§ 150B-40. Conduct of hearing; presiding officer; ex parte communication. - North Carolina Statutes

§ 150B‑40.  Conductof hearing; presiding officer; ex parte communication.

(a)        Hearings shall be conducted in a fair and impartial manner.At the hearing, the agency and the parties shall be given an opportunity topresent evidence on issues of fact, examine and cross‑ examine witnesses,including the author of a document prepared by, on behalf of or for the use ofthe agency and offered into evidence, submit rebuttal evidence, and presentarguments on issues of law or policy.

If a party fails to appear in a contested case after he has been givenproper notice, the agency may continue the hearing or proceed with the hearingand make its decision in the absence of the party.

(b)        Except as provided under subsection (e) of this section,hearings under this Article shall be conducted by a majority of the agency. Anagency shall designate one or more of its members to preside at the hearing. Ifa party files in good faith a timely and sufficient affidavit of the personalbias or other reason for disqualification of any member of the agency, theagency shall determine the matter as a part of the record in the case, and itsdetermination shall be subject to judicial review at the conclusion of theproceeding. If a presiding officer is disqualified or it is impracticable forhim to continue the hearing, another presiding officer shall be assigned tocontinue with the case, except that if assignment of a new presiding officerwill cause substantial prejudice to any party, a new hearing shall be held orthe case dismissed without prejudice.

(c)        The presiding officer may:

(1)        Administer oaths and affirmations;

(2)        Sign and issue subpoenas in the name of the agency,requiring attendance and giving of testimony by witnesses and the production ofbooks, papers, and other documentary evidence;

(3)        Provide for the taking of testimony by deposition;

(4)        Regulate the course of the hearings, set the time and placefor continued hearings, and fix the time for filing of briefs and otherdocuments;

(5)        Direct the parties to appear and confer to considersimplification of the issues by consent of the parties; and

(6)        Apply to any judge of the superior court resident in thedistrict or presiding at a term of court in the county where a hearing ispending for an order to show cause why any person should not be held incontempt of the agency and its processes, and the court shall have the power toimpose punishment as for contempt for acts which would constitute direct orindirect contempt if the acts occurred in an action pending in superior court.

(d)        Unless required for disposition of an ex parte matterauthorized by law, a member of an agency assigned to make a decision or to makefindings of fact and conclusions of law in a contested case under this Articleshall not communicate, directly or indirectly, in connection with any issue offact or question of law, with any person or party or his representative, excepton notice and opportunity for all parties to participate. This prohibitionbegins at the time of the notice of hearing. An agency member may communicatewith other members of the agency and may have the aid and advice of the agencystaff other than the staff which has been or is engaged in investigating or prosecuting functions in connection with the case under consideration or afactually‑related case. This section does not apply to an agency employeeor party representative with professional training in accounting, actuarialscience, economics or financial analysis insofar as the case involves financialpractices or conditions.

(e)        When a majority of an agency is unable or elects not to heara  contested case, the agency shall apply to the Director of the Office ofAdministrative Hearings for the designation of an administrative law judge topreside at the hearing of a contested case under this Article. Upon receipt ofthe application, the Director shall, without undue delay, assign anadministrative law judge to hear the case.

The provisions of this Article, rather than the provisions of Article3, shall govern a contested case in which the agency requests an administrativelaw judge from the Office of Administrative Hearings.

The administrative law judge assigned to hear a contested case underthis Article shall sit in place of the agency and shall have the authority ofthe presiding officer in a contested case under this Article. Theadministrative law judge shall make a proposal for decision, which shallcontain proposed findings of fact and proposed conclusions of law.

An administrative law judge shall stay any contested case under thisArticle on motion of an agency which is a party to the contested case, if theagency shows by supporting affidavits that it is engaged in other litigation oradministrative proceedings, by whatever name called, with or before a federalagency, and this other litigation or administrative proceedings will determinethe position, in whole or in part, of the agency in the contested case. At theconclusion of the other litigation or administrative proceedings, the contestedcase shall proceed and be determined as expeditiously as possible.

The agency may make its final decision only after the administrativelaw judge's proposal for decision is served on the parties, and an opportunityis given to each party to file exceptions and proposed findings of fact and topresent oral and written arguments to the agency. (1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022,ss. 1(1), 6(3), 6(4).)