Administrative Practice

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Administrative Law Judge
Administrative law judges are not bound to accept without question an agency party's position since a judge's duty is not simply to anticipate an agency head's decision but to conduct an impartial and unbiased due process hearing. Decision: 1 N.J.A.R. 007 Decision: 1 N.J.A.R. 365
Administrative law judges are not authorized to grant interim relief where the agency head has issued an interlocutory order and the application for interim relief seeks a review of the propriety of the agency head's order. Decision: 3 N.J.A.R. 230
Agency Policy
Internal agency memoranda may not bind the public, since there is no opportunity for public comment and no public awareness of the rule with which the public is supposed to comply. Decision: 1 N.J.A.R. 365
Recent date of an internal agency memoranda precludes a showing of a long continued usage and practice of agency. Decision: 1 N.J.A.R. 365
An administrative agency may not establish policy and procedure through ad hoc litigation. Decision: 1 N.J.A.R. 365
The need for administrative flexibility permits agency action to implement a legislative scheme even while policy is still in the developmental stages. Decision: 8 N.J.A.R. 283
Appearance
While N.J.S.A. 52:13D-16(c) provides an exception to the general prohibition of Legislator's appearances before an administrative, that exception does not apply if the State is an adverse party. Decision: 4 N.J.A.R. 101
Members of the Legislature, their partners and employees are prohibited from representing, appearing for, negotiating on behalf of, or agreeing to represent any person other than the State in connection with any cause, proceeding, application or other matter pending before a State agency. Decision: 4 N.J.A.R. 101
Appellate Opinions
Quantity of support, number of judges on a panel, chronology of decisions, extent of analysis and publication status are all to be considered in determining which of conflicting appellate opinions controls. Decision: 1 N.J.A.R. 007
Administrative law judges are not authorized to grant interim relief where the agency head has issued an interlocutory order and the application for interim relief seeks a review of the propriety of the agency head's order. Decision: 3 N.J.A.R. 230
An administrative law judge is not precluded from considering an unpublished appellate division opinion. Decision: 6 N.J.A.R. 173
Arbitration
Application for setting aside an arbitration award may not be made before an administrative law judge and must be made to Superior Court. Decision: 3 N.J.A.R. 276
Where the single substantive issue before an administrative law judge has been finally decided by a prior arbitration award, the doctrine of res judicata bars the litigation of that issue for a second time. Decision: 2 N.J.A.R. 184
Where an individual voluntarily selects an initial forum for remedying his termination of employment and a complete and valid arbitration award is then made, the individual is then banned from pursuing a subsequent administrative proceeding. Decision: 3 N.J.A.R. 276
Where the single issue before an administrative law judge has been finally decided by a prior arbitration award, the doctrine of res judicata bars the litigation of that issue for a second time. Decision: 2 N.J.A.R. 184
Cause of Action
A cause of action arises on the day on which the right to institute and maintain that action first arose. Decision: 5 N.J.A.R. 175
Class Action
Where the U.A.P.R. make no provision for class action certification, no such certification may be granted in an administrative proceeding. Decision: 5 N.J.A.R. 081
Matters involving a common question of law based on common facts should be consolidated for hearing. Decision: 3 N.J.A.R. 237
Consolidation
Before a contested case can be consolidated, it must have been commenced, that is a claim must have been filed with an agency. Decision: 6 N.J.A.R. 360
Constitutional Law
The "label" placed on an issue as either legal or constitutional is not of particular importance in determining what forum should initially adjudicate an issue; where a facial constitutional attack is coupled with other issues, all issues should initially be considered in the administrative forum. Decision: 1 N.J.A.R. 261
An administrative law judge may not make a determination as to the facial constitutionality of a local ordinance. Decision: 6 N.J.A.R. 221
The Office of Administrative Law is not the appropriate forum to resolve a facial attack on the constitutionality of a regulation when that question is not coupled with other issues.. Decision: 9 N.J.A.R. 167
Administrative proceedings are not usually the appropriate forum in which to decide constitutional claims. Decision: 9 N.J.A.R. 349
Contract Claim
The only forum for a money judgment remedy on a contract claim is in the courts, not in an administrative agency. Decision: 4 N.J.A.R. 282
Discovery
Depositions upon oral examination on written interrogatory are available only on motion for good cause shown; in deciding such a motion a judge must weigh the specific need for the deposition, the extent to which information sought cannot be obtained in other ways, undue hardship, and matters of expense, privilege and oppressiveness. Decision: 3 N.J.A.R. 210
Mere allegations and the failure to demonstrate that information cannot be secured any other way do not demonstrate the good cause necessary to order depositions, especially when the individual sought to be deposed is a high ranking government official. Decision: 3 N.J.A.R. 210
Providing investigative reports to a licensee constitutes appropriate discovery in a case involving charges of permitting lewd dancing. Decision: 9 N.J.A.R. 349
DYFS Reports
DYFS reports of child abuse may not be ordered disclosed by an administrative forum in a tenure charge hearing. Disclosure violates the provisions of N.J.S.A. 9:6-8.10a because an administrative forum is not a court. Decision: 13 N.J.A.R. 297
Estoppel
Prior conviction of an offense in municipal court collaterally estops the relitigation of issues in an administrative proceeding. Decision: 4 N.J.A.R. 038
The State is not estopped from denying a sewer ban exemption where expenditures made were not made in reliance upon any extended failure by the State to follow its own regulations or upon any advice that no sewer ban was in effect. Decision: 3 N.J.A.R. 307
Evidence
The Casino Control Commission may base ultimate factual findings upon any relevant evidence, including hearsay, regardless of the fact that such evidence may be inadmissible in a civil action, so long as the evidence is the sort upon which responsible persons rely upon in the conduct of serious affairs. Decision: 8 N.J.A.R. 126
Exclusionary Rule
While Civil Service disciplinary proceedings may result in suspension or loss of job, this cannot be equated with criminal sanctions which justify the application of stricter standards to safeguard fundamental rights; thus, evidence seized in the search of a police officer's locker is admissible in an administrative proceeding even if that search was found to be violative of the Fourth Amendment in a related criminal proceeding. Decision: 1 N.J.A.R. 435
Executive Order
An executive order may not create a legal obligation which the Legislature had not seen fit to impose upon executive agencies. Decision: 6 N.J.A.R. 140
Expert Witness
A police officer without special training has no special expertise to offer an opinion on alcohol absorption and burn-off rates. Decision: 5 N.J.A.R. 598
Habeas Corpus
The issuance of a writ of habeas corpus does not erase the collateral regulatory consequences of civil disability. Decision: 5 N.J.A.R. 112
Hearing--Exclusion of Party
On appeal, court held that excluding respondent from the hearing during testimony so that he could not communicate with counsel was so fundamentally unfair that a new hearing was required. Decision: 12 N.J.A.R. 954
Hearing Request
Where applicants delayed 11 months from the time their application before a Medical Review Board was considered before inquiring as to its status, such a delay precluded them from requesting a hearing on the decision even if they claim to have never received a notice of the adverse action. Decision: 2 N.J.A.R. 192
Immunized Testimony
Immunized testimony given in a Federal criminal case is admissible before an administrative law judge in a license suspension proceeding since the purpose of the administrative hearing is not punishment of the individual but rather whether the public welfare would be served by the continuation of the license. Decision: 2 N.J.A.R. 149
Indispensible Party
No statutory requirement exists to support a motion to dismiss for lack of an indispensable party where only one of two unmarried individuals moves forward with a complaint based upon a refusal to rent them an apartment because of their marital status. Decision: 8 N.J.A.R. 110
Interim Relief
Administrative law judges are not authorized to grant interim relief where the agency head has issued an interlocutory order and the application for interim relief seeks a review of the agency head's order. Decision: 3 N.J.A.R. 230
For the grant of emergency interim relief in a special education hearing, N.J.A.C. 1:6A-3.1(e) requires that a petitioner show: (1) the application has a reasonable probability of ultimately prevailing on the merits; (2) serious harm will result to the student, or the student's educational program will be seriously harmed if the relief is not granted; and, (3) the relief requested is narrowly defined and will not cause unreasonable expense or substantial inconvenience. While the "likelihood of success" test might be the general standard for emergency relief, the "stay put" provision of special education law takes precedence over it and thus if the grant of emergency relief would restore the status quo, it should be granted regardless of the "likelihood of success" test. Decision: 9 N.J.A.R. 159
Internal Agency Memoranda
Internal agency memoranda may not bind the public, since there is no opportunity for public comment and no public awareness of the rule with which the public is supposed to comply. Decision: 1 N.J.A.R. 365
Internal agency memoranda are not binding on an administrative law judge. Decision: 1 N.J.A.R. 365
Recent date of an internal agency memoranda precludes a showing of a long continued usage and practice of agency. Decision: 1 N.J.A.R. 365
Jurisdiction
Board of Public Utilities lacks jurisdiction over disputes alleging negligence, intentional tort, or any other common law cause of action. Decision: 1 N.J.A.R. 243
Where no written protest has been lodged before a race, as required by N.J.A.C. 13:71-4.1, the State Steward should not consider the protest. Decision: 3 N.J.A.R. 148
Whenever a municipality with a water works furnished water to consumers within any other municipality, the supply municipality shall be subject to the same jurisdiction, regulation and con- trol of the Board as other public utilities. Decision: 5 N.J.A.R. 411
The Board of Public Utilities has jurisdiction to allocate costs for the construction of a water main extension to a housing development. Decision: 6 N.J.A.R. 210
Although laid-off attendance counsellors had been employed by Newark Board of Education, they were classified Civil Service employees and their employment rights were governed by Civil Service laws; thus, the Commissioner of Education cannot effect their rights of lay-off or re- employment. Decision: 2 N.J.A.R. 346
Jurisdiction for the resolution of a dispute over retirement benefits resulting from the level of compensation during employment is with the Board of Trustees of the Teachers' Pension and Annuity Fund and not the Commissioner of Education. Decision: 2 N.J.A.R. 350
While original jurisdiction over scope of negotiations questions is with PERC, jurisdiction is not exclusive if the expertise of another state agency is required for resolution of the major issue raised; where the major issue is whether a negotiated date meets the requirements of an annual teachers evaluation program the expertise of the Commissioner of Education is required and he has jurisdiction. Decision: 1 N.J.A.R. 327
Commissioner of Education has no statutory or other authority for granting counsel fees, either as damages or as a fee for litigating a claim. Decision: 1 N.J.A.R. 162
Where an individual files charges of racial discrimination with the Equal Employment Op- portunity Commission, state administrative agencies have no jurisdiction to grant relief for such claims and the only alleged acts of discrimination to be considered are those which may be remedied under state statute. Decision: 1 N.J.A.R. 300
Jurisdiction for the resolution of a dispute over retirement benefits resulting from the level of compensation during employment is with the Board of Trustees of the Teachers' Pension and Annuity Fund and not the Commissioner of Education. Decision: 2 N.J.A.R. 350
Where no written protest has been lodged before a race, as required by N.J.A.C. 13:71-4.1, the State Steward should not consider the protest. Decision: 3 N.J.A.R. 148
Limitation of Issues
Where an agency head does not exercise the right to hear a case, all of that case is transmitted to the OAL for hearing; the fact that an agency may not wish an issue decided does not preclude an administrative law judge from considering that issue. Decision: 1 N.J.A.R. 261
Motion for Reconsideration
A motion for reconsideration must be filed within the time allowed for an appeal. Decision: 13 N.J.A.R. 955
Notice
Where a notice of ineligibility for benefits is mailed to an address provided by the applicant as her home address, a presumption arises that the notice has been properly delivered and the petitioner has failed to meet her burden of rebutting that presumption by a showing that the letter has never been received. Decision: 2 N.J.A.R. 443
Official Notice
An administrative law judge may take official notice of rising operating costs due to inflation. Decision: 4 N.J.A.R. 019
An administrative law judge may take official notice of "Widmark Factors" relating to alcohol consumption and burn-off. Decision: 5 N.J.A.R. 298
Penalty
Where no evidence as to the reasonableness of a penalty is presented, an administrative law judge may rely on the guidelines contained in established rules to assess an appropriate penalty. Decision: 3 N.J.A.R. 339
Regulation
A regulation restricting the purchase of pension credit is invalid where it conflicts with a statute governing the same subject matter, since it is well settled that an agency may not exceed declared statutory policy. Decision: 3 N.J.A.R. 083
The standard by which to judge regulations is whether they have a rational relationship to the purpose intended, not whether there might be another way to accomplish the same goals. Decision: 4 N.J.A.R. 294
Agency policy of general applicability should be promulgated in a rule. Decision: 5 N.J.A.R. 120
Although a board of education's policy for placement of teachers on its salary scale was unwritten and not generally disseminated, its uniform and unfailing application for 11 years supports a conclusion that the policy should be allowed to stand. Decision: 3 N.J.A.R. 157
The validity of a regulation may not be attacked based upon a lack of pre-adoption "hearings" where ample comment time had been provided for in the adoption process. Decision: 9 N.J.A.R. 349
One challenging the validity of a regulation always bears the burden of proof. Decision: 9 N.J.A.R. 349
Remand
Where the Director of the Division of Motor Vehicles remands a case to an administrative law judge to allow for the testimony of a breathalyzer operator who did not appear at the original hearing, such a remand is improper and does not allow the judge to fulfill his independent role. Decision: 2 N.J.A.R. 034
Res Judicata
Where the single substantive issue before an administrative law judge has been fully decided by a prior arbitration award, the doctrine of res judicata bars the litigation of that issue for a second time. Decision: 2 N.J.A.R. 184
Where the Commissioner of the Department of Community Affairs and the Appellate Division have previously ruled on a petition, that matter should be dismissed by an administrative law judge. Decision: 3 N.J.A.R. 237
Where an individual voluntarily selects an initial forum for remedying his termination of employment and a complete and valid arbitration award is then made, the individual is barred from pursuing a subsequent administrative proceeding. Decision: 3 N.J.A.R. 276
Application for setting aside an arbitration award may not be made before an administrative law judge and must be made to Superior Court. Decision: 3 N.J.A.R. 276
An administrative action is not barred by a dismissal of a more broadly based federal complaint when neither the doctrine of collateral estoppel or res judicata apply. Decision: 4 N.J.A.R. 105
Sealing Record
All adjudicative proceedings are open to the public and any deviation from that norm must be tested by a standard of strict and inescapable necessity. Decision: 5 N.J.A.R. 310
Settlement
An agreement to settle a legal dispute is a contract which absent fraud or other compelling instances, should be honored and enforced. Decision: 6 N.J.A.R. 480
Special Education
Where special education cases include some claims within the special education law and some claims which are more properly part of a contested procedure the judge should carefully parse the claims and delineate which are reviewable by agency heads under the usual contested case procedure. Decision: 6 N.J.A.R. 360
Administrative law judges assigned to hear special education matters are not assigned pursuant to the Director of the Office of Administrative Law's contested case powers but under N.J.S.A. 52:14F-15(o) which empowers ALJs to assist administrative agencies in non-contested case proceedings. Decision: 6 N.J.A.R. 360
Standard of Proof
The standard of proof in teacher tenure matters should be proof by a preponderance of the evidence. Decision: 3 N.J.A.R. 237
Standing
An unsuccessful bidder lacks standing to challenge the methods used by the Division of Purchase and Property for the evaluation of bids since no objection had been raised by the bidder before the bids were opened. Decision: 1 N.J.A.R. 099
Where the U.A.P.R. do not establish criteria governing standing, agency rules extant when the U.A.P.R. were adopted may be looked to for guidance. Decision: 5 N.J.A.R. 029
Restrictive principles of standing developed for good reason to apply in law suits between private parties should be applied with greater flexibility in the field of administrative law. Decision: 5 N.J.A.R. 029
Stay
The denial of a stay of an administrative proceeding pending the outcome of a criminal proceeding does not violate an individual's due process rights. Decision: 6 N.J.A.R. 221
Subpoenas
Evidence obtained through improper subpoena is admissible in administrative hearing. Decision: 13 N.J.A.R. 485
Summary Decision
Where after argument on a motion for interim relief, it appears that there are no issues of material fact, the motion may be treated as if cross-motions for summary decision had been made. Decision: 2 N.J.A.R. 283
Summary decision was granted because there was no dispute as to any material fact. Decision: 12 N.J.A.R. 225
Unpublished Court Opinions
Unpublished court opinions do not constitute precedent and are not binding in administrative proceedings. Decision: 13 N.J.A.R. 612