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AGLO 1981 No. 20 - July 24, 1981
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF EMPLOYMENT SECURITY ‑- ADMINISTRATIVE LAW ‑- HEARINGS EXAMINERS ‑- TRANSFER OF EMPLOYMENT SECURITY HEARINGS EXAMINERS TO OFFICE OF ADMINISTRATIVE HEARINGS

The provisions of chapter 67, Laws of 1981 (Substitute House Bill 101) require that such hearings examiners as are employed by the Employment Security Department's Appeal Tribunal be transferred to the Office of Administrative Hearings on July 1, 1982.

                                                                   - - - - - - - - - - - - -

                                                                    July 24, 1981

Honorable Norwood Brooks
Commissioner
Employment Security Department
Employment Security Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1981 No. 20

Dear Mr. Brooks:

            By recent letter you asked our opinion on a question which we paraphrase as follows:

            Do the provisions of chapter 67, Laws of 1981 (Substitute House Bill 101) require that such hearings examiners as are employed by the Employment Security Department's Appeal Tribunal be transferred to the Office of Administrative Hearings on July 1, 1982?

            We answer your question in the affirmative for the reasons set forth below.

                                                                     ANALYSIS

            By its enactment of chapter 67, Laws of 1981, the legislature created an Office of Administrative Hearings.   [[Orig. Op. Page 2]]  Independent of other state administrative agencies, it is to be responsible for the impartial administration of administrative hearings conducted by certain of those other agencies.  See, § 1.  And, under § 9 of the act, as of July 1, 1982:1/

            "(1) All state employees who have exclusively or principally conducted or presided over hearings for state agencies prior to July 1, 1982, shall be transferred to the office.

            "(2) All state employees who have exclusively or principally served as support staff for those employees transferred under subsection (1) of this section shall be transferred to the office.

            ". . ."

            A "hearing" is defined in § 2 of the act as follows:

            "(3) 'Hearing' means a 'contested case' within the meaning of RCW 34.04.010(3) conducted by a state agency."

            And the term "contested case" is defined by RCW 34.04.010(3) to mean, in pertinent part:

            ". . . a proceeding before an agency in which an opportunity for a hearing before such agency is required by law or constitutional right prior or subsequent to the determination by the agency of the legal rights, duties, or privileges of specific parties . . ."

            Also to be noted is § 30 of the act.  It amends the statute, RCW 50.32.010, which now relates to the Department of Employment Security's appeal tribunal to read, in part, as follows:

            "The commissioner shall establish one or more impartial appeal tribunals, each of which shall consist of ((a salaried examiner))  [[Orig. Op. Page 3]] an administrative law judge appointed under chapter 34... RCW (sections 1 through 12 of this 1981 act) who shall decide the issues submitted to the tribunal. . . ."

The plain, unambiguous, language of these provisions of the new law clearly evidences a legislative intent to transfer the appeal tribunal examiners to the Office of Administrative Hearings, effective July 1, 1982.  Section 30,supra, specifically designates the appeal tribunal to consist of an administrative law judge appointed under the act.  And § 9 of the act, supra, directs the transfer of all state employees who have exclusively or principally conducted or presided over Employment Security Department Appeal Tribunal hearings to the Office of Administrative Hearings‑-for it certainly has never been doubted that such hearings are "contested cases" within the meaning of RCW 34.04.010(3), supra.  Indeed, the legislature has assumed that to be the case.  See, RCW 50.32.040, the statute governing procedures in the case of benefit appeals (the vast majority of appeals heard by the appeal tribunal) which provides, in part:

            ". . .

            "In any proceeding before an appeal tribunal involving an individual's right to benefits, all parties shall be afforded an opportunity for hearing after not less than seven days' notice.  This provision supersedes a twenty-day notice provision of RCW 34.04.090 as to such cases.

            ". . ."

            Clearly, if the legislature did not consider benefit appeals to be "contested cases," there would have been no need first to have enacted a provision specifically superseding the notice requirements of hearings conducted pursuant  [[Orig. Op. Page 4]] to the A.P.A.  Furthermore, we understand it has been the longstanding practice of the Employment Security Department to hold all appeal tribunal hearings as if they were "contested cases" under that act.

            You have, however, directed our attention to the very recent case from New Jersey, ofUnemployed-Employed Council of New Jersey, Inc. v. Horn, ___N.J.___, ___A.2d___ (April 22, 1981).  In that case the New Jersey Supreme Court ruled that examiners serving as appeal tribunals for the New Jersey equivalent of the Washington Employment Security Department were not to be transferred to the newly created New Jersey Office of Administrative Law.  In essence, the New Jersey Court held that the appeal tribunals, because they were empowered to hear and decide cases directly, constituted the "head of the agency" and, therefore, were excluded from the Office of Administrative Law under a provision of the New Jersey law which excluded assignment of administrative law judges to hear:

            ". . .

            "Any matter where the head of the agency, a commissioner or several commissioners, are required to conduct, or determine to conduct the hearing directly and individually."2/   There is, however, one critical difference between this New Jersey law and ours.  As above noted, § 30 of our new law expressly amends the preexisting provisions of RCW 50.32.010,supra, so as to specifically make the Employment Security Department appeals tribunal consist of administrative law judges employed by the new Office of Administrative Hearings.  Therefore, it matters not whether the tribunal is considered the "head of the agency."  The legislature has here specifically dealt with the issue in the process of creating the Office of Administrative Hearings, and, consequently, there is no statutory ambiguity or uncertainty.

             [[Orig. Op. Page 5]]

            It is this critical difference between the New Jersey and the Washington statutory patterns which renders the Unemployed-Employed Council of New Jersey case,supra, inapplicable to a resolution to your question.

            And therefore, for the foregoing reasons, we answer your question in the affirmative.  It is our opinion that the provisions of chapter 67, Laws of 1981 (SHB 101)do, indeed, require hearing examiners employed by the Employment Security Department's appeals tribunal3/ to be transferred to the Office of Administrative Hearings on July 1, 1982.

            We trust the foregoing has been of some assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

MATTHEW J. COYLE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The designated effective date of the act, except for §§ 12 and 37, under § 40 thereof.

2/See, N.J.S.A. 52:14F-8.

3/Our opinion is necessarily limited to those appeal tribunal examiners who exclusively or principally preside over or conduct hearings.   Section 9,supra.  Determining which, if any, appeal tribunal examiners fall outside this class is factual in nature and, thus, must be resolved by you on a case‑by-case basis.

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