The Assembly has overwhelmingly approved a measure that would divest certain state agency heads of their power to reject or modify the rulings of administrative law judges.
The bill, A-1521, would apply to decisions by ALJs concerning multiple agencies within the aegis of the Office of Administrative Law. At present, such ALJ rulings are not final until adopted by the agency director.
Affected by the bill would be cases involving the Division of Family Development in the Department of Human Services, which handled 9,544 of the 16,294 cases filed with the OAL in 2012. Most of the division’s cases concern welfare.
Other matters where ALJs would get the ultimate decision are Department of Community Affairs cases, 301 last year, mostly related to housing codes; Motor Vehicle Commission matters — 674 last year, chiefly concerning license loss and suspension; and child abuse cases from the Department of Children and Families, about 435 last year.
Also covered would be the Department of Education, which last year had 215 cases, involving issues like bullying. The biggest category of education disputes, however, concern special education, and ALJs already possess the final say-so under federal law. In 2012, the OAL had almost 600 such filings.
The Department of Law and Public Safety is listed but only as to Lemon Law and Division on Civil Rights claims. Everything else from the department, such as consumer, electoral and professional licensing matters, would continue to be left to the final decision of the agency head, as would matters from agencies left off the list, including the Board of Public Utilities and the Departments of Labor and of Banking and Insurance.
The Civil Service Commission and the Department of Environmental Protection also would be covered.
The bill’s chief sponsor, Assemblyman John Burzichelli, D-Gloucester, says it is more fair to let the ALJ decision stand than kicking the case back to the agency head for a possible override. "If a person is going to go through the process, it should mean something," he says.
He points out that citizens opposing state action do not always have the resources to appeal as they might need to do if the agency head rejects an ALJ finding in their favor. "Due process should not be compromised by a bureaucratic turf battle," he adds.
Burzichelli says the decision about which agencies to list was made in consultation with the ALJs and reflected their comfort level with making the ultimate decision.
The heads of the agencies left out of the legislation would be affected nonetheless in that they would have to act more quickly. Only a single 45-day extension of their time to act would be available in contrast to the open-ended extensions available under current law.
Though not required to treat ALJ decisions as final, those agency heads would have the option to order such treatment except where federal or state law requires them to render the final decision.
Other provisions of A-1521 would revamp administrative cases in additional ways.
• Prehearing conferences would be allowed.
• Witnesses would be able to testify and motions could be heard by means of a telephone or video conference if the ALJ finds good cause to do so.
• ALJs would be able to render oral decisions in cases where a transcript had been requested, unless the agency head or a party asked for a written ruling.
• Decisions could also be issued in checklist format where appropriate.
• Hearings would have to be scheduled in "an expeditious and efficient manner taking into account the significance of the issues, the needs of the parties, available resources, costs to the parties, and other relevant factors." When required by exigent circumstances, the OAL director would be empowered to schedule without regard to statutory deadlines.
• The OAL would be required to assign an ALJ or other personnel to conduct arbitration, mediation and other forms of alternative dispute resolution.
• Each state agency would have to develop and implement a process to settle contested cases, with agency heads authorized to settle "any penalty … as may appear appropriate and equitable under all the circumstances."
In addition, the bill requires the OAL to create an electronic filing system as soon as practicable given the available resources and says it can charge a filing fee in order to pay for it.
Most of the changes are based on recommendations from the April 19, 2010, report of the Red Tape Review Group, formed by Gov. Chris Christie soon after he took office. The seven group members included Burzichelli and Assemblyman Scott Rumana, R- Passaic, also a sponsor of the bill.
That report, however, did not recommend giving final authority to ALJs.
It discussed the topic, including data showing that 70 percent of the time the Appellate Division adopted ALJ rulings that came before them.
The group called allowing ALJs to make final decisions "a substantial departure from the existing principles of governmental authority" which required further examination.
A-1521 was passed on Monday by a 73-to-1 vote. The sole nay was cast by Assemblyman John McKeon, D-Essex, who says he was motivated by environmental concerns. "People in the environmental community feel as if they have a better chance with the commissioner than with an ALJ," he says.
A Senate counterpart, S-2555, sponsored by Sen. Jeff Van Drew, D-Cape May, awaits a hearing in the Senate State Government Committee.
In the previous legislative session, a similar bill was approved 77-0 in the Assembly and reported out of committee in the Senate but never got a floor vote. Senate President Stephen Sweeney, D-Gloucester, did not return a call to inquire about the bill’s prospects.
The legislation has the support of the State Bar Association and its Administrative Law Section, whose chairman, Paul Josephson of Duane Morris in Cherry Hill, calls it the section’s "central initiative" for the last two years. It can add three to six months to the process to have to go to an agency head for a final decision, he says.
State Bar President Kevin McCann, of Chance & McCann in Bridgeton, said after the Assembly vote, "I am thrilled this bill is moving so we can have the final decision in these cases made by the people who ought to be making the final decision — the judges."