on or after the 15 effective date of sec. 3 of this Act. 16 (b) The four-year admission requirement in AS 44.64.040(a), as amended by sec. 7 of 17 this Act, applies to an individual whose employment or retention as an administrative law 18 judge by the office of administrative hearings established under AS 44.64.010 begins on or 19 after the effective date of sec. 7 of this Act. 20 (c) AS 44.64.050(c), as amended by sec. 10 of this Act, applies to a complaint against 21 an administrative law judge or hearing officer received on or after the effective date of sec. 10 22 of this Act. 23 (d) In this section, 24 (1) "administrative law judge" has the meaning given in AS 44.64.200; 25 (2) "hearing officer" has the meaning given in AS 44.64.200. 26 * Sec. 22. Section 10 of this Act takes effect July 1, 2020.