CHAPTER 54-57
OFFICE OF ADMINISTRATIVE HEARINGS
54-57-01.
Office of administrative hearings - Agency defined - Administrative
agency defined.
1.
A state office of administrative hearings is created.
2.
The office is under the direction of a director of administrative hearings who must be<br>free of any association that would impair the director's ability to function officially in a<br>fair and objective manner. The director must be an attorney at law in good standing,<br>admitted to the bar in this state, and currently licensed by the state board of law<br>examiners.
The director of administrative hearings must be appointed by the
governor and confirmed by the senate and shall hold office for a term of six years,<br>the term beginning July first of the year of appointment and ending June thirtieth of<br>the sixth calendar year after appointment.
3.
The director of administrative hearings may preside as an administrative law judge<br>at administrative hearings and may employ or appoint additional administrative law<br>judges to serve in the office as necessary to fulfill the duties of office as described in<br>section 54-57-04 and section 28-32-31 and to provide administrative law judges to<br>preside at administrative hearings as requested by agencies.
The director of
administrative hearings may employ or appoint only such additional administrative<br>law judges who are attorneys at law in good standing, admitted to the bar in the<br>state, and currently licensed by the state board of law examiners. Administrative law<br>judges employed by the director before August 1, 1995, need not be attorneys at law<br>and may be designated by the director to preside at any administrative proceedings<br>or adjudicative proceedings under section 54-57-03. The director may delegate to<br>an employee the exercise of a specific statutory power or duty as deemed advisable,<br>subject to the director's control, including the powers and duties of a deputy director.<br>All administrative law judges must be classified employees, except that the director<br>of administrative hearings must be an unclassified employee who only may be<br>removed, during a term of office, for cause. Each administrative law judge must<br>have a demonstrated knowledge of administrative practices and procedures and<br>must be free of any association that would impair the person's ability to function<br>officially in a fair and objective manner.
4.
The director of administrative hearings may employ the necessary support staff<br>required by the office. Support staff must be classified employees.
5.
The director of administrative hearings shall develop categories of positions in the<br>classified service under class titles for the appointment or employment of<br>administrative law judges and support staff in consultation with and approved by the<br>director of North Dakota human resource management services, including the salary<br>to be paid for each position or category of position.
6.
The director shall file a report with the governor and the state advisory council for<br>administrative hearings not later than the first day of December of each<br>odd-numbered
year.
The
report
must
provide
information
regarding
all
administrative hearings conducted by the office of administrative hearings during the<br>previous biennium. The report must provide information regarding meeting case<br>processing guidelines for each agency, the cost of hearings for each agency, the<br>decisions issued for each agency, and the results of the office of administrative<br>hearings' service survey.
7.
In this chapter, unless the context or subject matter otherwise requires, "agency"<br>means each board, bureau, commission, department, or other administrative unit of
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the executive branch of state government whether headed by an appointed or<br>elected official.
8.
In this chapter, unless the context or subject matter otherwise requires,<br>"administrative agency" means that term as defined in section 28-32-01.
54-57-02.
Temporary administrative law judges.
When regularly appointed
administrative law judges are not available, the director of administrative hearings may contract<br>on a temporary basis with qualified individuals to serve as administrative law judges for the office<br>of administrative hearings. Temporary administrative law judges are not employees of the state.
54-57-03. Hearings before administrative law judges.
1.
Notwithstanding the authority granted in chapter 28-32 allowing agency heads or<br>other persons to preside in an administrative proceeding, all adjudicative<br>proceedings of administrative agencies under chapter 28-32, except those of the<br>public service commission, the industrial commission, the insurance commissioner,<br>the state engineer, the department of transportation, job service North Dakota, and<br>the labor commissioner, must be conducted by the office of administrative hearings<br>in accordance with the adjudicative proceedings provisions of chapter 28-32 and any<br>rules adopted pursuant to chapter 28-32. But, appeals hearings pursuant to section<br>61-03-22 and drainage appeals from water resource boards to the state engineer<br>pursuant to chapter 61-32 must be conducted by the office of administrative<br>hearings. Additionally, hearings of the department of corrections and rehabilitation<br>for the parole board in accordance with chapter 12-59, regarding parole violations;<br>job discipline and dismissal appeals to the board of higher education; Individuals<br>With Disabilities Education Act and section 504 due process hearings of the<br>superintendent of public instruction; and chapter 37-19.1 veterans' preferences<br>hearings for any agency must be conducted by the office of administrative hearings<br>in accordance with applicable laws.
2.
The agency head shall make a written request to the director requesting the<br>designation of an administrative law judge to preside for each administrative<br>proceeding or adjudicative proceeding to be held.
3.
Informal disposition of an administrative proceeding or adjudicative proceeding may<br>be made by an agency at any time before or after the designation of an<br>administrative law judge from the office of administrative hearings.
4.
If a party to an administrative proceeding or adjudicative proceeding is in default, the<br>agency may issue a default order and a written notice of default, including a<br>statement of the grounds for default, prior to the hearing.
The agency shall
determine all the issues involved. If issued, the default notice and order must be<br>served upon all the parties and the administrative law judge, if one has been<br>designated to preside. After service of the default notice and order, if a hearing is<br>necessary to complete the administrative action with or without the participation of<br>the party in default, an administrative law judge from the office of administrative<br>hearings must preside.
5.
When designating administrative law judges to preside in an administrative<br>proceeding or adjudicative proceeding, the director shall attempt to assign an<br>administrative law judge having expertise in the subject matter to be dealt with.
6.
The director of administrative hearings may assign an administrative law judge to<br>preside in an administrative proceeding or adjudicative proceeding, upon request, to<br>any agency exempted from the provisions of this section, to any agency, or part of<br>any agency, that is not an administrative agency subject to the provisions of chapter<br>28-32, to any unit of local government in this state, to any tribal government in this<br>state, to the judicial branch, or to any agency to conduct a rulemaking hearing.
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54-57-03.1. Hearings after judgment. The office of administrative hearings may not
hold hearings on the same issue involving the same parties as the original hearing after a<br>judgment has been rendered by a court concerning that issue unless authorized to or directed to<br>by that court.
54-57-04.
Duties of administrative law judges. All administrative law judges shall
comply with the duties of hearing officers under section 28-32-31 for all hearings of administrative<br>agencies under chapter 28-32, as well as for all hearings of administrative agencies not under<br>chapter 28-32, in accordance with applicable laws.
54-57-05. Uniform rules of administrative practice or procedure - Effective date -
Administrative law judge rules.
1.
The director of administrative hearings shall adopt, in accordance with chapter<br>28-32, rules of administrative hearings practice or procedure which implement<br>chapter 28-32 and which aid in the course and conduct of all administrative hearings<br>and related proceedings conducted by administrative agencies under chapter 28-32.<br>The uniform rules must be used by all administrative agencies subject to chapter<br>28-32 which do not have their own rules of administrative hearings practice or<br>procedure governing the course and conduct of hearings.
If an administrative
agency's rules are silent on any aspect of the agency's administrative hearings<br>practice or procedure, the applicable uniform rule governs.
2.
The director of administrative hearings may adopt rules to further establish<br>qualifications for administrative law judges; to establish procedures for requesting<br>and designating administrative law judges; and to facilitate the performance of duties<br>and responsibilities conferred by this chapter. Any rules adopted by the director of<br>administrative hearings pursuant to this subsection must be adopted in accordance<br>with chapter 28-32.
54-57-06. Transfer and transition provisions. Repealed by S.L. 1995, ch. 313, § 14.
54-57-07. Compensation for provision of administrative law judges - Special fund
established - Continuing appropriation.
1.
The office of administrative hearings shall require payment for services rendered by<br>any administrative law judge provided by it to any agency, to any unit of local<br>government in this state, to any tribal government in this state, or to the judicial<br>branch, in the conduct of an administrative hearing and related proceedings, and<br>those entities must make the required payment to the office. Payment must include<br>payment for support staff necessary to render administrative law judge services.<br>Moneys received by the office of administrative hearings in payment for providing an<br>administrative law judge to conduct an administrative hearing and related<br>proceedings must be deposited into the operating fund of the office of administrative<br>hearings.
2.
The office of administrative hearings shall require payment for mileage, meals, and<br>lodging in connection with services rendered by an administrative law judge provided<br>to any agency, to any unit of local government in this state, to any tribal government<br>in this state, or to the judicial branch, in the conduct of an administrative hearing and<br>related proceedings, and those entities must make the required payment to the<br>office. Payment for meals and lodging must be in the amounts allowable under<br>section 44-08-04.
Payment for mileage when using state vehicles must be in
amounts set for user charges under section 24-02-03.5. All other payments must be<br>in amounts allowed for other state officials and employees. Either general fund or<br>special fund moneys, or other income, may be used for the payment of mileage,<br>meals, and lodging under this subsection.
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3.
A special fund is established in the state treasury and designated as the<br>administrative hearings fund. The office of administrative hearings shall deposit in<br>the fund all moneys received by it in payment for providing services rendered by any<br>administrative law judge in the conduct of an administrative hearing and related<br>proceedings under this chapter, as well as all moneys received by the office in<br>payment for mileage, meals, and lodging in connection with providing any<br>administrative law judge to conduct an administrative hearing and related<br>proceedings. The moneys in the fund are a standing and continuing appropriation<br>and are appropriated, as necessary, for the following purposes:
a.
For the office of administrative hearings to pay for salaries, wages, benefits,<br>operating expenses, and
equipment,
including
payment
to
temporary
administrative law judges, as necessary, for the purpose of providing requested<br>administrative law judges to agencies, to any unit of local government in this<br>state, to any tribal government in this state, or to the judicial branch.
b.
For the office of administrative hearings to pay mileage, meals, and lodging to<br>any administrative law judges, as necessary, in connection with the services to<br>be provided under this chapter.
54-57-08. Advisory council. There is created a state advisory council for administrative
hearings.
The advisory council must be a committee or subcommittee of the state bar
association of North Dakota, appointed by its president. The advisory council shall meet with the<br>director at least semiannually and shall advise the director on policy matters affecting the office of<br>administrative hearings and on rules adopted by the director.
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Document Outline
chapter 54-57 office of administrative hearings
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