No Ordinary Soldier, No Ordinary Judge – An Interview with Judge Donald W. Overby

By Melissa Lassiter

This second piece in a series of interviews with recently retired administrative law experts and practitioners will give you insights from the perspective of a recently retired administrative law judge.

In 2016, after three years of pecking at the computer, Donald Wayne Overby finished and published his book, “Just Ordinary Soldiers – Recollections of a Cold War Vet.” From being drafted, “I’ve been drafted! . . . Well, dammit!”[1], to being inducted and trained as an infantry Army soldier, Overby details the experiences he and his fellow Army buddies lived and pays homage to those with whom he served and developed lifelong relationships. Overby achieved the rank of sergeant in just 18 months.

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A Former General Assembly Insider’s Viewpoint – An Interview with Recently Retired NCGA Division Director Karen Cochrane-Brown

By Nahale Freeland Kalfas

There are times when administrative lawyers wish they could get the “scoop” from General Assembly insiders – to help them understand how to improve why things happen and what can be done. This interview with recently retired General Assembly attorney Karen Cochrane-Brown may offer practitioners some of those wished-for, useful insights.

Karen Cochrane-Brown retired from the North Carolina General Assembly on August 1, 2020. This article is based on an interview conducted earlier this year. As Cochrane-Brown was one of the first legal leaders I met when coming into the practice of Administrative Law, I was particularly excited to spend some time chatting with her.

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Yes, There is a Positive Side to Occupational Licensing – A New and Helpful Resource

By Ann Wall

If you have practiced administrative law in the last ten years, you know about the movement to deregulate occupational licensing. You have heard the many “licensing – bad, deregulation – good” arguments. Until now, there has not been an accessible legal resource for the opposite approach, “the licensing is good for society” side of the argument. Indeed, that side of the argument was often and publicly disparaged.

Thanks to Jeff Gray, longtime Admin Law Section member and former Section Chair, his new Campbell Law Review article changes that:

In Defense of Occupational Licensing: A Legal Practioner’s Perspective.  

This article should be a “must read” for all administrative law practitioners. It includes actual research results as well as a history of occupational licensing and opposition to it. It addresses and counters each of the arguments of occupational licensing opponents.

Jeff has 20 years of experience representing and advising occupational and professional licensing boards, as well as licensees of the boards. That practical experience shows throughout the article, undergirding  and enhancing the usual law review footnotes and citations.  Jeff’s personal, experience and research-based comments make the article useful and easy to read.

I recommend that you take the time to read this article.

News About Rulemaking in North Carolina

From OAH:

In response to public comments, the Office of Administrative Hearings and the Rules Review Commission have approved amendments to the Administrative Rule Style Guide. The updated version of the Style Guide is now available here on the OAH website.

If you want to see exactly what changed, a redline version is available here. Examples of changes include: use of “their” as a plural pronoun, and clarification of which statutes to cite in a history note.

As a reminder, the Style Guide is meant to assist agencies drafting rules; it is not a binding document. If you have any questions, contact Rules Division staff.

From OSBM:

OSBM has updated its guidance materials for regulatory impact analyses to more fully address common questions and challenges. The revised guidance can be accessed in the State Budget Manual Chapter 10. Additional resources, helpful links, and the archive of approved analyses are also available on OSBM’s regulatory analysis webpage.

Interstate Compacts and Universal Licensure Recognition Laws

By Nahale Freeland Kalfas

The North Carolina General Assembly (NCGA) has recently enacted the Audiology and Speech-Language Pathology Compact (ASLP-IC), Psychology Interjurisdictional Compact (PsyPact) and is already a member of the Nurse Licensure Compact (NLC) and Physical Therapy Compact (PT Compact). NCGA has also introduced the Occupational Therapy Compact (OT Compact) and anticipates introduction of other Interstate Compact bills in the Allied Health fields. Accordingly, an understanding of the differences between Interstate Compacts and Universal Licensure Recognition Laws (previously introduced in the NCGA) bears clarification and is essential for administrative lawyers working with Occupational Licensing Boards. The Council of State Governments’ National Center for Interstate Compacts has created a virtual pamphlet to help explain these differences. Please see the virtual pamphlet here for information on common misunderstandings with stakeholders, legislators and attorneys alike as to the differences between the two vehicles for increased licensure portability and access to care.

Award for Excellence 2020-21 Nominations: Acknowledge the Good Work of a Colleague

By Nahale Freeland Kalfas

We all have that one mentor whose guidance has been invaluable to our professional advancement or simply an individual who we have admired from afar, and we all like to have our efforts recognized. Now is the time to acknowledge that person. We are now accepting nominations for the North Carolina Bar Association Administrative Law Award for Excellence.

This award was established in 2017 by the Administrative Law Section Council to honor an attorney:

(a) who has practiced administrative or regulatory law for at least ten years and who has continuous experience in this practice;

(b) who is a member of the North Carolina Bar Association and the Administrative Law Section;

(c) who has an exemplary record and reputation in the legal community and follows the highest ethical standards;

(d) who has an exemplary record of active participation in the efforts to improve the administrative and regulatory process for regulators, the regulated public, the citizens of North Carolina and in the interests of justice.

Please note that award nominees must be residents of the state of North Carolina and must also be nominated by a member in good standing of the North Carolina Bar Association.

*Nominations will be accepted through Monday, March 1, 2021.

Please click here to access the nomination form. Submit completed nomination forms to Lauren Colvard, Communities Manager, at [email protected].

Do You Advise or Work with State Government Agencies, Boards or Commissions?

The State Archives is again hosting a series of free workshops on records management. Learn more here.

 

Call to Action: A Chance to Improve Writing of Rules “In Style”

In the “olden” days, before September 2019, some felt that dealing with the Rules Review Commission (RRC) and the Office of Administrative Hearings (OAH) kind of cramped their rule-writing style. Many will recall the seemingly endless corrections of “which” to “that” or from “including but not limited to” to “including.” And then there were the poison pill words ending in “ly” that regularly tripped up rule-writers. Frustration was often an undercurrent.

At least a partial and helpful solution came to fruition in September 2019. At that time, RRC and OAH approved a Style Guide.  The stated purpose of the Style Guide is “to assist agencies adopting rules, members of the public in understanding them, and the Rules Review Commission in reviewing them as provided by law.”

The goal of the Style Guide is to “make a better Administrative Code.” The Guide comprehensively covers topics “ranging from formatting to word selection” with the intent to improve “consistency, accessibility, and efficiency.”

The Style Guide has now been in use more than a year. OAH and RRC want “to ensure it is meeting [the rulemaking community’s] needs.” Action requested: OAH and the RRC are looking for feedback on the Style Guide. In particular, they would like to know if there are points in the Guide needing clarification or issues not addressed that you wish had been addressed. To submit suggestions and requests for changes, send your comments via email to [email protected]. All ideas must be submitted by 5 p.m. on Friday, Jan. 8, 2021.

This is your chance! Make a difference. Review the Style Guide for the first or umpteenth time and send in your comments.

A Plethora of Pandemic Predicaments, a CLE for Posterity

Paraphrasing Shakespeare, when it comes to COVID-19, there are more things in heaven and earth than any one attorney has considered.

Puzzle out some pressing pandemic issues by participating in the upcoming CLE, Law in the Time of Corona: People, Places, Protests and Police. Profit from the pundits and their manuscripts as they provide practice tips. Ponder with them over issues you may not yet have encountered or may want to learn to handle more proficiently.

A pair of sections (Administrative Law and Government and Public Sector) have pulled together a positively praiseworthy CLE for you. Examples of issues that pop up just in the CLE papers include (paraphrasing):

* Lurkers in public meetings online

* Policy-making as to which political bodies, like local government-appointed boards, pose problems for budgets for remote meetings

* Policing models – Problem Oriented Policing as one possibility

* Preparing for public access and signage

Protect yourself and your clients by participating in this virtual webinar on November 20, 2020. Pick up 6 hours of CLE credit as you parley a little time into proficiency. Register ASAP! You’ll regret it if you don’t. Peruse the particulars and register here.

This Week’s Court of Appeals Opinions

Krishnan v. NC Dep’t of Health & Hum. Servs (20-107 – Published) Author: Judge Richard Dietz
State employee grievance; administrative law; time period to petition for contested case.

ALJ, on own initiative, dismissed petition for contested case hearing as untimely per GS 150B-23(f). Parties appealed, saying St. Human Resources Act, GS 126-34.02 applied; therefore, statute of limitations began to run when employee received agency decision, not when it was mailed. Court agreed with the parties, reversed and remanded.

Green v. Howell (20-204 – Published) Author: Judge Allegra Collins
Public official immunity; sufficiency of the complaint; malice or corruption.

Trial court’s order denying City Council Manager’s motion to dismiss on grounds of public official immunity is reversed.
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