State of Washington | 63rd Legislature | 2013 Regular Session |
Read first time 01/25/13. Referred to Committee on Government Operations & Elections.
AN ACT Relating to clarifying that service includes electronic distribution of hearing notices and orders in administrative proceedings; and amending RCW 34.05.434, 34.05.461, and 34.05.010.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 34.05.434 and 1988 c 288 s 409 are each amended to
read as follows:
(1) The agency or the office of administrative hearings shall set
the time and place of the hearing and give not less than seven days
advance written notice to all parties and to all persons who have filed
written petitions to intervene in the matter.
(2) The notice shall include:
(a) Unless otherwise ordered by the presiding officer, the names
and mailing addresses of all parties to whom notice is being given and,
if known, the names and addresses of their representatives;
(b) If the agency intends to appear, the mailing address and
telephone number of the office designated to represent the agency in
the proceeding;
(c) The official file or other reference number and the name of the
proceeding;
(d) The name, official title, mailing address, and telephone number
of the presiding officer, if known;
(e) A statement of the time, place and nature of the proceeding;
(f) A statement of the legal authority and jurisdiction under which
the hearing is to be held;
(g) A reference to the particular sections of the statutes and
rules involved;
(h) A short and plain statement of the matters asserted by the
agency; and
(i) A statement that a party who fails to attend or participate in
a hearing or other stage of an adjudicative proceeding may be held in
default in accordance with this chapter.
(3) If the agency is unable to state the matters required by
subsection (2)(h) of this section at the time the notice is served, the
initial notice may be limited to a statement of the issues involved.
If the proceeding is initiated by a person other than the agency, the
initial notice may be limited to the inclusion of a copy of the
initiating document. Thereafter, upon request, a more definite and
detailed statement shall be furnished.
(4) The notice may include any other matters considered desirable
by the agency.
(5) The notice may be served on a party via electronic
distribution, with a party's agreement.
Sec. 2 RCW 34.05.461 and 1995 c 347 s 312 are each amended to
read as follows:
(1) Except as provided in subsection (2) of this section:
(a) If the presiding officer is the agency head or one or more
members of the agency head, the presiding officer may enter an initial
order if further review is available within the agency, or a final
order if further review is not available;
(b) If the presiding officer is a person designated by the agency
to make the final decision and enter the final order, the presiding
officer shall enter a final order; and
(c) If the presiding officer is one or more administrative law
judges, the presiding officer shall enter an initial order.
(2) With respect to agencies exempt from chapter 34.12 RCW or an
institution of higher education, the presiding officer shall transmit
a full and complete record of the proceedings, including such comments
upon demeanor of witnesses as the presiding officer deems relevant, to
each agency official who is to enter a final or initial order after
considering the record and evidence so transmitted.
(3) Initial and final orders shall include a statement of findings
and conclusions, and the reasons and basis therefor, on all the
material issues of fact, law, or discretion presented on the record,
including the remedy or sanction and, if applicable, the action taken
on a petition for a stay of effectiveness. Any findings based
substantially on credibility of evidence or demeanor of witnesses shall
be so identified. Findings set forth in language that is essentially
a repetition or paraphrase of the relevant provision of law shall be
accompanied by a concise and explicit statement of the underlying
evidence of record to support the findings. The order shall also
include a statement of the available procedures and time limits for
seeking reconsideration or other administrative relief. An initial
order shall include a statement of any circumstances under which the
initial order, without further notice, may become a final order.
(4) Findings of fact shall be based exclusively on the evidence of
record in the adjudicative proceeding and on matters officially noticed
in that proceeding. Findings shall be based on the kind of evidence on
which reasonably prudent persons are accustomed to rely in the conduct
of their affairs. Findings may be based on such evidence even if it
would be inadmissible in a civil trial. However, the presiding officer
shall not base a finding exclusively on such inadmissible evidence
unless the presiding officer determines that doing so would not unduly
abridge the parties' opportunities to confront witnesses and rebut
evidence. The basis for this determination shall appear in the order.
(5) Where it bears on the issues presented, the agency's
experience, technical competency, and specialized knowledge may be used
in the evaluation of evidence.
(6) If a person serving or designated to serve as presiding officer
becomes unavailable for any reason before entry of the order, a
substitute presiding officer shall be appointed as provided in RCW
34.05.425. The substitute presiding officer shall use any existing
record and may conduct any further proceedings appropriate in the
interests of justice.
(7) The presiding officer may allow the parties a designated time
after conclusion of the hearing for the submission of memos, briefs, or
proposed findings.
(8)(a) Except as otherwise provided in (b) of this subsection,
initial or final orders shall be served in writing within ninety days
after conclusion of the hearing or after submission of memos, briefs,
or proposed findings in accordance with subsection (7) of this section
unless this period is waived or extended for good cause shown. The
initial or final order may be served on a party via electronic
distribution, with a party's agreement.
(b) This subsection does not apply to the final order of the
shorelines hearings board on appeal under RCW 90.58.180(3).
(9) The presiding officer shall cause copies of the order to be
served on each party and the agency.
Sec. 3 RCW 34.05.010 and 2011 c 336 s 762 are each amended to
read as follows:
The definitions set forth in this section shall apply throughout
this chapter, unless the context clearly requires otherwise.
(1) "Adjudicative proceeding" means a proceeding before an agency
in which an opportunity for hearing before that agency is required by
statute or constitutional right before or after the entry of an order
by the agency. Adjudicative proceedings also include all cases of
licensing and rate making in which an application for a license or rate
change is denied except as limited by RCW 66.08.150, or a license is
revoked, suspended, or modified, or in which the granting of an
application is contested by a person having standing to contest under
the law.
(2) "Agency" means any state board, commission, department,
institution of higher education, or officer, authorized by law to make
rules or to conduct adjudicative proceedings, except those in the
legislative or judicial branches, the governor, or the attorney general
except to the extent otherwise required by law and any local
governmental entity that may request the appointment of an
administrative law judge under chapter 42.41 RCW.
(3) "Agency action" means licensing, the implementation or
enforcement of a statute, the adoption or application of an agency rule
or order, the imposition of sanctions, or the granting or withholding
of benefits.
Agency action does not include an agency decision regarding (a)
contracting or procurement of goods, services, public works, and the
purchase, lease, or acquisition by any other means, including eminent
domain, of real estate, as well as all activities necessarily related
to those functions, or (b) determinations as to the sufficiency of a
showing of interest filed in support of a representation petition, or
mediation or conciliation of labor disputes or arbitration of labor
disputes under a collective bargaining law or similar statute, or (c)
any sale, lease, contract, or other proprietary decision in the
management of public lands or real property interests, or (d) the
granting of a license, franchise, or permission for the use of
trademarks, symbols, and similar property owned or controlled by the
agency.
(4) "Agency head" means the individual or body of individuals in
whom the ultimate legal authority of the agency is vested by any
provision of law. If the agency head is a body of individuals, a
majority of those individuals constitutes the agency head.
(5) "Entry" of an order means the signing of the order by all
persons who are to sign the order, as an official act indicating that
the order is to be effective.
(6) "Filing" of a document that is required to be filed with an
agency means delivery of the document to a place designated by the
agency by rule for receipt of official documents, or in the absence of
such designation, at the office of the agency head.
(7) "Institutions of higher education" are the University of
Washington, Washington State University, Central Washington University,
Eastern Washington University, Western Washington University, The
Evergreen State College, the various community colleges, and the
governing boards of each of the above, and the various colleges,
divisions, departments, or offices authorized by the governing board of
the institution involved to act for the institution, all of which are
sometimes referred to in this chapter as "institutions."
(8) "Interpretive statement" means a written expression of the
opinion of an agency, entitled an interpretive statement by the agency
head or its designee, as to the meaning of a statute or other provision
of law, of a court decision, or of an agency order.
(9)(a) "License" means a franchise, permit, certification,
approval, registration, charter, or similar form of authorization
required by law, but does not include (i) a license required solely for
revenue purposes, or (ii) a certification of an exclusive bargaining
representative, or similar status, under a collective bargaining law or
similar statute, or (iii) a license, franchise, or permission for use
of trademarks, symbols, and similar property owned or controlled by the
agency.
(b) "Licensing" includes the agency process respecting the
issuance, denial, revocation, suspension, or modification of a license.
(10) "Mail" or "send," for purposes of any notice relating to rule
making or policy or interpretive statements, means regular mail or
electronic distribution, as provided in RCW 34.05.260. "Electronic
distribution" or "electronically" means distribution by electronic mail
or facsimile mail.
(11)(a) "Order," without further qualification, means a written
statement of particular applicability that finally determines the legal
rights, duties, privileges, immunities, or other legal interests of a
specific person or persons.
(b) "Order of adoption" means the official written statement by
which an agency adopts, amends, or repeals a rule.
(12) "Party to agency proceedings," or "party" in a context so
indicating, means:
(a) A person to whom the agency action is specifically directed; or
(b) A person named as a party to the agency proceeding or allowed
to intervene or participate as a party in the agency proceeding.
(13) "Party to judicial review or civil enforcement proceedings,"
or "party" in a context so indicating, means:
(a) A person who files a petition for a judicial review or civil
enforcement proceeding; or
(b) A person named as a party in a judicial review or civil
enforcement proceeding, or allowed to participate as a party in a
judicial review or civil enforcement proceeding.
(14) "Person" means any individual, partnership, corporation,
association, governmental subdivision or unit thereof, or public or
private organization or entity of any character, and includes another
agency.
(15) "Policy statement" means a written description of the current
approach of an agency, entitled a policy statement by the agency head
or its designee, to implementation of a statute or other provision of
law, of a court decision, or of an agency order, including where
appropriate the agency's current practice, procedure, or method of
action based upon that approach.
(16) "Rule" means any agency order, directive, or regulation of
general applicability (a) the violation of which subjects a person to
a penalty or administrative sanction; (b) which establishes, alters, or
revokes any procedure, practice, or requirement relating to agency
hearings; (c) which establishes, alters, or revokes any qualification
or requirement relating to the enjoyment of benefits or privileges
conferred by law; (d) which establishes, alters, or revokes any
qualifications or standards for the issuance, suspension, or revocation
of licenses to pursue any commercial activity, trade, or profession; or
(e) which establishes, alters, or revokes any mandatory standards for
any product or material which must be met before distribution or sale.
The term includes the amendment or repeal of a prior rule, but does not
include (i) statements concerning only the internal management of an
agency and not affecting private rights or procedures available to the
public, (ii) declaratory rulings issued pursuant to RCW 34.05.240,
(iii) traffic restrictions for motor vehicles, bicyclists, and
pedestrians established by the secretary of transportation or his or
her designee where notice of such restrictions is given by official
traffic control devices, or (iv) rules of institutions of higher
education involving standards of admission, academic advancement,
academic credit, graduation and the granting of degrees, employment
relationships, or fiscal processes.
(17) "Rules review committee" or "committee" means the joint
administrative rules review committee created pursuant to RCW 34.05.610
for the purpose of selectively reviewing existing and proposed rules of
state agencies.
(18) "Rule making" means the process for formulation and adoption
of a rule.
(19) "Service," except as otherwise provided in this chapter, means
posting in the United States mail, properly addressed, postage prepaid,
or personal or electronic service. Service by mail is complete upon
deposit in the United States mail. Agencies may, by rule, authorize
service by electronic ((telefacsimile)) transmission, ((where copies
are mailed simultaneously,)) or by commercial parcel delivery company.