HOUSE OF REPRESENTATIVES

H.B. NO.

77

TWENTY-NINTH LEGISLATURE, 2017

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO AN OFFICE OF ADMINISTRATIVE HEARINGS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that in most federal agencies and in many state, territorial, and local jurisdictions, administrative adjudications take place within agencies that combine regulatory, enforcement, prosecutorial, and adjudicatory authority in a single agency.  The legislature believes that this combination of functions creates a potential conflict of interest.  The legislature also believes that this combination of functions may also compromise the integrity of administrative adjudications and is often perceived as unfair by the litigants opposing the agencies.

     The legislature also finds that the conflict of interest inherent in the same agency acting as both prosecutor and judge has led to the establishment of state central hearing agencies, also known as central panels.  In central panels, an independent administrative law judge presides over the administrative litigation, and this judge is completely independent of the agency prosecutorial functions.  Approximately twenty-nine state and local jurisdictions, including New York City, the City of Chicago, Cook County, Illinois, and the District of Columbia, have addressed this conflict by creating a central hearing agency.

     The legislature further finds that the American Bar Association House of Delegates, on February 3, 1997, approved a model act that provides guidance to states intending to create central panels.  The American Bar Association enunciated a goal of separation of functions in section 1-2(a) which states that the "Office of Administrative Hearings is created as an independent agency in the Executive Branch of State Government for the purpose of separating the adjudicatory function from the investigatory, prosecutorial, and policy-making functions of agencies in the Executive Branch."

     The American Bar Association model act, as well as the current practices in just about every central panel state, authorizes the central panel to hear all contested cases that arise from a non-exempt agency.  Central panel states report that state legislatures continue to expand and confer additional jurisdiction on existing central panels.  Likewise, the American Bar Association model act and nearly all current central panel states authorized some or all final decision making authority in the central panel administrative law judges.

     The purpose of this Act is to have the legislative reference bureau conduct a study relating to the establishment of a centralized office of administrative hearings in the executive branch of state government and report to the legislature prior to the convening of the regular session of 2018.  The study and report shall be based on the guidelines established by this Act.

     SECTION 2.  (a)  The legislative reference bureau shall conduct a study relating to the establishment of a state central hearing agency to be known as the office of administrative hearings (office).  The office shall:

     (1)  Be based on the guidelines stated in the February 3, 1997 model of the American Bar Association House of Delegates that relate to the establishment of a state central hearing agency, unless otherwise provided herein; and

     (2)  Operate as an independent agency in the executive branch of state government for the purpose of separating the adjudicatory function from the investigatory, prosecutorial, and policy-making functions of agencies in the executive branch.

     (b)  The office shall not replace the hearings functions of:

     (1)  Agencies in the political subdivisions of the State;

     (2)  An agency of the legislature;

     (3)  An agency of the judiciary;

     (4)  The office of the governor; or

     (5)  The office of the lieutenant governor.

     SECTION 3. (a)  The legislative reference bureau's study shall review the existing administrative hearings system to:

     (1)  Identify the departments and agencies that conduct hearings or delegate that authority to another agency;

     (2)  Determine and identify the placement of the hearings agency in the department's organization;

     (3)  Identify and quantify the personnel and state resources that are necessary to operate each hearings agency;

     (4)  Identify and determine the types of issues and subjects that are subject to the hearings jurisdiction;

     (5)  Identify and determine the process to appeal a decision of each agency's administrative hearing, including chapter 91, Hawaii Revised Statutes, and rights to and process for judicial appeals; and

     (6)  Identify potential legal conflicts and barriers that affect each agency's administrative hearings jurisdiction.

     SECTION 4.  The legislative reference bureau shall submit a report of:

     (1)  Findings and recommendation from studies conducted pursuant to sections 2 and 3;

     (2)  The appropriateness, feasibility, and cost effects of establishing and operating an office of administrative hearings that is based on the guidelines stated in the February 3, 1997 model of the American Bar Association House of Delegates, as modified; and

     (3)  Recommendations, including proposed legislation to establish and implement an office of administrative hearings.

The report shall be provided to the legislature no later than twenty days prior to the convening of the regular session of 2018.

     SECTION 4.  This Act shall take effect on July 1, 2050.


 


 

Report Title:

Office of Administrative Hearings; Legislative Reference Bureau; Report

 

Description:

Requires the Legislative Reference Bureau to study the feasibility and cost effect of establishing an Office of Administrative Hearings that conducts administrative hearings for the State's executive branch agencies.  A report of findings and recommendations, including proposed legislation shall be presented to the Legislature prior to the Regular Session of 2018.  (HB77 HD1)

 

 

 

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