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Mechanisms and Procedures for Resolving Disputes Administrative Law body of law dealing with the functions of administrative agencies, how decisions are made by those agencies, and the methods of review by the courts Branches of US Govt (1) Executive (includes admin tribunals), (2) Legislative (adopts laws), Judicial (the court) Federalism Fed Govt Federal APA Like a roadmap on how you deal with Federal Admin Agencies Federal ALJs independent, in a separate office Federal AJs tribal court judges, trial probate judges Federalism State Govt State APA CO APA provides a lot of due process protection Central Panels of ALJs or Hearing Officers Hearing Officials within the Agencies

Constitutional Due Process Guaranteed No CL of Admin Law Specific Law always controls the General Law Functions of an Agency All functions are combined. An agency can have 3 functions (E, L, J), but there has to be a separation of the 3 functions Admin Law Adjudication Mechanisms Office of Hearings & Appeals (ALJ or Hearing Officers)/Central Panels of ALJs Admin Tribunals (Canada, UK, Australia) The Courts (specialized or general jurisdiction) Basic Ingredients of a Due Process Hearing Notice and Opportunity to be Heard An opportunity to compromise before hearing Impartiality (not showing favoritism to one side or the other) and Independence Procedural Rules More specific rules control. Opportunity for a full Evidentiary Hearing Written decisions stating reasons for legal basis for decisions Anatomy of the Written Decision (1) Preliminaries (time, place of hearing, jurisdiction, etc.), (2) Findings of Fact, (3) Conclusions of Law, (4) The Order, (5) Advisement of Appeal Rights Admin Agency Adjudication Mechanisms are generally Executive Branch creatures Congress can create inferior, statutory courts within the judicial branch Congress can also create statutory courts within the executive branch Agencies have been described as the headless fourth branch. Because they do not fit neatly in the scheme of Separation of Powers Agencies are created to implement specific legislative purposes. As such, Agencies have a combination of functions EXECUTIVE Enforcement LEGISLATIVE Rulemaking JUDICIAL Adjudications To do these functions, the agency must interpret any vague or imprecise language to: Identify scope of its authority Determine the exact meaning to be given to the imprecise language Identify the specific legislative goals to be achieved Identify the exact methods it is authorized to use to achieve the desired results

Delegation Admin agency has power to determine individual rights and responsibilities by deciding specific cases, the agency exercise a portion of power of the judicial branch Agency decisions are final and binding on the parties over whom the agency has jurisdiction unless set aside by a reviewing court Judicial review of agency decisions is generally limited in scope De novo review is almost unheard of because it would undermine the entire administrative agency concept Sources of Administrative Law Research p.79 Organic Legislation establishing the agency Relevant portions of the APA Other legislation generally applicable to the agency Agency rules: substantive (delegated authority), interpretive guidance documents, bulletins Constitutional requirements (check the rules against the Constitution) Agency adjudication decisions Court decisions relevant to the agency You can have higher standards, but cannot have lower standards APA sets a minimum cannot have something lesser than the APA Does the APA apply to Agency Rulemaking Procedures? Does the APA apply generally? Does the particular rulemaking proceeding fall within the coverage of the APA? Does agency legislation exempt the rulemaking proceeding from the APA? Federal: the APA presumptively applies to virtually all federal agencies State: APA presumptively applies to rulemaking although a specific regulatory scheme may be sui generis for other purposes Nevertheless, one can argue that there is a default to the APA when a specific statutory scheme (sui generis) is silent Agency must take action to implement the legislatively mandated program Executive through assertion of executive power, the agency may: o Announce program policies o Interpret legislative provisions (statutes) o Advise those subject to its authority (bulletins) o Prosecute (through the attorney general) those in violation of program requirements Legislative agency may promulgate substantive rules that have the force of law Judicial agency may adjudicate specific disputes that arise in the course of its administration of the program Factors in Agencys choice of powers to exercise Internal to Agency o Age and experience of agency o Complexity of policy issues o Agencys adjudication caseload o Public relations External to Agency o Legislative pressure and intrusion o Executive pressure and intrusion president or the governor o Petitions for rule making by a member of affected public o Judicial review considerations ***Exhaustion - Must exhaust all remedies before you go to court unless agency has done something egregious. 2 principal applications of exhaustion doctrine: 1. A plaintiff may not forego the administrative procedure and file suit directly 2. Any claims or issues not presented in prior administrative proceedings may not be raised on judicial review Standing for Judicial Review Is the injury too abstract? Is the line of causation too attenuated

Is the prospect of obtaining relief as a result of a favorable ruling too speculative

Constitutional Reasons for Judicial Intervention, Failure to Adopt Rules Equal protection of the laws Without rules, the agency leaves its actions to the unfettered discretion of the individual adjudications Neither the public nor the courts can know in advance what evidence was material to a particular decision Effect of Agency Not Adopting Rules Agency not paralyzed because it has not adopted rules It can publish interpretations of its statutes and expect compliance Or it can await the development of specific cases and establish policies by exercising adjudicative power to develop a clearer game plan for adopting substantive rules Checklist of Reasons Supporting Judicial Intervention when there is a Failure to Adopt Rules Failure to adopt rules is an abuse of discretion Agencys organic legislation requires rules APA requires rules CL or equitable consideration require rules Substantive Rules Opportunity for public participation is important because the substantive rules will have the force of law. They will contain precise standards and criteria for compliance by those in the regulated community To do this, agency must follow rulemaking procedures laid out in the APA For Substantive Rule to have force of law, it must be: Within authority of agency under its organic legislation Promulgated according to procedures specified in the agencys organic act or APA, and Must not violate a superior source of law, (state or federal constitution) If the rule meets these tests, one who violates it is in the same position as one who violated a statute enacted by the legislature Interpretative Rule agencys statement of position You need to have a strong position to go against an interpretative rule Substantive Rules v. Interpretative Rules Substantive rules are sometimes called little statutes because they have the force of law Some argue that interpretative rules, policy statements, guidance documents, guidelines or bulletins are nothing more than statements concerning the way the agency sees the law Great credence must be given to interpretative statements because by making the statement the agency has made a functional commitment to that interpretation Ignoring these interpretations in the secure feeling that the courts will vindicate you may be extreme folly because courts apply the principle of deference to agency interpretations SUBSTANTIVE RULE Based on delegated power Prescribes Implements Statute Creates a new legal right, obligation or duty Has the Force and Effect of Law INTERPRETATIVE RULE Based on executive power Describes Guidance to public/not legally binding States a construction, clarification or explanation of an existing right or duty Reminds or advises of existing duties

Agency Exercise of Power. Involvement of Courts, Scope of Judicial Review Getting the agency enjoined to affirmatively do something or not to do something. When a Court can intervene: If agency adopts rules and rules go beyond statutory authority of agency Agency action violates Constitutional provision Organic Legislation original legislative statute of agency Ex. FBI to enforce the laws

If there are standards then it was reviewable. Judicial Review Unavailable When Agency Action Committed to Agency Discretion 5 USC Sec 701a Citizens of Overland Park v. Volpie No law standard Sec. of Transportation approved the construction of a highway that ran through a public park Statute provided guidelines for Sec. discretion, unless there are standards for the exercise of discretion. No feasible and prudent alternative and the program included all possible planning to minimize harm to the park. 2 standards for the Secretarys discretion. Had standards here is the evidence presented. There were other alternatives. Statute provided guidelines SC ruled actions committed to agency discretion was a very narrow exception applicable only when there is no law to apply. Dunlop v. Bachowski (1975) Narrow availability. REMEMBER THIS CASE US DC ruled that it lacked jurisdiction because the decision as to whether to bring an enforcement action was an unreviewable act of discretion SC reversed holding that review was available under the APA and the scope of judicial review of such enforcement decision is confined to an examination of the Secretarys reasons statement and whether it indicated that the Secretarys decision is so irrational as to make the decision arbitrary and capricious. Judicial Review short circuiting the exhaustion doctrine. When courts will intervene before exhaustion has been applied. Minimum Due Process Requirements for a Hearing (Goldberg) Timely and adequate notice detailing reasons proposed termination Effective opportunity to defend by confronting any adverse witness Opportunity to present arguments and evidence, orally Allowing the person to retain an attorney Basing a conclusion as to benefit eligibility solely on legal rules and evidence presented at hearing A statement of the reasons for the determination, indicating the evidence relied on; abdm An impartial decision maker Londoner v. Denver Due process required that the landowner must have had an opportunity to be heard. The mere submission of objections and complaints did not satisfy due process Bi-Metallic Inv. Co. v. State Bd. Of Equalization Court concluded landowner given all the process that was due. Court noted the change adopted applied to every landowner in the city. Property owners all stand alike

RULEMAKING Advantages to Rulemaking Consistency Subjects agency to greater public scrutiny Promotes equal treatment of all parties Better assures a proper way of decisional criteria Facilitates judicial review court can review rule more easily American Hosp Ass'n v. Bowen Procedural rules in themselves don't alter rights or interests They may alter the manner in which those rights or interests are presented A rule may not modify or contravene an existing statute Any rule that is inconsistent with or contrary to statute is void ab initio (from the beginning) Compliance with the APA is required where an agency's interpretation of law established agency policy and procedure Where APA requirements were not met the rule was not enforceable Notice of Rulemaking Must contain: Statement of time, place and nature of public rulemaking proceedings

Reference to legal authority under which the rule is proposed Either the terms or substance of the proposed rule or description of the subjects and issues involved

Rulemaking statement of basis and purpose required is 24-4-103 Statement of basis and purpose assures that the administratively perceived necessity of rule will be explicated It serves to provide a reference point against which the validity of the rule can be measured It removes the review process from the realm of speculation and provides a context within which meaningful judicial review can occur Rulemaking failure to maintain adequate record (substantial compliance) Malfunctioning tape recorder Introducing documents from outside of the rulemaking procedures Failing to include and maintain all written submissions and comments received by the agency prior to the rulemaking hearing. To distinguish between a change and a clarification in a rule 3 prong analysis Look at Legislative History or the Rule Folder and Record of the Rulemaking Hearing Considering the plain language of the General Assembly or Agency Assessing whether the provision was ambiguous Retroactive Application of Statute or Rule Presumption that statue or rule is prospective Courts frown on retrospective statutes or rules If the presumption is overcome, the reviewing court must determine if the retrospective statute or rule o Takes away or impairs vested rights acquired under exitsing laws o Creates a new obligation o Imposes a new duty or o Attaches a new disability The Courts will stand on their heads to try to review an agencys decision Two Step inquiry on retrospective application of statute or rule Did General Assembly or Agency intend the challenged provision to operate retroactively If so, is the challenged provision unconstitutionally retrospective or is retrospective application of the rule beyond the statutory permission and/or jurisdiction and authority of the agency Skidmore Deference Doctrine of cautious deference to agency interpretations of statutes Chevron Deference Deference to any reasonable interpretations of ambiguous statutory provisions Court may not substitute own construction of a statutory provision for a reasonable interpretation When Congress has not addressed a disputed issue of interpretation, the courts must presume that Congress has delegated interpretative authority to the agency Chevron deference does not apply to an administrative agencys opinion letter interpreting a regulation of the agency Negotiated Rulemaking An agency may establish a Negotiated Rulemaking Committee (NRC) to negotiate and develop a proposed rule if the agency head determines that its use is in the public interest Determination is based on Need for a rule There are a limited number of interests involved that will be significantly affected by the rule It is likely that the committee will reach a consensus within a fixed period of time Procedure will not unduly delay the formal rulemaking process Agency has adequate resources to support the effort and will commit them to the NRC Agency will to the maximum extent possible consistent with legal obligations use the committee consensus as the basis for the rule ultimately proposed

Basics of Administrative Adjudication Agency created (organic act) by Congress or state legislature [to regulate or administer benefits] Agency enforces statute promulgates substantive rules if it has statutory authority to do so; without a hearing, it can promulgate interpretative rules Issues involving violation of agency statute or substantive rule arises Agency investigates Agency gives notice of proposed action Violator or benefit recipient does not agree and requests hearing Violator or benefit recipient requests mediation agency agrees Mediation unsuccessful agency causes formal complaint to issue and a formal hearing is set, or benefit recipient requests formal hearing Formal evidentiary hearing occurs ALJ issues initial decision or full findings (workers comp) Losing party files exceptions to agency or appeal to executive branch agency appellate body Agency does not act in 30 days ALJ decision becomes final agency action (FAA) or agency issues FAA modifying ALJ initial decision Dissatisfied party seeks timely judicial review in the judicial branch, having exhausted administrative remedies

Agency Program Right to Adjudication Regulatory Agencies (EPA) o Enforcement initiated by agency o Enforcement initiated by private party Benefits Agencies (SSA, UI, Workers Comp) o Application for Benefits o Termination for Benefits Licensing Boards o Application denial o Suspension or revocation Attempting to convince agency personnel that they meet requirements of legislation identifying those to be benefitted Nature of adjudication process will be determined by o Language of agency legislation o Provisions of APA o Relevant agency rules If rejected - reconsideration at a higher lever Complaint - first initial step in initiating the adjudicatory process "An agency may issue a complaint" Discretion may be placed in statutory language conditioning enforcement Criticisms of the agency o Doing nothing o Doing too little o "soft" on members o Captive of the industry regulated Citizen files a complaint -->Goes to DORA-->If case is slam dunk, non-controversial case-->DORA has process called ESP (expedited settlement process)-->ESP has to be offered by DORA--> if not goes to licensing board-->Meets once a month and considers complaints--> Can dismiss, agree to mediate, require AG to file formal complaint with OAC (Office of Administrative Courts)--> Judge assigned and hearing set-->Issue an initial decision If either side does not like initial decision can file appeal Sovereign cannot sue the sovereign - one state agency cannot sue another. Final Agency Action - judicial review goes to the district court. All licensing boards, worker's comp, all go to court of appeals as a matter or right. Due Process Analysis Factors - Consider all factors when analyzing whether or not due process rights have been infringed upon Deprivation o Immediate, threatened, direct, indirect

Property o Entitlement, expectation, sources Liberty o Stigma, good name, honor, integrity, opportunities foreclosed Process o Hearing, timing, scope, lawsuit

Minimum Due Process Requirements for a Hearing (Goldberg) Timely and adequate notice detailing reasons for proposed termination Effective opportunity to defend by confronting any adverse witness Opportunity to present arguments and evidence orally Allowing the person to retain an attorney (constitutional right) Right to counsel, pro bono, legal aid, pro se Basing a conclusion as to benefit eligibility solely on legal rules and evidence presented at hearing A statement of the reasons for the determination, indicating the evidence relied on and An impartial decision maker (differs from an independent decision maker) Matthews v. Eldridge Procedural Balancing Test Goldberg provided right to an evidentiary hearing prior to termination of welfare benefits (isolated case) Matthews Court determined that due process did not require a hearing prior to termination 3 Factor Balancing Test o The private interest that will be affected o The risk of erroneous deprivation of that interest through summary procedures used and the likely value of additional procedural safeguards o The governments interest, including both the function involved and the fiscal and administrative burdens that additional procedural safeguards would entail Ultimate Safeguard right to post deprivation hearing Goss v. Lopez Property right to a public education Suspension from school of 10 days or less requires: o Oral or written notice of the charges o If student denies charges, student entitled to Explanation of the evidence Opportunity to present the other side of the story This may take place almost immediately Standing/Justiciability Injury (harm) must be specific and concrete Injury must be personal (private) interest of complainant Causation injury must be proximately caused by conduct of offender Redressability relief must be likely to remedy injury Interest must be different from those shared with general public (injury must be personal to be a justiciable matter) Powers of ALJ at Hearing Administer oaths and affirmations Sign and issue subpoenas Rule upon offers of proof and receive evidence Dispose of motions relating to discovery Regulate the course of the hearing Fix the time for filing briefs and other documents Convene pre-hearing conferences to simplify issues Issue orders that control the course of proceedings Dispose of motions, including motions to dismiss, intervene or similar matters Reprimand or exclude from hearing any person for indecorous conduct Award attorney fees for discovery abuse as provided by CRCP Rule 37

THE CENTRAL PANEL The Rule of Necessity CL doctrine that permits a biased decision maker to decide because an agency is the only game in town Rule of Necessity is strongly disfavored by the courts 3 alternatives to invoking the Rule of Necessity o Court may have inherent power to appoint an impartial replacement o Better, the legislature could amend the APA to provide for an impartial replacement o A Central Panel is the best alternative to invoking the Rule of Necessity In many cases central panel ALJs render initial decisions that go to the agency for final agency action In the case of a biased agency head or board that renders FAA, the agency can delegate FAA authority to the central panel ALJ Why Central Panels in the First Place? There is no federal central panel. As of 2009 25 state and 3 city central panels In the 1970s, state legislatures began establishing central panels because of scandals or perceived conflicts of interest concerning agency adjudicators Colorado central panel established in 1976 Central Panels v. Adjudicators in the Agencies Perception can be everything. A perceived lack of independence and impartiality can, in and of itself, amount to a lack of both If adjudicator within agency, an impenetrable wall between it and the adjudicator must be constructed to foster public perceptions of fairness. (physical separation) Best impenetrable wall is the central panel. An organization of adjudicators that is a separate agency from the agencies that are required to provide a fair hearing at the end of the administrative line Central Panels a Good Idea for Governments CP offers an efficiency of scale because only function is to hear and decide contested cases CP projects being an independent, executive branch judiciary Public perceptions of fairness are similar to perceptions of the judicial branch Once an agency refers a case to the central panel, as a practical matter, it can only take the case back to dismiss it or otherwise settle with the Respondent-Licensee because the agency becomes a party opposing the Respondent after referral to the central panel. Also, the agency would be violating the separation of investigative, prosecutorial and adjudication functions. LICENSING BOARD MATTERS Withrow v. Larkin 421 U.S. 35 (1975) p.188 Procedural due process not violated by merely combining investigative and adjudicative functions If a citizen wants to file a complaint with DORA they can send a letter to them and then an investigator will be appointed Investigator said something there and recommend to board that they do something. The board can refer to Attorney General or file an admonition. If goes to AG, then formal complaint and ALJ. DORA is divided into separate Divisions Division of Registrations (most State licensing boards) The Real Estate Division The Civil Rights Division The Securities Division The Banking Division Consent as a Condition of Licensure Administrative searches upheld Enforce statutes regulating sale and transfer of firearms by federally licensed dealers Enforce federally regulated alcoholic beverage licenses Drug testing of licensees, employees, trainee workers (FELA), flight crews Fourth Amendment still applies Licensees ordinarily consent to reasonable inspection of their licensed facilities as a condition of licensure Conditions of licensure must be reasonable Immediate threat to public health, safety and welfare will allow immediate action

Licensees consent to reasonable inspection You agree to certain things if you are licensed The Accountancy Board - Privilege Held - the Board's investigatory power does not create an exception to the accountant client privilege created in 13-90-107 [husband-wife, attorney-client, clergy member, physician-patient] The Board must obtain client consent for disclosure of any information otherwise privileged If Organic Act permits, agencies have the authority to compel reports, records and inspections in regulatory cases Inspections and searched must be reasonable under the 4th amendment Administrative inspections and searches are 4th Amendment searches There are 3 exceptions to warrant requirements 1. Consent 2. Exigent circumstances (emergency) 3. Open to public access (in plain view) 2 Models in DORA for boards and commissions Board Model Director Model Professional Licenses - Issuance, Suspension or Revocation Renewal Notice has to be in writing and specific Has to state objective facts Opportunity to cure - except in case of deliberate and willful violation or of substantial danger to public health and safety, the licensee must be given a reasonable opportunity to comply with all lawful requirements Summary Suspension - potect the public - summarily suspend the license pending formal proceedings which shall be promptly instituted and determined License Renewal Amended APA to provide that if an application for renewal is denied, it shall be treated in all respects as a denial and within 60 days the license may request a hearing before the agency. The State has argued that the burden of proof is then upon the applicant for renewal Medical Board - physicians have a lot invested. They are high stakes. Unprofessional Conduct/Physicians Fraud in seeking license Aiding and abetting in procuring a criminal abortion Conviction of an offense of moral turpitude (petty theft, case by case basis) Administering controlled substances other than in the course of professional care Conviction of violation of laws relating to controlled substances Habitual intemperance Aiding and abetting the unauthorized practice of medicine Engaging in sexual act with patient during the course of care Dispensing, injecting anabolic steroids for hormonal manipulation Committing a fraudulent insurance act Any act or omission that fails to meet generally accepted standards of medical practice (Biggie) Preponderance Standard/Licensing and Benefits Matters A preponderance is that a quantum of evidence that makes a fact more reasonably probable than not Burden of Proof Licensing Agencies o Applicant for licensure has the burden of proving qualifications o Agency may administratively revoke, subject to licensees request for a hearing o Agency has the burden of proving misconduct of licensee Benefits Program o Applicant has the burden of proving qualification for benefits

o o

Agency must five notice of termination of benefits and if recipient makes a timely request for hearing, benefits must continue Agency has the burden of proving that a termination of benefits is warranted

Disciplinary Action by Medical Board Board divided into two panels of six members each, four of whom shall be physicians Each panel shall act as both inquiry and a hearings panel In no event shall any member who has considered a complaint as an inquiry panel (analogous to the grand jury) member, take any part in the consideration of a formal complaint involving the same matter Investigations shall be under the supervision of the panel to which they are assigned Judge Felter likes the Marchetti case. Says it is one of his favorite cases Rules are really tight in the State of Colorado McCroskey Case - very important medical board case

CIVIL RIGHTS MATTERS Discrimination on the Basis of: (Protected Classes) Disability Race Creed Color Sex Sexual Orientation Religion Age National Origin Ancestry Persons with Disabilities (Colorado ADA) o Visually Impaired o Deaf o Otherwise Physically Disabled

Areas of Prohibited Discriminatory Practices Employment Practices [24-34-401 - 406, C.R.S.] Housing Practices [24-34-501 - 509, C.R.S.] Public Accommodations [24-34-601 - 405, C.R.S.] Discriminatory Advertising [24-34-701 - 707, C.R.S.] Persons with Disabilities [24-34-801 - 804, C.R.S.]

Standing/Justiciability Injury (harm) must be specific and concrete. CB p.409 Injury must be personal (private) interest of complainant. CB p.411 Causation: Injury must be proximately caused by conduct of offender. CB p.413 Redressability: Relief must be likely to remedy injury. CB p.414, 415. See Allen v. Wright, 468 U.S. 737 (1984). Sources of Law o Common Law Interest o Constitutional Law Interest o Statutory Right Interest o Interest Created by Substantive Rule (Principally Federal) INTEREST MUST BE DIFFERENT FROM THOSE SHARED WITH GENERAL PUBLIC (the injury must be personal to create a justiciable matter). Presumption of Unlawful Discrimination


Intentional job discrimination may be presumed by establishing prima facie case that: Complainant belongs to a protected class The complainant was qualified for the job (by virtue of BFOQ) (bona fide occupational qualification) Despite other qualifications, complainant suffered an adverse employment decision The circumstances give rise to an inference of unlawful discrimination Proven by looking at past hiring practices Burden really shifts for employer to say no, I didn't discriminate and here is why I did not discriminate See George v. Ute Water Conservancy Dist., 950 P.2d 1195 (Colo. App. 1997). Some Discrimination Concepts Constructive Discharge - concept is applicable in discrimination cases. Colo. Civil Rights Comm'n v. State, 30 Colo. App. 10, 488 P.2d 83 (1971). A disabled person is "otherwise" qualified for employment if , with reasonable accommodations, he can perform the reasonable, legitimate and necessary functions of the job. AT&T Technologies, Inc. v. Royston, 772 P.2d 1182 (Colo. App. 1989). What are the parameters of "reasonable obligations" In the 10th Circuit, exhaustion of administrative remedies is jurisdictional requirement to filing suit under Title VII of the Civil Rights Act of 1964. Longo v. Regis Jesuit High School, 2006 U.S. Dist. LEXIS 4142 (D.C. Colo. 2006). Theoretically, a complainant may proceed before the Colorado Civil Rights Commission or the Federal Equal Opportunity Commission. However, one agency or the other may invoke the "doctrine of abstention" Abstain to hear what the state agency does Why it may be preferable to proceed before the Colorado Civil Rights Commission: o Because the complainant gets a free lawyer, i.e., an assistant attorney general to prosecute the charges. If Complainant establishes a Prima Facie Case of Employment Discrimination The burden of production shifts to the Employer To articulate some legitimate, nondiscriminatory reason for the employment decision If the Employer meets its burden Complainant must be given a full and fair opportunity that presumptively valid reasons for the employment decision were a pretext for discrimination. See Colo. Civil Rights Comm'n v. Big O Tires, 940 P.2d 397 (Colo. 1997). Remedies Employment Discrimination Affirmative Action including: Back Pay Hiring Reinstatement Upgrading of employees, with or without back pay Making of Reports to the Commission Discrimination on the Basis of Disability: Americans with Disabilities Act, State Counterpart in Colorado Civil Rights Act An Employer cannot refuse to hire on the basis of disability, if the prospective hire can perform the essential job functions if reasonable accommodations are made. What are essential job functions? What does it take to get the job done? What accommodations are reasonable? "Disability" Disability means a physical impairment which substantially limits one or more of a person's major life activities and includes a record of such an impairment and being regarded as having such an impairment (perceived impairment). 24-34301(2.5)(a), C.R.S. Disability shall also include such person who has a mental impairment, but such term does not include any person currently involved in the illegal use of or addiction to a controlled substance. 24-34-301(2.5)(b)(i) The term mental impairment shall mean any mental or psychological disorder such as developmental disability, organic brain syndrome, mental illness, or specific learning disabilities. 24-34-301(2.5)(b)(iii) Public Accommodations/Remedies Forfeiture of $50 to $300 to the aggrieved person for each offense Guilty of misdemeanor and upon conviction a fine of $10 to $300 or imprisonment of not more than one year or both


Relief under this section [24-34-602, C.R.S.] shall be an alternative to seeking relief from the Colorado Civil Rights Commission.

Right to Sue in State or Federal Court/Housing Discrimination Notwithstanding any provision of the Colorado Civil Rights Act, any aggrieved person may commence a civil action in an appropriate US district court or state district court not later than two years after the occurrence or termination of an alleged discriminatory housing practice or breach of a conciliation agreement. 24-34-505.6(1), C.R.S. See, however, 24-34-306(14), which sets for an exhaustion doctrine and an avenue for extraordinary relief Upon timely application, the attorney general may intervene in any civil action as provided above. 24-34-505.5 A conciliation agreement (mediation) between the respondent and charging party may provide for binding arbitration and shall be made public unless disclosure is not required to further the purposes of housing anti-discrimination provision 24-34506.5 After filing of a charge with the Colorado Civil Rights Commission, the Commission, on behalf of the People of the State of Colorado through the attorney general, may file for injunctive relief from the district court. Unfair Housing Practices Remedies Cease and Desist (can be done at administrative level as well) Require reports of remedial action Reimburse for actual expenses in obtaining comparable housing Award actual damages and injunctive or other relief Assess a civil penalty o Not to exceed $10K if no adjudged prior housing discrimination o Not to exceed $25K if any prior adjudged discriminatory housing practice during the last 5 years o Not to exceed $50K if 2 or more adjudged discriminatory housing practices during 7 years preceding date of filing present charge Earl May v. Colorado Civil Rights Commission, 43 P.3d 750 (Colo. App. 2002). "a party has an absolute right not to appear and defend in a civil case" HELD - The ALJ erred in considering Mr. May's non-participation (stonewalling) in the hearing and, thus, remanded for reconsideration of the $10,000 damages awarded. The case settled before any hearing on remand. Exhaustion of Administrative Remedies - Civil Rights - State Level No person may file a civil action in district court in this state based on alleged discriminatory or unfair practice prohibited by the Colorado Civil Rights Act without first exhausting the proceedings and remedies available under this Act unless he shows, in an action filed in the district court, by clear and convincing evidence, his ill health would not provide timely and reasonable relief and would cause irreperable harm. 24-34-306(14), C.R.S. Charges/Responsibilities of Director of Civil Rights Division The Director shall make prompt investigation, subpoena persons and documents, determine if probable cause exists If probable cause does not exist, the Director shall dismiss the charges and advise that the charging party has the right to appeal to the Commission within 10 days. The charging party may file a civil action in the district court within 90 days. If probable cause exists, respondents shall be served with written notice that states with specificity the legal authority and jurisdiction of the Commission and matters of fact asserted by the Director When the director is satisfied that further efforts to settle the matter by conference, conciliation and persuasion will be futile, he shall so report to the Commission If the circumstances warrant, the Commission shall issue a written notice and complaint by 24-4-105(2) A hearing before an ALJ shall be commenced within 120 days after service 24-34-306(1)-(5), C.R.S. ALTERNATIVE DISPUTE RESOLUTION Forms of ADR Settlement conference by a Judge Arbitration (binding and non-binding) Early neutral evaluation Mini trial Mediation ADR can be used for:


Workplace disputes Contract disputes Personal injury claims Domestic relations disputes Government licensing disputes Mediation is appropriate when/ Strained relationships must continue Mis communication apparent neutral can facilitate Parties may be willing to settle (confidentiality is important) Time factors are important Mediation is a process that involves Trained facilitator that is neutral o Determines the parties underlying interests o Helps them arrive at a mutually agreeable resolution Who helps two or more parties Collaboratively Resolve their dispute Parties to Mediation Participate in good faith Have full settlement authority Bring the right people with them Are prepared to be open and candid Provide a written summary of the dispute in advance for the mediator (optional) Mediation is an Informal Process Voluntary both parties must agree to be there Rules of evidence do not apply No sworn testimony no witnesses Both parties must agree on resolution BATNA Best Alternative to a Negotiated Agreement WATNA Worst Alternative to a Negotiated Agreement Mediation from Beginning to End Joint Session o Introduction, welcome, explanations of the process o Description of the situation o Main concern of the parties Private Caucus o Some mediators do their most effective work in private caucus Information Gathering and Developing Interests o Meet privately establish trustworthiness of Mediator o Open ended questions o Venting by party (it is legitimate) o Clarify and narrow issues Generate Options o What does each side want? o Will something else work? o Be creative Evaluate and Select Options o Reality Testing get party to acknowledge weaknesses in his/her case o Discuss the BATNA and WATNA o Emphasize uncertainty of litigation and loss of control over outcome Reaching Agreement o Be Specific No Surprises o Establish time and complete conditions of agreement o Be balanced and positive discussing terms o Put the agreement in writing o Get signatures What do if an Impasse? o Change the players and the perceptions of the parties


o Use time to your advantage o Show relentless persistence and optimism o Remind parties that the process is important Closure and Mediator Evaluation o Thank all parties for attending. Remind them that the process is important o If successful, remind that the resolution is their product Mediation Ethics Ex Parte communications are OK Confidentiality remains inviolate o CRS 13-22-307 the mediator shall not be required to disclose any information concerning any mediation communication provided in confidence Neutrality at all times Trustworthiness to all Parties

DUE PROCESS CHECKLIST Sources of procedural protections o Agency legislation (organic acts) o APA o Agency Rules o Court cases construing the above o Constitutional due process minimums Sources of protected liberty or property interests o Constitutional rights (state or federal) o Statutory rights or entitlements (state or federal) o Common law (state or federal) o Court cases construing the above Range of proceedings that may comply with due process o Full evidentiary hearing on the record o Prior notice and opportunity to respond and later full hearing o Summary action followed by opportunity for hearing Based on emergency doctrine Based on balancing factors

Substantive due process controlled at time right created (not retroactive no ex post facto laws) Procedural due process controlled at time the changes in statutes or rules became effective (retroactive to time of adoption) Applicability of the APA Federal APA defines agency to include each authority of the government of the US Federal APA presumptively applies to all federal agencies Presumptively, all federal agencies are subject to the APAs minimum requirements commonly known as informal or notice and comment rulemaking Agency organic statutes and agency procedural rules are the primary sources of any prescribed rulemaking procedures

Formal v. Informal Adjudication Estimated that 90% of adjudications at the federal level are conducted informally To activate the formal hearing requirements of the federal APA, the language of another statute must trigger it NOT necessarily so at the state level o The specific agency statute must specifically exclude the APA formal hearing provisions o Generally by providing an acceptable alternative (acceptable to the general Assembly and the courts) APA applies to all formal hearings when agency legislation triggers applicability of formal hearing provisions Most state organic acts provide triggers for formal hearings under the state APA Federal APA recognizes 3 kinds of ALJ decisions Initial Decision Recommended Decision (beware) [ALJ decision may be advisory only, depending on particular agency organic act] Tentative Decision (an agency decision involving rulemaking or initial licensing In some states, including one central panel state, an ALJ may only render a recommended decision depending on the specific organic act of an agency


Prosecuting and Defending the Professional Licensee I. A look at admin law in action II. The practice Wide range of licensees: health care (doctors, dentists, pharmacists, nurses, etc), business (real estate brokers, appraisers, insurance agents, motor vehicle dealers, securities dealers, mortgage brokers, accountants, etc.), construction (engineers, architects, electricians, etc), and more (teachers, bail bond agents, mortuaries, outfitters, etc.) Most activity involves disciplinary actions by state licensing agencies Other arenas relevant to professional licensing peer review, teacher employment, regulation by federal agencies (e.g. DEA, FAA, etc) Litigation oriented, but generally civilized III. The anatomy of a licensing action Informal complaint possible summary suspension Investigation - generally with licensee input Referral to AG no statute of limitations Complaint & answer notice pleading Mediation Discovery Hearing - before an ALJ i.a.w. the APA ( 24-4-105, C.R.S.), rules of practice and, generally, the CRE and CRCP ALJs Initial Decision findings of fact, conclusions of law, sanction Exceptions Final agency decision - the end of the administrative process Appeal - to district court or court of appeals i.a.w. 24-4-106, C.R.S. IV. Challenges to the practice The agencies problem of combining the roles of investigator and adjudicator Withrow v. Larkin, 421 U.S. 35 (1975) Picking the right case to take to trial - questions of law v. fact Bd. of Med. Ex. V. McCroskey, 880 P.2d 1188 (Colo. 1994) How much process is due? Bd. of Med. Ex. v. Boyle, 924 P.2d 1113 (Colo. App. 1996) Do I appeal? the standard of review Morall v. DEA, 421 F.2d 165 (D.C. Cir. 2005) V. Summary Prosecuting and Defending the Professional Licensee Challenges to the practice Combining the roles of investigator, prosecutor and adjudicator Withrow v. Larkin, 421 U.S. 35 (1975) - the right to a fair trial in a fair tribunal - the agencys presumption of honesty and integrity - government officials presume agency will be honest and act with integrity - Cannot split up functions if agency is going to be efficient - Split into two panels, hearing and inquiry panes - the combination of investigative and adjudicative functions does not, without more, constitute a due process violation - but, special facts and circumstances may make the risk of unfairness intolerably high - various models to create some separation - the ad hoc investigator - the dedicated investigator - the split panel Picking the right case to take to trial - questions of evidentiary fact, ultimate fact, and law Bd. of Med. Ex. v. McCroskey, 880 P.2d 1188 (Colo. 1994) Council builds success in making deals (settlement) without spending a ton of money. Vast majority are solved by stipulated agreement. Important to determine if case is going to turn on facts or law Boards goal by statute is protection of public interest How to decide which cases to go forward on and which to not, use elements in McCroskey Judge in best position to find findings of fact - evidentiary fact is raw, historical data within ALJ discretion (what did Dr. McCroskey do?) - ultimate fact is a mixed question of law and fact w/i agency discretion (make a finding that is dispositive of the case), ex. Applying negligence standard to facts of case. - pure questions of law are within the courts discretion - prudent practice requires matching the key issue to the decision-maker When should conduct result in discipline? Up to Board to decide.


How much process is due? Bd. of Med. Ex. v. Boyle, 924 P.2d 1113 (Colo. App. 1996) - due process is the right to be heard at a meaningful time and in a meaningful manner - In Colorado, if convicted of a crime, can have license revoked - not necessarily the right to be present at the hearing - or the right to discovery, confrontation, strict rules of evidence (applied by statute), appointed counsel, etc. Not necessarily bound by rules of evidence Do I appeal? the shifting standard of review Morall v. DEA, 421 F.2d 165 (D.C. Cir. 2005) - Handled as defense counsel - appellate standard of review of agency findings is not de novo - findings of fact may be overturned if clearly erroneous - ultimate findings may be overturned if unsupported by substantial evidence in the record as a whole - questions of law are de novo, but an agencys interpretation of its enabling statute is entitled to deference - sanctions may be overturned if arbitrary and capricious or contrary to law (abuse of discretion) Judges credibility determinations get deference

Notes on the Memo. No discovery before a formal complaint is filed Request a meeting with investigators...court good will with investigator Learn all you can from public sources and other sources about Board Member hostility, adversity toward client Injury or harm is not necessary in professional discipline - only substantial conduct whereby potential harm is inferred. One cannot get official discovery concerning Board members. Lack of harm or injury is mitigating evidence Request Mediation - if Board does not agree, client is hearing bound. File an omnibus motion to permit discovery in the form of production of evidence found by the investigator, interrogatories followed by appropriate depositions and production of documents including the investigator's report. Hire your own expert Conform your conduct to the law Pecuniary interest in and of itself is not enough Totality of the evidence can give rise to an inescapable and plausible inference that the Board is biased. Better to have hard evidence though. INITIAL DECISIONS Under the Colorado APA, ALJ render Initial Decisions Initial Decision shall include o Statement of findings and conclusions o Upon all material issues of fact, law or discretion presented by the record o The appropriate sanction, relief or denial The findings of evidentiary (basic) fact, as distinguished from ultimate conclusions of fact shall not be set aside unless such findings are contrary to the weight of the evidence Exceptions must be filed (unless time extended) within 30 days after service of the Initial Decision If agency feels more evidence is necessary, it must remand to the ALJ In absence of timely exceptions, Initial Decision shall become FAA and shall result in waiver of right to judicial review With exception of human services and HCPF FAA (appeal to district courts), appeal is to Colorado Court of Appeals EXHAUSTION OF REMEDIES Premised on assumption that there are properly authorized remedies available within the agency and they are adequate to provide requested relief Permitting premature judicial review would undermine legislatively enacted administrative process Courts must fashion exhaustion principles consistent with congressional intent and any applicable statutory scheme Exhaustion may be excused when administrative remedy is unavailable or inadequate

Judicial Review Presumed to be Available Has been so before the APA Statutory silence may, but will not indicate an intent to preclude review May be interpreted as an intent to withhold the right of judicial review No review when agency action committed to agency discretion by law. Exception is very narrow. Overton Park Case. Clear and Convincing Evidence to preclude review. Abbott Labs v. Gardner Judicial Review of Agency Actions


Persons seeking judicial review must identify legislation that confers jurisdiction on the appropriate court Federal level jurisdiction based on agency statute State level jurisdictional authority based exclusively on statute State level upon a showing of irreparable injury, any court of competent jurisdiction may enjoin at any time the conduct of any agency proceeding Otherwise FAA is subject to judicial review after the exhaustion of administrative remedies The Standard of Review Arbitrary or capricious Denial of a statutory right Contrary to Constitutional Right Excess of Statutory Jurisdiction Not in accord with procedural limitations of APA or other law Abuse of Discretion Clearly erroneous findings of fact, based on whole record Unsupported by substantial evidence Otherwise contrary to law o o Arbitrary and Capricious, Abuse of Discretion and Lack of Substantial Evidence closely intertwined standards Arbitrary and Capricious if: Unsupported by the evidence in the record Erroneously interpreted the law (usually egregious) Exceeded its constitutional or statutory authority Arbitrary and Capricious & Abuse of Discretion are coextensive. A court will look for: Without reason (downright unreasonable) Lack of substantial evidence Mistake of law Bad faith Conflict of interest Substantial evidence quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence Arbitrary think of no justification or expression Capricious think of no factual development

o o o

Substantial Evidence ALJ factual findings must be supported by substantial evidence in the record The term substantial evidence has become a term of art to describe the basis on which an administrative record is to be judged by a reviewing court The standard goes to the reasonableness of what the agency did on the basis of evidence before it Universal Camera Corp. v. NLRB SCOTUS held that when reviewing a hearing officers fact findings in formal proceedings, a court must ordinarily apply the substantial evidence standard of the federal APA. When credibility is important, however, the evidence supporting an agency conclusion that differs from the hearing officers conclusion may be less substantial because the agency has all the powers which it would have in making the initial decision so the agency was entitled to make its own findings on the record compiled by the hearing officer. Test for Issue Preclusion (Res Judicata) Doctrine of Issue Preclusion may bind the parties to an administrative agencys findings of fact or conclusion of law Criteria for application of the doctrine of issue preclusion are: o Issue sought to be precluded is identical to an issue actually determined in a prior proceeding o Party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding o There is final judgment on the merits in the prior proceeding o Party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding Doctrine of Issue Preclusion/Res Judicata also prohibits relitigation of issues that might have been decided WORKERS COMPENSATION No Fault systems designed to assure injured workers disability payments and medical treatment The Workers' Comp Act provides "a remedy where remedies do not exist at common law"

Take the worker as you find the worker, but if you have a worker who brings in an imported danger, no compensation Look at what employer does


Workers' Compensation Basic Concepts No fault system To be covered, one must be a Colorado employee Arising out of employment - proximate causality - Critical Issue - Compensability - Arising out of employment Course and Scope of Employment o Time o Place o Circumstances Positional (Actual) Risk - but for being at work, injury would not have occurred Idiopathic Injuries - unexplained fall that causes injury. There must be a special hazard of employment and not an imported danger. Any special hazard may be enough. Dual Purpose Doctrine - equal benefit to employer (drive to pick up something for both employer and yourself) Personal Comfort Doctrine - a bathroom break Going to can coming from work not covered (not within course of employment) o Exception - eating lunch on employer's premises or parking in an employer parking lot Recreational Activities - playing on company baseball team not covered unless a condition of continued employment Horseplay. Employer condoned. (Is within the scope of employment)(most of the time not within the scope and course of employment) Sexual Harassment - an imported danger or widely tolerated. Horodyskj v. Karanian (2001) at center of article he wrote. Going to and Coming From Rule - Frolic and Detour Rule - truck drivers on duty 24 hours a day - can be close rule, can argue both ways. Responsibility for Termination from Employment Responsibility for termination from employment must be done through a volitional act by employee Worsening of condition breaks the proximate causal chain between the volitional act that caused the temporary disability and renewed temporary disability, thus, allowing a restoration of benefits System designed to give a fixed and reliable source of income during an injured employee's disability System is designed to give a fixed and reliable source of income during an injured employee's disability Workers' Compensation is ordinarily "the exclusive remedy" for work related injuries Jurisdiction The law of the place of contract governs Depending on circumstances, minimal contacts test of International Shoe may apply to a contract of employment consummated over the telephone Perryman Test for Jurisdiction requires o Contract of employment created in CO o Employment in Colorado under a K created outside the state o Substantial employment in CO Concepts of Compensability Terms "arising out of" and "in the course and scope of employment" have separate and distinct meanings o Arising out of - deals with proximate causal connection between the work and the injury o Course of employment - deals with the time, place and circumstances of the injury Another test for compensability is the "positional risk" doctrine o Conditions and obligations of employment place the employee in a position where injury is incurred, this is the "but for" test Injuries at work caused by "neutral forces" - neither work related nor personal are compensable Just because someone is injured does not mean that the person sustained a compensable injury Dual Purpose doctrine - injury sustained while an employee is performing an act for the mutual benefit of the employee and the employer is compensable The "personal comfort" doctrine - employees engaged in acts of personal comfort on the job do not leave the course of employment The "Going To and Coming From" Rule Ordinarily, an injury while traveling to and from work is not compensable There are many exceptions to the "going to and coming from" rule Exception to Going To and Coming From Rule


Travel during work hours Travel occurs on the employer's premises Obligations or conditions of employment create a "special zone of danger" resulting in the injury Traveling is part of service the employee provided the employer Transporting the employer's supplies Performing a service requested by the employer Undertaking an action with concurrent business and personal purposes (Dual Purpose Doctrine) Accepting transportation offered by the employer Traveling between job assignments Reimbursement for the employee's cost of commuting (can bring auto accident for reimbursement of mileage) Being on "travel status" while working out of town

Deviations from Travel Status In most situations an employee away from home on a business trip in under continuous coverage A clearly identifiable deviation, however, from the business trip for personal reasons may remove the employee from coverage Lunch on the employer's premises is covered. Lunch off the premises is not covered. 5 part test for analyzing factors to determine coverage for recreational activities Extent the employer benefitted from the activity, beyond better employee morale Extent to which recreational activity represented remuneration for employment Whether the activity created a special danger Whether the activity was an inducement for employment Whether the activity was contemplated by the employer and employee at the time of hiring Worker's compensation is a no fault system with one exception - at fault termination If worker gets himself fired through own volitional act, the right to continued indemnity benefits ceases Test for whether initiation or participation in horseplay constitutes a deviation from employment is Extent and seriousness of horseplay Horseplay comingled with the performance of a duty Extend did the horseplay become an accepted practice Extent can the nature of the employment be expected to include some horseplay

PUBLIC ASSISTANCE HEARINGS Food Stamps/Intentional Program Violations (IPV)/Fraud Definition o Intentionally making a false or misleading statement or misrepresentation, concealed or withheld facts, or o Committing any act that constitutes a violation of the Food Stamp Act (FSA) or any state statute relating to the use, presentation, transfer, acquisition, receipt or possession of food stamps Criteria for Determining IPV Clear and Convincing Evidence Household members committed or intended to commit an IPV Sanctions 1st Violation 12 month disqualification 2nd Violation 24 month disqualification Individuals who receive multiple benefits due to misrepresenting their identity or residence shall be ineligible for a 10 year period Food Stamp and IPV Code of Regulations Initial decisions shall not be implemented pending review by the Office of Appeals (Dept. of Human Services) and the entry of final agency decision Household shall be allowed to request a local dispute resolution conference or state level fair hearing (before an ALJ( on any Notice of Adverse Agency which occurred in the prior 90 calendar days Prior to taking action to deny, terminate, reduce or recover food stamp benefits, the food stamp office at minimum shall provide the household an opportunity for local dispute resolution conference This conference held at county department by a person not directly involved in the initial determination in question.


Conference is informal Person presiding at the local dispute resolution conference shall issue a written decision explaining the applicant or recipients right to request a state level fair hearing before an ALJ Weaver v. Colorado Department of Social Services Court determined that notice failed to provide recipient accurate information as to the applicable regulations o The point system had never been adopted as a formal regulation Citing Goldberg v. Kelly petitioner was initially determined to be eligible for benefits, his right to continued receipt was similar to a property right for purposes of application of due process clause of the Fourteenth Amendment A fair hearing before benefits can be denied Written notice must set forth the reasons for the intended action and a statement of the specific regulations that support the action After Weaver HCPF adopted regulations governing the point system Moczygemba v. Colorado Department of Health Care Policy and Financing (HCPF) The test is in imminent need of nursing home placement if no HCBS benefits are provided. If applicant does not automatically qualify, second reviewer assesses the application. If applicant is denied admission to HCBS, nurse reviewer may conduct an on-site evaluation of applicant. Thereafter, a physician reviews the matter. If applicant determined ineligible may request a hearing by an ALJ ALJ used an imminent risk of deterioration standard CRSA 26-6-106 - The administrative law judge may conduct hearings on appeals from decisions of county departments brought by recipients of and applicants for public assistance and welfare which are required by law in order for the state to qualify for federal funds, and may conduct other hearings for the state department. Notice of any such hearing shall be served at least ten days prior to such hearing. EFFECTIVE HEARING TECHNIQUES Find out all you can about specific ALJ (likes and dislikes) Map out closing argument at the beginning and try to deliver on all points Clarify burdens of proof at the beginning The Board generally goes first Object sparingly. The ALJ is searching for the whole truth. Prepare, not coach, your witnesses to be friendly to all Organize your exhibits by correct numbering or lettering scheme. Make extra copies. Organize the order of your witnesses. Start and end with a bang. Opening statement is a set of promises concerning what your case will prove. It is NOT a closing argument about the law. Cross examination never ask a question you dont know the answer to. Do not be afraid to say No Questions, if the other side witness has not hurt your case Never ask one question too many If you are defending, dont forget to move to dismiss when opponent has rested, if it has looked like opponent hasnt proven case Be ready to appeal if you do not prevail at trial JUDICIAL INDEPENDENCE & ACCOUNTABILITY OF ALJs Exceptions to Separation of Functions Initial license applications Rates, facilities or practices of utilities or common carriers To agency itself or a member of the body that must administer the program and sign-off on FAA While exception is controversial, APA scholars agree that investigators should not communicate with an agency body member about the specific subject matter which will be subject of FAA Need for Judicial/Decisional Independence Judge shall uphold and promote the independence, integrity and impartiality of the judiciary Rehnquist an independent judiciary is the crown jewel of our democracy ALJ must deal with accommodating legitimate agency objectives without compromising judicial independence Job Security bedrock of judicial independence Structural Independence -