The Administrative Law Section Council’s 2023 Legislative Discussion
By At the Administrative Law Section Council Meeting on October 27, 2022, we were honored to have Representative Sarah Stevens speak to the Council. She outlined that she believed that the Administrative Procedure Oversight Committee will be focused on three issues concerning Administrative Law this upcoming session. They are:
1. Do all occupational licensing boards need to have the requirement of a license?
2. Do some licensing boards need to be merged together because of common purposes?
3. Are all administrative agencies and boards acting within their statutory authority?
Representative Stevens indicated that it appears that the Legislature does not want to require an overarching regulatory agency under which all boards and commissions would operate. Instead, the legislature would evaluate administrative agencies and commissions using the three outlined concerns above.
Representative Stevens asked for discussion from the Council concerning issues that were important to Administrative Law Section members. Council members thanked Representative Stevens, as she had joined with the Council recently to sponsor a bill that would address the concerns identified in the Dental Board case. Representative Stevens indicated that she would welcome feedback from the Council and she would welcome members bringing any proposed legislation to her.
She indicated several times that she wanted to hear from representatives of state agencies, and would prefer that it be before a bill is introduced rather than after.
It was noted that it is too late in the North Carolina Bar Association legislative process to ask for NCBA Board of Governors’ approval to have the NCBA lobbyists push for the bill. Therefore, any such bill will not be an official NCBA bill, but, as in the past, would be a bill that some of the members of the section and Council support.
Chair Bain Jones appointed a subcommittee to work on updating the prior bill addressing Dental Board and other concerns. Jeff Gray will serve as Chair of the subcommittee to update the legislation. He will be joined by Jack Nichols, Janet Thoren, David Ferrell, Tom West, Rob Patchett, Nahale Kalfas and Bain Jones. Other members of the section should contact Jeff Gray if they are interested in contributing to this work.
The issue of awarding attorney’s fees in OAH cases was also raised. There was thorough discussion. It included some Council members who had represented individuals before State agencies arguing in favor of the authority of an administrative law judge (ALJ) to order that an agency comply with a decision. In addition, several Council members who have served as ALJs in the past argued in favor of additional ALJ authority. In the past, it has been argued that the North Carolina Constitution gives administrative law judges the authority to act in a judicial capacity to further Executive authority. Hence, the quasi-judicial administrative process was created.
There was discussion of the recent Winkler attorneys’ fees case. A suggestion was made to grant administrative law judges the authority by law to impose attorney’s fees and to use the Federal EAJA guidelines as the manner to impose this sanction. This ruling would also be subject to appeal to Superior Court. Some members present did not agree with this suggestion. The issue of how the attorneys’ fees should be paid, if awarded, was also discussed. Council members who work for state agencies indicated that sometimes attorneys’ fees awards would be taken from the general funds of the agencies, potentially harming their ability to fulfill their duties. Most agencies, particularly smaller ones, do not have litigation funds that they can tap into to make attorneys’ fee payments. It was also argued that the best policy for agencies is to prevent errors by providing training to their staff, but when the General Assembly needs to cut budgets, training money is often among the first things cut. It was also suggested that the Legislature consider creating a fund to pay attorneys’ fees in these cases.
There was also a discussion of imposing some attorneys’ fees on claimants who bring frivolous claims. There was consensus that fees should not be imposed as that could result in a chilling effect on access to justice by the citizens of North Carolina. Representative Stevens asked if a possible alternative would be to allow ALJs and those agencies which are not subject to review by the Office of Administrative Hearings to impose small penalties such as $50 to $100 to curtail frivolous law claims and indicate that they are not tolerated. She also asked about the possibility of agencies, boards, and commissions that do not now have the ability to assess small fines being able to do so, instead of revoking or suspending licenses, etc.
Representative Stevens stated that she would welcome the Council bringing its top five issues to her to see what may be accomplished this session. She asked that when presenting the issues we should show the positions on both sides. It was again noted that any such effort cannot be an officially sanctioned NCBA activity or represented as such. It would have to be done by individual section members. Jeff Gray’s subcommittee will update the prior legislation and other issues. They will present what they come up with to the Council and then to the Chief Administrative Law Judge. A thorough discussion and due diligence will then be given to this work so that it may be presented to Representative Stevens prior to this next legislative session.
All Members of the Administrative Law Section are encouraged to provide comments and suggestions concerning the presentation given by Representative Stevens. Please send comments or suggestions to Bain Jones at [email protected].