GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

S	2 

SENATE BILL 302
Government Performance Audit Select Committee Substitute Adopted 4/20/93

Short Title:  GPAC/OAH Fee Structure.	(Public)
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Sponsors:
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Referred to:  Finance.
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February 22, 1993

A BILL TO BE ENTITLED
AN ACT TO IMPLEMENT A RECOMMENDATION OF THE GOVERNMENT PERFORMANCE AUDIT COMMITTEE BY DIRECTING THE OFFICE OF ADMINISTRATIVE HEARINGS TO COLLECT FEES IN CONTESTED CASES.
Whereas, no fees are currently charged in contested cases conducted by the Office of Administrative Hearings; and
Whereas, the Government Performance Audit Committee recommends that 25% of the operating budget of the Office of Administrative Hearings come from user fees; and
Whereas, user fees discourage frivolous cases and reduce reliance on General Fund appropriations; Now, therefore,
The General Assembly of North Carolina enacts:
Section 1.  G.S. 150B-23 reads as rewritten:
"§ 150B-23.  Commencement; assignment of administrative law judge; hearing required; notice; intervention.
(a)	A contested case shall be commenced by filing a petition with the Office of Administrative Hearings and, except as provided in Article 3A of this Chapter, shall be conducted by that Office.  At the time the petition is filed, the Office of Administrative Hearings shall collect a fee in an amount equal to the sum collected in a civil action for the support of the General Court of Justice, Superior Court Division, pursuant to G.S. 7A-305(a)(2).  Upon a showing of good cause, the chief administrative law judge may waive the filing fee. The party who files the petition shall serve a copy of the petition on all other parties and, if the dispute concerns a license, the person who holds the license.  A party who files a petition shall file a certificate of service together with the petition.  A petition shall be signed by a party or a representative of the party and, if filed by a party other than an agency, shall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner's rights and that the agency:
(1)	Exceeded its authority or jurisdiction;
(2)	Acted erroneously;
(3)	Failed to use proper procedure;
(4)	Acted arbitrarily or capriciously; or
(5)	Failed to act as required by law or rule.
The parties in a contested case shall be given an opportunity for a hearing without undue delay.  Any person aggrieved may commence a contested case hereunder.  The Office of Administrative Hearings shall adopt rules to implement the procedures for commencing a contested case, including procedures relating to the filing fee.
A local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other petitioner.  The case shall be conducted in the Office of Administrative Hearings in the same manner as other contested cases under this Article, except that the decision of the State Personnel Commission shall be advisory only and not binding on the local appointing authority, unless (1)	the employee, applicant, or former employee has been subjected to discrimination prohibited by Article 6 of Chapter 126 of the General Statutes or (2) applicable federal standards require a binding decision.  In these two cases, the State Personnel Commission's decision shall be binding.
(a1)	Repealed by Session Laws 1985 (Reg. Sess., 1986), c. 1022, s. 1(9).
(a2)	An administrative law judge assigned to a contested case may require a party to the case to file a prehearing statement.  A party's prehearing statement must be served on all other parties to the contested case.
(b)	The parties to a contested case shall be given a notice of hearing not less than 15 days before the hearing by the Office of Administrative Hearings.  If prehearing statements have been filed in the case, the notice shall state the date, hour, and place of the hearing.  If prehearing statements have not been filed in the case, the notice shall state the date, hour, place, and nature of the hearing, shall list the particular sections of the statutes and rules involved, and shall give a short and plain statement of the factual allegations.
(c)	Notice shall be given personally or by certified mail.  If given by certified mail, it shall be deemed to have been given on the delivery date appearing on the return receipt.  If giving of notice cannot be accomplished either personally or by certified mail, notice shall then be given in the manner provided in G.S. 1A-1, Rule 4(j1).
(d)	Any person may petition to become a party by filing a motion to intervene in the manner provided in G.S. 1A-1, Rule 24.  In addition, any person interested in a contested case may intervene and participate in that proceeding to the extent deemed appropriate by the administrative law judge.
(e)	All hearings under this Chapter shall be open to the public.  Hearings shall be conducted in an impartial manner.  Hearings shall be conducted according to the procedures set out in this Article, except to the extent and in the particulars that specific hearing procedures and time standards are governed by another statute.
(f)	Unless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days.  The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency by personal delivery or by the placing of the notice in an official depository of the United States Postal Service wrapped in a wrapper addressed to the person at the latest address given by the person to the agency.  The notice shall be in writing, and shall set forth the agency action, and shall inform the persons of the right, the procedure, the filing fee, and the time limit to file a contested case petition.  When no informal settlement request has been received by the agency prior to issuance of the notice, any subsequent informal settlement request shall not suspend the time limitation for the filing of a petition for a contested case hearing."
Sec. 2.  G.S. 150B-33(b) reads as rewritten:
"(b)	An administrative law judge may:
(1)	Administer oaths and affirmations;
(2)	Sign, issue, and rule on subpoenas in accordance with G.S. 150B-27 and G.S. 1A-1, Rule 45;
(3)	Provide for the taking of testimony by deposition and rule on all objections to discovery in accordance with G.S. 1A-1, the Rules of Civil Procedure;
(3a)	Rule on all prehearing motions that are authorized by G.S. 1A-1, the Rules of Civil Procedure;
(4)	Regulate the course of the hearings, including discovery, set the time and place for continued hearings, and fix the time for filing of briefs and other documents;
(5)	Direct the parties to appear and confer to consider simplification of the issues by consent of the parties;
(6)	Stay the contested action by the agency pending the outcome of the case, upon such terms as he deems proper, and subject to the provisions of G.S. 1A-1, Rule 65;
(7)	Determine whether the hearing shall be recorded by a stenographer or by an electronic device; and
(8)	Enter an order returnable in the General Court of Justice, Superior Court Division, to show cause why the person should not be held in contempt.  The Court shall have the power to impose punishment as for contempt for any act which would constitute direct or indirect contempt if the act occurred in an action pending in Superior Court.
(9)	Determine that a rule as applied in a particular case is void because (1) it is not within the statutory authority of the agency, (2) is not clear and unambiguous to persons it is intended to direct, guide, or assist, or (3) is not reasonably necessary to enable the agency to fulfill a duty delegated to it by the General Assembly.
(10)	Impose the sanctions provided for in G.S. 1A-1 or Chapter 3 of Title 26 of the North Carolina Administrative Code for noncompliance with applicable procedural rules. 
(11)	Assess costs against any party in a contested case, which assessment shall become part of the recommended decision or order provided in G.S. 150B-34(a)."
Sec. 3. This act becomes effective January 1, 1994, and applies to cases filed on or after that date.