Quiz 4(Chapter 6)Quiz 4(Chapter 6)Do Do Either:Either:

1. Describe and explain the Formality-Informality Continuum.

2. Differentiate between the "rulemaking" and "adjudication“ in terms of

a. circumstances when either would be used

b. general nature of these proceedingsc. general procedural considerations in

play

Adjudications in the APAAdjudications in the APA §554-557 §554-557

• §554§554 – Applies when statute requires – Applies when statute requires adj. “on the record after opportunity for adj. “on the record after opportunity for an agency hearing” an agency hearing” EXCEPT when EXCEPT when – Matter could come to trial in a courtMatter could come to trial in a court– Employee selection or tenure casesEmployee selection or tenure cases– Matter rest solely on inspections, tests, Matter rest solely on inspections, tests,

electionselections– Agency is acting as an agent for a Agency is acting as an agent for a

courtcourt– Certification of worker representativesCertification of worker representatives

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

must be consideredmust be considered

• Agency provides opportunity for Agency provides opportunity for – Submission/consideration of all parties’ Submission/consideration of all parties’

casescases– Offers of settlement/resolution Offers of settlement/resolution – Hearing conforming §556-557 Hearing conforming §556-557

• No No ex parteex parte contacts by ALJ contacts by ALJ • ALJ must be independent/impartial decision ALJ must be independent/impartial decision

maker [not subordinate of maker [not subordinate of investigative/prosecuting personnel of investigative/prosecuting personnel of agency] agency]

• investigative/prosecuting personnel of investigative/prosecuting personnel of agency may not participate in proceeding agency may not participate in proceeding except as witness or counsel for the agency except as witness or counsel for the agency EXCEPTEXCEPT

– Applications for initial licensesApplications for initial licenses– Public utilities rates or practicesPublic utilities rates or practices

Further information Further information about ALJsabout ALJs

• The ALJ presides at an administrative trial-type The ALJ presides at an administrative trial-type hearing to resolve a dispute between a government hearing to resolve a dispute between a government agency and someone affected by a decision of that agency and someone affected by a decision of that agency. agency.

• The ALJ is the initial trier of fact and decision maker. The ALJ is the initial trier of fact and decision maker. ALJs can administer oaths, take testimony, rule on ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal questions of evidence, and make factual and legal determinations.determinations.

• ALJs are the only merit-based judicial corps in the ALJs are the only merit-based judicial corps in the United States.United States.– appointed based on scores achieved in a comprehensive appointed based on scores achieved in a comprehensive

testing proceduretesting procedure– Written and oral exam componentsWritten and oral exam components

• ALJs are Article I judges, and are not Article III judges ALJs are Article I judges, and are not Article III judges under the U.S. Constitution. Unlike Article III judges, under the U.S. Constitution. Unlike Article III judges, Article I judges are not confirmed by the Senate.Article I judges are not confirmed by the Senate.

• ALJs not responsible to employees or agents of the agency ALJs not responsible to employees or agents of the agency engaged in the performance of investigative or engaged in the performance of investigative or prosecution functions for the agency. prosecution functions for the agency.

• ALJs are exempt from performance ratings, evaluation, ALJs are exempt from performance ratings, evaluation, and bonuses. Agency officials may not interfere with their and bonuses. Agency officials may not interfere with their decision making decision making

• ALJs may be discharged only for good cause based upon a ALJs may be discharged only for good cause based upon a complaint filed by the agency with the Merit Systems complaint filed by the agency with the Merit Systems Protections Board established and determined after an Protections Board established and determined after an APA hearing on the record before an MSPB ALJAPA hearing on the record before an MSPB ALJ

• ALJs are "functionally comparable" to Article III judges.ALJs are "functionally comparable" to Article III judges.• ALJs may issue subpoenas, rule on evidence, regulate ALJs may issue subpoenas, rule on evidence, regulate

the course of the hearing, and make or recommend the course of the hearing, and make or recommend decisions.decisions.

• The process of agency adjudication is structured to The process of agency adjudication is structured to assure that the hearing examiner exercises independent assure that the hearing examiner exercises independent judgment on the evidence before, free from pressures judgment on the evidence before, free from pressures by the parties or other officials within the agency.by the parties or other officials within the agency.

• 30 agencies maintain their own permanent staff of ALJs30 agencies maintain their own permanent staff of ALJs• Others request the U.S. Office of Personnel Others request the U.S. Office of Personnel

Management to lend them ALJs from other federal Management to lend them ALJs from other federal agencies for a period of up to six months.agencies for a period of up to six months.

• §555 Ancillary Matters§555 Ancillary Matters– Right to counsel or other qualified Right to counsel or other qualified

representativerepresentative•Walters v Nat’l. Assoc. of Radiation Walters v Nat’l. Assoc. of Radiation

Survivors (1985)Survivors (1985)– Veterans Administration’s statutory Veterans Administration’s statutory

authority/proceduresauthority/procedures– Informal/non-adversarial [gov’t. not Informal/non-adversarial [gov’t. not

represented] hearingsrepresented] hearings– ALJ charged with resolving all reasonable ALJ charged with resolving all reasonable

doubt in claimant’s favordoubt in claimant’s favor

–$10 limit on attorney’s fee$10 limit on attorney’s fee– Veterans’ groups provide “service agents” Veterans’ groups provide “service agents”

to assist claimantsto assist claimants– No judicial review for denied claimsNo judicial review for denied claims

– Court denied NARS claim that the provision was Court denied NARS claim that the provision was a violation of free speech or due processa violation of free speech or due process

• §555 Ancillary Matters§555 Ancillary Matters– Right to counsel or other qualified Right to counsel or other qualified

representativerepresentative– Appear in personAppear in person– Timely resolution of caseTimely resolution of case– Have copy of the record of the Have copy of the record of the

proceeding (at own expense)proceeding (at own expense)– Subpoena power for agenciesSubpoena power for agencies

• §556 Hearings §556 Hearings – Requirement for impartial decision Requirement for impartial decision

makersmakers• Cinderella Career and Finishing School v Cinderella Career and Finishing School v

FTC (1970)FTC (1970)– Bias arising from Bias arising from prejudice [pre-prejudice [pre-

judging] judging] issueissue• Gibson v Berryhill (1973) Gibson v Berryhill (1973)

– Bias arising from Bias arising from conflict of interest conflict of interest [decision maker stands to benefit from [decision maker stands to benefit from the outcome of the proceeding]the outcome of the proceeding]

• §556 Hearings §556 Hearings – Requirement for impartial decision Requirement for impartial decision

makersmakers– Agency bears burden of proof Agency bears burden of proof – Decision must be supported by Decision must be supported by

“whole record”“whole record” containing “reliable, containing “reliable, probative, and probative, and substantial substantial evidence”evidence”

– Full and complete fact-finding processFull and complete fact-finding process

• oral oral oror documentary evidence documentary evidence

• rebuttal rebuttal • cross-examination of witnessescross-examination of witnesses

• §556 Hearings §556 Hearings – Decision based exclusively on the Decision based exclusively on the

recordrecord• Transcript of “the record” must be made Transcript of “the record” must be made

availableavailable• Mazza v Cavicchia (1954)Mazza v Cavicchia (1954)

• If agency decision rests on “official If agency decision rests on “official notice” of material not on the record, notice” of material not on the record, opportunity for rebuttal must be providedopportunity for rebuttal must be provided

• §557 Decisions, Review, Record [section §557 Decisions, Review, Record [section applies when a §556 hearing is required]applies when a §556 hearing is required]– Reviewability of agency decision Reviewability of agency decision – All decisions shall include a statement of All decisions shall include a statement of

• findings, conclusions, and basis for decision in findings, conclusions, and basis for decision in facts, law, discretion in the record facts, law, discretion in the record

– No No ex parteex parte contacts contacts• If any occur, a full record of the event must be If any occur, a full record of the event must be

entered in the recordentered in the record• Requirement that offending party show cause why Requirement that offending party show cause why

claim or interest should not be “dismissed, claim or interest should not be “dismissed, denied, disregarded, or otherwise adversely denied, disregarded, or otherwise adversely affected”affected”

• Provision goes into effect the moment a party Provision goes into effect the moment a party becomes aware of agency proceeding against him becomes aware of agency proceeding against him

Comparison of APA Requirements Comparison of APA Requirements and the Goldberg Ingredientsand the Goldberg Ingredients

TIMELY AND ADEQUATE NOTICETIMELY AND ADEQUATE NOTICE CONFRONTING ADVERSE WITNESSESCONFRONTING ADVERSE WITNESSES ORAL PRESENTATION OF ARGUMENTSORAL PRESENTATION OF ARGUMENTS ORAL PRESENTATION OF EVIDENCEORAL PRESENTATION OF EVIDENCE CROSS-EXAMINATION OF ADVERSE WITNESSESCROSS-EXAMINATION OF ADVERSE WITNESSES DISCLOSURE TO THE CLAIMANT OF OPPOSING DISCLOSURE TO THE CLAIMANT OF OPPOSING

EVIDENCEEVIDENCE THE RIGHT TO RETAIN AN ATTORNEYTHE RIGHT TO RETAIN AN ATTORNEY A DETERMINATION ON THE RECORD OF THE HEARINGA DETERMINATION ON THE RECORD OF THE HEARING A STATEMENT OF REASONS FOR THE DETERMINATION A STATEMENT OF REASONS FOR THE DETERMINATION

AND AN INDICATION OF THE EVIDENCE RELIED ONAND AN INDICATION OF THE EVIDENCE RELIED ON AN IMPARTIAL DECISION MAKERAN IMPARTIAL DECISION MAKER

Adjudications at H.U.Adjudications at H.U.

• Chapel appeals processChapel appeals process• When a student has been disciplined for excessive When a student has been disciplined for excessive

chapel absences by one of the Student Services chapel absences by one of the Student Services Deans, he/she has the right to appeal this Deans, he/she has the right to appeal this decision to the Chapel Attendance Committee. decision to the Chapel Attendance Committee.

• This committee is composed of several faculty This committee is composed of several faculty members and two students who will hear the case members and two students who will hear the case and make a decision based on the information and make a decision based on the information presented to them. presented to them.

• The request for appeal shall be filed through the The request for appeal shall be filed through the office of the assistant vice president for Student office of the assistant vice president for Student Services, who in turn will arrange the meeting Services, who in turn will arrange the meeting with the Chapel Attendance Committee.with the Chapel Attendance Committee.

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.

Code of Conduct Appeals Process

• 8. 8. The appeal will be open to the appealing party, representatives of The appeal will be open to the appealing party, representatives of Student Services and witnesses with relevant evidence to present. Student Services and witnesses with relevant evidence to present. Only two eye witnesses from each side may present their case, and Only two eye witnesses from each side may present their case, and neither legal counsel, guardian nor parents of the accused shall be neither legal counsel, guardian nor parents of the accused shall be permitted to appear before this committee.permitted to appear before this committee.

• 9. The appeal will be tape recorded.9. The appeal will be tape recorded.• 10. Following the appeal, the Student Services Committee, by a 10. Following the appeal, the Student Services Committee, by a

majority vote, will find whether or not the case has been proven. The majority vote, will find whether or not the case has been proven. The committee shall inform the student or organization of its decision. committee shall inform the student or organization of its decision. This decision shall be final.This decision shall be final.

• 11. The Student Services deans or the committee may set the terms 11. The Student Services deans or the committee may set the terms and conditions of a suspension and readmission.and conditions of a suspension and readmission.

• 12. A student who has been suspended may not be on campus unless 12. A student who has been suspended may not be on campus unless specific permission is granted by the Student Services deans. If specific permission is granted by the Student Services deans. If campus housing is used, the residence life coordinator must be campus housing is used, the residence life coordinator must be notified in advance by the deans.notified in advance by the deans.

RESOLUTION OF ACADEMIC MISCONDUCT

Incidents of alleged academic misconduct shall be resolved according to the followingprocess: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 thatmisconduct has occurred and that sanctions should be imposed, the incident shall bereported to the immediate supervisor (program chair or dean of the academic divisionor 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 bedetermined by the faculty member. Suspension from the specific academic program(item 5) shall be determined by the dean or program director after consulting with theAVPAA. Consequences of a misconduct in an academic support service area shall bedetermined by the appropriate staff person. Additional consequences involvingUniversity sanction (items 6-8) shall be made by the AVPAA.

4. The faculty (or staff ) member shall provide specific charges and consequences inwriting 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 copyto the immediate supervisor. The faculty (or staff ) member shall keep all evidence ina 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.

Academic Appeals Academic Appeals ProcessProcess

• 1. After formal notification of disciplinary action, a student shall 1. After formal notification of disciplinary action, a student shall have 48 hours to file a request for an appeal with the Office of have 48 hours to file a request for an appeal with the Office of Academic Affairs or forfeit that right. An appeal form (available Academic Affairs or forfeit that right. An appeal form (available from the AVPAA) must be completed and submitted.from the AVPAA) must be completed and submitted.

• 2. A student who fails to appear within 15 minutes of the arranged 2. A student who fails to appear within 15 minutes of the arranged time for the appeal meeting shall forfeit the right to appeal.time for the appeal meeting shall forfeit the right to appeal.

• 3. An appeal shall be scheduled before the Academic Misconduct 3. An appeal shall be scheduled before the Academic Misconduct Committee no sooner than the day following the receipt of Committee no sooner than the day following the receipt of request. A quorum for the committee shall consist of a majority of request. A quorum for the committee shall consist of a majority of committee members.committee members.

• 4. The appeal shall be conducted in a fair and reasonable manner.4. The appeal shall be conducted in a fair and reasonable manner.• 5. All witnesses shall be required to affirm the truth of their 5. All witnesses shall be required to affirm the truth of their

testimony.testimony.

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 eachside may present their case, and neither legal counsel, guardian, spouse nor parentsof the student shall be permitted to appear before this committee. The AVPAA shallattend 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 majorityvote, shall determine whether or not the case has been supported. The committeeshall inform the student, the faculty member, and the faculty member’s supervisorof its decision. This decision shall be final.

Academic Grievance Procedures

This section covers undergraduate students only. Procedures for graduate students maybe found in the Harding University Graduate Catalog.The following procedures do not include matters of academic misconduct. These mattersare covered in the previous section of this catalog.

If the student has reason to question the decision of a faculty member with regard to afinal grade received in a course or unreasonable denial of academic progression, a procedurehas 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 withinseven days following the alleged incident. Within the writing, the student must setforth reasons and grounds for the grievance. Upon receipt of the complaint, the facultymember 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

student’s responsibility to initiate the grievance procedure set forth in paragraph2 and following.

b) If a resolution cannot be reached within five days and the complaint concernsa course within the College of Bible and Religion, College of BusinessAdministration, College of Education or College of Nursing, then it is the student’sresponsibility to initiate the grievance procedure set forth in paragraph 2and following.

2. If, after completion of the procedure set forth in paragraph 1 above, the studentbelieves that the grievance has not been equitably resolved, then he or she may file anappeal in writing with the appropriate dean and set forth within the appeal thegrounds and reasons of the appeal. The dean must immediately notify the involved facultymember of the appeal and, upon notification, the faculty member will have threedays to respond in writing to the allegations.Within five days of receipt of the appeal, the involved dean must appoint an ad hocGrievance Committee and notify the faculty member and the student of the date andtime to appear before the committee for a formal hearing on the allegations andissues. 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 summerterms excluding Intersession.)

The hearing must be conducted in a manner ensuring substantial fairness, and it willnot be restricted by the rules of evidence common to court proceedings. All witnesseswill be required to attest to a statement regarding the accuracy of the testimony tobe given. Each party will have the right to be accompanied by one other person, butthat person may not be the student’s parent, guardian or legal counsel. The hearingwill be open only to the faculty member, the student and witnesses. Neither the student’sparents, 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 bythe 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 followedby closing statements. During the hearing the faculty member and the student will havereasonable opportunity for orderly questioning of the witnesses. Evidence may be presentedin the form of witnesses or documents relevant to the issues to be determinedby the committee.

At the conclusion of the evidence, the hearing will be adjourned and the committeewill have three days to reach a final decision. The decision must be submitted in writingby 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 orthe 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 preparationof 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 hocAppeals Committee. The committee will be composed of the vice president for academicaffairs, 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 recordcreated before the Grievance Committee and to render a decision based on a reviewof the record.There will be no opportunity for presentation of additional evidence beforethe Appeals Committee. The Appeals Committee may take one of the followingactions:

a) Affirm the decision made by the Grievance Committee, in which case the decisionis final.

b) Remand the decision of the Grievance Committee for additional evidence, reconsiderationand 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 herright of appeal within the University.

As in the case of any policy and policy guidelines, Harding reserves the right to changethem or to make appropriate revision, additions, amendments or corrections. Faculty and students will be notified of any substantial changes.

AssignmentAssignment

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