§ 4-21.5-3-9 — Ultimate authority; acting as or designating an administrative judge; qualifications; disqualification; procedures

Indiana § 4-21.5-3-9

• Jurisdiction: Indiana
• Art. 21.5: ADMINISTRATIVE ORDERS AND
• Ch. 3: Adjudicative Proceedings

Text

(a) Except to the extent that a statute other
than this article limits an agency's discretion to select an administrative
law judge, the ultimate authority may:
(1) act as an administrative law judge;
(2) designate one (1) or more members of the ultimate authority
(if the ultimate authority is a panel of individuals) to act as an
administrative law judge; or
(3) before July 1, 2020, designate one (1) or more:
(A) attorneys licensed to practice law in Indiana; or
(B) persons who served as administrative law judges for a state
agency before January 1, 2014;
to act as an administrative law judge. After June 30, 2020, the
ultimate authority may request assignment of an administrative
law judge by the office of administrative law proceedings.
A person designated under subdivision (3) is not required to be an
employee of the agency. A designation under subdivision (2) or (3)
may be made in advance of the commencement of any particular
proceeding for a generally described class of proceedings or may be
made for a particular proceeding. A general designation may provide
procedures for the assignment of designated individuals to particular
proceedings.
(b) If the case involves:
(1) adjudication of:
(A) air pollution control laws (as defined in IC 13-11-2-6);
(B) water pollution control laws (as defined in IC 13-11-2-261);
(C) environmental management laws (as defined in IC 13-11-2-71); or
(D) solid waste and hazardous waste management laws under
IC 13-19;
(2) rules of a board described in IC 13-14-9-1;
(3) the financial assurance board created by IC 13-23-11-1; or
(4) any agency action of the department of environmental
management;
the administrative law judge assigned by the office of administrative
law proceedings must meet the requirements listed under subsection
(c).
(c) An administrative law judge assigned under subsection (b) must:
(1) be a citizen of Indiana;
(2) be an attorney in good standing admitted to practice in
Indiana;
(3) have at least five (5) years of experience practicing
environmental or administrative law;
(4) be independent of the agency;
(5) meet the qualifications specific to environmental law as
determined by the office of administrative law proceedings'
training program; and
(6) be one (1) of three (3) administrative law judges in the office
of administrative law proceedings designated to hear
environmental matters.
(d) A person may not knowingly assign an individual to serve alone
or with others as an administrative law judge who is subject to
disqualification under this chapter.
(e) If the administrative law judge assigned to the proceeding
believes that the judge's impartiality might reasonably be questioned,
or believes that the judge's personal bias, prejudice, or knowledge of a
disputed evidentiary fact might influence the decision, the
administrative law judge shall:
(1) withdraw as the administrative law judge; or
(2) inform the parties of the potential basis for disqualification,
place a brief statement of this basis on the record of the
proceeding, and allow the parties an opportunity to petition for
disqualification under subsection (f).
(f) Any party to a proceeding may petition for the disqualification
of an administrative law judge upon discovering facts establishing
grounds for disqualification under this chapter. The administrative law
judge assigned to the proceeding shall determine whether to grant the
petition, stating facts and reasons for the determination.
(g) If the administrative law judge ruling on the disqualification
issue is not the ultimate authority, the party petitioning for
disqualification may petition the ultimate authority, or, if the
administrative law judge is employed or contracted with the office of
administrative law proceedings, the director of the office of
administrative law proceedings, in writing for review of the ruling
within ten (10) days after notice of the ruling is served. The ultimate
authority shall:
(1) conduct proceedings described by section 28 of this chapter;
or
(2) request that the director of the office of administrative law
proceedings conduct proceedings described by section 28 of this
chapter;
to review the petition and affirm, modify, or dissolve the ruling within
thirty (30) days after the petition is filed. A determination by the
ultimate authority or the director of the office of administrative law
proceedings under this subsection is a final order subject to judicial
review under IC 4-21.5-5.
(h) If a substitute is required for an administrative law judge who is
disqualified or becomes unavailable for any other reason, the substitute
must be appointed in accordance with subsection (a).
(i) Any action taken by a duly appointed substitute for a disqualified
or unavailable administrative law judge is as effective as if taken by the
latter.
(j) If there is a reasonable likelihood that the ultimate authority will
be called upon to:
(1) review; or
(2) issue a final order with respect to;
a matter pending before or adjudicated by an administrative law judge,
the provisions of section 11 of this chapter that apply to an
administrative law judge or to a person communicating with an
administrative law judge apply to a member of the ultimate authority
and to a person communicating with a member of the ultimate
authority.

Legislative History

As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.7; P.L.72-2014, SEC.4; P.L.205-2019, SEC.9; P.L.13-2021, SEC.2; P.L.128-2024, SEC.6.