PRINTER'S NO. 1814
No. 1498 Session of 1999
INTRODUCED BY ARMSTRONG, SNYDER, CLYMER, FARGO, FICHTER, LEH,
MANDERINO, McGILL, NICKOL, ORIE, PETRARCA, PLATTS, ROSS,
RUBLEY, SAYLOR, SCHRODER, SCHULER, SEYFERT, E. Z. TAYLOR,
TRELLO AND M. COHEN, MAY 12, 1999
REFERRED TO COMMITTEE ON JUDICIARY, MAY 12, 1999
AN ACT
1 Establishing the Office of Administrative Hearings as an
2 independent administrative agency to provide an impartial
3 tribunal for contested cases in certain agencies; providing
4 for the appointment of a chief administrative law judge and
5 administrative law judges; and providing for powers and
6 duties.
7 TABLE OF CONTENTS
8 Chapter 1. General Provisions
9 Section 101. Short title.
10 Section 102. Definitions.
11 Chapter 3. Office of Administrative Hearings
12 Section 301. Purpose and functions.
13 Section 302. Referrals.
14 Chapter 5. Composition of Office
15 Section 501. Chief administrative law judge.
16 Section 502. Administrative law judges.
17 Section 503. Alternate designation.
18 Section 504. Chief as administrative law judge.
19 Chapter 7. Hearings and Proceedings
1 Section 701. Assignment.
2 Section 702. Recusal.
3 Section 703. Cooperation by agency.
4 Section 704. Independence.
5 Section 705. Ex parte communications.
6 Section 706. Decisions of office.
7 Section 707. Rules and regulations.
8 Chapter 15. Miscellaneous Provisions
9 Section 1501. General transfers to office.
10 Section 1502. Repeals.
11 Section 1503. Applicability.
12 Section 1504. Effective date.
13 The General Assembly of the Commonwealth of Pennsylvania
14 hereby enacts as follows:
15 CHAPTER 1
16 GENERAL PROVISIONS
17 Section 101. Short title.
18 This act shall be known and may be cited as the Office of
19 Administrative Hearings Act.
20 Section 102. Definitions.
21 The following words and phrases when used in this act shall
22 have the meanings given to them in this section unless the
23 context clearly indicates otherwise:
24 "Administrative law judge" or "ALJ." A person who is
25 appointed and performs the duties of an administrative law judge
26 under this act.
27 "Agency." Any executive agency or independent agency as
28 defined in the act of October 15, 1980 (P.L.950, No.164), known
29 as the Commonwealth Attorneys Act.
30 "Chief." The chief administrative law judge.
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1 "Contested case." A proceeding before an agency that
2 involves the personal or property rights of a person subject to
3 the jurisdiction of the agency, and in which there are
4 prosecutorial or investigatory functions and an adjudicatory
5 function to be performed by the agency under the laws of this
6 Commonwealth.
7 "Final decision." A written decision of the office in a
8 contested case that consists of findings of fact, a legal
9 discussion, conclusions of law and a final order signed by the
10 administrative law judge assigned to the contested case.
11 "General rules of administrative practice and procedure."
12 The rules prescribed by 1 Pa. Code Part II (relating to general
13 rules of administrative practice and procedure).
14 "Office." The Office of Administrative Hearings established
15 under this act.
16 "Recommended decision." A written decision of the office in
17 a contested case that consists of findings of fact, a legal
18 discussion, conclusions of law and a recommended order for the
19 signature of the head of the agency.
20 CHAPTER 3
21 OFFICE OF ADMINISTRATIVE HEARINGS
22 Section 301. Purpose and functions.
23 (a) Establishment.--There is created an Office of
24 Administrative Hearings as an independent administrative agency.
25 For the purpose of conducting impartial and fair hearings in
26 contested cases where there is a need to separate the
27 investigatory or prosecutorial function from the adjudicatory
28 function. The office shall provide for the issuance of
29 recommended decisions and final decisions in all contested cases
30 referred to it under this act.
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1 (b) Powers of office.--In addition to the powers granted by
2 other sections of this act, the office shall have the powers
3 necessary or convenient to carry out this act, including, but
4 not limited, the power to:
5 (1) Ensure and protect the independence and impartiality
6 of its decisions.
7 (2) Create and enforce a code of conduct for
8 administrative law judges and personnel.
9 (3) Enter into contracts with any entity of State
10 government for the adjudication of a claim, case or
11 controversy that is not a contested case.
12 (4) Contract for goods and services and engage and
13 employ personnel, except as otherwise provided for under this
14 act.
15 (5) Charge and collect administrative fees and charges
16 in connection with a contested case.
17 (6) Promulgate regulations.
18 (7) Accept and expend funds, grants, bequests and
19 services, which are related to the purpose of the office,
20 from any public or private source.
21 (8) Enter into agreements and contracts with public or
22 private agencies or educational institutions.
23 Section 302. Referrals.
24 (a) Mandatory referrals.--Except as otherwise provided by
25 law, an agency shall refer a contested case to the office under
26 this act.
27 (b) Voluntary referrals.--
28 (1) An agency may refer other cases, which are not
29 required to be referred to the office under this act or the
30 laws of this Commonwealth for a hearing, other proceeding,
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1 final decision or recommended decision in accordance with
2 this act. In those cases, the agency shall enter into a
3 contract with the office for the functions to be performed by
4 the office and the contract may state that the cost of
5 performing the functions shall be paid by the agency.
6 (2) The office shall not consider the referral of a
7 legislative matter, including, but not limited to, rulemaking
8 and policy statements.
9 CHAPTER 5
10 COMPOSITION OF OFFICE
11 Section 501. Chief administrative law judge.
12 (a) Appointment.--The office shall be headed by a chief
13 administrative law judge who shall be appointed by the Governor
14 with the advice and consent of the simple majority of the Senate
15 for a term of six years. The chief shall continue in office
16 until a successor is appointed unless the chief has been removed
17 for good cause under this act. The chief may be reappointed in
18 the same manner upon the expiration of his term.
19 (b) Removal.--The chief may be removed by the Governor only
20 on a finding of good cause. Prior to removal, the chief shall be
21 given notice and an opportunity to be heard at an adjudicatory
22 hearing under the general rules of administrative practice and
23 procedure by an impartial hearing officer who shall determine
24 whether good cause exists for removal.
25 (c) Qualifications.--No person shall be appointed and serve
26 as chief unless that person:
27 (1) Is licensed to practice law in this Commonwealth.
28 (2) Has been licensed to practice law for a minimum of
29 five years.
30 (3) Is prohibited from engaging in the private practice
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1 of law while serving as chief.
2 (4) Takes an oath of office as required by law prior to
3 the commencement of duties as chief.
4 (5) Agrees to be subject to and comply with a code of
5 conduct for administrative law judges.
6 (d) Salary.--The chief shall receive an annual salary to be
7 determined by the Executive Board.
8 (e) Duties.--The chief shall perform the following duties:
9 (1) Execute all contracts on behalf of the office.
10 (2) Prepare a code of conduct for administrative law
11 judges.
12 (3) Employ professional, technical and clerical
13 personnel necessary to conduct the duties of the office and
14 determine their salaries or rates of compensation.
15 (4) Assign administrative law judges to contested cases.
16 (5) Coordinate and supervise hearings and other
17 proceedings conducted by the office in contested cases.
18 (6) Monitor the quality of hearings and other
19 proceedings conducted by the office.
20 (7) Promote uniformity in the structure and form of
21 recommended decisions and final decisions.
22 (8) Establish and implement standards and specialized
23 training programs and provide materials for administrative
24 law judges.
25 (9) Provide and coordinate continuing education programs
26 and services for administrative law judges, including
27 research, technical assistance, technical and professional
28 publications, compiling and disseminating information, and
29 advise of changes in the law relative to their duties.
30 (10) Submit an annual report to the Governor, the
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1 Chairman of the Judiciary Committee of the Senate and the
2 Chairman of the Judiciary Committee of the House of
3 Representatives concerning the activities of the office.
4 Section 502. Administrative law judges.
5 (a) Selection.--Administrative law judges shall be selected
6 and appointed by the Governor on the recommendation of a
7 nomination committee consisting of: the President pro tempore of
8 the Senate, the Speaker of the House of Representatives, the
9 chairman and minority chairman of the Judiciary Committee of the
10 Senate, the chairman and minority chairman of the Judiciary
11 Committee of the House of Representatives, the president of the
12 Pennsylvania Bar Association or their designees.
13 (b) Removal.--An administrative law judge may be removed,
14 suspended, demoted or subjected to disciplinary action by the
15 Governor only on a finding of good cause. Prior to the action,
16 the administrative law judge shall be given notice and an
17 opportunity to be heard at an adjudicatory hearing under the
18 general rules of administrative practice and procedure by an
19 impartial hearing officer who shall determine whether good cause
20 exists for the action.
21 (c) Qualifications.--No person shall be appointed and serve
22 as an administrative law judge unless that person:
23 (1) Is licensed to practice law in this Commonwealth.
24 (2) Has been licensed to practice law for a minimum of
25 five years.
26 (3) Refrains from engaging in the private practice of
27 law while employed by the office as an administrative law
28 judge, unless serving as an alternate administrative law
29 judge under section 503.
30 (4) Takes an oath of office as required by law prior to
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1 the commencement of duties as administrative law judge.
2 (5) Agrees to be subject to and comply with a code of
3 conduct for administrative law judges.
4 (d) Salary.--An administrative law judge shall receive an
5 annual salary as determined by the Executive Board.
6 (e) Duties.--An administrative law judge shall have the
7 following powers and duties:
8 (1) Report to the chief on request.
9 (2) Conduct hearings and other proceedings that are
10 assigned from the chief in contested cases.
11 (3) Control the course of the hearings and other
12 proceedings.
13 (4) Issue subpoenas to compel the production of
14 documents or the appearance of persons in contested cases.
15 (5) Administer oaths regarding testimony to be given
16 during hearings and other proceedings.
17 (6) Engage in or encourage the use of alternative
18 dispute resolution methodologies as appropriate.
19 (7) Prepare and issue recommended decisions and final
20 decisions.
21 (8) Comply with the code of conduct for administrative
22 law judges.
23 (9) Perform other necessary and appropriate acts in the
24 performance of their duties.
25 (f) Status of hearing examiners.--A hearing examiner,
26 hearing officer or administrative law judge employed by an
27 agency for contested cases on the effective date of this act
28 shall become an employee of the office and shall be transferred
29 as provided under this act.
30 Section 503. Alternate designation.
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1 (a) General rule.--If for any reason no administrative law
2 judge can be assigned to a contested case, the chief may
3 designate a person to function as the administrative law judge
4 in the case. The person shall meet the qualifications for and
5 shall have the powers and duties of an administrative law judge
6 under this act.
7 (b) Status.--The person shall not become an employee of the
8 office while functioning as an administrative law judge and may
9 be removed by the chief for any cause.
10 Section 504. Chief as administrative law judge.
11 The chief may perform the duties of an administrative law
12 judge in a contested case referred to the office, provided that
13 the duties of the chief are not impaired or in conflict with the
14 duties of the administrative law judge in the contested case.
15 After serving as chief, an individual may continue to serve as
16 an administrative law judge unless he has been removed for good
17 cause under this act.
18 CHAPTER 7
19 HEARINGS AND PROCEEDINGS
20 Section 701. Assignment.
21 Except in arbitration or similar proceedings or as provided
22 by law, this act or regulations of the office, no agency may
23 request, select or reject the administrative law judge assigned
24 by the chief to a contested case. The assignment of an
25 administrative law judge shall be at the sole discretion of the
26 chief, and nothing in this act shall prohibit the chief from
27 assigning certain types of contested cases to a particular
28 administrative law judge based on the experience or expertise of
29 that administrative law judge.
30 Section 702. Recusal.
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1 Notwithstanding section 701, an agency may petition the
2 assigned administrative law judge or the chief for the recusal
3 of an administrative law judge assigned to a contested case in
4 appropriate circumstances. The decision of the chief on the
5 petition shall be final.
6 Section 703. Cooperation by agency.
7 An agency shall cooperate with the chief and administrative
8 law judge assigned to a contested case during the discharge of
9 their duties under this act.
10 Section 704. Independence.
11 Neither the chief nor an administrative law judge shall be
12 responsible or subject to the supervision, direction or
13 influence, either directly or indirectly, of an officer,
14 employee or agent of an agency or the head of an agency during
15 the performance of any duties in contested cases before the
16 office. The chief and administrative law judges shall at all
17 times maintain their independence and impartiality in conducting
18 hearings and other proceedings and in issuing recommended
19 decisions and final decisions.
20 Section 705. Ex parte communications.
21 Neither the chief nor an administrative law judge shall
22 initiate or engage in any ex parte communications, either
23 directly or indirectly, during or concerning a contested case
24 referred to the office by an agency.
25 Section 706. Decisions of office.
26 (a) Final decisions.--The office shall issue a final
27 decision after conclusion of the hearing or other proceedings in
28 a contested case referred to the office by an agency. If the
29 agency is required by law to make a final decision or order in
30 the contested case, the office shall issue a recommended
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1 decision.
2 (b) Recommended decisions.--Except as provided in subsection
3 (a), the office shall issue a recommended decision to the agency
4 in a contested case. The agency shall accept the findings of
5 fact contained in the recommended decision unless a finding is
6 not supported by substantial and competent evidence in the
7 record. An agency may adopt, modify, reject or reverse the
8 rationale and conclusions of law contained in the recommended
9 decision and may remand the contested case to the office.
10 (c) Interlocutory review.--Nothing in this section shall be
11 construed to prevent an appropriate interlocutory review of the
12 contested case by an agency.
13 Section 707. Rules and regulations.
14 A hearing or other proceeding in a contested case shall be
15 conducted by the office in accordance with the general rules of
16 administrative practice and procedure, and the office shall
17 promulgate regulations to carry out its duties under this
18 chapter.
19 CHAPTER 15
20 MISCELLANEOUS PROVISIONS
21 Section 1501. General transfers to office.
22 (a) General provisions.--All personnel, allocations,
23 equipment, files, records, contracts, agreements, obligations
24 and other materials which are used, employed or expended in
25 connection with the powers, duties or functions transferred by
26 this act to the Office of Administrative Hearings are hereby
27 transferred to the Office of Administrative Hearings with the
28 same force and effect as if the appropriations had been made to
29 and the items had been the property of the Office of
30 Administrative Hearings in the first instance and as if the
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1 contracts, agreements and obligations had been incurred or
2 entered into by the Office of Administrative Hearings.
3 (b) Division of general administrative personnel and
4 materials.--The personnel, appropriations, equipment and other
5 items and materials transferred by this section shall include an
6 appropriate portion of the general administrative, overhead and
7 supporting personnel, appropriations, equipment and other
8 materials of each agency involved and shall also include, where
9 applicable, Federal grants and funds and other benefits from any
10 Federal program.
11 (c) Retention of civil service status.--All personnel
12 transferred under this act shall retain any civil service
13 employment status assigned to the personnel.
14 Section 1502. Repeals.
15 All acts and parts of acts are repealed insofar as they are
16 inconsistent with this act.
17 Section 1503. Applicability.
18 This act shall apply to any contested case of an agency
19 initiated or commenced after 180 days of the effective date of
20 this act.
21 Section 1504. Effective date.
22 This act shall take effect as follows:
23 (1) Sections 302 and 1501 shall take effect in 180 days.
24 (2) This section shall take effect immediately.
25 (3) The remainder of this act shall take effect in 60
26 days.
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