Quiz 4(Chapter 6)

1. Quiz 4(Chapter 6) Do Either: 1. Describe and explain the Formality-Informality Continuum. 2. Differentiate between the "rulemaking" and "adjudication“ in terms of • circumstances when either would be used • general nature of these proceedings • general procedural considerations in play

2. Adjudications in the APA §554-557 • §554 – Applies when statute requires adj. “on the record after opportunity for an agency hearing” EXCEPT when • Matter could come to trial in a court • Employee selection or tenure cases • Matter rest solely on inspections, tests, elections • Agency is acting as an agent for a court • Certification of worker representatives

3. Timely Notice (parallel to “notice” requirement of §553) • Time, place, nature of hearing • Legal authority and jurisdiction • Matters of fact and law asserted • Convenience of parties concerned must be considered

4. Agency provides opportunity for • Submission/consideration of all parties’ cases • Offers of settlement/resolution • Hearing conforming §556-557 • No ex parte contacts by ALJ • ALJ must be independent/impartial decision maker [not subordinate of investigative/prosecuting personnel of agency] • investigative/prosecuting personnel of agency may not participate in proceeding except as witness or counsel for the agency EXCEPT • Applications for initial licenses • Public utilities rates or practices

5. Further information about ALJs • The ALJ presides at an administrative trial-type hearing to resolve a dispute between a government agency and someone affected by a decision of that agency. • The ALJ is the initial trier of fact and decision maker. ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations. • ALJs are the only merit-based judicial corps in the United States. • appointed based on scores achieved in a comprehensive testing procedure • Written and oral exam components

6. ALJs are Article I judges, and are not Article III judges under the U.S. Constitution. Unlike Article III judges, Article I judges are not confirmed by the Senate. ALJs not responsible to employees or agents of the agency engaged in the performance of investigative or prosecution functions for the agency. ALJs are exempt from performance ratings, evaluation, and bonuses. Agency officials may not interfere with their decision making ALJs may be discharged only for good cause based upon a complaint filed by the agency with the Merit Systems Protections Board established and determined after an APA hearing on the record before an MSPB ALJ

7. ALJs are "functionally comparable" to Article III judges. ALJs may issue subpoenas, rule on evidence, regulate the course of the hearing, and make or recommend decisions. The process of agency adjudication is structured to assure that the hearing examiner exercises independent judgment on the evidence before, free from pressures by the parties or other officials within the agency. 30 agencies maintain their own permanent staff of ALJs Others request the U.S. Office of Personnel Management to lend them ALJs from other federal agencies for a period of up to six months.

8. §555 Ancillary Matters • Right to counsel or other qualified representative • Walters v Nat’l. Assoc. of Radiation Survivors (1985) • Veterans Administration’s statutory authority/procedures • Informal/non-adversarial [gov’t. not represented] hearings • ALJ charged with resolving all reasonable doubt in claimant’s favor • $10 limit on attorney’s fee • Veterans’ groups provide “service agents” to assist claimants • No judicial review for denied claims • Court denied NARS claim that the provision was a violation of free speech or due process

9. §555 Ancillary Matters • Right to counsel or other qualified representative • Appear in person • Timely resolution of case • Have copy of the record of the proceeding (at own expense) • Subpoena power for agencies

10. §556 Hearings • Requirement for impartial decision makers • Cinderella Career and Finishing School v FTC (1970) • Bias arising from prejudice [pre-judging] issue • Gibson v Berryhill (1973) • Bias arising from conflict of interest [decision maker stands to benefit from the outcome of the proceeding]

11. §556 Hearings • Requirement for impartial decision makers • Agency bears burden of proof • Decision must be supported by “whole record” containing “reliable, probative, and substantial evidence” • Full and complete fact-finding process • oral or documentary evidence • rebuttal • cross-examination of witnesses

12. §556 Hearings • Decision based exclusively on the record • Transcript of “the record” must be made available • Mazza v Cavicchia (1954) • If agency decision rests on “official notice” of material not on the record, opportunity for rebuttal must be provided

13. §557 Decisions, Review, Record [section applies when a §556 hearing is required] • Reviewability of agency decision • All decisions shall include a statement of • findings, conclusions, and basis for decision in facts, law, discretion in the record • No ex parte contacts • If any occur, a full record of the event must be entered in the record • Requirement that offending party show cause why claim or interest should not be “dismissed, denied, disregarded, or otherwise adversely affected” • Provision goes into effect the moment a party becomes aware of agency proceeding against him

14. Comparison of APA Requirements and the Goldberg Ingredients • TIMELY AND ADEQUATE NOTICE • CONFRONTING ADVERSE WITNESSES • ORAL PRESENTATION OF ARGUMENTS • ORAL PRESENTATION OF EVIDENCE • CROSS-EXAMINATION OF ADVERSE WITNESSES • DISCLOSURE TO THE CLAIMANT OF OPPOSING EVIDENCE • THE RIGHT TO RETAIN AN ATTORNEY • A DETERMINATION ON THE RECORD OF THE HEARING • A STATEMENT OF REASONS FOR THE DETERMINATION AND AN INDICATION OF THE EVIDENCE RELIED ON • AN IMPARTIAL DECISION MAKER

15. Adjudications at H.U. • Chapel appeals process • When a student has been disciplined for excessive chapel absences by one of the Student Services Deans, he/she has the right to appeal this decision to the Chapel Attendance Committee. • This committee is composed of several faculty members and two students who will hear the case and make a decision based on the information presented to them. • The request for appeal shall be filed through the office of the assistant vice president for Student Services, who in turn will arrange the meeting with the Chapel Attendance Committee.

16. Code of Conduct Appeals Process 1. A student or organization shall have 24 hours to file a request for an appeal with the Office of Student Services or forfeit that right. 2. Students who fail to appear within 15 minutes of the arranged time for their appeal meeting will forfeit their right to appeal. 3. An appeal shall be scheduled before the Student Services Committee no sooner than the day following the receipt of the request. A quorum for the committee shall consist of six or more members. 4. The appeal shall be conducted in a fair and reasonable manner. 5. All witnesses shall be required to affirm the truth of their testimony. 6. Presentation of evidence shall be as follows: a. Evidence that supports the charge against the student or organization. b. Evidence of innocence or mitigation by the accused. c. Rebuttal evidence by both parties. d. Closing statements by both parties. 7. Both parties shall have reasonable opportunity for cross-examination of witnesses.

17. 8. The appeal will be open to the appealing party, representatives of Student Services and witnesses with relevant evidence to present. Only two eye witnesses from each side may present their case, and neither legal counsel, guardian nor parents of the accused shall be permitted to appear before this committee. 9. The appeal will be tape recorded. 10. Following the appeal, the Student Services Committee, by a majority vote, will find whether or not the case has been proven. The committee shall inform the student or organization of its decision. This decision shall be final. 11. The Student Services deans or the committee may set the terms and conditions of a suspension and readmission. 12. A student who has been suspended may not be on campus unless specific permission is granted by the Student Services deans. If campus housing is used, the residence life coordinator must be notified in advance by the deans.

18. RESOLUTION OF ACADEMIC MISCONDUCT Incidents of alleged academic misconduct shall be resolved according to the following process: 1. Following discovery of the suspected academic misconduct, the faculty (or staff ) member shall meet with the student to discuss the allegation. If new information is revealed at this meeting or if the student needs time to bring mitigating evidence, a second meeting should be scheduled as soon as possible. 2. If, based on the information available, the faculty (or staff ) member determines that misconduct has occurred and that sanctions should be imposed, the incident shall be reported to the immediate supervisor (program chair or dean of the academic division or appropriate staff person) and the Assistant Vice President of Academic Affairs (AVPAA) prior to the imposition of sanctions. 3. Consequences of misconduct pertaining to the course (items 1-4 below) shall be determined by the faculty member. Suspension from the specific academic program (item 5) shall be determined by the dean or program director after consulting with the AVPAA. Consequences of a misconduct in an academic support service area shall be determined by the appropriate staff person. Additional consequences involving University sanction (items 6-8) shall be made by the AVPAA.

19. 4. The faculty (or staff ) member shall provide specific charges and consequences in writing to the student along with the right to appeal. 5. The student shall have the opportunity to file a written request for an appeal with the Office of Academic Affairs (see Appeal Process below). 6. The faculty (or staff ) member shall complete an AcademicMisconduct Form with an attached copy of the letter to the student and forward it to the AVPAA with a copy to the immediate supervisor. The faculty (or staff ) member shall keep all evidence in a file for up to 5 years. Note: The AVPAA and immediate supervisor shall be available to the faculty (or staff)member as consultants during the resolution process.

20. Academic Appeals Process 1. After formal notification of disciplinary action, a student shall have 48 hours to file a request for an appeal with the Office of Academic Affairs or forfeit that right. An appeal form (available from the AVPAA) must be completed and submitted. 2. A student who fails to appear within 15 minutes of the arranged time for the appeal meeting shall forfeit the right to appeal. 3. An appeal shall be scheduled before the Academic Misconduct Committee no sooner than the day following the receipt of request. A quorum for the committee shall consist of a majority of committee members. 4. The appeal shall be conducted in a fair and reasonable manner. 5. All witnesses shall be required to affirm the truth of their testimony.

21. 6. Presentation of evidence shall be as follows: a. Evidence that supports the charge and sanction against the student. b. Evidence that supports the appeal by the student. c. Rebuttal evidence by both parties. d. Closing statements by both parties. New information shall not be submitted during this part of the proceedings. New information relevant to the situation under discussion, the decision, or the sanction should be submitted for consideration in the first presentations by either party. 7. Both parties shall have reasonable opportunity for cross-examination of witnesses. 8. The appeal shall be open to the appealing student, the involved faculty member(s), and eyewitnesses with relevant evidence to present. Only two eyewitnesses from each side may present their case, and neither legal counsel, guardian, spouse nor parents of the student shall be permitted to appear before this committee. The AVPAA shall attend the appeal as an involved administrator, but shall not have a vote in the decision-making process by the committee. 9. An audio recording of the appeal shall be made. 10. Following the appeal, the Academic Misconduct Appeals Committee, by a majority vote, shall determine whether or not the case has been supported. The committee shall inform the student, the faculty member, and the faculty member’s supervisor of its decision. This decision shall be final.

22. Academic Grievance Procedures This section covers undergraduate students only. Procedures for graduate students may be found in the Harding University Graduate Catalog. The following procedures do not include matters of academic misconduct. These matters are covered in the previous section of this catalog. If the student has reason to question the decision of a faculty member with regard to a final grade received in a course or unreasonable denial of academic progression, a procedure has been established to resolve the grievance. The procedure is as follows: 1. The student must register his or her complaint in writing to the faculty member within seven days following the alleged incident. Within the writing, the student must set forth reasons and grounds for the grievance. Upon receipt of the complaint, the faculty member must meet with the student and strive to resolve the problem. a) If a resolution cannot be reached within five days and the complaint concerns a course within the College of Arts and Humanities or the College of Sciences, then it is the student’s responsibility to register the complaint in writing with the department chairman. Upon receipt of the complaint, the department chairman must meet with the faculty member and the student and strive to resolve the problem. If a resolution cannot be reached within five days, then it is the

23. student’s responsibility to initiate the grievance procedure set forth in paragraph 2 and following. b) If a resolution cannot be reached within five days and the complaint concerns a course within the College of Bible and Religion, College of Business Administration, College of Education or College of Nursing, then it is the student’s responsibility to initiate the grievance procedure set forth in paragraph 2 and following. 2. If, after completion of the procedure set forth in paragraph 1 above, the student believes that the grievance has not been equitably resolved, then he or she may file an appeal in writing with the appropriate dean and set forth within the appeal the grounds and reasons of the appeal. The dean must immediately notify the involved faculty member of the appeal and, upon notification, the faculty member will have three days to respond in writing to the allegations. Within five days of receipt of the appeal, the involved dean must appoint an ad hoc Grievance Committee and notify the faculty member and the student of the date and time to appear before the committee for a formal hearing on the allegations and issues. The hearing must be held within 14 academic days of the receipt of the appeal. (“Academic days” are those days included within the fall and spring semesters and summer terms excluding Intersession.)

24. The hearing must be conducted in a manner ensuring substantial fairness, and it will not be restricted by the rules of evidence common to court proceedings. All witnesses will be required to attest to a statement regarding the accuracy of the testimony to be given. Each party will have the right to be accompanied by one other person, but that person may not be the student’s parent, guardian or legal counsel. The hearing will be open only to the faculty member, the student and witnesses. Neither the student’s parents, guardian nor legal counsel will be permitted to appear before the Grievance Committee except as witnesses. Hearing proceedings (excluding the deliberations of the committee) will be tape-recorded. Each party will make a brief opening statement. Evidence will then be presented by the faculty member in support of the grade assigned or the denial of academic progression. Then the student will be permitted to present evidence in support of the allegations. Thereafter, both sides will be permitted to present rebuttal evidence followed by closing statements. During the hearing the faculty member and the student will have reasonable opportunity for orderly questioning of the witnesses. Evidence may be presented in the form of witnesses or documents relevant to the issues to be determined by the committee.

25. At the conclusion of the evidence, the hearing will be adjourned and the committee will have three days to reach a final decision. The decision must be submitted in writing by the committee chairperson to the faculty member, the student and the dean. The decision of the committee will be by majority vote. 3. The decision of the Grievance Committee may be appealed by the faculty member or the student to the vice president for academic affairs within three days of its receipt. Upon receipt of the appeal, the vice president for academic affairs will order preparation of a transcript of the hearing before the Grievance Committee. That transcript, along with all documents submitted by both parties, will be reviewed by an ad hoc Appeals Committee. The committee will be composed of the vice president for academic affairs, who will serve as the chairman for the committee, and three persons he or she appoints.The responsibility of the Appeals Committee will be to review the record created before the Grievance Committee and to render a decision based on a review of the record.There will be no opportunity for presentation of additional evidence before the Appeals Committee. The Appeals Committee may take one of the following actions:

26. a) Affirm the decision made by the Grievance Committee, in which case the decision is final. b) Remand the decision of the Grievance Committee for additional evidence, reconsideration and re-determination. The re-determined decision of the Grievance Committee is subject to further appeal to the vice president for academic affairs. c) Reverse the decision of the Grievance Committee and render their own decision, in which case their decision will be final. Upon final decision of the Appeals Committee, the student will have exhausted his or her right of appeal within the University. As in the case of any policy and policy guidelines, Harding reserves the right to change them or to make appropriate revision, additions, amendments or corrections. Faculty and students will be notified of any substantial changes.

27. Assignment Compare Harding's adjudication procedures for code of conduct violations against the norms of administrative law for comparable types of "agency action." {Hint: be sure to indicate what level of procedural formality would be required in such situations - Goldberg standards, APA provisions, minimum due process standards - then compare our procedures to the appropriate standard.}